Vaughan v. St. Louis & San Francisco Railroad Company
| Decision Date | 16 February 1914 |
| Citation | 164 S.W. 144,177 Mo.App. 155 |
| Parties | DAISY VAUGHAN, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Cowherd Ingraham, Durham & Morse and W. F. Evans for appellant.
(1) The plaintiff's right to recover, being necessarily based on the Federal Employers' Liability Act, the petition fails to state a cause of action, and plaintiff is not entitled to recover on the whole record. Defendant was engaged in interstate commerce and plaintiff's husband was employed in such commerce. Hanley v. Railroad, 187 U.S. 617. (2) Defendant's liability must therefore be determined by the Act of Congress of April 22, 1908, commonly called the Federal Employers' Liability Act. 35 Statutes at Large 65, chap. 149; Second Employers' Liability Cases, 223 U.S. 1; Railroad v. Vreeland, 227 U.S. 59. (3) Since under this act suit must be brought by the personal representative, the plaintiff who has brought suit as widow has failed both to state and to establish a cause of action. Railroad v. Birch, 224 U.S. 547; Railroad v Seale, 229 U.S. 156; Troxell v. Railroad, 227 U.S. 434; Railroad v. Wulf, 226 U.S. 570.
Botsford, Deatherage & Creason for respondent.
(1) The point that plaintiff did not have the capacity to sue as the widow not having been made in the pleadings or at the trial or in the motion for a new trial, comes too late to raise it after the filing of that motion. The point is as to the capacity to sue and does not raise the point of the statement and proof of a cause of action, as to which both the petition and proof are sufficient. Railroad v. Wulf, 192 F. 919; United States R. S., sec. 914; Stewart v. Railroad, 168 U.S. 445; R. S. 1909, secs. 1800, 1804, 2119. (2) Defendant was engaged in intrastate commerce and therefore it was a Kansas cause of action. Railroad v. Pa., 145 U.S. 192. (3) But even if the Employers' Liability Act applies and if the point had been made seasonably, it is not well taken. Stewart v. Railroad, 168 U.S. 445, and cases reviewed; Railroad v. Wulf, 192 F. 919; Railroad v. Wulf, 226 U.S. 570; Railroad v. Didricksen, 227 U.S. 145; R. S. 1909, secs. 1729, 1730, 2119, 1850; Jones v. Railroad, 178 Mo. 528. (4) Plaintiff below, respondent here, had the right to amend after judgment by bringing herself into the case as administratrix and adopting her proceedings, as widow. R. S. U.S. sec. 954; R. S. 1909, secs. 2120, 1851. (5) The statements of Lee Vaughan made immediately after his mortal injuries and at that very place, as to how the accident occurred, were res gestae. Jewell v. Powder Co., 166 Mo.App. 556; Brownell v. Railroad, 47 Mo. 244-6; Harriman v. Stowe, 57 Mo. 95; Leahy v. Railroad, 97 Mo. 168-173; State v. Martin, 124 Mo. 524-529; Stockman v. Railroad, 15 Mo.App. 515.
On February 10, 1910, plaintiff, as the widow of Lee Vaughan, deceased, brought suit in the circuit court of Jackson county, Missouri, 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, Missouri, into the State of Kansas; that plaintiff's husband, Lee Vaughan, was in the employ of defendant as head brakeman on a freight train which defendant was operating from Kansas City, Missouri, 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 employees in consequence of the negligence of its agents, and that, in case of the death of an employee, action may be maintained if the employee 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 thirty-five years of age, with an expectancy of life of 31.78 years, and was earning ninety dollars per month, and was plaintiff's sole support, and that plaintiff was twenty-four 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 $ 5000, 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, deceased, by the probate court of Jackson county, Missouri, "where said Lee Vaughan with plaintiff herein had their residence;" that plaintiff, Daisy Vaughan, as such administratrix enters her voluntary appearance in said cause and adopts all the pleadings, steps, proceedings, verdict and judgment had therein as fully as if she had, as such administratrix, instituted said suit; that said plaintiff, Daisy Vaughan, who has hitherto prosecuted said suit as the widow and sole beneficiary thereof, now offers as such administratrix to conduct all further proceedings herein and to collect said judgment when the same shall be satisfied and account for the same to herself as such widow and next of kin and sole beneficiary; and now prays that the motions for new trial and in arrest be overruled.
On December 31, 1912, the plaintiff, Daisy Vaughan, appeared in court as administratrix and requested the court to allow her to enter her appearance as administratrix in accordance with her motion filed September 7th. She offered in evidence before the court the certified copy of the letters of administration granted her and attached to, and referred to in, said motion, and thereupon the court sustained said request and permitted said administratrix to become a party plaintiff. To all of which defendant objected and excepted.
Afterwards, on the same day, the court heard defendant's motion for new trial and sustained the same for the reason that "the cause of action herein is necessarily based upon the Federal Employers' Liability Act, and under the decisions of the Supreme Court of the United States in the 224th United States Report, page 547, plaintiff states no cause of action in herself as widow."
Thereafter, and on the same day, plaintiff filed a motion to set aside the order sustaining defendant's motion for a new trial, and the court, over defendant's objections and exceptions, sustained plaintiff's said motion and set aside the order sustaining defendant's motion for new trial. The court then overruled defendant's motion for a new trial, and defendant appealed.
As may be readily apprehended from the foregoing, one of defendant's contentions is that as deceased was in defendant's employ and engaged in interstate commerce when killed, the cause of action arises under, and is governed exclusively by, the Federal Employers' Liability Act which gives the right of action to the deceased's personal representative and not to his widow; that as the petition was in the name of the plaintiff as widow and stated that no administration was had, the court had no power, over defendant's objection, to render judgment in the case.
The language of the first section of the Federal Employers' Liability Act makes it apply to "every common carrier by railroad while engaged in commerce between any of the several States." [35 U.S. Stats. at Large, 65, chap. 149.] Defendant undoubtedly came within those terms; and as the deceased at the time of his injury was a brakeman helping to move an interstate train, he was killed while employed by such carrier and engaged in such commerce. [Hanley v. Kansas City Southern Ry., 187 U.S. 617, 47 L.Ed. 333, 23 S.Ct. 214, l. c. 620 and 621.]
The subject of the liability of employers, engaged in interstate commerce, for injuries received by their employees while engaged in such commerce, fell within the police power of the States in the absence of action thereon by Congress. So that prior to the passage of the above act, State laws governed. But Congress, in passing the above named statute, has acted upon that subject and consequently "the laws of the States, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is." [Second Employers' Liability Cases, 223 U.S. 1, 56 L.Ed. 327, 32 S.Ct. 169, l. c. 55.] Defendant's liability in this case, therefore, and the cause of action, if any, accruing by virtue of the facts herein, are...
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