Crohn v. Kansas City Home Telephone Co.

• Citation: 131 Mo. App. 313,109 S.W. 1068
• Parties: CROHN v. KANSAS CITY HOME TELEPHONE CO.
• Decision Date: 06 April 1908
• Court: Court of Appeal of Missouri (US)

109 S.W. 1068

131 Mo. App. 313

CROHN v. KANSAS CITY HOME TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

Rehearing Denied May 4, 1908.

1. DEATH—RIGHT OF ACTION.

At common law an administrator cannot recover for the negligent death of his intestate.

2. STATUTES—CONSTRUCTION—LEGISLATIVE INTERPRETATION.

The legislative interpretation of statutes, though not conclusive, is entitled to weight in the construction thereof.

3. DEATH—RIGHT OF ACTION—STATUTES.

The right of action for death given by Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), authorizing an action for a penalty for death occasioned by the negligent operation of any train, locomotive, etc., does not authorize an action for negligent death caused by the maintenance of an obstruction across a public highway.

4. STATUTES — CONSTRUCTION — PENAL STATUTES—REMEDIAL STATUTES.

Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), giving a right of action for a penalty for the death of one occasioned by negligence in the management of trains, etc., is a penal and remedial statute, while sections 2865 and 2866 (Ann. St. 1906, pp. 1644-1646), giving a right of action for death by wrongful or negligent act, are remedial only, and the rules governing the construction of the two statutes are different.

5. SAME—CONSTRUCTION—ADOPTION OF STATUTE BY REFERENCE.

The general rule is that an act which adopts by reference the whole or a part of another statute adopts the law as existing at the time of the enactment of the act, and does not adopt any subsequent addition thereto, or modification thereof, and the repeal of such statute does not affect the act.

6. DEATH—ACTIONS—STATUTES.

Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), gives a right of action for a penalty for death caused by the negligent management of a locomotive, car, or train, to the wife or husband of decedent or to his children. Sections 2865 and 2866 (Ann. St. 1906, pp. 1644-1646) give a right of action for death caused by a wrongful or negligent act to the persons mentioned in section 2864. Laws 1905, p. 135, amends section 2864 (Ann. St. 1906, p. 1637), so as to authorize an action by the administrator of decedent. Held, that sections 2865 and 2866 adopted section 2864 as it originally existed, and the amendment of 1905 did not affect the sections, and the administrator of a decedent cannot maintain an action for his negligent death, especially in view of Laws 1907, p. 252, amending section 2866 (Ann. St. 1906, p. 1646), so as to permit an action by the parties provided for in section 2864, as amended by Laws 1905, p. 135.

7. SAME—DEFENSES—WAIVER.

In an action by an administrator for the death of his intestate by a wrongful act, the failure of defendant to demur to the petition on the ground that the administrator cannot maintain the suit, and the act of answering to the merits, do not amount to a waiver of the right to assert that the administrator cannot sue, and the objection may be made for the first time on the trial.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by R. S. Crohn, administrator of John L. Simpson, deceased, against the Kansas City Home Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ward, Hadley & Neal, for appellant. Laughlin & Kenworthy, for respondent.

JOHNSON, J.

This action was brought by the administrator of the estate of John L. Simpson, deceased, against the Metropolitan Street Railway Company and the Kansas City Home Telephone Company to recover damages, in the sum of $5,000, alleged to have been caused by the negligence of both defendants. At the conclusion of the evidence the street railway company was dismissed, and the issues relating to the alleged negligence of the remaining defendant were submitted to the jury. A verdict was returned for plaintiff in the sum of $2,000 and defendant telephone company appealed from the judgment entered thereon.

