121 S.W. 138 (Mo. 1909), Gilkeson v. Missouri Pacific Railway Co.

Citation:121 S.W. 138, 222 Mo. 173
Opinion Judge:WOODSON, J.
Party Name:GEORGE G. GILKESON, Administrator of Estate of CLIFFORD RAGEL, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
Attorney:Martin L. Clardy with R. T. Railey & Son for appellant. Jackson & Noble and Chas. E. Morrow for respondent.
Case Date:July 01, 1909
Court:Supreme Court of Missouri
 
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Page 138

121 S.W. 138 (Mo. 1909)

222 Mo. 173

GEORGE G. GILKESON, Administrator of Estate of CLIFFORD RAGEL,

v.

MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

July 1, 1909

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

Reversed.

Martin L. Clardy with R. T. Railey & Son for appellant.

The principal question involved in this case is whether or not an administrator, in the first instance and before judgment, can maintain an action, in a death case for $ 5,000, under section 2864, as said section stood on October 10, 1904, the day of the Ragels' death. (1) A personal right of action dies with the person. Broom's Legal Maxims (4 London Ed.), p. 667; Mobile Life Ins. Co. v. Brame, 95 U.S. 754; McNamara v. Slavens, 76 Mo. 330; Town of Carrollton v. Rhomberg, 78 Mo. 549; Gibbs v. Hannibal, 82 Mo. 143; Vawter v. Railroad, 84 Mo. 683; Barker v. Railroad, 91 Mo. 91; McIntosh v. Railroad, 103 Mo. 133; Hennessy v. Brewing Co., 145 Mo. 12; Brink v. Railroad, 160 Mo. 91; McGinnis v. M. C. & F. Co., 174 Mo. 229; Packard v. Railroad, 181 Mo. 426; Strode v. Railroad, 197 Mo. 626; Bates v. Sylvester, 205 Mo. 493; Casey v. Railroad, 205 Mo. 724; Elliott v. Railroad, 210 Mo. 576; Strattman v. Railroad, 211 Mo. 227; Broadwater v. Railroad, 212 Mo. 437; Crohn v. Tel. Co., 131 Mo.App. 313; Hegerich v. Keddie, 99 N.Y. 258; Earnest v. Railroad, 112 S.W. 141; Millar v. Railroad, 115 S.W. 521. The common law, of course, was in full force and effect in this State in October, 1904, except as modified or changed by national or State law. Sec. 4151, R. S. 1899. It is, therefore, too plain for argument, on the admitted facts, that plaintiff has no standing in court as a common law cause of action. (2) We insist that not a single case can be found in our reports, which has ever held that an administrator, in a death case like this, could recover damages under the law as it stood in October, 1904. On the other hand, this court, at an early date, conclusively settled this question adversely to the contention of respondent. Gibbs v. Hannibal, 82 Mo. 143; Broadwater v. Railroad, 212 Mo. 437; Strottman v. Railroad, 211 Mo. 227; Crohn v. Tel. Co., 131 Mo.App. 313. (3) "At common law actions in tort do not survive the death of either the wronged or the wrongdoer." Bates v. Sylvester, 205 Mo. 496. This court, in no uncertain language, in a number of recent cases has emphasized this proposition of law. Millar v. Railroad, 115 S.W. 521; Broadwater v. Railroad, 212 Mo. 437; Strottman v. Railroad, 211 Mo. 227.

Jackson & Noble and Chas. E. Morrow for respondent.

