Troll v. Laclede Gas Light Co.

• Decision Date: 07 April 1914
• Parties: HARRY TROLL, Public Administrator, in charge of Estate of JOHN DOYLE, Deceased, Appellant, v. LACLEDE GAS LIGHT COMPANY, Respondent
• Court: Missouri Court of Appeals

169 S.W. 337

182 Mo.App. 600

HARRY TROLL, Public Administrator, in charge of Estate of JOHN DOYLE, Deceased, Appellant, v. LACLEDE GAS LIGHT COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 7, 1914

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

AFFIRMED.

Judgment affirmed.

Henderson & Becker and Glendy B. Arnold for appellant.

It was not necessary, under our statute, for the plaintiff to allege or prove, in this case, that his decedent left surviving him any next of kin, who would be entitled to take the proceeds of the recovery under our laws of descent. Railroad v Weber, 33 Kan. 543; Railroad v. Sweet, 45 Ill 197; Chicago v. Scholten, 75 Ill. 468; Lehman v Brookly, 29 Barb. 234; Quinn v. Moore, 15 N.Y. 432; Ihl v. Railroad, 47 N.Y. 317; Gorham v. Railroad, 23 Hun 449; Railroad v. Freeman, 97 Ala. 289; Corliss v. Railroad, 63 N.H. 404; Lockwood v. Railroad, 98 N.Y. 523.

Percy Werner for respondent.

(1) The administrator named in Section 5425 does not hold the amount recovered as assets of the estate; he holds the amount strictly as a trustee. Kelly v. Railroad, 141 Mo.App. 490, 494; Railroad v. Townshend, 41 Ark. 382; Railroad v. Swayne, 26 Ind. 477; Holton v. Daly, 106 Ill. 131; Stewart v. Railroad, 168 U.S. 445; Perham v. Portland Gen. Elec. Co., 33 Oreg. 451, 466. (2) An administrator, bringing an action under the statute, must allege and prove that there were in existence, at the time of the institution of the action, persons who would take by descent the amount recovered. Casey v. St. Louis Transit Co., 116 Mo.App. 235, approved, 205 Mo. 721; McIntosh v. Railroad, 103 Mo. 131; Railroad v. Lilly, 90 Tenn. 563; Railroad v. Pitt, 91 Tenn. 86; Railroad v. Townshend, 41 Ark. 382; Holton v. Daly, 106 Ill. 131; Serenson v. Railroad, 45 F. 407; Walker v. Railroad, 104 Mich. 606; Carli v. Railroad, 28 Minn. 373; Lilly v. Railroad, 32 So. Car. 142; Topping v. St. Lawrence, 86 Wis. 526, 529; Railroad v. Crockett, 17 Neb. 570; Railroad v. Brown, 26 Kan. 443; Perham v. Portland Gen. Elec. Co., 33 Oreg. 451. The party suing must bring himself, by his pleading and proof, strictly within the statutory requirements. Chandler v. Railroad, 251 Mo. 592; Sparks v. Railroad, 31 Mo.App. 111; Van Brunt v. Railroad, 78 Mich. 530; Railroad v. Morris, 26 Ill. 400; Railroad v. Hessions, 150 Ill. 546.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

This is an action under the statute to recover damages for the death of one John Doyle, alleged to have been occasioned by defendant's negligence. Plaintiff sues as public administrator, in charge of the "estate" of said deceased, which it is to be inferred consisted solely of the claim here sued upon. The petition alleges that deceased, at the time of his death, "was an unmarried adult person without minor child or children natural born or adopted." There is no allegation that there were in existence any next of kin, or person or persons who could take by descent the amount, if any, which might be recovered.

