Gibson v. Chicago Great Western Railway Co.

BURGESS, J. The plaintiff instituted this suit in the circuit court of Buchanan county, against the defendant, to recover the sum of $10,000 damages for the death of his intestate, Martin M. "Welch, caused by the alleged negligence of the defendant. The petition filed therein was as follows (formal parts omitted): “Plaintiff states that the Chicago Great Western Railway Company is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, and as such corporation is engaged in the general railroad business in the State of Iowa, and has a railroad right-of-way, tracks, rolling stock and equipment, owned, used and operated in the State of Iowa, and employs, among other servants, brakemen to operate its trains through the State of Iowa. Plaintiff states that deceased, Martin M. Welch, was in the employ of defendant railway company as a railway brakeman on and prior to the third day of August, 1906, and that said deceased was brakeman on a freight train owned, operated and controlled by defendant in the State of Iowa. “Plaintiff, James A. Gibson, states that he is now and during all the times herein mentioned, has been a resident of the State of Missouri, and that deceased, Martin M. Welch, died in the State of Iowa. “Plaintiff states that under and by virtue of section 3297 of the Code of Iowa a person not a resident of the State of Iowa may be appointed administrator of the estate of a person who departed this life in the State of Iowa, and that on the — day of August, 1905, plaintiff was duly and regularly appointed administrator of the estate of Martin M. Welch, deceased, in the probate court of Taylor county, in the State of Iowa, — 477 — and that letters of administration were duly and regularly issued to plaintiff on the estate of said Martin M. Welch., and that he is now and since the — day of August, 1905, has been the regularly appointed and duly acting administrator of the estate of Martin M. Welch, deceased, and was duly appointed administrator by the probate court of Buchanan county, Missouri, on the-day of August, 1905, of the estate of Martin M. Welch, deceased, and is now acting and qualified administrator of said estate in Iowa and Missouri. “Plaintiff states that under and by virtue of section 3447 of the Code of Iowa plaintiff is limited to two years in which to institute suit against defendant for the death of Martin M. Welch, caused by negligence, as hereinafter alleged, and that this suit was instituted in the circuit court of Buchanan county on the-- day of-1905, by filing in said court the original petition and issuing summons thereon and within two years after the death of Martin M. Welch. “Plaintiff states that under and by virtue of sections 3313 and 3443 of the Code of Iowa actions for damages for the death of Martin M. Welch, survived to plaintiff as administrator, and that under and by virtue of said sections plaintiff is authorized and empowered to sue and recover damages caused by the death of Martin M. Welch against defendant on account of the carelessness and negligence of defendant, which resulted in the death of M'artin M. Welch, as hereinafter alleged. “Plaintiff states that the said Martin M. Welch, deceased, on and prior to the 3d day of August, 1903, was in the employ of defendant as a brakeman on one of its freight trains; that on or about the 23rd day of August, 1903, said Martin M. Welch, deceased, was engaged in the performance of his duties as such brakeman on one of defendant’s freight trains, which ran from St. Joseph, Missouri, to Des Moines, Iowa; that said train consisted of cars heavily loaded with wheat — 478 — and other grain and produce; that while so engaged in snch duties, and while said train was running between the stations of Arispe, Iowa, and Shepherd, Iowa, and while the said train was in rapid motion, the said train was wrecked by reason of one of the cars of said train leaving the track on account of one of the wheels of said car being broken; that said car, which bad said wheel broken, was heavily loaded with wheat beyond the capacity and strength of said car; that the wheel of said car at the time and for a long period of time prior to its leaving said track had been in the broken condition herein complained of, and that said defendant knew at the time that said car was attached to and made a part of the train herein referred to was broken, or by the use of ordinary care and reasonable inspection could have known of the broken and dangerous condition of said wheel. “Plaintiff states that it was dangerous to the employees of defendant engaged in the operation of said train, and especially to deceased, to attach said car to said train, and the acts of defendant herein complained of in attaching said car in the condition herein alleged, and being overloaded, as herein alleged, was carelessness and negligence on the part of defendant, which caused the injuries and death of said Martin M. Welch, as herein stated. “Plaintiff states that when said train was wrecked, as hereinbefore stated, on account of the car, hereinbe-fore referred to, leaving the track, Martin M. Welch was on said train as an employee of defendant, and in the performance of his regular and customary duties as a brakeman, and by reason of said train being wrecked plaintiff states that said Martin M. Welch was instantly killed by the cars of said train leaving the track of defendant railway company, falling against and upon