Vaughan v. St. Louis & S. F. R. Co.

• Decision Date: 16 February 1914
• Citation: 164 S.W. 144,177 Mo. App. 155
• Parties: VAUGHAN v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

164 S.W. 144

177 Mo. App. 155

VAUGHAN v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

February 16, 1914.

1. COMMERCE (§ 27) — FEDERAL EMPLOYERS' LIABILITY ACT—DEATH OF BRAKEMAN—"INTERSTATE COMMERCE."

A brakeman, killed while helping move an interstate train, was engaged in "interstate commerce" within the first section of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

2. COMMERCE (§ 8)—FEDERAL EMPLOYERS' LIABILITY ACT—EFFECT ON STATE LAWS.

State laws, in so far as they cover the same field as that covered by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), are superseded, so that a cause of action for death given by that act is governed entirely by it, and not by state law.

3. DEATH (§ 31)—RIGHT OF ACTION—PERSON ENTITLED TO SUE—FEDERAL EMPLOYERS' LIABILITY ACT.

Under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), giving a right of action for death to the personal representative, such representative alone can sue, and an action cannot be maintained by the widow of the decedent as such, though there are no heirs or other persons entitled to any of the benefits.

4. COMMERCE (§ 8)—EXCLUSIVENESS OF FEDERAL LAWS—EMPLOYERS' LIABILITY ACT.

Where a widow sued under the law of Kansas for the death of her husband while helping move an interstate train, the court was without authority to render any judgment whatever, the case being governed by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), and the judgment could not be held valid as being supported by pleading and proof sufficient as to the cause of action.

5. COMMERCE (§ 8)—EXCLUSIVENESS OF FEDERAL LAWS—WAIVER OF OBJECTION.

Where a widow sued under a state law for the death of her husband while engaged in interstate commerce, there was no waiver of the objection that the right of action was covered by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), requiring suit to be by the personal representative, where no waiver was pleaded and defendant demurred to the evidence, and stated in his motion for new trial that the court erred in overruling said demurrer, and stated in his motion in arrest that the petition did not state a cause of action.

6. COMMERCE (§ 8)—EXCLUSIVENESS OF FEDERAL LAWS—WAIVER OF OBJECTION.

In an action by a widow under a state law for the death of her husband while engaged in interstate commerce, defendant, by pleading contributory negligence and assumption of risk, did not adopt the theory that the case was governed solely by the state law rather than the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]); that act not eliminating such defenses entirely, except where a violation of the statute enacted for the safety of employés caused or contributed to the death.

7. COMMERCE (§ 8)—EXCLUSIVENESS OF FEDERAL LAWS — PROCEEDING UNDER STATE LAWS—CURE OF DEFECT.

Where a widow brought an action under a state law for the death of her husband while engaged in interstate commerce, and after judgment in her favor filed an "entry of appearance," reciting her appointment as administratrix, adopting the proceedings in her behalf, and personally appeared and asked to be allowed to enter her appearance as administratrix, offering proof of the letters of administration, the error in suing in her individual capacity was not cured; the judgment being without authority of law.

8. COMMERCE (§ 8)—EXCLUSIVENESS OF FEDERAL LAWS—CURE OF DEFECT.

The defendant was entitled to an opportunity to controvert before a jury the fact of her appointment as administratrix, so that the appearance by her as administratrix and adoption of the proceedings in her behalf was not merely a "mode of procedure," but was a substantive right controlled by the federal act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

9. DEATH (§ 44)—PERSON ENTITLED TO SUE— CURE OF DEFECT.

Though considered as purely a matter of state procedure, the administratrix could not be allowed to adopt the judgment after it had been rendered in favor of the widow, who, under the federal act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), was not entitled to it.

10. DEATH (§ 44)—ACTION BY WIDOW—SUBSEQUENT APPEARANCE AS ADMINISTRATRIX.

Where a widow sued under a state law for the death of her husband occurring in interstate commerce, when in fact the right of action was controlled by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), giving the personal representative alone the right to sue, and after judgment in her favor she entered appearance as administratrix and moved to be allowed to adopt the proceedings in her behalf, the court might have granted her motion to be made a party, and sustained defendant's motion for a new trial.