(1) All civil actions survive except injuries to person and reputation. R. S. 1899, secs. 96-97; Kingsbury v. Lane, 21 Mo. 117; McDermott v. Doyle, 17 Mo. 336; Stanley v. Bercher, 78 Mo. 245; Phillips v. Towler, Admr., 23 Mo. 401. The penal statutory cause of action given by Sec. 1105, R. S. 1899, survives under our statute. Snyder v. Railroad, 86 Mo. 613. The penalty given by statute for failure to satisfy a mortgage has also been held to survive. Wiener v. Peacock, 31 Mo.App. 238. The statutory action given against the owner for injury done by a slave to person or property survived. Phillips v. Towler's Admr., 23 Mo. 401. (2) The right of action given by statute to a child to sue and recover money for the death of its father and mother, a pecuniary loss for which the common law gave no remedy, is a property right under all the definitions of property. It vested in the child on the death of its parents and survives under the statute. This is true whether the right be considered a transmitted right or a new cause of action. It is a right given by law to recover for a loss recognized by law. R. S. 1899, secs. 96-97; Behen v. Railroad, 186 Mo. 430; Meekin v. Railroad, 164 N.Y. 145; Contryman v. Railroad, 166 N.Y. 201; Cooper v. Electric Co., 63 N. J. L. 558; Pitkin v. Railroad, 87 N.Y.S. 906; Caspo v. City of Syracuse, 90 N.Y.S. 553; Quinn v. Moore, 15 N.Y. 432; Yertore v. Wiswall, 16 How. Pr. (N. Y.) 8; People ex rel. v. Gill, 85 A.D. 195. Whether the right is original or transmitted, it survives both under the statute and at common law. James v. Christy, 18 Mo. 162; Twycross v. Grant, 4 C. P. D. 45; Bradshaw v. Railroad, 10 C. P. 189; Phillips v. Towler's Admr., 23 Mo. 401. When the third section of the Damage Act was passed, giving a remedy to a child in an action for damages for the necessary injury resulting from the death of a parent, the courts immediately recognized all these elements as pecuniary loss. Stoher v. Railroad, 91 Mo. 518; McPherson v. Railroad, 97 Mo. 253. A vested right of action is property. A right to sue and recover money is a property right. Cody v. Dempsey, 83 N.Y.S. 899; Power v. Horton, 57 Mich. 107; Ballsthill v. Humphrey, 64 Mich. 494. (3) Our damage statute is taken from Lord Campbell's Act and creates a new cause of action. It is not a survival statute. Nor does it transmit a right from the deceased to the beneficiary. Behen v. Railroad, 186 Mo. 430; Meekin v. Railroad, 164 N.Y. 145; Martin v. Railroad, 151 U.S. 695; Hulbert v. Topeka, 34 F. 510; Byron v. Railroad, 102 Wis. 137; Railroad v. Barron, 72 U.S. 90; 3 Suth. on Dam., p. 282. All the States as well as the U. S. Supreme Court and the courts of England so hold. Smith v. Railroad, 75 Ala. 449; Munro v. Dredging Co., 84 Cal. 515; Magon v. Railroad, 95 Cal. 510; Davis v. Railroad, 53 Ark. 517; Holton v. Doley, 106 Ill. 131; Quincy Coal Co. v. Hood, 77 Ill. 68; Railroad v. Hosea, 152 Ind. 412; Burnes v. Railroad, 113 Ind. 169; Railroad v. Goodykoontz, 119 Ind. 111; Martin v. Railroad, 58 Kan. 475; Eureka v. Merrifield, 53 Kan. 794; Cooper v. Elec. Co., 63 N. J. L. 558; Meekin v. Railroad, 164 N.Y. 145; Perham v. Portland Gen. Electric Co., 33 Ore. 451; Fink v. Gorman, 40 Pa. St. 95; Re Estate of Mayo, 60 S.C. 401; Mason v. Railroad, 7 Utah 77; Needham v. Railroad, 38 Vt. 294; Brown v. Railroad, 102 Wis. 137; Curry v. Marmington, 23 W.Va. 14; Cunningham v. Sager, 21 W.Va. 440; Martin v. Railroad, 151 U.S. 695; Hulbert v. City of Topeka, 34 F. 510; Railroad v. Adams, 116 F. 324; Seward v. The Vera Cruz, 10 App. Cas. 59; Brunsden v. Humphrey, L. R. 14 Q. B. D. 141.

OPINION

Page 139

[222 Mo. 177] WOODSON, J.

This suit was brought in the circuit court of Johnson county, by the administrator of the estate of Joseph A. and Clifford Ragel, deceased, against the defendant, to recover the sum of $ 10,000 for each, for the wrongful killing of their father and mother, Philip and Rose E. Ragel, on October 10, 1904, by a negligent head-end collision of two of its passenger trains, near Warrensburg, Missouri.

The petition was in three counts, and in the court below the plaintiff dismissed the case as to each count as administrator of the estate of Joseph A. Ragel; and elected to proceed upon the first and second counts, as administrator of the estate of Clifford Ragel, and also dismissed the cause stated in the third count of the petition.

[222 Mo. 178] The first count of the petition states that said Gilkeson is the duly qualified administrator of the estate of Clifford Ragel, an unmarried minor, of the age of fourteen years; that he was a child of Philip and Rose Emma Ragel, deceased, and that he and his brother Joseph A. Ragel, deceased, an unmarried brother, of the age of 20 years, were the only minor children and heirs at law of said parents; that said Philip and Rose Emma Ragel were both killed on the 10th of October, 1904, on the same day and at the same time in a collision, without having sued defendant or any one for damages for his death, and that since her death her personal representative has not brought suit for damages for his death against any one. That defendant was a corporation duly organized under the laws of Missouri and was operating a line of railway through the counties of Cowley, Chautauqua, Montgomery, Labetta and other counties in the State of Kansas to and through Johnson county to St. Louis, Missouri, and was at said dates a common carrier of passengers and freight. That on the day of October, 1904, said Philip Ragel, the father of said minors, purchased from defendant, at Edna, Kansas, a ticket which entitled him to ride on defendant's train from there to St. Louis, Missouri, as a passenger; that he paid to said defendant the regular passenger fare from Edna to St. Louis, Missouri, and took passage on defendant's train as such passenger on said date, to St. Louis; that while he was a passenger on defendant's train aforesaid, on October 10, 1904, about one and one-half miles east of Warrensburg, in Johnson county, Missouri, through the negligence of defendant, the train on which said Philip Ragel was riding, collided with another train on said road, traveling in the opposite direction, thereby wrecking said Ragel's train and killing him; that his said death was caused solely by the negligence of defendant as aforesaid, to the damage of said Clifford Ragel in the sum [222 Mo. 179] of five thousand dollars. That said minors survived said Philip Ragel, and this plaintiff has been duly appointed administrator of their estate as aforesaid. Wherefore he prays judgment for $ 5,000 and costs.

The second count of the petition after the dismissals aforesaid is in substance the same as count one, supra, except that plaintiff asked judgment in the second count for $ 5,000, as administrator of the estate of Clifford Ragel, deceased, by reason of the damages which it is claimed he sustained on account of the death of said Rose Emma Ragel.

The answer contains a general denial as to each of the above counts of petition.

A trial was had upon the following agreed statement of facts:

"It is agreed by the parties to this cause that the facts herein are as follows:

"1st. The...

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