149 Mo. App. 188 | Mo. Ct. App. | 1910
This was an action commenced in Howell county, Missouri, for damages in the sum of |7500 for personal injuries alleged to have been received by plaintiff by reason of the negligence of the defendant’s servants. The answer set up a general denial, a plea of contributory negligence, assumption of risk, and, lastly, that the plaintiff was injured in the Indian Territory and that his right to recover damages and the defendant’s liability for his injuries were dependent upon and to be determined by the law in force in the Indian Territory where the accident occurred.
At the conclusion of all the evidence, the court sustained a demurrer and peremptorily instructed the
I. The accident happened at Sapulpa, Indian Territory, on November 2, 1907. The proclamation of the President of the United States declaring the Indian Territory a part of the newly organized State of Oklahoma was issued on November 17, 1907. One of the questions presented on this appeal is as to whether the Constitution and laws of the State of Oklahoma were in force on November 2, 1907. It has been agreed by the parties for the purposes of this trial that by the Act of Congress of May 2, 1890, the common law of England was extended over the Indian Territory so far as the same was applicable and of a general nature, and all of the statutes of Parliament in aid of or to supply the defects of the common law made prior to the fourth year of James the First, so far as applicable, of a general nature and not local to that kingdom. Section 250 of the Constitution of Oklahoma is as follows: “Section 250. — Common Law Doctrine Abrogated. — Section 36. The common law doctrine of the fellow-servant, so far as it affects the liability of the master for injuries to his servant, resulting from the acts or omissions of any other servant, or servants, of the common master, is- abrogated as to every employee of every railroad company. . . .” So that the adoption of the Constitution of Oklahoma abolished the common law doctrine of fellow-servant.
The Constitution was adopted on September 27, 1907, at a general election held by the people for that purpose. The question is as to when the Constitution became effective, and it is to be determined by the Enabling Act of Congress which provides that in case a Constitution and State government shall be formed in compliance with the provisions of such Act, the convention forming the same shall provide by ordinance for
The accident therefore occurred at a date between the adoption of the Constitution and the date of the proclamation of the President, and the proposition does not seem open for difference of view that under the express terms of the Enabling Act, when the President issued his proclamation announcing the result of the vote and adoption of the Constitution, the proposed State of Oklahoma was admitted as a member of the Union of States, and that the territories then and not until then passed into the condition of Statehood.
The general rule that constitutions and constitutional amendments take effect upon their ratification by the people, unless otherwise provided in the instrument itself or the resolutions submitting them, applies to sovereign States possessing within themselves the power to make and unmake constitutions but can have no application to territories which, under our system of government do not possess the power within themselves to initiate a separate form of government. The territories are under the absolute control of Congress, and can only become states and form for themselves laws or consti
II. The question to be determined in this case is whether under the evidence, James Duncan, the section foreman of the defendant, and the plaintiff as one of his men, were fellow-servants; that is, whether the relation between them, under the decisions of the Federal Courts, was such that the plaintiff assumed the risk of the negligence of his section foreman in the latter’s direction of the men and work to the same extent that he assumed the risk of the negligence of a fellow-laborer by his side engaged in performing the work.
The evidence shows that some fifteen or twenty men worked under the direction of Duncan, among whom was the plaintiff; that the section foreman and his men performed all classes of work' that they were directed to do about the track, such as repairing broken rails and keeping the road in safe condition for the operation of trains, sometimes putting in switches, taking up track at one place and putting it down at another, their work pertaining to the tracks and roadbed. The section foreman usually employed men when the division superintendent was not there; and when a man was discharged, the section foreman would give him a certificate and time check showing he had worked on the section during a certain time and the division superintendent would pay him. The section foreman would also send a statement to the roadmaster showing the number of days the men had worked during each month. This was the track department. The section foreman’s immediate superior was the division roadmaster, H. Campbell, whose immediate superior was the superintendent, H. F. Clark.
