127 Mo. App. 34 | Mo. Ct. App. | 1907
Plaintiff, employed by defendant as a section hand, was thrown from a handcar and injured. He brought this action in the circuit court of Jackson county to recover damages and in his petition alleged that his injury was the direct result of defendant’s negligence. He recovered judgment in the sum of two thousand dollars and defendant appealed.
The injury occurred on the 6th day of November, 1902, on defendant’s railroad near the station of Miami in the Indian Territory. Plaintiff was a member of a section crew consisting of ten laborers and a foreman. In obedience to an order of the foreman, they placed their tools, dinner buckets and a water keg on the car
The averment in the petition of specific negligence is as follows: “That its foreman, James Klegg, was negligent in placing upon said car said large quantity of tools and said eleven men thereby increasing the liability of plaintiff and others to be thrown from said car in the event of its sudden stop.
“That defendant, through its agent and servant, was guilty of negligence in suddenly applying the brake to said car while it was moving at a high rate of speed.
“That plaintiff was thrown from the car by reason of the concurring negligence of defendant’s agents and servants in crowding and overloading said car and thereby rendering plaintiff’s footing thereon insecure, and
The answer contains (1) a general denial, (2) a plea of contributory negligence, (3) a plea that the injury, if any, was the result of one of the usual and ordinary risks of the business, (4) the defense that “if plaintiff was injured at the place described therein, then his right to recover damages and defendant’s liability therefor were and are dependent upon and must be determined by the law in force at the time in the Indian Territory, where he says he was hurt, and under such law defendant was not negligent, and was not and is not liable for his alleged injuries, for plaintiff assumed the risk in connection with his employment, of such injuries.”
Defendant introduced in evidence sections29,30 and 31 of the Act of Congress of May 2, 1890, Yol. 26, U. S. Stat. at Large, pp. 93, 94, 95 and 96. This Act established a United States court of general jurisdiction in the Indian Territory and included the .provision “that certain general laws of the State of Arkansas in force at the close of the session of the General Assembly of that State of 1883, as published in 1884, in the volume known as Mansfield’s Digest of the Statutes of Arkansas, which are not locally inapplicable or in conflict with this act or with any law of Congress relating to the subjects especially mentioned in this section, are hereby extended over and put in force in the Indian Territory until Congress shall otherwise provide.” Then follows an enumeration of the provisions of said general statutes adopted for use in the Indian Territory and among them that contained in chapter 20 of the Digest relating to the common and statute law of England. Defendant then introduced section 566 of said chapter 20, which is as follows: “The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply
Plaintiff introduced in evidence the decision of the Supreme Court of Arkansas in the case of Neal v. Railway, 71 Ark. 445, 78 S. W. 220.
At the conclusion of all the evidence, as well as at the end of that introduced by plaintiff, defendant requested the court to give an instruction peremptorily directing a verdict for defendant. The refusal of the court thus to instruct the jury is the chief ground of present complaint and presents questions of law, the. proper solution of which will finally dispose of the case.
It is conceded that at the time of plaintiff’s injury, there were no other courts of general jurisdiction in the Indian Territory than those established by the Act of Congress to which we have referred, and that appellate jurisdiction over actions originating in the territorial courts was vested in the Circuit Court of Appeals of
The issues of law presented for our determination will appear from a statement of the positions taken by the respective parties: Defendant contends that the courts of the Indian Territory are bound to follow the interpretation of the rules and principles of the common law made by the appellate courts of the United States having jurisdiction over them and are not bound by the decisions of the Supreme Court of Arkansas whether pronounced before or after the adoption of the Arkansas statutes as a part of the jurisprudence of the Indian Territory where such decisions are in conflict with those of the federal courts. Defendant then points to a number of cases decided by the Circuit Court of Appeals for the Eighth Circuit and by the Supreme Court of the United States as authority sustaining its contention that on the facts adduced in evidence by plaintiff, he had no cause of action in the Indian Territory for the following reasons: (I) The two negligent acts of which he complains, namely, that of overloading the car and that of stopping it with unnecessary violence, were the acts of fellow-servants, for which defendant could not be held liable. Authorities cited show that in the running of a handcar the foreman of the section crew is not a vice-principal, but a fellow-servant. (2) Though it should be conceded that the foreman in the present case was a vice-principal, still plaintiff could not recover on account of the rule obtaining in the federal courts that where a servant is injured by the concurring negli
Plaintiff, in repelling this argument has two strings to his bow. First, he argues, somewhat tentatively that whether the cause of action arose in this State or in another jurisdiction, the courts of this State, when required to go to the common law for rules and principles applicable, will use—to borrow counsel’s expression— “our own brand of common law,” and if it differs from that used by the courts of the place where the injury occurred, that fact is immaterial. The idea appears to be borrowed from the following expression of his individual view by the judge who wrote the opinion of the Supreme Court in the case of Root v. Railway, 195 Mo. 348: “The common law is a common heritage, i. e., it is our law, and why should we not adopt our own construction of our own law? The writer of this opinion sympathizes with that view,—otherwise in passing on the common law, we might speak with two voices and make ‘confusion worse confounded.’ ” But the chief reliance of plaintiff is grounded on the rules and prin
