The opinion of the court was delivered by
Johnston, J.:
The question presented for decision here is, whether plaintiff has set up and shown a right of action in her favor against the railroad company maintainable in the courts of this state. Her husband, as is alleged, was injured upon the railroad of the defendant company on September 17, 1885, through the negligence of its servants, and he died on September 23, 1885. The injury and death occurred in Mis[60]*60souri, and she brings her action in Kansas, based on a statute of Missouri, which is set out at length in the petition. On one side it is urged that the action is statutory and penal in character, founded on a statute unlike our own, and cannot be maintained here, and that comity only embraces and effectuates general principles of law known and accepted by the jurisdiction of all enlightened nations. On the other side, it is contended that a legal liability was incurred under the statute of Missouri, and that an action to enforce the same is transitory in its nature, and may be maintained wherever jurisdiction of the parties can be procured. While actions for injury to persons and property are in general transitory, it is also true that at common law all rights of action for injury to the person died with the person. The principal discussion here has been whether a liability for such injury arising under the statutes of one state can be enforced in the courts of another state. Upon this question there is a great diversity of judicial opinion. It is held by some courts that as the statutes have no extra-territorial force, actions arising under them cannot be maintained outside of the state enacting them and where the wrong is committed. The following authorities are cited to sustain this view: McCarthy, Adm’r, v. Rld. Co., 18 Kas. 46; Woodard v. Rld. Co., 10 Ohio St. 121; Hover, Adm’r, v. Pa. Rld. Co., 25 id. 667; Richardson, Adm’r, v. N. Y. C. Rid. Co., 98 Mass. 85; Anderson v. M. & St. P. Rly. Co., 37 Wis. 321; Whitford v. Panama Rld. Co., 23 N. Y. 465; Taylor’s Adm’r v. Pa. Rld. Co., 78 Ky. 348; The State v. Pitts. & Conn. Rld. Co., 45 Md. 41; Mackay v. Cent. R. R., 14 Blatch. (C. C.) 65; Rorer on Interstate Law, 158; Shearman & Redf. on Neg., § 296.
By other courts it is held that the right of action in such cases does not depend on whether it is a statutory or common-law right; but where a right of action becomes fixed and a legal liability incurred under the statute law of a state, such action is transitory, and the liability may be enforced in the courts of any state which has jurisdiction of such matters, and can obtain jurisdiction of the parties. (Dennick v. Rld. Co., [61]*61103 U. S. 11; Knight v. West Jer. Rld. Co., 108 Pa. St. 250; same case, 26 Am. & Eng. Rld. Cases, 45; Burns v. G. R. & I. Rld. Co., 15 N. E. Rep. 230; Herrick v. M. & St. L. Rld. Co., 31 Minn. 11; Leonard v. Col. St. Nav. Co., 84 N. Y. 48; Boyce v. Wab. Rly. Co., 63 Iowa, 70; McLeod v. Rld. Co., 58 Vt. 727; Rld. Co. v. Sprayberry, 8 Baxt. 341.)
In some, and perhaps most of the cases last cited, the right of a court of one state to enforce such a legal liability incurred under a statute of another state, is placed on the ground that the statutes of both states are similar. The statutes of Kansas and Missouri are far from being identical. In Kansas, the right of action accrues to the personal representative of the deceased, for the benefit of the widow and children, or next of kin; while in Missouri, the right of action is refused to the personal representative, but is granted to the husband or wife, (if action is instituted within six months,) to the exclusion of the children. If the husband or wife fails to bring the action within that time, the minor children, if there are any, have the sole right to bring it for their own benefit. In Kansas, the personal representative may recover for the loss inflicted according as the proof may show, to an amount not exceeding ten thousand dollars, and the amount recovered inures to the exclusive benéfit of the widow and children, if any, or next of kin, to be distributed in the same manner as the personal property of the deceased. In Missouri, certain designated relatives recover a fixed amount of five thousand dollars, regardless of what the proof may show to be a just compensation to them for the death of the person killed; and it is in the nature of a penalty; the language of the statute being that defendant “shall forfeit and pay for every person or passenger so dying the sum of five thousand dollars.” The dissimilarity of these statutes has already been referred to and pointed out. [McCarthy v. Rld. Co., supra; Vawter v. Mo. Rac. Rly. Co., 84 Mo. 679.)
