Buel v. United Railways Co.
| Decision Date | 28 February 1913 |
| Citation | 154 S.W. 71,248 Mo. 126 |
| Parties | CORNELIUS H. BUEL et ux., Appellants, v. UNITED RAILWAYS COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H Williams, Judge.
Affirmed.
P. H Sheridan, Henry B. Davis and A. R. Taylor for appellants.
(1) The court erred in holding that an unborn child while alive in the womb of the mother, sustaining injury by the negligence of the employees of the railroad on which the mother was a passenger, which child was afterwards born and lived after its birth and then died from the injuries so received, was not a "person" within the words and intent of the above cited statute. (2) By the words and intent of the statute, the penalty applies, not to the date or time of the injury, but to the time of the death. If the party injured is, at the time of his death, a person within the terms of the statute, then the penalty for "such . . . so dying" applies. This deceased child at the date of his death was in law a person, and the court erred in holding otherwise. (3) The statute in question is a remote evolution from Lord Campbell's Act which, in different forms, has been adopted in many, if not all, the States of this Union and by Congress, in the Employers' Liability Act of 1908, under the power contained in the Constitution of the United States, authorizing Congress to regulate commerce between the States. The difference, in substance, between the Missouri statute in question and Lord Campbell's Act, is that the Missouri statute carries a penalty; and as last construed by the Supreme Court, is both penal and compensatory. (4) The decision of the trial court in sustaining the demurrer to the petition was founded on an opinion of the Queen's Bench, Exchequer Division, 28 Irish L.R. 69, in Walker v. Railroad, and the trial court in holding that the reasoning of that case applied to or controlled the construction of the statute of Missouri. This case, under the statute, is to be determined alone by the statute, and its language and intent. If this child's death resulted from or was occasioned by the negligence, etc., of the employees of the defendant then, in that case, the law of the statute declares that the defendant must forfeit and pay the penalty provided by the statute. (6) The statute is constitutional as declared by this court and is enforceable according to its terms. Young v. Railroad, 227 Mo. 320; Murphy v. Railroad, 228 Mo. 87. (7) Whether the statute is wholly penal as declared in the Young case, supra, or whether the intent of the statute is both penal and remedial as intimated, but not decided in the Murphy case, supra, and as pointedly decided in Boyd v. Railroad, 236 Mo. 54, its application to the facts alleged in the petition in this case remains the same. (8) In this case the defendant by its employees in charge of its car in question received the mother of Dennis Buel as a passenger on the car in the condition of pregnancy. It is the common knowledge of men that women in a state of pregnancy, become and are received as passengers on vehicles of a carrier of passengers. Whenever a mother, as Mary Buel was, for she had her children with her, presents herself as a passenger for carriage on a carrier's vehicle, the carrier knows that she may be bearing a child in her womb and in assenting to the reception of the mother in this condition assents to the presence of the child on the carrier's vehicle of carriage. West v. Railroad, 187 Mo. 363. (9) The child being received on the car thus with the assent of the carrier, when he sustained injuries resulting in his death after birth, caused by the negligence of the carrier's employees "whilst running, conducting or managing a street car," he was injured and died precisely within the language of the statute; and the trial court erred in holding otherwise.
G. T. Priest for respondent.
The demurrer to said petition was properly sustained by the trial court, for the reason that it appears that whatever injuries deceased may have sustained were received while en ventre sa mere. Allaire v. Hospital, 56 N.E. 638; Dietrich v. Northampton, 138 Mass. 14; Walker v Railroad, 28 Irish L.R. 69. The word "person" in the Damage Act was not intended to include and does not include an infant en ventre sa mere.
STATEMENT BY THE COURT.
Plaintiffs are the mother and father of a child who was born on the 25th day of December, 1907, and died on the 5th day of July, 1908. On the 22nd day of September, 1907, while the mother was enceinte of said child, she and her husband and another child were passengers on defendant's street railway, which was stopped at their signal to enable them to alight, and while they were so doing and the mother was assisting the child who was riding with them to leave the car, it was negligently put in motion, thereby dragging and throwing her to the ground and inflicting injuries on the arm and body of her unborn child that caused his death, as before stated.
The petition prayed for judgment for $ 10,000. The defendant filed a demurrer to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained February term, 1909, of the circuit court of St. Louis. Plaintiffs declining to plead further, final judgment was rendered against them, from which they duly appealed to this court.
OPINION.BOND, J. (After stating the facts as above).
-- The statute under which the petition herein was framed so far as applicatory to its allegations is, to-wit:
"Whenever any person . . . shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any . . . street, electric . . . car, . . . the corporation, . . . in whose employ such agent, servant, employee, . . . shall be at the time such injury is committed, or who owns, operates or conducts any such . . . street car . . . at the time any injury is received resulting from or occasioned by any . . . unskillfulness, or negligence . . . above declared, shall forfeit and pay as a penalty, for every such person . . . so dying, the sum of not less than two thousand dollars and not exceeding ten...
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