11. ACTION (§ 1)—"CAUSE OF ACTION"—NATURE—"RIGHT TO A JUDGMENT."

There seems to be a distinction between a "cause of action" and a plaintiff's "right to a judgment." Sometimes the phrase "no cause of action" is used in the sense that plaintiff has "no right to a judgment," and in such case it is not meant that the petition states no cause of action, but only that on the facts stated plaintiff cannot recover.

12. EVIDENCE (§ 125)—"RES GESTÆ."

To make a declaration of a person injured admissible as "res gestæ," it must be made under such circumstances as to show that it was not a mere narration of a past event, but was connected with the cause of the accident as to form a part of the entire transaction and to grow out of it spontaneously, precluding the idea that it was the result of design; and, while it must be contemporaneous with the main fact, it need not be precisely concurrent.

13. EVIDENCE (§ 126)—RES GESTÆ.

A statement by an injured person, made shortly after the accident and to the first who came to his aid, made under the natural and spontaneous impulse to tell the cause of the accident without thought of its effect or time to form a design, would be part of the res gestæ, while another and second statement, made 20 minutes or more later, would be a mere narration of what had happened, and would be hearsay.

14. MASTER AND SERVANT (§ 278)—INJURY TO BRAKEMAN—NEGLIGENCE OF MASTER—SUFFICIENCY OF EVIDENCE.

Evidence of an engineer's method of operating a train held sufficient to show negligence resulting in injury to a brakeman.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Daisy Vaughan against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff; defendant appeals. Reversed and remanded for new trial.

W. F. Evans, of St. Louis, and Cowherd, Ingraham, Durham & Morse, of Kansas City, for appellant. Botsford, Deatherage & Creason, of Kansas City, for respondent.

TRIMBLE, J.

On February 10, 1910, plaintiff, as the widow of Lee Vaughan, deceased, brought suit in the circuit court of Jackson county, Mo., to recover $10,000 damages for the death of her husband, which occurred on February 12, 1909, and was alleged to have been caused by the negligence of defendant. The amended petition stated that defendant owned a railway extending from Kansas City, Mo., into the state of Kansas; that plaintiff's husband, Lee Vaughan, was in the employ of defendant as head breakman on a freight train which defendant was operating from Kansas City, Mo., into the state of Kansas; that both plaintiff and her husband were residents of Missouri; that her said husband was, while employed as such brakeman on said freight train, killed in the state of Kansas by certain specified acts of negligence on the part of defendant and the engineer of said train; that the statutes of Kansas, which were duly pleaded, provide that every railroad shall be liable for damages to employés in consequence of the negligence of its agents, and that, in case of the death of an employé, action may be maintained if the employé might have maintained an action had he lived, and that in all cases where the residence of the party whose death has been caused is in another state, or when, being a resident, no personal representative has been appointed, the action may be brought by the widow. The petition further stated that Lee Vaughan at the time of his death was a strong, healthy man 35 years of age, with an expectancy of life of 31.78 years, and was earning $90 per month, and was plaintiff's sole support, and that plaintiff was 24 years old at the time she lost her husband, and had an expectancy of 39.49 years; that there were no children born of their marriage, and that said Lee Vaughan died without issue. The petition contained this further allegation: "That there was and has been no administration upon the estate of plaintiff's said husband, Lee Vaughan, and that no personal representative has been, or now is, appointed for the said Lee Vaughan, deceased, or for his estate." The answer contained a general denial, and pleaded contributory negligence and assumption of risk. The case was tried, and on November 22, 1911, a jury returned a verdict for plaintiff in the sum of $5,000, on which judgment was rendered. Motions for new trial and in arrest were filed, and the case was continued on the motions. On September 7, 1912, while said motions were still pending and undisposed of, plaintiff filed in said case a paper entitled "Entry of Appearance of Plaintiff as Administratrix of Her Deceased Husband, Lee Vaughan, and Adoption of Proceedings in Her Behalf Herein." In this paper it was stated that on August 27, 1912, Daisy Vaughan, the plaintiff, was duly appointed administratrix of the estate of Lee Vaughan...