Marshall v. Wabash R. Co.

• Decision Date: 19 February 1894
• Citation: 25 S.W. 179,120 Mo. 275
• Parties: MARSHALL v. WABASH R. CO.
• Court: Missouri Supreme Court

25 S.W. 179

120 Mo. 275

MARSHALL v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

February 19, 1894.

DEATH BY WRONGFUL ACT — RIGHT OF ACTION — DECEASED BASTARD.

1. Since Rev. St. 1889, § 4473, makes bastards capable of taking and transmitting inheritance on the part of the mother, and allows her to inherit from her bastard child as if he were lawful, such mother may sue under section 4425 for the wrongful killing of her bastard child, when a minor and unmarried.

2. Rev. St. 1889, § 4425, giving the right of action, when deceased was a minor and unmarried, to his father and mother, who may join in the suit, and have an equal interest in the judgment, does not require the joinder of the father when deceased was a bastard.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by Nannie Marshall against the Wabash Railroad Company for damages for negligence causing the death of plaintiff's bastard son, William H. Taylor. Judgment for defendant. Plaintiff appeals. Reversed.

Ball & Ball and J. T. Simmon, for appellant. F. W. Lehman and Geo. S. Grover, for respondent.

BLACK, C. J.

This is an action under section 4425, Rev. St. 1889, generally known as the "second section of the damage act," to recover $5,000 for the death of William H. Taylor. Besides a general denial, the answer states that the deceased was the illegitimate child of plaintiff, and that the father is still living. The deceased was about 16 years old at the time of his death. He was the illegitimate child of the plaintiff and one Charles Taylor. The latter, though living, was not made a party to this suit. William H. Taylor died from injuries occasioned by the negligence of the servants of the defendant in running its train. The trial court directed a verdict for defendant. The questions presented here are whether the mother and her illegitimate child are within the meaning of the statute, and, if they are, whether the mother of such a child can prosecute the suit without joining the father of such child, the father being alive.

Section 4425, as it appears in the Revised Statutes of 1855, (chapter 51, § 2,) provides that whenever any person shall die from any injury occasioned in the manner and under the circumstances there stated, the negligent corporation or person shall "forfeit and pay," for every person so dying, the sum of $5,000, "which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or 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, who may join in such suit, and each shall have an equal interest in the judgment, or if either of them be dead, then by the survivor." It was amended in 1885 under the title, "An act to amend sections * * *, extending the rights of adopted children and their parents by adoption," so as to describe the persons who may sue as follows: "First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; * * * or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, * * * then by the father and mother who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor." Counsel for the plaintiff place some reliance upon the words "natural born child," brought in by the amendment; but we cannot see that these words are of any aid to the plaintiff. The term "natural born," as sometimes used, means, "bastard; born out of wedlock." Bouv. Law Dict.; Cent. Dict. On the other hand, it has been held that "natural," in a statute providing that adopted children shall have all the rights of natural children, means "legitimate." Barns v. Allen, 9 Amer. Law Reg. 747. Here, the words are used simply to show that adopted children and the adopting parents are to have the benefit of the act, the same as in case of children by procreation. The title of the act indicates very clearly the object which the legislature had in view, namely, to "extend the rights of adopted children and their parents by adoption." It was believed the law, as first enacted, did not include adopted children or their parents by adoption, and hence the amendment. The words "natural born child or children," as here used, mean, and mean no more, than did the word "child," as it appeared in the act before the amendment.

The questions presented by this record are new in this court, and but few precedents are found in other courts. Dickinson v. Railway Co., 2 Hurl. & C. 735, was an action brought under the statute of 9 & 10 Vict. c. 93, known as "Lord Campbell's Act," passed in 1846. That act provides "that every such action shall be for the benefit of the wife, husband, parent and children of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased," the amount recovered to be divided among the parties as the jury shall direct. The suit was brought in behalf of the mother and an illegitimate child of the deceased. It was held that damages for the benefit of the child could not be recovered. Pollock, C. B., said: "But beyond all doubt, in the construction of the act of...