A rail was being cut at the time plaintiff was injured. The workman, under the direction of the section foreman, James Duncan, had a thirty foot rail which they desired to cut in two. They were trying to cut off a piece eight feet long. The rail was placed on another rail and the men were cutting at the bottom, trying to make an indentation so that the rail could be broken. The section foreman, Duncan, was holding the chisel, and plaintiff’s brother was doing the striking with a spike hammer. The plaintiff was holding the flange of the rail and was on the short end. gome of the workmen were on the other end while others were on the same end with the plaintiff. Plaintiff was next to Duncan, the foreman; about three feet from him. The flange and center of the rail had been cut clear across the bottom and there were only about three more blows to be struck and the rail would then have been cut sufficiently to allow breaking. Duncan was holding the chisel, but at the time plaintiff was injured, he moved the chisel out of the crevice, so that when the hammer struck, a piece flew out, striking the plaintiff. When Duncan set the chisel out of the crevice, he set it on the side opposite plaintiff and the plaintiff then said to Duncan, “Duncan, the chisel is out of it.” Another man said, “Yes it is, Jim.” Duncan said, “I guess I know what I am doing” and told the plaintiff’s brother to go ahead and hit it, which he did. A piece or sliver went into plaintiff’s skull and eyeball and the injury was such that he had to undergo a surgical operation by which his eye was removed.
Under the Fellow-gervant Law, as declared by the gupreme Court of the gtate of Missouri in cases of neg
The law is equally well-established that in order for the plaintiff to recover in this action it must be determined that the plaintiff had a cause of action in the Indian Territory which the courts of that jurisdiction, under their view of the law at the time of the accident, would enforce. If he had no cause of action there, he could acquire none by entering the State of Missouri. The cause of action must be measured, not by the standards of the Missouri courts, but by those fixed by the rules and principles recognized by the courts of the place where the injury occurred. If that law gave him no right of action, no cause of action could be maintained in our jurisdiction, although the laws of this State would have given him a cause of action had the same acts been committed within its confines. 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
Under these conditions, had the plaintiff brought his action in the Indian Territory, the federal courts would have determined the rights asserted by plaintiff by the rules and principles of the general law recognized by the courts of the United States. And if it is true that the principles of the general law determining the relation of master and servant, as interpreted and applied by the courts of the United States, would preclude a recovery by plaintiff, we must hold that as he had no right of action in the courts of the place of his injury, he would therefore have none in the courts of this State. [Chandler v. St. L. & S. F. R. Co., 127 Mo. App. l. c. 45, 106 S. W. 553.]
As we have said, many states, and among them, Missouri, have adopted what is known as the Superior Servant Law. The Federal Courts, however, have as uniformly adopted what is known as the separate department rule, as contra-distinguished from the Superior Servant Law. In the case of Baltimore & O. R. Co. v. Baugh, supra, Mr. Justice Brewer used this language : “It may be safely said that this court has never
The case of Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 97 Fed. 245, was a case in which the liability charged was on. account of the yardmaster who was held by the trial court to be a vice-principal. Judge
Whether these cases enunciate principles which embody the most enlightened and progressive spirit of the common law of today, or should be applied by the courts, is not within our power to decide. It is sufficient for the purposes of this case to know that they have been approved and followed by courts of the highest authority and by judges of the greatest distinction, and at least contain an authoritative exposition of the Federal law in force in the Indian Territory at the time of the accident to the plaintiff. Under such law, the plaintiff and the section foreman were fellow-servants, and the defendant was not liable for the foreman’s negligence.
Learned counsel have called our attention to the injustice of the Fellow-Servant Law as administered and interpreted by the Federal Courts. What is the best system of compensation for workmen for injuries received from industrial accidents is. a question the decision of which rests primarily with the legislative branch of the government and not with the judiciary.
We find that the trial court under the law was justified in giving a peremptory instruction at the close of all the evidence in the case that the plaintiff could not recover. The judgment is affirmed.