Cytron v. St. Louis Transit Co.
| Decision Date | 02 July 1907 |
| Citation | 104 S.W. 109,205 Mo. 692 |
| Parties | CYTRON et ux. v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Affirmed.
Boyle & Priest, George W. Easley and J. W. Jamison for appellant.
(1) The demurrer to the amended petition should have been sustained. The action is a statutory one for damages for tort to a person resulting in death, which were not recoverable at common law, and the statute gives both a right of action and provides the remedy for death where none existed at common law. Brink v. Railroad, 160 Mo. 92. It is clear that the statute gives a joint remedy to the father and mother for the death of a deceased unmarried minor, and that they must join in the suit and each shall have an equal interest in the judgment, or, if either of them is dead, then by the survivor. R. S. 1899, sec. 2864. While the statute uses the word "may" join in the suit, yet the code expressly provides that "parties who are united in interest must be joined as plaintiffs or defendants, but if the consent of any one who should be joined as a plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the petition." This section was applied to both actions at law and suits in equity. R. S. 1899, sec 544; Buel v. St. Louis Transfer Co., 45 Mo. 463, 52 Mo. 457; Coates v. Railroad, 104 Mo. 518; R. S 1899, sec. 2864; Barker v. Railroad, 91 Mo. 86; Wood on Limitations (3 Ed.), sec. 9; Railroad v. Hine, 25 Ohio St. 629; Boyd v. Clark, 8 F. 851. (2) The fourth instruction is erroneous, in that it submits to the jury whether the motorman, by keeping a vigilant watch, could have seen the deceased and stopped the car and averted the collision with, and injury to the child. There was not any evidence whatever as to the ability of the motorman to stop, except that of the motorman himself. That was contrary to the following authorities: Zurfluh v. Railroad, 46 Mo.App. 636; Molyneux v. Railroad, 81 Mo.App. 25; Hauselman v. Railroad, 88 Mo.App. 123; Cogan v. Railroad, 101 Mo.App. 179; Asphalt Co. v. Railroad, 102 Mo.App. 469; Moore v. Railroad, 176 Mo. 528; McGauley v. Railroad, 179 Mo. 583; Roenfeldt v. Railroad, 180 Mo. 554; Reno v. Railroad, 180 Mo. 469.
Thos. B. Harvey for respondent.
(1) The demurrer to the amended petition was properly overruled. The petition did not show on its face that the father and mother of the deceased, named as plaintiffs in said petition, had not been joined as plaintiffs in the original petition and within one year after the death of their minor son. The statute requires that only such defects as appear on the face of the petition may be taken advantage of by demurrer. R. S. 1899, sec. 598; Arthur v. Rickards, 48 Mo. 298; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; Springfield v. Plummer, 89 Mo.App. 515. If such alleged defect did appear upon the face of the petition, and it was, therefore, subject to demurrer, it would be waived by answering over to the merits. Section 602, R. S. 1899; Jones v. Railroad, 178 Mo. 538. (2) The court committed no error in permitting the mother of the deceased minor to be made a party plaintiff with her husband by an amended petition filed more than one year after the death of said minor. Secs. 658, 659, 660, R. S. 1899. The foregoing sections on amendments should be liberally construed. Harlan v. Moore, 132 Mo. 483; Hayden v. Marmaduke, 19 Mo. 403; Butler v. Lawson, 72 Mo. 227. In order to take advantage of a defect of parties, it must be done in some appropriate manner before trial. The only method adopted by defendant before the trial was by a demurrer, and which was inadequate because it went only to such alleged defects as appeared upon the face of the petition, and no defect of parties appeared upon the face of the petition. By answering and going to trial, defendant waived any alleged defects of parties. Crook v. Tull, 111 Mo. 288; Dunn v. Railroad, 68 Mo. 269; Butler v. Lawton, 72 Mo. 227; Spillaine v. Railroad, 111 Mo. 562; Burnham & Co. v. Tillery & Co., 85 Mo.App. 459; Stewart v. Gibson, 71 Mo.App. 235. The cause of action had been filed in due time by the father as plaintiff and the limitation of the statute was suspended from that time; and it was competent at any time thereafter to bring in any other parties in interest. Senn v. Railroad, 124 Mo. 624; Buel v. St. Louis Transfer Co., 45 Mo. 463; Wood on Limitations (3 Ed.), sec. 9; Floyd v. Floyd, 90 Ind. 130; Vunk v. Railroad, 56 N. J. L. 395; Bradford v. Andrews, 20 Ohio St. 219; Martin v. Young, 85 N.C. 156; Lilly v. Tobbein, 103 Mo. 489. The cause of action is not changed, neither is a new claim asserted, by bringing in an additional necessary party by amendment. Merrill v. St. Louis, 83 Mo. 248; Hughes v. McDivitt, 102 Mo. 77. See, also, Crockett v. St. Louis Transfer Co., 52 Mo. 460; Lottmann v. Barnett, 62 Mo. 170; Railroad v. Wyler, 158 U.S. 293; Whalen v. Gordon, 95 F. 309; Hennessey v. Brewing Co., 145 Mo. 114; Courtney v. Blackwell, 150 Mo. 271; Bricken v. Cross, 163 Mo. 453. (3) There was ample evidence to justify the giving of plaintiff's fourth instruction upon the motorman's failure to keep a vigilant watch and to stop the car upon the appearance of danger to the child. It was plainly a question for the jury to decide, whether he made proper effort to stop the car upon seeing the boy approach the track, or whether he could not stop the car because of its excessive speed.
