Wells v. Davis
| Decision Date | 07 April 1924 |
| Docket Number | 2360 |
| Parties | SUSIE WELLS, Administratrix of Estate of FLOYD WELLS, v. JAMES C. DAVIS, Federal Agent, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.
Affirmed.
W F. Evans and Mann & Mann for appellant.
(1) The deceased when killed was engaged jointly with defendant in interstate commerce. The action for his death is under the Federal Employers' Liability Act. That act being exclusive, plaintiff has a cause of action under it, or none at all. Plaintiff sues in her representative capacity, as she necessarily must under the act, having been appointed as administratrix of the estate of deceased by the Probate Court of Crawford County, Arkansas. Both she and deceased were residents of Arkansas. We have then the situation where a foreign administratrix comes into this State and here brings her suit on a cause of action arising under the laws of the United States -- a right not granted her, as we contend, by the laws of this State. Prior to the Act of 1905, Laws 1905 p. 95, now Sec. 1163, R. S. 1919, a foreign administratrix could not sue in the courts of Missouri. Casey v. Hoover, 197 Mo. 62, 68; Miller v. Hoover, 121 Mo.App. 568; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400, 420; Schueren v. Railroad, 192 S.W. 966. By the amendment of 1905 a foreign administrator was given the right to sue in the courts of Missouri on certain causes of action. Sec. 1163, R. S. 1919. The Federal Employers' Liability Act being an Act of Congress, applying uniformly among all the states, is a law of the United States and not a law "of any (other) state or territory." Section 1163, defining the rights of a foreign administrator to sue in this State on causes of action arising under the laws of another state or territory, by every rule of statutory construction, excludes the right to sue on a cause of action not provided for by the statute. Sec. 7058, R. S. 1919. This statute expressly provides that the words "state" shall not include the United States. Greer v. Railroad Co., 228 S.W. 454; Schueren v. Railroad, 192 S.W. 965. The Federal Employers' Liability Act does nothing more than to confer concurrent jurisdiction on the courts of the several states when the action is "brought in any state court of competent jurisdiction." The act "instead of granting jurisdiction to the state courts, presupposes that they already possessed it." Mondou v. Railroad Co., 223 U.S. 1, 56 L.Ed. 327, 349. Congress can confer the right to a state court of competent jurisdiction to determine actions arising under the act, but cannot confer compulsory jurisdiction on state courts. Loftus v. Penn. Ry. Co., 140 N.E. 94; Walton v. Prior, 276 Ill. 563; Commonwealth v. International Harvester Co., 131 Ky. 551, 115 S.W. 703. (2) The court erred in overruling defendant's demurrer to the evidence. Plaintiff's petition charges negligence in that defendant failed to warn deceased, before moving the engine, by either bell or whistle and in direct violation of the rules of the railway company. However, plaintiff is bound by her trial theory as shown in her Instruction 1, by which she attempted to cover the entire case and direct a verdict upon the finding as set forth therein. The rule, the violation of which the plaintiff complains of as negligence, required only the bell to be rung. Plaintiff submits her case on the common-law negligence of the failure to ring the bell or blow the whistle, and not on the violation of the rule. The alleged violation of the rule cannot be complained of by plaintiff because; first, she is bound by her trial theory wherein she abandoned the violation of the rule as negligence, and submitted the case solely on the question of whether or not there was a breach of the common-law duty to warn by bell or whistle. O'Hara v. Gas Light Co., 244 Mo. 395, 403; White v. Pierce, 213 S.W. 512; Delano v. Roberts, 182 S.W. 773. The violation of the rule was not submitted as negligence. It cannot be assumed merely from the fact that plaintiff offered a rule in evidence that such was a rule of the company, that it was in force and applicable to that situation, or that it was violated. The jury must necessarily find these facts, neither of which were submitted by plaintiff's instruction. (a) The interpretation of the rule by the engineer shows that this rule did not require the bell to be rung where the engine was to be moved only four or five feet; that it was not for the protection of the fireman, and that it did not require the engineer to ring the bell -- that was the fireman's duty. It is the only construction placed on the rule by the evidence, and by it plaintiff is bound. (b) A determination of whether there was a duty resting on the engineer to warn deceased before moving the train must be founded on the solution of the question, whether under the circumstances confronting the engineer at the time he moved