Hennessy v. Bavarian Brewing Co.

• Decision Date: 22 June 1898
• Parties: HENNESSY v. BAVARIAN BREWING CO.
• Court: Missouri Supreme Court

46 S.W. 966

145 Mo. 104

HENNESSY v. BAVARIAN BREWING CO.

Supreme Court of Missouri, Division No. 1.

June 22, 1898.

PARENT AND CHILD — RIGHT TO SUE FOR DEATH OF CHILD — RES JUDICATA — APPEAL — AMOUNT IN DISPUTE.

1. The father of a child died. Its mother remarried. The child was killed while employed in a factory. Held, that the remarriage of the mother did not deprive her of the right given by Rev. St. 1889, § 4425, to sue alone for damages for its death.

2. The decision of the Kansas City court of appeals is not res judicata as to the supreme court on a second trial.

3. The amount claimed in the petition, until merged into judgment, must be regarded as the amount in dispute, in determining the appellate jurisdiction of the supreme court.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Annie Hennessy against the Bavarian Brewing Company. From a judgment, plaintiff appealed to the Kansas City court of appeals, which reversed the judgment. 63 Mo. App. 111. The cause was tried anew in the circuit court, and, from a judgment therein, plaintiff appeals. Reversed.

Beebe & Watson, for appellant. Ben. T. Hardin, for respondent.

MARSHALL, J.

Action for $5,000 damages for death of a minor son of plaintiff. Thomas Donlin, an unmarried minor, 13 years old, was the son of plaintiff by her former marriage. After her second marriage, the stepfather supported the minor. His mother permitted him to work for defendant, and he turned over his wages to his mother, who used them to buy clothing for him. The death is alleged to have been caused by the negligence of the defendant in not providing proper appliances and safeguards in its factory to prevent injury to the employé, who was required to work close to, but not with or on, the defective appliances. The plaintiff obtained judgment for $900. The defendant appealed to the Kansas City court of appeals, where the judgment was reversed, and the cause remanded. Hennesey v. Brewing Co., 63 Mo. App. 111. The case was tried anew in the circuit court upon exactly the same pleadings and evidence on plaintiff's part as it was on the first trial. Pursuant to the opinion of Kansas City court of appeals, the circuit court sustained a demurrer to the evidence, and entered judgment for defendant. Plaintiff then appealed to this court.

1. The Kansas City court of appeals based its decision upon two grounds: (1) That the petition did not state facts sufficient to constitute a cause of action, in that it did not allege a loss of services to the plaintiff by the death of her son; and (2) that the evidence does not establish such a loss. The first conclusion is predicated upon the idea that "the right to recover for loss of service is founded on the relation of master and servant, and not on that of parent and child" (63 Mo. App., loc. cit. 116), and that, upon the death of the child's father, the mother was obliged to support him during minority, and hence was entitled to his services during her widowhood, but that, upon her remarriage, the "stepfather would stand in the place of the natural parent, and the reciprocal rights, obligations, and duties of parent and child would attach" if the stepfather "admitted the child into his family, and treated him as a member thereof, and thereby assumed the relation of parent." The second conclusion rests upon the facts deduced from the evidence that the stepfather did admit the child into his family, treated him as a member thereof, and assumed the relation of parent to him, and that the relation of master and servant between the mother and child ended as soon as the stepfather so acted, and that, as the mother was no longer obligated to support the child, she was not entitled to his services, and, not being entitled to his services, she lost nothing by his death, but that notwithstanding the stepfather was in this case obliged to support the child, and therefore was entitled to his earnings, he could not maintain an action of this character, because neither under the statute of this state nor at common law could a stepfather maintain an action for the death of a minor caused by the wrongful act of another. Bluntly, but logically, stated, this reasoning asserts the startling proposition that if a widow with a minor child remarries, and the stepfather admits her child into his family as a member of it, and assumes the relation of father to him, and if a third party wrongfully kills the child, there is no civil liability to any one therefor, — not to the mother, because her rights were cut out by her second marriage and the assumption by the stepfather of the natural father's place towards the child; and not to the stepfather, because neither the common law nor the statute gives a stepfather a right to maintain such an action. The error that underlies such conclusions arises from confusing the common-law obligation of the parent, natural or standing in loco parentis, to the child, to support it during minority, carrying with the obligation the correlative right to the earnings of the child, with the right, conferred by statute, upon the father (natural) and mother, or the survivor of them, to maintain an action against a third party for the wrongful killing of their child. The case of St. Ferdinand Loretto Academy v. Bobb, 52 Mo. 357, is a fair illustration of all the cases cited by the Kansas City court of appeals in support of the first conclusion. That case was an action by a third person against a stepfather, who stood in loco parentis, for necessaries furnished the child. The legal proposition announced in the case is that, when a stepfather so acts towards a stepchild, "the presumption in such case is that they deal with each other as parent and child, not as master and servant. This relation being established, the reciprocal rights, duties, and obligations pertaining to it arise between them, the same as if he were the natural father." Id., loc. cit. 361. While at common law, and in states, like ours, where the common law has been adopted, this correlative duty and right exists between a stepfather and a stepchild, it rests, not upon contract, as in case of master and servant, but upon the relation of parent and child. It continues only during the minority of the child. At common law, neither the natural father, nor the stepfather standing in loco parentis, could maintain a civil action for the wrongful killing of the child, because at common law such actions were unknown. The principle of the common law was, "actio personam moritur cum persona." Hence cases which decide the relative duties and rights of parent and child with respect to suits for necessaries furnished by third persons to the child, or for wages earned by the labor of the child, have no possible application to cases like this. Likewise, cases which hold that, after the remarriage of the widow and the assumption by the stepfather of the obligations of a natural father to his stepchild, the mother is released from liability for necessaries furnished the child, and loses the right she had during widowhood to recover against third persons for services performed by the child, are of no value in determining the question here involved. They rest upon entirely different principles, and involve rights arising out of the relation of parent and child, and not questions of tort.

The fact that in some cases it has been held that the measure of damages in cases of this kind, arising under a statute like ours, is the loss of services of the child, during minority, minus the expense of maintenance, plus the expense of medical attendance during the child's last illness and of the funeral, does not establish the right to maintain this...