said Martin M. Welch, and thereby causing the injuries from which he died, on the said 23rd day of August, 1903. — 479 — “Plaintiff states that each, and all of the acts herein complained of was carelessness and negligence npon the part of defendant railway company. “Plaintiff states that by reason of the death of said Martin M. Welch his estate has been damaged in the sum of ten thousand dollars. “Wherefore, plaintiff prays judgment against defendant for the sum of ten thousand dollars and his costs in this behalf expended.” To this petition, the defendant filed a demurrer, which is as follows: “Comes now the defendant in the above entitled cause and demurs to petition of plaintiff filed herein for the following reasons, to-wit: “1. Because the plaintiff has no legal capacity to sue. “2. Because the petition does not state facts sufficient to constitute a cause of action. ’ ’ The court sustained this demurrer, to which action of the court the plaintiff duly excepted, and declining to plead further, the court rendered judgment against him. Prom this judgment the plaintiff duly appealed the cause to this court. I. The trial court sustained the demurrer. for both reasons assigned therein; and counsel for appellant assign that action of the court as error. We will consider the grounds of the demurrer in the order stated therein. As regards the former, there is no pretense but what, under the laws of Iowa referred to in the petition (if properly pleaded), appellant had a perfect cause of action against the respondent at the time mentioned in the petition, but under the law of this State, as it then existed, there was no remedy or procedure existing for the enforcement of-appellant’s said cause of action, in this State. In order to remedy that condition of things, the — 480 — Legislature of Missouri passed an act, found in the Session Acts of 1905, at page 95, providing a remedy in this State for such causes of action. In the trial court counsel for respondent assailed the constitutionality of said act as being violative of section 15 of article 2 of the Constitution, prohibiting the enactment of laws retrospective in character. Upon the other hand, counsel for appellant insists, that since said Act of 1905 is regarding only the remedy for then existing and future causes of action, it was not retrospective in its operation within the meaning of said constitutional provision. Said act reads as follows: “Section 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 of action may be brought and prosecuted in any court of this state by the person or persons authorized under the laws of such state or territory to sue in such cases. - Such suits may be brought and maintained by the executor, administrator, guardian, guardian ad litem, or any other person empowered by the laws of such state or territory to sue in a representative capacity.” There can be no question but what this act relates solely to the remedy, and does not affect, alter, change or enlarge appellant’s said cause of action against respondent, ox impose any new or additional obligation upon the latter. This court has repeatedly held, in a long line of cases, that acts of the Legislature which relate only to the remedy of existing causes of action are not obnoxious to said section of the Constitution, among which are the following: — 481 — Clark v. Railroad, 219 Mo. l. c. 531; State ex rel. v. Taylor et al. (In Banc), 224 Mo. 393; Haarstick v. Gabriel, 200 Mo. 237; O’Bryan v. Allen, 108 Mo. 227; Porter v. Mariner, 50 Mo. 364. The decisions here and elsewhere hold, that before a statute can be denounced as invalid under the provision of the constitution prohibiting retrospective legislation, it must impinge some existing vested right. In the case at bar, the Act of 1905 does not impair any vested right of respondent, nor does it create a cause of action in favor of appellant, nor does it modify or change any existing cause of action which existed in his favor at the time of its enactment; but, as before stated, it merely provides a remedy by which appellant could enforce in this State a cause of action then existing in his favor under the laws of the State of Iowa. [State ex rel. v. Marion Co., 128 Mo. 437; Yanata v. Johnson, 170 Mo. 269; Gladney v. Sydnor, 172 Mo. 318; Frost v. Witter, 132 Cal. 421.] We are, therefore, of the opinion that the circuit court erred in sustaining the demurrer for- the first reason assigned. II. The second ground of the demurrer presents a much more serious proposition for determination. It assails the validity of the petition, because it does not state facts sufficient to constitute a cause of action against the respondent, in this: It alleges that the injury and death of Welch occurred in the State of Iowa, but it fails to plead.the Iowa Statutes governing such cases, except as will be presently stated. That plea is as follows: “Plaintiff states that under and by virtue of section 3447 of the Code of Iowa plaintiff is limited to two years in which to institute suit against defendant for the death of Martin M. Welch, caused by negligence, as hereinafter alleged, and that this suit was instituted — 482 — in the circuit court of Buchanan county on the —— day of- 1905, by filing in said court the original petition and issuing summons thereon and within two years after the death of Martin M. Welch. Plaintiff states that under and by virtue of sections 3313 and 3443 of the Code of Iowa actions for damages