In the opinion of the Supreme Court to which we have just referred (Root v. Railway), it is held that “in a transitory common law action where suit is brought in a State other than where the injury happened, the interpretation of the common law obtaining in the State where the cause of action accrued, the lex loci will govern.” And further, “the gist of the matter is that if a litigant has no cause of action in the courts of the State in which he was injured, he has none elsewhere.” The same was said in Fogarty v. St. Louis Transfer Co., 180 Mo. 490: “The contract of employment with plaintiff was made in Illinois. The work to be done by him and the work he did was in that State. The accident happened in that State. The liability of the defendant, must, therefore, be determined and measured by the laws of that State.” In both of these cases, the case of Alexander v. Railway, 48 Ohio St. 628, was cited with approval. There it was said: “An act should be judged by the law of the jurisdiction where it was committed, the party acting or omitting to act must be presumed to have been guided by the law in force at the time and fjlace and to which he owed obedience; if his conduct, according to that law violated no right of another, no cause of action arose, for actions at law are provided to redress violated rights, nor is it material that the rules of a Pennsylvania law that deny relief to plaintiff
A very clear statement of the principle was made by the Supreme Court of Alabama in Railroad v. Carroll, 11 So. 803. “We do not understand appellee’s counsel even to deny either the proposition or its application to this case,—that there can be no recovery in one State for injuries to a person sustained in another unless the infliction of the injuries is actionable under the law of the State in which they are received. Certainly, this is the well-established rule of law, subject in some jurisdictions to the qualification that the. infliction of the injuries would also support an action in the State where the suit is brought had they been received in that State. . . . The true theory is that no suit whatever respecting this injury could be sustained in the courts of this State except pursuant to the law of international comity. By that law, foreign contracts and foreign transactions out of which liabilities have arisen may be prosecuted in our tribunals by the implied assent of the
It is immaterial that the rules and principles of the law obtaining in the Indian Territory differ from those recognized and followed by the courts of this State. Our concern is not with the question of whether the law there is as we would have it, nor are we called upon to attempt to harmonize that law with ours, nor to make something out of nothing. The vital question is, Did plaintiff have a cause of action in the Indian Territory which the courts of that jurisdiction under their view of the law would enforce? If he had no cause of action there, certainly he could not acquire one by entering this State. If naked when he came to our border, the mere act of stepping over an imaginary lin.e would not clothe him. His cause of action must be measured not by our own standard but by that fixed by the rules and principles recognized by the courts of the place where he was injured. If there is no law giving him a right of action in the place Avhere the alleged wrongful act was committed, no action can be maintained here, though the laws of this State would have given him a right of action had the same acts been committed within our boundaries. To hold otherwise would be to say that one State could prescribe rules, no matter how arbitrary, to govern persons and things in another State, “and thus contravene the fundamental principles maintained by all nations that every independent State has an exclusive right to regulate persons and things within its own territorial limits and that the laws of the State or country can have no intrinsic force proprio- vigore except within the territorial limits and jurisdiction of that country.” [State to use of Allen v. Railway, 45 Md. 41; 22 Am. and Eng. Ency. of Law (2 Ed.), 1378; Jaggard on Torts, section 34; Cooley on Torts (2 Ed.), side page 471; Pullman Co. v. Lawrence, 22 So. (Miss.)
These considerations not only dispose of the suggestion that our own construction of the common law should obtain, but also answer the argument that the decisions of the Supreme Court of Arkansas should control in actions arising in the Indian Territory. The courts of the United States have uniformly held that where the relation of master and servant is unaffected by statute, the question of the responsibility of the master for injuries caused to or by his servants is one of general law, in regard to which courts of the United States are not bound to follow the State court. [Railroad v. Baugh, 149 U. S. 368; Railway v. Mase, 63 Fed. 115.] In the latter case, Judge Sanborn, speaking for the Court of Appeals for the Eighth Circuit, said: “In the absence of legislative enactments, the liability of a master to one of his employees for the negligence of another is determinable by the general law, and not by the local law, and the decisions of the courts of the State in which the injury is inflicted are not controlling in the national courts. But whenever this subject is regulated by the statutes of the State in which the injury is inflicted, these become the rules of decision in trials at common law in the national courts, under section 721 of the Revised Statutes, and measure the duties and liabilities of the litigants.” To the same effect is Railway v. O’Leary, 93 Fed. 737. As it does not appear that the State of Arkansas had in force any statute affecting the cause of action asserted by plaintiff, it is clear from the authorities last cited that, had the injury been inflicted in Arkansas, the Federal courts, in an action brought
We find the rule invoked by defendant that where a servant is injured by the concurrent negligence of the master and a fellow-servant no action will lie against the master, is not recognized by the courts of the United States as a rule of the common law. Recently in the case of Gila Valley Ry. Co. v. Lyon (203 U. S. 465), the Supreme Court of the United States applied the contrary doctrine: “The rule would seem to be that if the negligence of the company had a share in causing the injury to the deceased, the company was liable notwithstanding the negligence of the fellow-servant contributing to the happening of the accident.” [Citing Railway v. Cummings, 106 U. S. 700; Ellis v. Railway, 95 N. Y. 546.] To the same effect was the decision of the Circuit Court of Appeals for the Fourth Circuit in J. W. Bishop Co. v. Dodson, 152 Fed. 128.
But it has been held both by the Supreme Court of the United States and the Circuit Court of Appeals for the Eighth Circuit that in the operation of a handcar, the section foreman, in his relation to the section hands should not be regarded as the vice-principal of the company, but as a fellow-servant. [Railway v. Charless,
It follows that the judgment must he reversed.