174 Mo. 225 | Mo. | 1903
This is an action for damages for personal injuries to Daniel Callahan, on December 27, 1898, at the town of Madison, Illinois, which resulted in his immediate death. The deceased was an employee of the defendant. The negligence charged is that the defendant allowed the electric wires, by which its building at Madison, Illinois, was lighted, to come in contact with the shift wires that the deceased had to catch hold of in the course of his duties, which gave the deceased an electric shock that caused his death. The answer is a general denial, and a special plea that Mc-Ginnis has no right to maintain this action. The injury and death occurred in the State of Illinois, and the right of action is predicated upon a law of that State (Pars. 1 and 2, eh. 70, vol. 2, Starr & Curtis’s Annotated Statute of Ill., pp. 2155-2156), whilst the action is brought in this State under the Act of 1891 (now sec. 548, R. S. 1899), and as the case at bar hinges entirely upon a construction of the statutes, they are set out in-full.
The Illinois statute is as follows:
Par. 1. “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the- party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable- if. death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. ’ ’
Par. 2. “Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the
The statute of this State is as follows: ‘ ‘ Sec. 548.. Whenever any cause of action has accrued under or by virtue of the laws of any other State- or Territory, and the person or persons entitled to the benefit of such-cause of action are not authorized by the laws of such State Or Territory to prosecute such action in his, her or their own names, then, in every such case, such cause-o-f action may be brought in any of the courts of this-State, by a person to be- appointed for that purpose by the court in which such cause of action is sought to be-instituted, or the clerk thereof in vacation, and such person so appointed may institute such action and prosecute the same for the benefit of the person or persons entitled to the proceeds thereof under the laws of the State or Territory wherein the cause of action arose.”
Before the institution of this suit, Delia Callahan,, the widow of the deceased, filed a petition asking the-appointment of McGinnis under the section of the statute quoted; and the appointment was duly made.
The-re was a direct and sharp conflict in the evidence on the question of the cause of the accident and likewise as t9 whether the deceased received any such injuries as are alleged, or whether he died from heart, disease. But as no point is made by the defendant, in this court, with respect to- any question except the right, of McGinnis to maintain this action, it is unnecessary to refer to any other branch of the case. There was a verdict and judgment for the plaintiff for one thousand dollars, and the defendant appealed.
Vawter v. Railroad, 84 Mo. 679, was an action for damages based upon the statute of Kansas, which is substantially like the Illinois statute, and which prescribed that the administrator should bring the action. The plaintiff was appointed administratrix in this State. It was held that she could not maintain the action; that the laws of this State expressly deny to, an administrator a right to maintain such an action; that the Kansas administrator could not maintain such an action here, because he has no extraterritorial rights.
In Oates v. Railroad, 104 Mo. 514, the widow brought the action. The accident occurred in Kansas. It was held that the cause of action was created by the statute of Kansas, and that statute which created the right, prescribed who should enforce the right, to-wit, the personal representative, and that no other person could maintain the action.
In the Vawter case it was noted that the St. Louis Court of Appeals (Stoeckman, Admr., v. Railroad, 15 Mo. App. 503), the New York courts (Leonard, Admr., v. Navigation Co., 84 N. Y. 48), and the Supreme Court of the United States (Dennick v. Railroad, 103 U. S. 11), had held that a personal representative appointed in the State where the action was brought, could maintain an action based upon such a statute of another State — the reasoning employed in those cases being that the foreign statute created the right and prescribed that the personal representative should bring the suit, but
Other States have adopted the rule that prevails in this State, and held that: ‘ ‘ The right of action to recover damages for injuries resulting in the death of the person being entirely statutory, the action must be brought in the name of the person to whom the right
' But it is contended that the courts of Illinois hold that the law of that State, touching this question, is divisible; that the first paragraph creates the right, while the second paragraph prescribes who shall bring the suit (City of Chicago v. Major, Admr., 18 Ills. 349), and, therefore, it is argued that the right being transitory and divisible from the remedy, it may be enforced in this State by an agency or person other than that required by the laws of that State. It must be noted, however, that the case of City of Chicago v. Major, Admr., supra, was an action in the courts of Illinois, by an Illinois administrator to enforce a right created by the laws of that State. So that the question here involved was not decided in that case, nor would it be at all controlling authority in this case if it had been expressly decided, for, manifestly, neither the Legislature nor the courts of one State can give jurisdiction to- the courts of another Stale, nor dictate to those- courts what statutory rights it shall recognize, or who shall be the proper party to enforce them. Purely statutory laws of one State are enforced in other States simply as a matter of comity, and are never enforced where they are inconsistent with the policy of the law of the State where they are sought to- be recognized.