for the death of Martin M. Welch, survived to plaintiff as administrator, and under and by virtue of said sections, plaintiff is authorized and empowered to sue and recover damages caused by the death of Martin M. Welch against defendant on account of the carelessness and negligence of defendant, which resulted in the death of Martin M. Welch, as hereinafter alleged.” These allegations are in no sense statements of facts but are clearly conclusions of law drawn by the pleader; and, in passing upon the demurrer, they should be eliminated from the petition, for the reason that they are neither traversable nor demurrable. In passing upon a similar question, this court, in the case of Mallinckrodt v. Nemnich, 169 Mo. l. c. 397, used this language: ‘ ‘ The allegation quoted is simply the averment of a legal conclusion; not the statement of issuable facts; not, therefore, either traversable or demurrable, and is to be treated as no statement at all, and consequently obnoxious to attack by general demurrer. [Bliss Code Plead. (3 Ed.), sec. 413, and note; Ib., secs. 210, 211, 212, 213; Craft v. Thompson, 51 N. H. l. c. 540; McKinzie v. Mathews, 59 Mo. l. c. 102; Cooper v. French, 52 Iowa 531.] ‘The allegation of a conclusion of law raises no issue, need not be denied, and its truth is not admitted by a demurrer to the complaint containing it.’ [Kittinger v. Buffalo Traction Co., 54 N. E. 1081; see also 12 Ency. Pl. and Prac., 1022, et seq.; Institute v. Bitter, 87 N. Y. 250; Hoester v. Sammelmann, 101 Mo. l. c. 624.]” To the same effect are Hand v. St. Louis, 158 Mo. — 483 — l. c. 212, 213; State ex rel. v. Aloe, 152 Mo. 466; Martin v. Castle, 193 Mo. 183. It is elementary, that where a foreign statute, or the statute of another state, is relied upon as giving, conferring or constituting a cause of action, it must he substantially stated with such distinctness that the court may judge its effect. Not only must the law in such cases he pleaded, hut the facts which constitute its violation must also he stated. But where the cause of action is predicated upon the laws of this State, good pleading does not require such laws to he pleaded. The reason for this distinction is based upon the fact that the courts of this State, will take judicial notice.of their own laws, hut cannot take judicial notice of the existence of statutes in other states or countries. [McDonald v. Life Association, 154 Mo. 618; Cubbedge v. Napier, 62 Ala. 518; Swank v. Hufnagle, 111 Ind. 453; Carey v. Railroad, 5 Iowa 357; Roots v. Merriwether, 71 Ky. 397; Railroad v. Miller, 19 Mich. 305; Bean v. Briggs, 4 Iowa 464.] In the case of McDonald v. Life Assn., supra, this court, on page 628, said: “The defendant realized this, for it attempted to plead the Iowa law and did plead the certificate of the State Superintendent of Insurance of Missouri, authorizing it to do business as an assessment company. But the certificate does not determine the character of insurance the defendant actually issues. It determines only the character of business it was licensed to do; the policy settles the class to which the defendant actually belongs. The laws of Iowa were not properly pleaded (the chapter of the Revised Statutes of Iowa is referred to only by number — its terms, tenor or effect are not set out) and therefore their reading on the trial was properly excluded. [Morrissey v. Wiggins Ferry Co., 47 Mo. l. c. 525; Flato v. Mulhall, 72 Mo. l. c. 525.] The laws of sister states must be alleged and proved like any other — 484 — issue of fact. [Mooney v. Kennett, 19 Mo. 551; Babcock v. Babcock, 46 Mo. 243; Clark v. Barnes, 58 Mo. App. 667; Charlotte v. Chouteau, 25 Mo. 465.] ” In Cubbedge v. Napier, supra, it was averred by the pleader that “at the time of the execution and delivery of said note and mortgage under and by virtue of said statute laws of Georgia all titles to property made as part of an usurious contract, or to evade the usury laws of such state, are void,” etc. As to the sufficiency of this pleading, the Supreme Court of Alabama said: “When the complainant in a bill in equity deduces his title to relief from the statute of a sister state, the statute must be substantially stated in the bill; for the reason that the court cannot judicially take notice of it. A general averment of the existence of the statute, and that it confers the right, is not sufficient. It is a statement of the conclusion of the pleader rather than a statement of facts. Thus, in Cockrell v. Gurley, 26 Ala. 405, which was a bill filed by a remainder-man for the protection of his interest in certain slaves, which had been allotted in Kentucky to the tenant of the particular estate, as dower in the estate of her deceased husband, the statute of Kentucky, it was averred, limited her interest to a life estate, with remainder to the next of kin of her husband. The averment was in this form: ‘That by the statute laws of Kentucky at the time of the death of said Henry B. Haley (the husband) and the allotment of dower to his widow, as aforesaid, she was only entitled to a life interest in said negro Chaney and her increase, and the estate in remainder vested in the said Mary Ann (the complainant).’ This court pronounced the averment insufficient — that it was simply a statement of what the pleader supposed to be the law of Kentucky. If the usury consists in the violation of the law of a state other than that in which the enforcement of the contract is sought, the law is matter of fact, which must be pleaded with the certainty that any extrinsic fact must — 485 — be pleaded which is essential to a right of action or to constitute a defense. The pleader may be well satisfied of his construction of the foreign law, and may assert it is the law itself; that is not his province. The law must be substantially stated; and the facts must be averred which are supposed to constitute its violation, then the court can determine whether the facts — the foreign law, which is but a fact — and the transaction supposed to offend it, compel the repudiation of the contract. . . . Subjecting these averments to the rules we have stated, they are not averments of fact, but the conclusions of the pleader.” In the ease of Carey v. Railroad, supra, on page 364, the court said: ‘ ‘ The general reference in the bill, to the laws of the State of Indiana, is not sufficient. If complainant would rely upon the fact that the Cincinnati, New Castle and Michigan Railroad Company had failed to organize according to the laws of that state; o.r that it had conducted in such a manner, as that, under and by virtue of those laws, it had forfeited its charter, or ceased to have a corporate existence— the particular statute or statutes relied upon should be set out, that the courts of this state may be able to judge of their provisions, and of the duties thereunder devolving upon this company. Our courts do not take judicial notice of the statutes of another state. And if a party relies upon such statutes, he must set them out — plead them as he does any other fact, and it will not do to refer to them by their title, and date of approval, nor by stating what in the opinion and judgment of the pleader are their general provisions and requirements. [Bean v. Briggs, 4 Iowa 464, and cases there cited; Walker v. Maxwell, 1 Mass. 103; Legg v. Legg, 8 Ib. 99; Collett v. Keith, 2 East 261.] ” And in the case of Bean v. Briggs, 4 Iowa 468, the court said: “The established doctrine now is that no court takes judicial notice of the laws of a foreign country, but they must be proved as facts. [Story’s Conf. — 486 — of Laws, see. 637, and the authorities cited in note 2.] And if a party would introduce such proof, it is not sufficient to aver, as a plaintiff, in his pleadings, that his right to recover is warranted by the law or statute of another state, where his contract was made; no.r as a defendant, in his answer, that plaintiff cannot recover by reason of the provisions of such foreign statute, hut he must plead the particular statute relied upon, and set it out, as he would any other fact in the case, that the court may he able to see and judge whether the proceeding is warranted, or the defense tenable, under such law. [1 Chitty, Pleading, 247; Holmes v. Broughton, 10 Wend. 75; Pearsall v. Dwight, 2 Mass. 34.]” In Swank v. Hufnagle, 111 Ind. 453, the plaintiff alleged “that the contract was made in Ohio, and that by a statute of that state a married woman had power to execute such a mortgage,” but the statute of Ohio was not set out, and that pleading was held bad. In Hand v. St. Louis, 158 Mo. l. c. 212, it was alleged: “That in consequence of the act of the city, that is, the act of building an engine house on the lot, and its location and the development of the city, it is now impossible to use it for a market.” The Supreme Court said of this allegation: “Thus stated it is a mere conclusion of the pleader and hot very logical as such. A demurrer admits only facts pertinently pleaded. It does not admit a conclusion.” And so in Martin v. Castle, 193 Mo. l. c. 194, where the plaintiff in his petition sought to have certain judgments declared void, the allegations of the petition respecting these judgments were substantially as follows: “That the records and proceedings by which said pretended judgments were procured nowhere show that the defendant, who is plaintiff herein, was ever served with process as required by law, and that said justice of the peace had no jurisdiction of the subject-matter of the action.” With reference to the suffi — 487 — ciency of these allegations to show that the judgments were void, on demurrer to the petition, this court said: “The first allegation is a mere conclusion of law, and the inference to he drawn from the allegation is that the defendant was served with process, hut not according to law as understood by the pleader. How o,r in what particular the service was defective, if such was the case, is not indicated, and it should'have been pointed out in order that the court might determine whether it was fatal to the judgment. If the defendant was not served' at all, the petition should have so alleged. The other allegation is equally had in that it does not allege why or wherein the justice lacked jurisdiction of the causes. The demurrer only admits facts that are well pleaded, and these facts were not well pleaded.” There are many other eases of like import and none to the contrary to which our attention has been called. See Forsyth v. Preer, 62 Ala. 443; Hempstead v. Reed, 6 Conn. 480; Temple v. Brittan, 12 S. W. (Ky.) 306; Hoyt v. McNeil, 13 Minn. 390; Bank v. Lang, 2 N. D. 66; Pearce v. Rhawn, 13 Ill. App. 637. We are, therefore, of the opinion that the action of the circuit court in sustaining the demurrer to the petition on the second ground assigned was proper, and that the judgment for that reason .should be affirmed; and it is so ordered. All concur.