Haehl v. The Wabash Railroad Company
| Decision Date | 23 December 1893 |
| Citation | 24 S.W. 737,119 Mo. 325 |
| Parties | Haehl v. The Wabash Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
F. W Lehmann and Geo. S. Grover, for appellant.
(1) The court erred in overruling defendant's application for a special venire. R. S. 1889, secs. 6089, 6570; Littleton v. Christy, 11 Mo. 391; Hahn v. Dierkes, 37 Mo 574; Co. v. Hucht, 32 Mo.App. 153; City v. Bambrick, 41 Mo.App. 648; Magnusson v. Williams, 111 Ill. 450; Womack v. McAhren, 9 Ind. 6; Robinson v. Foster, 12 Iowa 186; Conklin v. Marshalltown, 66 Iowa 122; State v. Wild, 39 Minn. 426; White v. Ins. Co., 15 Neb. 660; Charles v. Stansbury, 3 Johns. 261; In re Carhart, 2 Dem. 627; Taylor v. Corbiere, 8 How. Pr. 385; Taylor v. Harris, 82 N.C. 25; Marks v. Russell, 40 Pa. St. 372; Duffy v. Ogden, 64 Pa. St. 240. (2) There was no evidence that the killing of Haehl was wrongful, or that it was done by Hill in the course of his duty as bridge watchman. Nichols v. Winfrey, 79 Mo. 544; City v. Bingham, 31 N.E. 383; Snyder v. Railroad, 60 Mo. 413; Cousins v. Railroad, 66 Mo. 572; Sherman v. Railroad, 72 Mo. 62; Jackson v. Railroad, 87 Mo. 422; Stringer v. Railroad, 96 Mo 299; Farber v. Railroad, 22 S.W. 631; Golden v. Newbrand, 52 Iowa 59; Wood's Master and Servant, p. 586; Allen v. Railroad, L. R. 6 Q. B. 65; Walker v. Railroad, L. R. 5 C. P. 640; Garvey v. Ding, 30 How. Pr. 315; Railroad v. Wetmore, 19 Ohio St. 110; Peavey v. Railroad, 37 Am. and Eng. R. R. Cases, 114. (3) Proof of the mere fact of the homicide was not presumptive proof that it had been wrongfully committed, and the jury should have been so instructed. State v. Hickman, 95 Mo. 322, and cases cited under second point. (4) The instructions upon the subject of self-defense asked by defendant should have been given. See cases cited under points 2 and 3. (5) The testimony as to the dependence of plaintiff upon her husband's earning for her support should have been excluded. Overholt v. Veiths, 93 Mo. 422; Stephens v. Railroad, 96 Mo. 207; Schlereth v. Railroad, 19 S.W. 1134; Railroad, v. Bayfield, 37 Mich. 205. (6) The instruction given by the court on the measure of damages was erroneous, because it did not limit the jury to a finding of pecuniary damages, and was, moreover, too general and vague. Parson v. Railroad, 94 Mo. 286; Hawes v. Co., 103 Mo. 60; Schaub v. Railroad, 106 Mo. 74; McGowan v. Railroad, 109 Mo. 518. (7) The instruction as to exemplary damages was not a proper one in this case. Perkins v. Railroad 55 Mo. 201; Malecek v. Railroad, 57 Mo. 16; Graham v. Railroad, 66 Mo. 536; Rouse v. Railroad, 41 Mo.App. 298; Railroad v. Prentice 147 U.S. 101; Sedgwick on Damages, sec. 380.
Nathan Frank and Charles W. Bates for respondent.
(1) The overruling of defendant's application for special venire is no ground for reversal. First. Statutes in respect to impaneling of juries are directory, and, unless some prejudice to the party complaining is inferable from the circumstances, a failure to comply with the statutory provisions is not reversible error. State v. Ward, 74 Mo. 253; State v. Breen, 59 Mo. 413; State v. Jennings, 98 Mo. 493; Vierling v. Brewing Co., 15 Mo.App. 125. Second. Under the laws especially applicable to the city of St. Louis, it is within the discretion of the court to allow a special venire, and no error can be alleged upon its refusal. Act of March 17, 1885, Laws of 1885, p. 74, being section 29, title "Juries," p. 2169, Revised Statutes, 1889; Manker v. Faulhaber, 94 Mo. 430; State v. Jennings, 98 Mo. 493; Savings Ass'n v. Edwards, 47 Mo. 445; Sanders v. Anchor Line, 97 Mo. 26. Third. The application for special venire was not made in time, and, therefore, it was discretionary with the court to order it. R. S. 1889, sec. 6089; R. S. 1889, sec. 6570, clauses 1 and 4; R. S. 1889, sec. 29, p. 2169; Taylor v. McKnight, 1 Mo. 120; Beaudean v. Cape Girardeau, 71 Mo. 392; Reynolds v. Railroad, 64 Mo. 70; Hodgson v. Banking House, 9 Mo.App. 24; Lerch v. Hill, 21 S.W. 183; Jones v. State, 42 Ark. 93; Stewart v. Meyer, 54 Md. 454; State v. Leabo, 89 Mo. 247. Fourth. Application for the special venire was not made to the court where the case was pending, and hence was not properly made; in legal effect, not made at all. Const. of Mo., 1875, art. 6, sec. 27; R. S. Mo. 1889, secs. 8, 14, pp. 2147, 2148; Voullaire v. Voullaire, 45 Mo. 602. Fifth. No objection was made to the jury that was sworn to try the case; objection made after the trial is too late. State v. Ward, 74 Mo. 253. Sixth. No exceptions can be saved to the action of a court where this case is not pending. Seventh. Bill of exceptions cannot be filed in one court relating to action taken in or by another court. Keen v. Schnedler, 92 Mo. 516; Jones v. Evans, 80 Mo. 565. Eighth. A bill of exceptions is a nullity, unless signed by