Voris v. Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 05 May 1913
• Citation: 157 S.W. 835,172 Mo.App. 125
• Parties: D. E. VORIS, Admr., Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

157 S.W. 835

172 Mo.App. 125

D. E. VORIS, Admr., Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1913

Appeal from Livingston Circuit Court.--Hon. Arch. B. Davis, Judge.

Judgment affirmed.

Fred S Hudson for appellant.

(1) The law of Missouri does not authorize a foreign administrator to take charge of and administer the estate of a resident and thereby defeat claims and debts residents of Missouri may have against the estate. Miller v. Hoover, 121 Mo.App. 574. (2) In Missouri damages recovered in a case of this sort are subject to the payment of intestate's debts. In Iowa they constitute a trust fund for certain beneficiaries. Tiffiny on Death by Wrongful Act, sec. 40. (3) Nor could plaintiff have brought himself within the rule by taking out ancillary letters of administration in Livingston county. 18 Cyc. 1222; 11 Cyc. 689; Sec. 12, R. S. 1909; Sec 18, R. S. 1909; Aley v. Railroad, 211 Mo. 474. (4) Under the Constitution of Missouri plaintiff cannot maintain this suit, nor can the Legislature enact a law in this State giving authority to so do. Constitution of Missouri, art. 6 sec. 34; State ex inf. v. Equitable Loan Co., 142 Mo. 325; Vail v. Dinning, 44 Mo. 210; Railway v. Gildersleeve, 219 Mo. 170; Slaats v. Railroad, 129 N.W. 63; Foley v. Railroad, 64 Iowa 644; Schroeder v. Railroad Co., 41 Iowa 344; Potter v. Railroad, 46 Iowa 399; Smith v. Railroad, 59 Iowa 73; Malone v. Railroad, 65 Iowa 417. (5) It was the duty of deceased, Jones, to keep a lookout, as under the Iowa law and decisions the public cannot gain the right to travel up and down the track. Their courts draw a sharp distinction between the right of crossing the track by user and the right to go lengthwise of the track. Richards v. Railroad, 81 Iowa 426; Thomas v. Railroad, 103 Iowa 649; Wagner v. Railroad, 122 Iowa 360; Booth v. Railroad, 126 Iowa 8. (6) Jones's actions contributed to his death, and under all the circumstances and evidence in this case he cannot recover. Slaats v. Railroad, 129 N.W. 63.

Frank W. Ashby and Scott J. Miller for respondent.

(1) Plaintiff, as administrator regularly appointed by the State of Iowa, can sue the defendant railroad company anywhere in Missouri where it has a station agent. Sec. 1737, R. S. 1909; Lessenden v. Railroad, 238 Mo. 259; State ex rel. v. Grimm, 239 Mo. 179; Sec. 225, Iowa Code 1897. (2) Damage accruing from a wrongful act, under the Iowa law, is to be disposed of as personal property belonging to the estate of the deceased, and an administration must be taken out thereon. Sec. 3313, Iowa Code 1897. (3) It was the duty of the railroad's engineer to keep a lookout for Jones, the deceased, for the reason that Jones was where the company put him, and was not a trespasser and was on the part of the track in his regular work where he was supposed to be. Ferrell v. Railroad, 123 Iowa 692; Purcell v. Railroad, 117 Iowa 67; Donaldson v. Railroad, 18 Iowa 288.

OPINION

ELLISON, P. J.

--Plaintiff was appointed by the probate court of Linn county, Iowa, administrator of the estate of Harvey Jones, a resident of Missouri, but who was killed in Iowa by being run over by one of defendant's engines. As such foreign appointed administrator he brought this action in this State for damages arising from the death of his intestate, and recovered judgment in the trial court.

Deceased was employed by defendant as a carpenter and at the time of his death was engaged in building a coal chute. His work was in the railway yards, about six hundred feet from cars in which he "bunked" and kept his "personal belongings." He left his work for the car to get his coat, and, as the evidence tends to show, some tools, and in returning walked along the track and was approached from behind and run over and killed by an engine in charge of one of defendant's engineers. Defendant says that he was riding on the pilot of the engine and fell off, but we must accept as the fact that which any evidence for plaintiff tends to prove. In view of such consideration we need not consider defendant's contention that deceased had no right to be on the engine and that it was not liable, because he was killed at a place he ought not to have put himself.

Plaintiff bases his cause of action under the law of Iowa, and defendant contends that that law (Sec. 225, Iowa Code, 1897) only authorizes the appointment of an administrator for a nonresident who dies leaving personal property in that State. That section declares that administration may be granted on the estates of nonresidents "who die leaving property within the county subject to administration." We decided in Williams v. Railroad, 169 Mo.App. 468, that a cause of action for damages for the death of the father, was property, and it is admitted that such is the law. But it is said that because the cause of action accrued in Iowa it must be prosecuted there. We are not of that opinion. It is also said that to permit such action is to allow an administrator in Iowa to withdraw the assets of an estate from resident creditors in Missouri where the intestate resided. Both these suggestions were answered against defendant's view in Kelly v. Railroad, 141 Mo.App. 490. The statute of this State permits the foreign administrator to sue: Secs. 1737, 1738, R. S. 1909. The right of action in cases like this is not an asset of the estate. The administrator is authorized to sue for the damages, not for the estate but for the parties entitled to the judgment. He is a trustee.

On the merits of the case we have to consider whether under the statute of Iowa and the decisions of the Supreme Court of that State construing it, the evidence brought the case within the terms of the statute. The statute (Sec. 2071, Iowa Code) reads: "Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employees thereof, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers or other employees, when such wrongs are in any maner connected with the use and operation of any railway on or about which they shall be employed. . . ."

There are many decisions of the Supreme Court of that State construing the statute and applying it to a variety of cases. We need not discuss these in detail, for a full review of them will be found in Akeson v. Railway Co., 106 Iowa 54, and Hughes v. Railway Co., 128 Iowa 207. It will be seen from an examination of those cases that the question involved is divisible into two parts: One having reference to the negligent agency which inflicts the injury and the other, the victim of such act. As to the agency inflicting the injury, it need not be the actual moving of engines or cars, though that had been stated in some cases. The agency may be that which "is in any manner connected with the use and operation of the railway." So, as to the victim of the negligence, it had been stated in some cases that to be within the protection of the statute, he must have been employed in connection with the movement or operation of engines or cars. But it is said in the first of these cases (60, 62) that the statute is broader than that; and that it applies if the injury is received by one "whose work exposes him to the hazards of moving trains, cars, engines or machinery...