111 S.W. 102 (Mo. 1908), Aley v. Missouri Pacific Railway Company

Citation:111 S.W. 102, 211 Mo. 460
Opinion Judge:LAMM, J.
Party Name:BENJAMIN F. ALEY et al., Minors, by Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
Attorney:Martin L. Clardy and R. T. Railey for appellant. Jackson & Noble and Charles E. Morrow for respondents.
Case Date:April 13, 1908
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 102

111 S.W. 102 (Mo. 1908)

211 Mo. 460

BENJAMIN F. ALEY et al., Minors, by Next Friend,

v.

MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 13, 1908

Appeal from Johnson Circuit Court. -- Hon. N. M. Bradley, Judge.

Affirmed.

Martin L. Clardy and R. T. Railey for appellant.

(1) As J. W. Aley was a non-resident of Missouri, the clerk had no legal right to appoint him as next friend, nor can he legally prosecute this suit, and especially on account of having given no bond as required by section 554, Revised Statutes 1899. (2) At common law, a personal right of action died with the person. If respondents are entitled to recover on account of the death of Tilghman H. Aley and Alice Aley, his wife, it is by virtue of a transmitted right, given by section 2864, Revised Statutes 1899. Bates v. Sylvester, 104 S.W. 74; Strode v. Railroad, 197 Mo. 626; Hennessy v. Brewing Co., 145 Mo. 111; Proctor v. Railroad, 64 Mo. 119. (3) There being no right of action at common law, as heretofore shown, if one exists, it is by virtue of a transmitted right conferred by section 2864, Revised Statutes 1899. The Legislature in transmitting this right, reserved to itself the exclusive power of naming those who could maintain the action; of fixing the time in which each could sue; and likewise had the power to fix the forfeiture or penalty of any one count at $ 5000. The respondent's right of action -- if any exists -- is founded upon said section 2864. Under said section, no right of action is given for $ 10,000 in a single count or otherwise. If you can sue for and recover $ 10,000 under said section, in a single count, then why can you not sue for $ 4,500 under the same section? This court in a recent opinion has conclusively settled the last proposition in the negative. Casey v. Railroad, 205 Mo. 721; Casey v. Railroad, 116 Mo.App. 235; Raisor v. Railroad, 74 N.E. 69; DeBoth v. R. H. C. & M. Co., 141 Mo. 497.

Jackson & Noble and Charles E. Morrow for respondents.

