Williams v. The St. Louis & San Francisco Railway Company

• Decision Date: 26 June 1894
• Citation: 27 S.W. 387,123 Mo. 573
• Parties: Williams v. The St. Louis & San Francisco Railway Company
• Court: Missouri Supreme Court

27 S.W. 387

123 Mo. 573

Williams v. The St. Louis & San Francisco Railway Company

Supreme Court of Missouri, Second Division

June 26, 1894

Appeal from Dade Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed and remanded.

E. D Kenna, L. F. Parker and H. S. Abbott for appellant.

(1) The court erred in striking out that portion of defendant's answer pleading the statute of limitations of the state of Kansas, for the reasons: First. The statute of limitations of Kansas not only bars the remedy but extinguishes the right. Taylor v. Miles, 5 Kan. 498; Chicks v Willetts, 2 Kan. 384; Robbins v. Sackett, 23 Kan. 302; Railroad v. Burlingame, 36 Kan. 633; Sibert v. Wilder, 16 Kan. 176; Rork v. B. of Co Com., 46 Kan. 175; Culp v. Culp, 32 P. 1118. Second. Defendant was not at any time without the state within the meaning of the statute. Lane v. Bank, 6 Kan. 74; Hoggett v. Emerson, 8 Kan. 181; Morrell v. Ingle, 23 Kan. 32; Conlon v. Lanphear, 37 Kan. 431; Bauserman v. Charlott, 46 Kan. 480; Bauserman v. Blunt, 147 U.S. 656. Third. When a cause of action which accrues in one state is sought to be enforced in another, and the statute of limitations of the state where the cause of action accrued operates to extinguish the right as well as to bar the remedy, then the period of limitations which governs is that prescribed by the laws of the former state, and the statutes of that state may be properly pleaded to the action wherever it may be brought. Wood on Limitations [2 Ed.], sec. 8, p. 29, footnote p. 31; p. 34; authorities cited under subdiv. first; Baker v. Stonebraker, 36 Mo. 549; McMerty v. Morrison, 62 Mo. 140; Lyman v. Campbell, 34 Mo.App. 213; Pritchard v. Norton, 106 U.S. 124, 131; Shelby v. Guy, 11 Wheat. 361, 371; Railroad v. Hine, Adm'r, 25 Oh. St. 629; Waters v. Barton, 1 Caldw. (Tenn.) 450. (2) The verdict is, under all the circumstances of the case, excessive. Slette v. Railroad, 55 N.W. 137; Kroener v. Railroad, 55 N.W. 28; Brick Co. v. Sobkowiak, 34 Ill.App. 312; Railroad v. Minogue, 14 S.W. 357; Railroad v. Bayzant, 87 Ill. 125. (3) The fact that the plaintiff's wages had been paid him was a proper matter for the consideration of the jury on the question of the amount damages, and the remarks of the court to the contrary, were erroneous and highly prejudicial. The eighth instruction, upon the question of loss of earnings, were also erroneous in above respect. Railroad v. Malette, 9 S. Rep. 363, 366. (4) If defendant had already contributed equally with the Adams Express Company, which was originally sued jointly with it, towards the payment of the wages and doctor bills, which are included, and helped to make up the damages now claimed, that fact should have gone to the jury. (5) It was error to submit to the jury the question of how much the plaintiff was entitled to receive for "medical treatment," or "expense incurred for surgeons," in the absence of testimony tending to show the reasonable value of such treatment or services. Smith v. Railroad, 108 Mo. 243; Duke v. Railroad, 99 Mo. 347; Crowley v. Railroad, 24 Mo.App. 119; Reed v. Railroad, 57 Iowa 23; Eckherd v. Railroad, 70 Iowa 353; Hunter v. Mexico, 49 Mo.App. 17. (6) It was reversible error to permit plaintiff to testify to the extent of his family, and the number and ages of his children. Mahaney v. Railroad, 108 Mo. 191; Dayharsh v. Railroad, 103 Mo. 570; Stephens v. Railroad, 96 Mo. 207. (7) It was error for the court to permit plaintiff's instructions numbers 5 and 8 to go to the jury with citations of authority offered and directed underneath the same. (8) The intemperate, misleading, outrageous and unrebuked remarks of counsel in his closing argument are of themselves sufficient grounds for reversing the case, not being based upon the evidence in the record, and prejudicial in the extreme. Haynes v. Trenton, 108 Mo. 123; Evans v. Trenton, 112 Mo. 390; State v. Ulrich, 110 Mo. 350; McDonald & Co. v. Cash & Hinds, 45 Mo.App. 66; Wilburn v. Railroad, 48 Mo.App. 224; Dillingham v. Scales, 14 S.W. 566.

