60 P. 747 | Kan. | 1900
The opinion of the court was delivered by
This was an action to recover for the death of James Matheson, an employee of the Kansas City, Fort Scott & Memphis Railroad Company, who was killed in Missouri on September 14, 1897, and whose death is alleged to have been caused by the wrong and neglect of coemployees. The action is brought by and for the benefit of the widow and children of the deceased, who claim to have a statutory right of recovery in Missouri, and one which is enforceable in Kansas. The Missouri statute pertaining to the subject was pleaded in the petition, but the trial court held the allegations of the petition to be insufficient, and that the rights of the plaintiffs under the Missouri statute could not be enforced in the courts of Kansas.
The plaintiffs’ cause of action arises under a statute of Missouri providing for recovery for death by wrong
In McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, it was expressly held that an administrator could not maintain an action in this state to recover for the injury and death of an employee of a railroad company in the state of Missouri, although the deceased was an inhabitant of Kansas. In Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57, the points of dissimilarity between the Missouri and Kansas slatutes
The dissimilarity between the statutes .of the two states is pointed out by the supreme court of Missouri in Vawter v. The Missouri Pacific Ry. Co., 84 Mo. 679, and the penal nature of the Missouri statute was declared in Marshall v. Wabash R. Co., 46 Fed. 269. An arbitrary award of a fixed amount of damages, regardless of pecuniary loss sustained, is antagonistic to our policy and is palpably inconsistent with our statute authorizing a1 recovery in such cases. Here the plaintiff must show a pecuniary loss, and the recovery is limited to the actual damages sustained. If the life of the deceased is of no pecuniary value to the next of kin, no more than nominal damages can be recovered. There have been a number of such cases,
Aside from the fact that the Missouri statute is not compensatory, it differs in other particulars from the Kansas statute. It is true that it is not necessary that the statutes of the two states should be exactly alike, but there must be a substantial similarity. As will be observed, there is an essential difference as to who may bring th.e action and may constitute the beneficiaries of the penalty awarded. This difference
The judgment of the district court will be affirmed.