Union Pac Ry Co v. Wyler

• Decision Date: 20 May 1895
• Docket Number: No. 217,217
• Citation: 39 L.Ed. 983,15 S.Ct. 877,158 U.S. 285
• Parties: UNION PAC. RY. CO. v. WYLER
• Court: U.S. Supreme Court

158 U.S. 285

15 S.Ct. 877

39 L.Ed. 983

UNION PAC. RY. CO.

v WYLER.

No. 217.

May 20, 1895.

On the 25th of September, 1885, Otto Wyler, the defendant in error, sued the Union Pacific Railway Company, plaintiff in error, in the circuit court of Jackson county, state of Missouri, to recover damages for a personal injury. The petition alleged that in April, 1883, and for a long time prior thereto, he was employed by the defendant at Wyandotte, Kan., in repairing locomotives and engines; that at the date stated the corporation had in its employ other men besides himself, among whom was one Charles B. Kline, who at that time 'was wholly incompetent and unfit for the position which he occupied and the work he performed; that said incompetency was wholly unknown to plaintiff at said time, though well known to defendant, and defendant negligently and wrongfully kept and retained said Kline in its employ with full knowledge of his incompetency; that at said time and place plaintiff, at the request of defendant, and in the ordinary course of his employment, was engaged in repairing a fire box in one of defendant's locomotives; that on this particular occasion plaintiff was, at the request of defendant, assisted in said work by said Kline; that plaintiff and said Kline, while so engaged in repairing said fire box of said recomotive, were in the act of lifting and placing in position the fire dump belonging thereto (which was a part of their said business and employment), said dump being made of iron, and of great weight; that while engaged in such business, and without fault on the part of the plaintiff, and through the negligence and mismanagement of defendant in retaining and employing the said Kline, after knowing his incompetency, the said heavy iron dump was carelessly and negligently thrown down, and let fall against the plaintiff,' by reason of which he was injured and damaged to the extent of $25,000, for which judgment was asked.

In October, 1885, the defendant filed a general denial, and on the 16th of November, 1885, removed the cause to the circuit court of the United States for the Western district of Missouri. On the 18th of November, 1886, an amended answer was filed, averring that the plaintiff's injury resulted from his own negligence, and pleading in bar of the action a limitation of two years under the laws of the state of Kansas. On the 3d of November, 1887, the plaintiff replied to the amended answer, denying the charge of negligence, and demurred to the third clause thereof, which pleadd the Kansas statute of limitations. On the 5th of January, 1888, the demurrer to the defendant's answer was submitted to the court. On the 23d of May the defendant amended his answer by inserting in the third clause, which set out the statute of limitations of Kansas, the averment that both parties were residents of that state at the time of the accident, and had continued so up to that date. This amendment was consented to by counsel, on condition that the demurrer which had been filed to the first amended answer should be considered as pleaded against the last answer, and that it be submitted. The court sustained the demurrer to so much of the answer as set up the bar of the Kansas statute.

Thereupon consent was filed that the defendant should withdraw its answer, and be at liberty to demur to the peti- tion. A general demurrer was then filed. This demurrer was sustained, with leave to amend instanter. On October 30, 1888, the plaintiff filed an amended petition, in which he reiterated his original averments, and added thereto the charge that his injury resulted from 'the negligence and mismanagement of the defendant, its agents and employees, and in consequence of the negligence and mismanagement of said Kline.' On the 2d day of November, 1888, by consent of counsel, plaintiff filed a second amended petition. This restated the averments of the first amended petition, except that it eliminated the charge of incompetency on the part of Kline, and the averment of knowledge of such incompetency in the defendant, and rested the cause of action exclusively upon the negligence of Kline, as a fellow servant of the plaintiff, averring that the corporation was liable to plaintiff for injury suffered by him through the negligence of a fellow servant, for the reason that a right of action was given in such case by the law of Kansas, where the accident occurred. The language of the petition is as follows: 'That by reason of the premises [the negligence above stated] the plaintiff had and has a cause of action against the defendant under and by virtue of the law of Kansas in such cases made and provided in section 1, c. 93, Laws Kan. 1874.'