It is manifest that an Illinois administrator could not maintain this suit in this State without express authority from this State. If suit-had been begun in Illinois, it could be maintained, under the statute of that State, only by an administrator appointed by the courts of that State. The first paragraph of the section of the statute of Illinois cited, creates a liability on the part of the person or company or corporation that caused the
But however this may be, it still remains that under any construction that may be put upon the Illinois statute, no one but the administrator can maintain the act
This naturally brings us to a consideration of the section of the statute of this State (sec. 548, R. S. 1899) which authorizes the court to appoint some person in this State to bring the action for the benefit of the persons who are not allowed by the laws of the State that created the liability and the right of action, to sue in their own name, and which it is said was enacted because of the decisions of this court that neither the foreign administrator, nor an administrator appointed under the laws of this State, nor the widow or next of ldn could maintain an action therefor. It seems probable that such was the origin of this statute. But what is its legality and effect? ’
The accident occurred in Illinois. Without the statute of that State, there would be no liability or cause of action anywhere or in favor of any one, no matter what might be the law of this or any other State in reference to similar accidents that happened here or there. In short, the whole matter depends upon the Illinois statute. That statute confers a right of action upon the administrator, and not upon the widow or nextl of kin. It is for their benefit, but they can not maintain' an action therefor. Our statute attempts to enforce the liability created by the statute of Illinois, not through the person who alone is given the right under the Illinois law to enforce it, but through a person who would have no right to enforce the liability in that State.
And with this result: under the Illinois law the administrator could sue in that State to recover damages for the accident that occurred in that State, and at the same time under the statute of this State (sec. 548) 'the person appointed by the court could maintain a suit in this State to recover the damages for the identical accident, and neither suit could be pleaded in abatement of the other, and a recovery in one would be no bar to a recovery in the other, for the reason that each would
This demonstrates the infirmity that underlies a construction of the statute which holds the Illinois statutes to be divisible, and therefore holds that the cause of action is transitory while the person who is to enforce the right must be determined by the lex fori.
As pointed out, it takes both paragraphs of the Illinois law to support the action in that State, and it is incongruous to say that a vital, component part can be segregated from the entity of which it is a necessary part, and be transplanted into- the laws of another State while the entity is incapable of being so transplanted or enforced. Nor can such a component part be transplanted and be grafted on to or supplemented by a law of such other State so as to make the two parts, dependent for their existence upon separate sovereign wills, a complete and valid law. For no State has any power to create a liability for an act done beyond its territorial limits, and then to appoint any person to enforce such a liability in its own courts, or in the courts of any State. A liability or a cause of action that does not exist under the common law, can only be created by the lawmaking power of a sovereign State-, or of the United States in proper cases. And when the laws of the creating State prescribe the person who shall enforce the right, no other person in that or any other State can enforce it.. The law must be enforced as written or not at all. It can not be partitioned, and some of its parts transplanted to another State and added to- or be supplemented by the laws of that State.
The Legislature of this State had no power to create a liability or preserve a right of action for an act done in Illinois, and it had no power to authorize any one here to enforce, in the courts of this State, a liability, or to assert a right, that is created by the laws of Illinois, when such a person would have- no right to enforce such lia-" bility or assert such a right .in the courts of Illinois.
And what is here said is not at all in conflict with what was said by the Supreme Court of the United States in Dennick v. Railroad, 103 U. S. 11. But if it was so in conflict, it would not change the result, for this court expressly referred to that ease and refused to follow the rule there laid down, in Vawter v. Railroad, 84 Mo. l. c. 684, and as there is no Federal right involved, a decision of that court is not necessarily conclusive in construing a State statute.
For these reasons it is clear that the plaintiff has no legal capacity to maintain this action, and that section 548, Revised Statutes 1899, is void and without legal force.
It would have been within the power of the Legisla-, ture, however, to confer express power upon the Illinois' administrator to maintain an action, based upon the’, statute of the State quoted, in the courts of this State, ‘ for that would be a mere matter of State comity and not the creation of a new liability and right.
The judgment of the circuit court is therefore reversed.