(1) The statute does not require a next friend to be a resident of this State. R. S. 1899, sec. 551. Neither does the next friend have to give a bond that he will account to the infant unless required by the court or officers to whom application for such appointment shall be made. R. S. 1899, sec. 554. Even if the next friend appointed were an improper person, after verdict in favor of the infants, it is no ground for reversal in the appellate court. Ralston v. Lohee, 8 Iowa 17; Story v. Dayton, 22 Hun 450; Ward v. Lowndes, 96 N.C. 367. (2) There was but one wrong. A single act, a single wrong, gives rise to but one cause of action, whether or not the act infringes upon different rights or causes different injuries. The entire injury resulting from one negligent act constitutes but one cause of action, however numerous the items of damage may be. Morgan v. Railroad, 111 Mo.App. 727; Lamb v. Railroad, 33 Mo.App. 489; Steiglider v. Railroad, 38 Mo.App. 511; Stickford v. St. Louis, 75 Mo. 309, 7 Mo.App. 217; Peake v. Railroad, 26 F. 495; Railroad v. Chester, 57 Ind. 297; Perry v. Dickerson, 85 N.Y. 347; King v. Railroad, 50 L. R. A. 161; 1 Ency. Pl. & Pr., 159. (3) Even if we concede that the statute is wholly penal and for that reason the death of the father and mother constituted separate causes of action, yet, on this theory, the third count upon which judgment was taken states two causes of action instead of failing to state any. It asks for $ 10,000, two penalties. It is one thing not to sue for even one penalty -- $ 4,500, as in the Casey case -- and quite a different thing to sue for two penalties -- $ 10,000, as here. The petition states facts showing two deaths by reason of defendant's negligence. It may be that it states two causes of action, but surely it cannot be said that it fails to state any. The prayer of the petition is no part of the statement of the cause of action. Emmert v. Meyer, 65 Mo.App. 609. Even when two causes of action are stated in two counts, one prayer for relief is sufficient. Briggs v. Railroad, 82 Mo. 37. The defendant has filed its answer in this case, and any relief embraced within the issue could be given. Bliss on Code Pleadings, sec. 161. The judgment in this case was not for a greater sum than that demanded in the petition. Nor can it be said that it was not consistent with the case made by plaintiff or that it was not embraced within the issue. Sharkey v. McDermott, 91 Mo. 657; State to use v. Adler, 97 Mo. 420; Hicks v. Jackson, 85 Mo. 283. (4) At most there was improperly mingled in one count two causes of action, consistent with each other, which might have been properly united in the same petition. This error was waived by pleading to the merits and going to trial. The motion to require plaintiff to elect after all the evidence was in on both sides was too late. White v. Railroad, 202 Mo. 560; Jordan v. Railroad, 202 Mo. l. c. 427; Paddock v. Somes, 102 Mo. 235; Christal v. Craig, 80 Mo. 371; Steveson v. Judy, 49 Mo. 227; Otis v. Bank, 35 Mo. 128; Murphy v. Railroad, 96 Mo.App. 272; R. S. 1899, sec. 602. (5) There is no legal presumption that either Mr. or Mrs. Aley survived the other. Whether either survived the other is a fact to be determined from the evidence like any other fact. United States Casualty Co. v. Kacer, 169 Mo. 301; Supreme Council, etc., v. Kacer, 96 Mo.App. 93; 13 Cyc. 308. The court upon ample evidence in this case found that both were killed at the same time and that neither survived the other. This finding precludes the defendant on that question in this court. (6) We do not think it necessary, in order to decide this case, to determine whether the right given by the statute is a transmitted right or a new cause of action. But as appellant seems to rely upon the doctrine of transmitted right, we contend that this doctrine is a mere fiction. The deceased never had a right to sue for his own death, neither did his representatives. Then how could a right which never existed be transmitted? Surely deceased never had a right to sue for a penalty for his own death. If the statute is penal as claimed, it without doubt creates a new cause of action. If it is compensatory the action is also a new right. The pain and suffering of the deceased prior to his death is no part of the injury. It is the loss to the relatives mentioned in the statute. Unless this is true an instantaneous death would not be actionable. Behen v. Railroad, 186 Mo. 430; Meekin v. Railroad, 164 N.Y. 145; Martin v. Railroad, 151 U.S. 695; Re Estate of Mayo, 60 S.C. 401; Matz v. Railroad, 85 F. 180; Hulbert v. Topeka, 34 F. 510; Byron v. Railroad, 102 Wis. 137; Railroad v. Barron, 72 U.S. 90; 3 Sutherland on Damages, p. 282.

OPINION

Page 103

[211 Mo. 465] LAMM, J.

On December 20th, 1904, suit was brought in the Johnson Circuit Court for the death of Tilghman H. and Alice Aley, the father and mother of the minor plaintiffs, Benjamin F., Ruby, Howard and Mary Aley. The petition was in three counts -- the first, for $ 5,000 damages bottomed on the wrongful death of the father through the negligence of defendant, its agents, servants and employees; the second (mutatis mutandis) for like amount for the wrongful death of the mother at the same time and place; and the third (mutatis mutandis) for $ 10,000 damages for the death of both parents at the same time and in the same accident. Under the circumstances hereinafter set forth, plaintiffs dismissed as to the first and second counts and, at a trial without a jury, judgment went in their favor on the third for $ 10,000. From this judgment, on due steps, defendant appeals.

Pertinent to questions made, it will be well to set forth the third count of the petition -- the constitutive elements of the abandoned counts needing no attention. Said third count follows:

"For another and further cause of action, plaintiff states that Benjamin F. Aley is a minor of the age of twenty years; that Ruby Aley is a minor of the age [211 Mo. 466] of seventeen years; that Howard Aley is a minor of the age of fifteen years, and that Mary Aley is a minor of the age of twelve years; that they are the children of Tilghman H. Aley and Alice Aley, who were at all the times hereinafter mentioned husband and wife, and are the only minor children and heirs of said Tilghman H. Aley, who was their father, and Alice Aley, who was their mother, and that they reside in Cowley county, Kansas, and have no legally appointed guardian or curator in the State of Missouri.

"That J. W. Aley has been duly appointed and has consented to act as their next friend in this suit, and that the petition for said appointment, the written consent of said J. W. Aley to be said next friend, and the said order of appointment, have been duly filed in the office of the clerk of said court.

"That the defendant now is and at all the times hereinafter mentioned was a corporation duly organized and acting under the laws of the State of Missouri, and was the owner of...

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