The defendant interposed a demurrer to the petition, the grounds thereof being: First, that the petition does not state facts sufficient to constitute a cause of action, and second that plaintiff, as public administrator, has no power or authority to prosecute the action. Thereupon a stipulation was entered into by the parties, through their respective counsel, whereby it was stipulated and agreed that the cause should be submitted to the court for final judgment, upon the demurrer; that in the event that the circuit court should hold that the public administrator, as such, had authority to prosecute the action, and that it was unnecessary to allege or prove the existence of relatives of the deceased capable of taking by descent, then judgment should be entered for plaintiff in the sum of one thousand dollars and costs; but that in the event that the court's decision should be otherwise upon either of such questions, then judgment should be entered for the defendant, the latter agreeing that in such event the costs should be adjudged against it. It was further stipulated and agreed that either party might prosecute an appeal from the judgment so rendered on the demurrer.

The trial court sustained the demurrer, and, in accordance with the stipulation, rendered final judgment in favor of the defendant. Thereupon plaintiff was granted an appeal to the Supreme Court, but thereafter, upon the joint motion of appellant and respondent, the cause was transferred here, upon the theory that, in view of the stipulation above referred to, the amount in dispute was within the jurisdiction of this court.

In considering the first of the two questions raised by the demurrer, as indicated above, it will be well to notice the provisions of the sections of our statute with which we are here concerned.

Section 5425, Revised Statutes 1909, provides that, in the cases falling within that section, recovery may be had: "First, by the husband or wife of the deceased; or second, if there be no husband or wife, or if 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 and mother, . . . or if either of them be dead, then by the survivor; . . . or, fourth if there be no husband, wife, minor child or minor children . . . 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."

Section 5426 is as follows: "Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

Section 5427 is as follows: "Damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 5425; and in every such action the jury may give such damages, not exceeding ten thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default."

Section 5426, supra, upon which, as qualified by section 5427, this action is predicated, gives a right of action for death by the wrongful act, neglect or default of another, where such act, neglect or default is such as would, if death had not ensued, have entitled the party to maintain an action and recover damages in respect thereof. The next section, 5427, provides that such damages shall be sued for and recovered by the same parties and in the same manner as provided in section 5425, and provides that the jury may allow such damages, not exceeding ten thousand dollars, as they may deem fair and just, with reference to the necessary injury, resulting from such death, to the surviving parties who may be entitled to sue. This section evidently contemplates that there shall be "surviving parties" who are entitled to receive the amount to be recovered. The statute is in derogation of the common law, and must be strictly construed; and one seeking to maintain an action thereunder must both allege and prove such facts as will bring him strictly within its provisions. [See Chandler v. Railroad, 251 Mo. 592, 158 S.W. 35, and cases cited; Dudley v. Railroad, 167 Mo.App. 647, 150 S.W. 737; Casey v. Transit Co., 116 Mo.App. 235, 91 S.W. 419.]

Section 5426, supra, is virtually Lord Campbell's Act, (9 and 10 Vict. Ch. 93), which has been incorporated, with more or less modification, into the legislation of States of this Union. And the precise question before us has frequently been passed upon by the courts of other States in construing such statutes.

In Holton v. Daly, Admx., 106 Ill. 131, where the action was under a statute in terms the same as our section 5426, it is said: "In construing this section, this court said, in City of Chicago v. Major, 18 Ill. 349: 'The Legislature intended that the money received should not be treated as a part of the estate of the deceased. . . The personal representatives bring the action, not in right of the estate, but as trustees for those who have a more or less direct pecuniary interest in the continuance of the life of the deceased and who had some claim at least upon his or her natural love and affection.' And it has accordingly since been held the declaration must aver, and the proof must establish, a wrongful act, neglect or default of defendant, causing the death of the intestate under such circumstances as would entitle him to maintain an action if death had not ensued, and the fact of survivorship and the name or names of widow or next of kin. [Quincy Coal Co. v. Hood, Admr., 77 Ill. 68.]"

In Serensen v. Northern P. R. Co., 45 F. 407, where the action was brought under a like Montana statute, the complaint failed to state that the deceased left any widow or next of kin. The court, after a discussion of a number of cases touching upon this question, held that the complaint was fatally defective, saying: "It cannot be it was contemplated that in any case the personal representative might recover a judgment for injuries resulting in death, and...