the judge before whom the exceptions were saved. Sahlein v. Gum, 43 Mo.App. 315. Ninth. The refusal of the special venire is not before this court for review, because the bill of exceptions was not filed during the term at which the exception was taken, and there was no order of court nor agreement of parties allowing further time. R. S. 1889, sec. 2168; State v. Hill, 98 Mo. 570. (2) The demurrer to the evidence was properly overruled. Otis Co. v. Railroad, 112 Mo. 622; Brill v. Eddy, 22 S.W. 488; Dickson v. Waldron, 34 N.E. 506; Railroad v. Harris, 122 U.S. 597; Redding v. Railroad, 3 S.C. 1; Railroad v. Dickson, 63 Ill. 151; Perkins v. Railroad, 55 Mo. 201; Larson v. Railroad, 110 Mo. 234; Franke v. St. Louis, 110 Mo. 516. (3) The instructions given fairly submitted the case to the jury; and there was no error in refusing defendant's instructions. See cases cited under point 2; Bergeman v. Railroad, 104 Mo. 77; Haniford v. City of Kansas, 103 Mo. 172. (4) The instruction upon the subject of self-defense was properly refused. There was no evidence upon which to base it. Lillis v. Railroad, 64 Mo. 464; Bergeman v. Railroad, 104 Mo. 77; Barr v. City of Kansas, 105 Mo. 550. (5) Testimony that plaintiff was dependent on her husband for support was properly admitted, -- first, because this is a case justifying exemplary damages. Beck v. Dowell, 111 Mo. 506; second, because it tends to show plaintiff's loss in the death of her husband. Tetherow v. Railroad, 98 Mo. 74; Soeder v. Railroad. 100 Mo. 673; Dayharsh v. Railroad, 103 Mo. 570; O'Mellia v. Railroad, 21 S.W. 503, 507; Railroad v. Leverett, 48 Ark. 333; Ewen v. Railroad, 38 Wis. 613; Opsahl v. Judd, 30 Minn. 126; Railroad v. Keane, 32 N.E. 260; Schlereth v. Railroad, 21 S.W. 1110, 1114. (6) The instruction on the measure of damages was harmless, and is no ground for reversal. The verdict is justified by the evidence. Blewett v. Railroad, 72 Mo. 583; McGowan v. Co., 109 Mo. 518; Stoher v. Railroad, 91 Mo. 509; Tetherow v. Railroad, 98 Mo. 74; Parsons v. Railroad, 94 Mo. 286. (7) The facts in this case justify exemplary damages. First. Exemplary damages are allowed in actions under sections 4426 and 4427, Revised Statutes, 1889, where the circumstances are aggravating. Gray v. McDonald, 104 Mo. 303. Second. The act was wanton. Beck v. Dowell, 111 Mo. 506; Perkins v. Railroad, 55 Mo. 201; Samuels v. Railroad, 35 S.C. 493. Third. A railroad company, as any other person, is liable to exemplary damages for wrongs willfully or wantonly done by its servant in the course of his employment. Hicks v. Railroad, 68 Mo. 329; Perkins v. Railroad, 55 Mo. 201; Alexander v. Relfe, 74 Mo. 495; Railroad v. Rosenzweig, 113 Pa. St. 519; Railroad v. Dunn, 19 Ohio St. 162; Goddard v. Railroad, 57 Me. 202; Railroad v. Blocher, 27 Md. 277; Quinn v. Railroad, 29 S.C. 381; Mfg. Co. v. Holdfodt, 86 Ill. 455; Gillingham v. Railroad, 35 W.Va. 588; Railroad v. Davis, 12 S.W. 107; 3 Sutherland on Damages, p. 277; 1 Sedgwick on Damages [8 Ed.], sec. 380, and note a. Wood on Master and Servant [2 Ed.], 323.
OPINION
This is an action to recover damages for the death of plaintiff's husband, Jesse Haehl, alleged to have been wrongfully assaulted and killed by defendant's servant, James W. Hill, on the seventeenth of March, 1891, on its railroad bridge at St. Charles, Missouri. The plaintiff had a verdict and judgment for $ 5,000 in the court below, and the defendant appeals. The answer admitted defendant's corporate existence; that the said Hill at the time was in its employ as watchman of said bridge, and denied the other allegations of the petition.
The suit was instituted in the circuit court of the city of St. Louis on the seventeenth day of September, 1891, returnable to the October term of said court. The answer was filed October 5, 1891, and the cause set for trial in court room number 5 of said circuit court before Hon. Leroy B. Valliant, judge of said room, on Monday, the fourteenth of December, 1891. Afterwards, on Friday, the eleventh of December, 1891, Judge Valliant not holding court on that day, the defendant presented, without any notice to plaintiff or her attorneys, to Hon. James E. Withrow, judge of court room number 3, an application for a special jury accompanied with a deposit of $ 75, which on the same day was overruled by Judge Withrow.
On the fourteenth day of December, 1891, the cause, coming on in regular course in room number 5 before Judge Valliant, was called for trial, and the parties by their respective attorneys announced themselves ready, and remained subject to the orders of the court until the sixteenth of December, 1891, when a jury was called, duly impaneled and sworn, the evidence heard and the court, after refusing one instruction asked for by the plaintiff, and several asked for by the defendant, among...
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