Menard v. Goltra

• Citation: 40 S.W.2d 1053,328 Mo. 368
• Parties: Myrtle Menard, Administratrix of Estate of John Menard, v. Edward F. Goltra, Appellant
• Decision Date: 03 July 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 1053

328 Mo. 368

Myrtle Menard, Administratrix of Estate of John Menard, v. Edward F. Goltra, Appellant

Supreme Court of Missouri

July 3, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

Joseph T. Davis for appellant.

(1) This action, being unknown at common law, is brought under the statute of Illinois, known as the "Wrongful Death Statute." Same must follow the strict interpretation and construction placed thereon by the courts of Illinois, which decisions will be followed by the courts of Missouri. Secs. 1 and 2, Chap. 70, Smith-Hurd Revised Statutes of Illinois; Sec. 4212, R. S. 1919; Chicago, etc., Ry. v. Tuite, 44 Ill.App. 535; Morris v. Ry. Co., 251 S.W. 763; Quincy Coal Co. v. Hood, 77 Ill. 68; Chicago Bridge & Iron Co. v. LaMantia, 112 Ill.App. 43; Jackson v. Railway, 87 Mo. 422; Bates v Sylvester, 205 Mo. 493; Troll v. Gas Light Co., 182 Mo.App. 600; McMerty v. Morrison, 62 Mo. 140 144; Lugar v. Railway, 283 S.W. 738, 740; Imes v. Railway, 105 Ill.App. 37; Bell, Admr., v Railway, 197 Ill.App. 86; Railway v. Eselin, 86 Ill.App. 94; Jorgenson v. Chair Co., 169 Ill. 429. (a) The humanitarian doctrine, in such actions, does not obtain in Illinois. Bushman v. Railway, 214 Ill.App. 435; Ill. Malleable Iron Co. v. Railway, 184 Ill.App. 428; Banks v. Morris & Co., 257 S.W. 482. (b) The burden of proof is upon plaintiff to prove affirmatively and by the preponderance of the testimony that the deceased was in the exercise of ordinary care for his own safety. Imes v. Railway, supra; Bell, Admr., v. Railway, supra; Newell, Admr., v. Railway, 261 Ill. 505; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358; Link v. Traction Co., 210 Ill.App. 657; Jacobs Case, 20 Ill. 488; Railway v. Johnson, Admr., 103 Ill. 512. (2) The instruction is in the nature of a demurrer to the evidence. Oatman v. Railway, 304 Mo. 38, 263 S.W. 143; Shaffer v. Railway, 201 Mo.App. 107, 208 S.W. 147; Imes v. Railway, supra; Bell, Admr., v. Railway, supra; Newell, Admr., v. Railway, supra; Calumet Iron & Steel Co. v. Martin, supra; Link v. Traction Co., supra; Jacobs Case, supra; C. B. & Q. Ry. Co. v. Johnson, Admr., supra; 29 Cyc. 1257, 1258; 20 R. C. L. 107, 108, 120, 131; Bahel v. Manning, 112 Mich. 24, 36 L. R. A. 523; Harris v. Clinton, 64 Mich. 447; Erie v. Magill, 101 Pa. 616; Schaefler v. Sandusky, 33 Ohio St. 246; Wilson v. Charlestown, 8 Allen, 137; Centralia v. Krause, 64 Ill. 19; Parkhill v. Brighton, 61 Iowa 103; Cook v. Johnston, 58 Mich. 437; Johnston v. Elec. L. Co. 78 Neb. 24, 17 L. R. A. (N. S.) 435; Gray v. Elec. L. & P. Co., 282 S.W. 494; Kath, Admr., v. Railroad Co., 232 Ill. 126, 15 L. R. A. (N. S.) 1109; Kilmer v. Zinc Co., 206 Mo.App. 346, 227 S.W. 861; Dempsey v. Railway, 168 Ill.App. 281; Mudler v. Johnson, 196 Ill.App. 303; Sauter v. Hinde, 183 Ill.App. 413; Chicago etc. Ry. v. Roberts, 44 Ill.App. 179; Loettker v. Railroad Co., 150 Ill.App. 69; Shipley v. Ry. Co., 164 Ill.App. 69; Welch v. Hotel Co., 196 Ill.App. 94; Morris v. Light & Power Co., 258 S.W. 431; Bonanomi v. Purcell, 230 S.W. 120; Bentson, Admr., v. Brown, 186 Wis. 629, 38 A. L. R. 1417. (3) The court erred in giving, at the instance of plaintiff, Instruction 5 on the measure of damages. Badgley v. St. Louis, 149 Mo. 122; Hawes v. Stock Yds. Co., 103 Mo. 60. (4) The court erred in refusing to give defendant's Instruction 7 on the question of assumed risk. Dempsey v. Railway, 168 Ill.App. 281. (5) The court erred in refusing to give defendant's Instruction 9 on the question of the deceased jumping into the river when confronted with an emergency brought about by his own contributory negligence. Bentson, Admr., v. Brown, 186 Wis. 629, 38 A. L. R. 1417. (6) The court erred in forcing defendant to trial in this cause after defendant filed his motion and affidavit for continuance. Laun v. Ponath, 105 Mo.App. 203; Tunstall v. Hamilton, 8 Mo. 500. (7) The court erred in not granting defendant a new trial upon the ground of newly discovered evidence and the affidavits and documents filed in support thereof.

William H. Schuwerk and Chas E. Morrow for respondent.