Other of the cases proceed upon the theory that a liability incurred under a statute of one state for such injury, may be enforced in another state, notwithstanding the common law [62]*62gives no such right, and although no such statute exists in the latter state; providing the enforcement of the right in no way contravenes the policy of the state where the case is tried, and is not against good morals. But the present case does not require that we enter upon a reexamination of the questions involved in the early case of McCarthy v. Rld. Co., supra; nor need we review the cases to determine which theory is sustained by the weight of authority. There is no conflict in the decided cases upon the point that, so far as the right of action is concerned, it must stand, if at all, upon the statute of the state where the injury occurred, and not of the one where the redress is sought. The statute of Missouri provides who may bring the action and the time and conditions within which it must be instituted; and compliance with these requirements is essential to the maintenance of the action. If the injury was not actionable in Missouri, where it was inflicted, then certainly it is not actionable here; and unless it appears from the record that the widow could maintain an action in that state, she has no cause of action which she can assert in this jurisdiction. (Burns v. G. R. & I. Rld. Co., supra, and cases cited; 3 Wood's Rly. Law, § 413.)
1. Personal injuries; death; damages; action; Missouri statute. 2. Practice-death in Missouri-action in Kansas. 3. Statute-construction. In her petition the plaintiff alleges that the deceased left surviving him minor children. The statute upon which she bases her action provides, as we have seen, that the widow may sue and recover damages, but if she fails to bring her action within six months, the right thereafter vests in her minor children. The right of action under the statute therefore remained absolutely in the wife for the period of only six months; after that time it vested absolutely in the children. The provision designating when and by whom the suit may be brought is more than a mere limitation — it is a condition imposed by the legislature, which qualifies the right of recovery and upon which its exercise depends. The supreme court of Missouri has recently examined and interpreted this statute, and in an elaborate opinion reaches the conclusion that the right is a conditional one, and the condition, being annexed to the right as given in [63]*63the statute, modifies the same, and in fact forms a part of the right itself. (Barker v. H. & St. J. Rld. Co., 91 Mo.
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The opinion of the court was delivered by
Johnston, J.:
The question presented for decision here is, whether plaintiff has set up and shown a right of action in her favor against the railroad company maintainable in the courts of this state. Her husband, as is alleged, was injured upon the railroad of the defendant company on September 17, 1885, through the negligence of its servants, and he died on September 23, 1885. The injury and death occurred in Mis[60]*60souri, and she brings her action in Kansas, based on a statute of Missouri, which is set out at length in the petition. On one side it is urged that the action is statutory and penal in character, founded on a statute unlike our own, and cannot be maintained here, and that comity only embraces and effectuates general principles of law known and accepted by the jurisdiction of all enlightened nations. On the other side, it is contended that a legal liability was incurred under the statute of Missouri, and that an action to enforce the same is transitory in its nature, and may be maintained wherever jurisdiction of the parties can be procured. While actions for injury to persons and property are in general transitory, it is also true that at common law all rights of action for injury to the person died with the person. The principal discussion here has been whether a liability for such injury arising under the statutes of one state can be enforced in the courts of another state. Upon this question there is a great diversity of judicial opinion. It is held by some courts that as the statutes have no extra-territorial force, actions arising under them cannot be maintained outside of the state enacting them and where the wrong is committed. The following authorities are cited to sustain this view: McCarthy, Adm’r, v. Rld. Co., 18 Kas. 46; Woodard v. Rld. Co., 10 Ohio St. 121; Hover, Adm’r, v. Pa. Rld. Co., 25 id. 667; Richardson, Adm’r, v. N. Y. C. Rid. Co., 98 Mass. 85; Anderson v. M. & St. P. Rly. Co., 37 Wis. 321; Whitford v. Panama Rld. Co., 23 N. Y. 465; Taylor’s Adm’r v. Pa. Rld. Co., 78 Ky. 348; The State v. Pitts. & Conn. Rld. Co., 45 Md. 41; Mackay v. Cent. R. R., 14 Blatch. (C. C.) 65; Rorer on Interstate Law, 158; Shearman & Redf. on Neg., § 296.
By other courts it is held that the right of action in such cases does not depend on whether it is a statutory or common-law right; but where a right of action becomes fixed and a legal liability incurred under the statute law of a state, such action is transitory, and the liability may be enforced in the courts of any state which has jurisdiction of such matters, and can obtain jurisdiction of the parties. (Dennick v. Rld. Co., [61]*61103 U. S. 11; Knight v. West Jer. Rld. Co., 108 Pa. St. 250; same case, 26 Am. & Eng. Rld. Cases, 45; Burns v. G. R. & I. Rld. Co., 15 N. E. Rep. 230; Herrick v. M. & St. L. Rld. Co., 31 Minn. 11; Leonard v. Col. St. Nav. Co., 84 N. Y. 48; Boyce v. Wab. Rly. Co., 63 Iowa, 70; McLeod v. Rld. Co., 58 Vt. 727; Rld. Co. v. Sprayberry, 8 Baxt. 341.)