the engine, he saw, or had reason to believe that his fireman would be in a place of danger, made so by the movement of the engine. The engineer's testimony, is that it was at the request of the deceased that he moved the engine; that immediately after the request was made he dropped the bar with which he was working, passed the fireman, who moved back against the rail of the main line track to a place of safety, and climbed upon the cab and set the engine in motion immediately. It was less than a minute, according to his rough estimate, from the time the request was made until the engine was set in motion. The fireman had taken the position that would lead any reasonable man to believe that he stood there waiting for the train to be moved before resuming his work. (c) The engineer was warranted in acting upon the presumption that the deceased, having requested the train to be moved, and having taken a position of safety away from the engine, would not suddenly and without any manifestation of such an intention, change his then position of safety into one of danger, before or while the train was being moved. Maginnis v. Railroad, 268 Mo. 667, 675; King v. Railroad, 211 Mo. 1, 13; Dyrcz v. Railroad, 238 Mo. 33, 47; Guyer v. Railroad, 174 Mo. 344, 351; Degonia v. Railroad, 224 Mo. 564, 599. (d) It is not negligence to fail to take precautionary measures to prevent an injury, which if taken would have prevented it, when the injury could not reasonably have been anticipated, and would not have happened except under exceptional circumstances. The conduct of the engineer is to be measured, not by subsequent events, but by the facts and circumstances confronting him at the time he moved the engine. State ex rel. Lusk v. Ellison, 271 Mo. 463, 473; Fuchs v. St. Louis, 167 Mo. 620, 645; American Brewing Assn. v. Talbot, 141 Mo. 674, 683; Zasemowich v. Am. Mfg. Co., 213 S.W. 803. (e) The failure to warn is not, as to one who knows the danger, negligence. Gubernick v. Railroad, 217 S.W. 34; Murray v. Transit Co., 176 Mo. 183, 189; Peterson v. Railway, 270 Mo. 67; Hutchinson v. Railway, 195 Mo. 546; Pope v. Railway, 242 Mo. 232, 238; Woods v. Railway, 187 S.W. 12; Lynch v. Gas Light Co., 223 S.W. 111; Harper v. Terminal Co., 187 Mo. 575, 586.
Sizer & Gardner for respondent.
(1) Regardless of rules adopted by the company, the common law is that when it becomes necessary to disturb or move a locomotive, in or about which persons are engaged, it is the duty of the company moving it to warn those at or about it of the contemplated movement, in time for them to give heed to their safety. Koerner v. Car Co., 209 Mo. 141; Gayle v. Car & Foundry Co., 177 Mo. 427; Ryan v Railroad, 115 F. 197; Butler v. Railroad, 155 Mo.App. 287; Johnson v. Brick & Coal Co., 276 Mo. 42; Black v. Mo. Pac. Ry. Co., 172 Mo. 177; Railroad v. Shaw, 116 F. 621; Jacobson v. Railroad, 41 Minn. 206. (2) A well-established custom or practice has the same effect as a rule, and the violation of either a rule or such custom or practice constitutes negligence. Enole v. Car & Foundry Co., 240 Mo. 443. (3) The duty, violation of which constitutes negligence, may arise in several ways; it may be created by common law from the relation of the parties, or by statute, ordinance or contract. And in this case the written rules, being in the nature of a contract between deceased and appellant, created a positive duty, the violation of which constituted negligence. 29 Cyc. 424, A. (4) The presumption is, that a duty fixed by law, rule or custom will be discharged in due form, and every one to whom such duty is owing has a right to assume that it will be performed. 20 R. C. L. p. 117, sec. 101. Deceased had the right to go on the assumption that all precautions required by the established rule of appellant would be taken. Railroad v. Maroney, 170 Ill. 520; Railroad v. Richardson, 66 Ind. 43, 32 Am. Rep. 94; Lyman v. Railroad, 66 N.H. 200, 11 L. R. A. 364; Beisiegel v. Railroad, 34 N.Y. 922, 90 Am. Dec. 741; 20 R. C. L. p. 117, sec. 101. (5) The common-law rule forbidding a foreign administrator to sue, had its origin in the protection of creditors, and dealt only with the administration of assets of the estate. It does not apply to actions in which creditors were not interested and where the funds or amounts sought to be recovered are no part of the assets of the estate, but go to designated beneficiaries. Leake v. Gilchrist, 13 N.C. 73, 85; 24 C. J. 1130, sec. 2703; McCarty v. Railroad, 62 F. 437; Dennick v. Railroad, 103 U.S. 11; Pearson v. Railroad, 286 F. 429; Kelley v. Railroad, 141 Mo.App. 490, 494. (6) In such case the administrator sues not for the benefit of the estate, but as the trustee of an express trust; and not by virtue of his appointment as such administrator, but because the statute creating the cause of action designates him as the proper p...
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