Habel v. Union Depot Ry. Co.

• Decision Date: 22 June 1897
• Citation: 41 S.W. 459,140 Mo. 159
• Parties: HABEL et al. v. UNION DEPOT RY. CO.
• Court: Missouri Supreme Court

41 S.W. 459

140 Mo. 159

HABEL et al. v. UNION DEPOT RY. CO.

Supreme Court of Missouri, Division No. 1.

June 22, 1897.

AMENDMENT AFTER VERDICT.

Plaintiffs brought action to recover for the death of their alleged son, and recovered judgment. Defendant moved for a new trial, submitting affidavits to show that he was the son only of the wife. Held, under Rev. St. 1889, § 2100, prohibiting the court from allowing any amendment after verdict affecting prejudicially the rights of the adverse party, that it was error to strike out the name of the husband, and allow the judgment to stand in the name of the wife alone.

Appeal from St. Louis circuit court.

Action brought by Charles Habel and Katie Habel against Union Depot Railway Company to recover statutory damages for the negligent killing of their son, William C. Habel. Judgment for Katie Habel, and defendant appeals. Reversed.

Edward S. Robert, for appellant. Amos R. Taylor, for respondent.

BARCLAY, C. J.

This is an action for statutory damages on account of a boy's death, occasioned, as is charged, by the negligence of the defendant railway company. The plaintiffs are named as "Charles Habel and Katie Habel." The petition opens thus: "The plaintiffs state that they are the father and mother of William C. Habel, who died a minor and unmarried, on the 24th day of November 1892." Then follow allegations of defendant's corporate character, and of the particulars of the killing of the boy. The negligence of defendant is charged to be the moving of one of its cars suddenly, while the boy was getting aboard as a passenger, in consequence of which, it is alleged, he fell, was run over, and killed. Plaintiffs pray judgment for $5,000 and costs. The answer is a general denial (except as to defendant's incorporation), and a plea of the boy's own negligence. The latter plea was put in issue by a reply. At the trial, testimony was given tending to prove plaintiffs' case. Among other things, Mrs. Habel testified that her husband, Mr. Habel, was the father, and she the mother, of the boy. The circumstances of his death need not be gone into now, as the result of this appeal is found to turn on a different point. The jury returned a verdict for plaintiffs after receiving a number of instructions on the law applicable to the facts disclosed. One of plaintiffs' instructions called for findings "that said William was a minor and unmarried, and that plaintiffs are the father and mother of said William." The trial was a contested one. The issue as to the parentage of the child was not eliminated at that time by any admission on the part of defendant. After a verdict for plaintiffs, defendant moved for a new trial. Among other grounds of the motion were those of error in plaintiffs' instructions, and the statement that Charles Habel was not the father of the child, and hence not entitled to recover. In support of the motion, defendant submitted affidavits tending to establish the fact just stated, in regard to the paternity of the boy, and to show that the latter was born of the female plaintiff before her marriage to Charles Habel. Pending defendant's motion for new trial, plaintiffs filed a motion "to amend the pleadings, verdict, and judgment in this cause by striking out the name of Charles Habel as one of the plaintiffs, and to allow the judgment to stand in the name of Katie Habel," because: "(1) That the name of Charles Habel as plaintiff was used through mistake as to his relation to the deceased, William C. Habel, and said Charles Habel was not a necessary party. (2) That said cause was fully and fairly tried, and the plaintiff, Katie Habel, is entitled to the judgment. (3) That said amendment is in furtherance of justice, and works no hardship or wrong to the defendant. (4) That, upon the record, the plaintiff, Katie Habel, is entitled to said verdict and judgment." The learned trial court thereafter entered the following order, which explains itself: "The court, having heard and duly considered the defendant's motion for a new trial, and also the plaintiffs' motion to amend the pleadings, verdict, and judgment in this cause by striking out the name of Charles Habel as one of the plaintiffs, and to allow the judgment to stand in the...