In some, and perhaps most of the cases last cited, the right of a court of one state to enforce such a legal liability incurred under a statute of another state, is placed on the ground that the statutes of both states are similar. The statutes of Kansas and Missouri are far from being identical. In Kansas, the right of action accrues to the personal representative of the deceased, for the benefit of the widow and children, or next of kin; while in Missouri, the right of action is refused to the personal representative, but is granted to the husband or wife, (if action is instituted within six months,) to the exclusion of the children. If the husband or wife fails to bring the action within that time, the minor children, if there are any, have the sole right to bring it for their own benefit. In Kansas, the personal representative may recover for the loss inflicted according as the proof may show, to an amount not exceeding ten thousand dollars, and the amount recovered inures to the exclusive benéfit of the widow and children, if any, or next of kin, to be distributed in the same manner as the personal property of the deceased. In Missouri, certain designated relatives recover a fixed amount of five thousand dollars, regardless of what the proof may show to be a just compensation to them for the death of the person killed; and it is in the nature of a penalty; the language of the statute being that defendant “shall forfeit and pay for every person or passenger so dying the sum of five thousand dollars.” The dissimilarity of these statutes has already been referred to and pointed out. [McCarthy v. Rld. Co., supra; Vawter v. Mo. Rac. Rly. Co., 84 Mo. 679.)
Other of the cases proceed upon the theory that a liability incurred under a statute of one state for such injury, may be enforced in another state, notwithstanding the common law [62]*62gives no such right, and although no such statute exists in the latter state; providing the enforcement of the right in no way contravenes the policy of the state where the case is tried, and is not against good morals. But the present case does not require that we enter upon a reexamination of the questions involved in the early case of McCarthy v. Rld. Co., supra; nor need we review the cases to determine which theory is sustained by the weight of authority. There is no conflict in the decided cases upon the point that, so far as the right of action is concerned, it must stand, if at all, upon the statute of the state where the injury occurred, and not of the one where the redress is sought. The statute of Missouri provides who may bring the action and the time and conditions within which it must be instituted; and compliance with these requirements is essential to the maintenance of the action. If the injury was not actionable in Missouri, where it was inflicted, then certainly it is not actionable here; and unless it appears from the record that the widow could maintain an action in that state, she has no cause of action which she can assert in this jurisdiction. (Burns v. G. R. & I. Rld. Co., supra, and cases cited; 3 Wood's Rly. Law, § 413.)
1. Personal injuries; death; damages; action; Missouri statute. 2. Practice-death in Missouri-action in Kansas. 3. Statute-construction. In her petition the plaintiff alleges that the deceased left surviving him minor children. The statute upon which she bases her action provides, as we have seen, that the widow may sue and recover damages, but if she fails to bring her action within six months, the right thereafter vests in her minor children. The right of action under the statute therefore remained absolutely in the wife for the period of only six months; after that time it vested absolutely in the children. The provision designating when and by whom the suit may be brought is more than a mere limitation — it is a condition imposed by the legislature, which qualifies the right of recovery and upon which its exercise depends. The supreme court of Missouri has recently examined and interpreted this statute, and in an elaborate opinion reaches the conclusion that the right is a conditional one, and the condition, being annexed to the right as given in [63]*63the statute, modifies the same, and in fact forms a part of the right itself. (Barker v. H. & St. J. Rld. Co., 91 Mo. 86.) The construction thus placed by the highest court of Missouri on the statute should be followed here, as the cause of action is folded upon the statute. Following this view, we mugt that the pontiff has failed to show a right of recovery. It is not alleged, nor does it appear, that she brought her action within the allotted time. There is no averment of the time when the action was instituted; and the first pleading filed, as shown by the record, is what is called an amended petition, and it was filed about ten months after the death occurred. In a statutory action like this, where her right is conditional, the plaintiff must bring herself clearly within the prescribed requirements necessary to confer the right of action; and it being alleged that the deceased left minor children, it should be averred and shown that the action was commenced within six months after, the death and while the right of action remained in her. (Barker v. H. & St. J. Rld. Co., supra.) Failing in this, she has shown no cause of action in her favor, and therefore the judgment of the district court must be affirmed.
All the Justices concurring.