It appears from the evidence that Simpson, who was an unmarried man, 34 years old, was a laborer employed by the railway company in the construction of an electric railway from Kansas City to Dodson. On the 18th day of May, 1906, he was riding to his work on the construction train, and was seated with a number of his fellow laborers on top of a box car. He arose from his position, and walked along the running board to join another company of laborers who were seated on top of another car. While thus proceeding, and while the car was crossing a public highway, he was struck by a telephone wire which the telephone company had strung across the street some time before, and was thrown from the car and killed. It was shown that the wire which, when the telephone line was constructed, had been placed at a height of over 22 feet above the track, had sagged in the middle, and thus become reduced to an elevation above the track of only about 16 feet, 3 inches; so low that a person standing on a box car could not pass under it. It had been strung less than a month before, and the specific charge of negligence against the telephone company alleged in the petition is that said defendant "was careless and negligent in erecting and maintaining said wire across said track at such a height that a person standing upright on a stock or box car would not clear the wire." No demurrer was offered to the petition, but an answer was filed which tendered the general issue and several affirmative defenses. It did not allege that plaintiff was without legal capacity to sue. At the trial defendant objected to the introduction of any evidence, on the grounds that "the petition does not allege facts sufficient to constitute a cause of action," and "does not allege facts sufficient to show any right of action in R. S. Crohn, administrator of the estate of J. L. Simpson." The objection was overruled, evidently on the ground that the facts alleged do constitute a cause of action in favor of the administrator. We now are confronted with the question, argued with great learning and ability by counsel of both parties, whether the statute in force at the time of the occurrence conferred a cause of action which may be enforced by the legal representative of the estate. Plaintiff objects to the consideration of this question for the reason that in failing to raise, either by demurrer or in the answer, the question of his legal capacity to sue, defendant waived the point. We shall postpone the discussion of this objection until after the expression of our views on the subject of whether a cause of action existed at any time which might be enforced by the administrator.

The common law gives plaintiff no cause of action and, if one exists, it must be found in the statutory law. Plaintiff contends that his cause is founded on the provisions of section 2864, Rev. St. 1899, as amended in 1905 (Acts 1905, p. 135 [Ann. St. 1906, p. 1637]), and sections 2865-2866, Rev. St. 1899 (Ann. St. 1906, pp. 1644-1646). Counsel for defendant argue that the wrong alleged, and which for present purposes we shall treat as proved, does not fall within the class for which a remedy was provided in section 2864, but belongs to another class for which sections 2865 and 2866 afford a remedy to certain relatives of the deceased, but none in favor of the administrator of his estate. Further, they say that, as the amendment of section 2864 in 1905 was not expressly made applicable to causes not embraced in that section, it cannot be extended by implication to such causes, and consequently cannot be construed as an amendment of section 2866. The conclusion from these premises is that since the wrong alleged is not one for which an action may be prosecuted under section 2864 as amended, and since for a wrong of that nature no cause inures in favor of the administrator under the provisions of section 2866, plaintiff is remediless, and the action must fail. Sections 2864, 2865, and 2866 first appear in the statutes of 1855, and the last two sections were carried down to 1907 without substantial amendment. Section 2864 as originally enacted (Rev. St. 1855, p. 647, c. 51, § 2) gave a right of action for a death caused by the negligence of a servant operating an instrument of transportation, such right to inure to no other persons than those included in the following classes: First, the husband or wife of the deceased; second, "if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father or mother who may join in the suit and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor." The remedy provided was a penalty of $5,000. By amendment of this section in 1885 (Sess. Acts, p. 153) adopted children were added to the second class of beneficiaries. In 1905 other amendments were made, among them one which invested the jury with the discretion, in case they found for plaintiff, of giving him a verdict in any amount they might choose within the limits of $2,000 and $10,000; and another which provided: "If there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent." Laws 1905, p. 135. In 1907 (Sess. Acts, p. 252) section 2866 was amended to permit damages acruing under section 2865 to be "sued for and recovered by the same parties in the same manner as provided in section 2864 as amended by the laws of 1905, p. 135," and by providing that, "in every such action, the jury may give such damages not exceeding $10,000 as they may deem fair and just," etc. As this amendment was made after the death in the...