OPINION
In Banc
-- From a judgment against it for five thousand dollars damages for negligently causing the death of plaintiffs' eight-year-old son, Morris, on August 27, 1901, the defendant appeals. The case was assigned to Division One. There the judgment was reversed. On a motion for rehearing two of the members of that division dissented. Thereupon it went to Banc.
The case made on the facts, as well as the paper case on issues going to the merits, will be reviewed presently. Putting them aside for the present, there is a question made on the pleadings calling for consideration and determination in limine.
I. The cause was heard below on an amended petition. As originally brought, the father, Meyer Cytron, alone sued. The child was the son of Meyer and Rosie Cytron, husband and wife. Presently, but after one year had elapsed, an amended petition was filed, the amendment consisting in making Rosie Cytron a party plaintiff. Thereupon defendant lodged a demurrer -- the force thereof spent on facts disclosed by that amendment, to-wit, the existence of a living mother as well as a father and a failure to join that mother as a plaintiff in the first petition. The demurrer was overruled, and thereupon defendant answered over. By that answer it renewed its attack on the petition based on the same grounds exploited in its demurrer. Thereby it alleged that the cause of action accrued on August 27, 1901; that Meyer Cytron alone brought suit; that the amended petition was filed on the third day of February, 1903; that the penalty sued for could only be recovered by the father and mother jointly; that suit must be brought within one year, and not afterwards; that such action (under the amended petition) was not brought within one year after said cause of action accrued; and that, the premises considered, the condition of the statute giving the cause of action had not been complied with and plaintiffs were not entitled to recover.
At the close of the case defendant asked and the court refused to give a peremptory instruction. At the beginning of the case defendant objected to the introduction of any testimony because the petition did not state facts sufficient to constitute a cause of action. This objection was overruled -- defendant saving timely exceptions to both said rulings. As we see it, it is one or the other of them that defendant now assigns as reversible error, in that by joining Rosie Cytron in the amended petition, the plaintiffs, in effect, instituted a new suit more than one year after the cause of action accrued -- all this (it is said) in the teeth of the statute then existing, to-wit, Revised Statutes 1899, section 2868, reading:
To avoid the settled rule (hereinafter pointed out) that the stiff letter of the statutory term of limitation may be gently coaxed or relieved against by the benevolent interpretation and application of the code provisions on amendments, defendant's learned counsel argue that the foregoing section is not so much a statute of limitation as it is a statute creating a condition. That as a condition it is distinguished from a limitation in the right of amendment and the party must bring himself rigidly within the condition to be entitled to recover. They say the statutory condition was that the suit should be brought by the husband and wife within the year prescribed; that both the right of action and the remedy are created by statute; that it gives a joint remedy to the father and mother for the death of a deceased unmarried minor; and that they have an equal interest in the judgment, ergo, must join in the suit at its inception. Failing to comply with that condition, they argue, plaintiffs should be cast.
But we do not agree with that view. It seems to us that the argument of defendant's learned counsel proceeds on an over-refinement. The statute in hand is not a span more or a whit less than one of limitation and...
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