24 S.W. 737 (Mo. 1893), Haehl v. The Wabash Railroad Company

Citation:24 S.W. 737, 119 Mo. 325
Opinion Judge:Brace, J.
Party Name:Haehl v. The Wabash Railroad Company, Appellant
Attorney:F. W. Lehmann and Geo. S. Grover, for appellant. Nathan Frank and Charles W. Bates for respondent.
Judge Panel:Brace, J. Barclay, J., absent.
Case Date:December 23, 1893
Court:Supreme Court of Missouri
 
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Page 737

24 S.W. 737 (Mo. 1893)

119 Mo. 325

Haehl

v.

The Wabash Railroad Company, Appellant

Supreme Court of Missouri, First Division

December 23, 1893

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.

Brace, J. Barclay, J., absent.

OPINION

[119 Mo. 330] Brace, J.

This is an action to recover damages for the death of plaintiff's husband, Jesse Haehl, alleged to have been wrongfully assaulted and...

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