H. E. Howell and J. R. Vaughan for respondent.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This action was commenced in Greene county, Missouri, December 20, 1889, and change of venue awarded to Dade county.

The suit is to recover damages for personal injuries received by the plaintiff in a wreck of defendant's train at High Lonesome Hill, near Severy, Kansas, January 1, 1885.

The amended petition on which the case was tried alleged that defendant was a railroad corporation organized under the laws of Missouri owning and operating a line extending from Wichita, Kansas, to Springfield, Missouri; that plaintiff was an express messenger in the employ of the Adams Express Company, and that at the time of the wreck he was engaged on his usual route and in his usual work in the express car of said wrecked train; that there was a sharp curve and a down grade just east of Severy, and the road at that place was in a dangerous and unsafe condition; that defendant had negligently and carelessly allowed the ties there to become rotten, decayed and unfit for use; that the rail spikes would not hold and some of them were gone; that the ties were far apart; there was no ballast and the track was out of alignment; that the rail joints were defective in construction, weak and unsafe; that the outside of the curve was lower instead of higher, as it should be; that defendant knew of these facts; that the wrecked train was late, and instead running at schedule time of twenty miles per hour was negligently and carelessly running at forty miles per hour; that the track and road would not support the train but gave way, it ran over an embankment, and the express car, in which plaintiff was riding, was wrecked and demolished and he, without fault or negligence, was thrown under the timbers, his left arm crushed, broken and joint ruptured, and left hand cut, bruised and mashed; that plaintiff became sick for a great length of time, and suffered great and intense mental anguish; and plaintiff paid out and expended the sum of $ 150, for nursing, medicines and medical treatment, and surgeons, in attempting to be cured of his wounds and injuries; that by reason of said injuries he has lost the use of his left arm, and has lost all his earnings since January 1, 1885, and has been unable to earn any money since said time; that plaintiff has been made a cripple for life; that both plaintiff and defendant were, on January 1, 1885 (the time of the wreck), and have been, ever since, residents of the state of Missouri. He prayed judgment for $ 20,000 and costs.

The answer to the amended petition was a general denial, and also pleaded, "for another and separate defense, that plaintiff's cause of action accrued in the county of Butler, state of Kansas and accrued more than two years before the bringing of plaintiff's suit. That on the first day of January, 1885, there was in force in Kansas the following statute: 'Civil actions for injury to the right of another, not arising out of a contract, can only be brought within two years after such injury shall have occurred, and not afterward.'

"That on the first day of January, 1885, the following statute was in force in said state of Kansas namely:

"'When the right of any action is barred by the provision of any statute, it shall be unavailable either as a cause of action or ground of defense.'

"That on the first day of January, 1885, the following statute was in force in the said state of Kansas, namely:

"'Every railroad company or corporation doing business in the state of Kansas, or having agents doing business therein for such corporation or company, is hereby required to designate some person residing in each county into which its railroad runs, or stage route may or does run, or in which its business is transacted, on whom all process and notice issued by any court of record or justice of the peace may be served'.

"This defendant further states that it operated a railroad through the following named counties in said state of Kansas, namely: Cherokee, Crawford, Labette Montgomery, Wilson, Elk, Greenwood, Butler, Cowley, Sedgwick, Sumner, Harvey, Reno, Rice, Elsworth, Harper. That on the first day of January, 1885, the following statute was in force in the state of Kansas:

"'In every case such railroad company, corporation or stage company shall file a certificate of the appointment and designation of such person in office of clerk of the district court of the county in which such person resides, and service of all process upon the person so designated, in any civil action, shall be deemed and held to be as effectual as if service of such process were made upon the president or chief officer of the corporation or stage company.'

"That all said above statutes have been in force at all times from said first day of January, 1885, to the present time and are still in force in said state of Kansas.

"That on the first day of January, 1885, this defendant had filed in the office of the clerk of the district court of each of the counties hereinbefore named the appointment and designation of a person residing in each of said counties respectively, on whom all process and notice issued by any court of record or justice of peace of said county might be served, and that said appointment and designation have remained on file in the office of said clerks of said courts respectively at all times from said first day of January, and have remained on file up to the present day.

"That the following statute was in force in said state of Kansas on January 1, 1885, namely:

"'If any railroad or stage company or corporation failed to designate or appoint such person, as in the preceding section is provided...