On the 3d of November, 1888, the defendant answered the amended petition—First, by confessing that the plaintiff was in its employ, and admitting the existence of the Kansas statute; secondly, by claiming that the injury suffered was brought about through the plaintiff's own fault; thirdly, by asserting that both parties were citizens of the state of Kansas at the time the accident occurred, and had been so ever since, and hence the right to recover was barred by the limitation of two years created by the Kansas law; and, fourthly, claiming that, as the cause of action alleged in the second amended petition was wholly different from that averred in the original and the first amended petition, the same was barred by a limitation of five years created by the laws of the state of Missouri.

On the 4th of March, 1889, leave was granted to withdraw the foregoing answer, and to file a demurrer. On the next day the parties appeared in open court, and a new amended answer was filed. This averred, in somewhat different phraseology, the defenses already stated, and added a new one, namely, want of jurisdiction. To the third ground of this answer plaintiff demurred, and to the second ground he filed a general denial. His demurrer was sustained on March 6th. On the issues thus made up the case was twice tried, and the jury failed to agree. In September, 1891, the case was tried for the third time, and resulted in a verdict in favor of the plaintiff for $10,000. After motions for new trial and in arrest of judgment had been overruled, the case was brought here by error.

John W. Beebe, John F. Dillon, Harry Hubbard, S. Shellabarger, J. M. Wilson, and A. A. Hoehling, Jr., for plaintiff in error.

Thos. P. Fenlon and W. Hallett Phillips, for defendant in error.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.

It was l aimed at bar that the demurrer filed, instead of being to the last answer, was to the first amended answer, and therefore that it was addressed to the third ground therein set out,—that is to say, the plea of limitation under the Kansas statute; and that the general denial, instead of being addressed to the second ground in the last amended answer, applied to the second ground in the first amended answer, which averred negligence on the part of the plaintiff. The record does not support this contention, although it indicates that the pleader intended that the demurrer and the denial should have that effect, but mistakenly applied them to the last amended answer. The controversy on this point, however, is immaterial in the view of the conclusions which we have reached.

The statute law of Kansas provides as follows:

'Every railroad company organized or doing business in this state shall be liable for all damages done to any employ e of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining damage.' Laws Kan. 1874, c. 93, § 1.

The occurrence for which the plaintiff seeks to recover damages happened in the state of Kansas in April, 1883. The first petition was filed in the state court of Missouri on September 25, 1885; that is to say, two years and five months after the injury. Actions for damages for personal injury, not arising from contract, are barred by the general law of Kansas after a period of two years. Gen. St. Kan. 1868, art. 3, c. 80. The first amended petition was filed October 30, 1888, and the second amended petition November 2, 1888. At least five years and six months, therefore, intervened between the occurrence which caused the damage and the filing of the second amended petition. The statute law of Missouri bars actions on account of personal injury in five years. 2 Rev. St. Mo. 1889, §§ 6773-6775. The question of the operation of the statutes of limitation of Kansas and Missouri, upon the right of action here asserted, lies, therefore, at the very threshold of the case. It is an elementary rule that limitations are governed by the law of the forum, and not by the law of the place where the event happened which gave rise to the suit. This is not denied, but it is argued that the Kansas statute operates in this case as a bar to the action in the court of Missouri, because of circumstances which make the case an exception to this general rule. It is also contended that the five-year limitation of the law of Missouri bars the action, and this proposition is based upon the claim that the second amended petition propounded an entirely new and distinct cause of action.

Before considering the limitation which it is asserted results from the Kansas statute, we will determine whether the action is barred by the law of Missouri, because, if so, it will be unnecessary to decide whether the Kansas statute has an extraterritorial effect. The decision as to the application of the Missouri law involves, first, the ascertainment of whether the amended petition presented a new cause of action. The legal principles by which this question must be solved are those which belong to the law of departure, since the rules which govern this subject afford the true criterion by which to determine the question whether there is a new cause of action in case of an...