(1) Plaintiff's pleading and proof of the statute of Illinois, giving a right of action for death by wrongful act, required the trial court and requires this court to take judicial notice of the decisions of the courts of last resort in that state construing that statute. Laws 1927, p. 156. But this did not and does not draw with it the requirement that the trial court and this court shall take judicial notice of all the general law of negligence as defined and declared and enforced in Illinois. Ginnochio v. Railroad, 155 Mo.App. 163. The defendant did not plead or prove any law or rule of decision of Illinois as to the law of negligence of that state, and the law of Illinois as to negligence will be presumed to be the same as the law of Missouri. Rashall v. Railroad, 249 Mo. 516; Ginnochio v. Railroad, 155 Mo.App. 163; White v. Chaney, 20 Mo.App. 389; Haworth v. Railroad, 94 Mo.App. 215; Crary v. Investment Co., 313 Mo. 448; Mastieson v. Railroad, 219 Mo.App. 542; Gorman v. Railway Co., 28 S.W.2d 1024. (2) The demurrer to the evidence was properly refused. The deceased, whatever his relationship to the defendant, was not a trespasser; he was not upon private property, but was upon a public highway, in his own conveyance, and at a place where he had a right to be, and where he had been directed by the defendant to be, and the defendant actually knew his position and situation, and it was the duty of the defendant to exercise ordinary care to look for him and to exercise ordinary care to keep from injuring him. The plaintiff made a submissible case under the assignments of primary negligence under the law of Missouri. Rashall v. Railroad, 294 Mo. 509; Jennings v. Railroad, 112 Mo. 268; Wencker v. Railroad, 169 Mo. 598; 24 R. C. L. 1208; Bobos v. Packing Co., 317 Mo. 108, 296 S.W. 159. Plaintiff also made a submissible case under the humanitarian doctrine. Bobos v. Packing Co., 317 Mo. 108, 296 S.W. 160; Banks v. Morris, 302 Mo. 254. Plaintiff also made a submissible case for the jury under the assignments of primary negligence in the petition under the law of Illinois, if the courts of Missouri under the state of the pleadings and proof is required to take judicial notice of the general law of negligence of Illinois. Wiggins Ferry Co. v. Reddig, 24 Ill.App. 261; I. C. Railroad Co. v. Hopkins, 200 Ill. 122; Fisher v. Jansen, 128 Ill. 549; Wilanski v. Railroad, 286 Ill. 547; Purtell v. Railroad, 256 Ill. 110; I. C. Railroad Co. v. Behrens, 130 Ill.App. 33. It is not true that the failure to exercise ordinary care to prevent injury after peril discovered, is not actionable negligence in Illinois. The humanitarian doctrine as it obtains in Missouri, does not exist in Illinois, but the failure to exercise ordinary care to avoid injury after peril discovered, is actionable negligence in Illinois; and in that State, contributory negligence on the part of the plaintiff is a bar to a recovery unless the acts of the defendant are wilful or wanton. It was not necessary to allege and prove wilful and wanton conduct under the law of Illinois. I. C. Railroad Co. v. Hopkins, 200 Ill. 122; Fisher v. Jansen, 128 Ill. 549; Wilanski v. Railroad, 286 Ill. 547; Purtell v. Railroad, 256 Ill. 110; I. C. Railroad Co. v. Behrens, 130 Ill.App. 33. The defendant requested a general demurrer to the evidence and did not request withdrawal instructions withdrawing either of the several specifications of negligence pleaded and thereafter requested two instructions, which were given, submitting to the jury all the allegations of negligence pleaded in the petition which authorized a verdict for the plaintiff if the facts hypothesized in said instructions were found to be true. The defendant is now estopped to assert that there was not sufficient evidence to support the negligence charged. Torrence v. Pryor (Mo.), 210 S.W. 430; State ex rel. v. Allen (Mo.), 272 S.W. 925; Davidson v. Heinz (Mo.), 246 S.W. 295; Crum v. Crum, 231 Mo. 639; Berkson v. Railway Co., 144 Mo. 211; Water Co. v. Neosho, 136 Mo. 498. (3) The deceased was not guilty of contributory negligence as a matter of law under the rules of decision in either Illinois or Missouri. At least as to acts of primary negligence it was a question of fact for the jury as to whether or not he exercised ordinary care, and whether or not he exercised ordinary care under the circumstances could be proved or disproved by the facts and circumstances in evidence as any other fact. Kleiber v. Railway Co., 107 Mo. 240; Bachman v. Railroad, 310 Mo. 48; Schneider v. Power Co., 238 S.W. 474; Chicago v. Thomas, 141 Ill.App. 122; Dunham, etc., Co. v. Dandelin, 143 Ill. 409; Loescher v. Coal Co., 173 Ill. 526; Chicago, etc., Railroad Co. v. Nelson, 215 Ill. 436; Mueller v. Phelps 252 Ill. 630. (4) The doctrine of assumption of risk only applies in master and servant cases and has no application to the facts of this case under the law of either Missouri or Illinois. Fish v. Railroad Co., 263 Mo. 106; Conrad v. Railroad, 240 Ill. 12; Devine v. Safe Deposit Co., 240 Ill. 369. (5) Instruction 9 requested by defendant and refused by the court as to acts in face of sudden emergency of danger, properly refused plaintiff's case under the humanitarian doctrine, to which contributory negligence is no defense. Burke v. Pappas, 293 S.W. 145; Spindler v. Wells, 276 S.W. 387; Kleiber v. Railway Co., 107 Mo. 240; Bachman v. Railroad, 310 Mo. 48.

OPINION

White, P. J.

The appeal is from a judgment in favor of the plaintiff for $ 10,000 damages on account of the death of the plaintiff's husband, caused, it is alleged, by the negligence of the defendant's employees. May 12, 1926 the...