46 S.W. 966 (Mo. 1898), Hennessy v. Bavarian Brewing Company

Citation:46 S.W. 966, 145 Mo. 104
Opinion Judge:Marshall, J.
Party Name:Hennessy, Appellant, v. Bavarian Brewing Company
Attorney:Beebe & Watson for appellant. Ben. T. Hardin for respondent.
Case Date:June 22, 1898
Court:Supreme Court of Missouri

Page 966

46 S.W. 966 (Mo. 1898)

145 Mo. 104

Hennessy, Appellant,


Bavarian Brewing Company

Supreme Court of Missouri, First Division

June 22, 1898

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed and remanded.

Beebe & Watson for appellant.

(1) The petition states a cause of action under sections 4426 and 4427, Revised Statutes 1889, and it was not necessary to allege or prove that deceased at the time of his death was the servant of plaintiff. Buell v. Transfer Co., 45 Mo. 564; Owen v. Brockschmidt, 54 Mo. 285; Philpott v. Railroad, 85 Mo. 164; Parsons v. Railroad, 94 Mo. 286; Tobin v. Railroad, 18 S.W. 997; Habel v. Union Depot Co., 140 Mo. 159. (2) The fact that plaintiff had remarried did not change the relation of parent and child. The plaintiff was the sole surviving parent and therefore was the party expressly named in the statute. Railroad v. Gaw, 57 Ga. 277; Buell v. Transfer Co., 45 Mo. 564; Davis v. Guardian, 45 Ohio St. 470; Railroad v. Kuehn, 70 Tex. 587.

Ben. T. Hardin for respondent.

(1) The judgment in this cause must be affirmed, as "the law of the case" has been settled by the Kansas City Court of Appeals in 63 Mo.App. 111. That court has decided that the petition in this case does not state a cause of action, and that the evidence, identically the same as here, did not make out a prima facie case. Right or wrong, that decision is the law of this case, as much so as if this court had rendered that opinion. Gwin v. Waggoner, 116 Mo. 143; Dowling v. Allen, 102 Mo. 213; Gaines v. Fender, 82 Mo. 497; Conroy v. Vulcan Iron Works, 75 Mo. 651; Lackland v. Smith, 75 Mo. 307; Adair Co. v. Owenby, 75 Mo. 282; Bank v. Taylor, 62 Mo. 338; Grumley v. Webb, 48 Mo. 563; Overall v. Ellis, 38 Mo. 209; Adams Express Co. v. Hoeing, 88 Ky. 373; 1 Herman Estoppel, p. 118; Crecelius v. Bierman, 68 Mo.App. 34; Cherry v. Railroad, 61 Mo.App. 303; Walser v. Graham, 60 Mo.App. 323; Dean v. Railroad, 43 Mo.App. 450; Koch v. Hebel, 40 Mo.App. 241; Young v. Thrasher, 123 Mo. 308; Stump v. Hornbeck, 109 Mo. 272; Atkinson v. Dixon, 96 Mo. 582; State ex rel. v. Givan, 75 Mo. 517; Chouteau v. Allen, 74 Mo. 56; Gamble v. Gibson, 83 Mo. 290; Shroyer v. Nickell, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116; Stilwell v. Glascock, 47 Mo.App. 554; Coquard v. Prendergast, 47 Mo.App. 243; Lane v. Railroad, 35 Mo.App. 567; McIntyre v. McIntyre, 24 Mo.App. 166; Connor v. Pope, 23 Mo.App. 344; Dulaney v. Railroad, 22 Mo.App. 597; Sparks v. Railroad, 31 Mo.App. 111; Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Czezewzka v. Railroad, 121 Mo. 201. (2) The petition fails to allege that the deceased was the servant of plaintiff; that by his death she would lose his services, or that she was damaged by such loss. Hennessy v. Bavarian Brewing Co., 63 Mo.App. 111; Buck v. Railroad, 46 Mo.App. 555; Matthews v. Railroad, 26 Mo.App. 75; Dunn v. Railroad, 21 Mo.App. 188. (3) The measure of a parent's damages, in an action under sections 4426 and 4427, for the loss of a minor child, is the value of the child's services from the date of his death to the date of his majority, burial and other expenses, if any, incurred in his death or sickness, less the expense of his support during that time, and the parent is so limited in his recovery in such action. Leahy v. Davis, 121 Mo. 227; Parsons v. Railroad, 94 Mo. 286; Rains v. Railroad, 71 Mo. 164; Frick v. Railroad, 79 Mo. 542. The evidence shows, and it is conceded by appellant, that she had been a widow, and had remarried long prior to the injury to her son, and she and her son being supported by his stepfather; and she was, therefore, no longer entitled to the services of her minor son. Whitehead v. Railroad, 22 Mo.App. 60; Matthews v. Railroad, 26 Mo.App. 75; Tetherow v. Railroad, 98 Mo. 84; Hollingsworth v. Swendenborg, 49 Ind. 378. After remarriage, if the minor remains in the family of the stepfather and, as shown by plaintiff's testimony in this case, is supported by him, then the stepfather is entitled to his earnings, and is liable for his support and education. Academy v. Bobb, 52 Mo. 357; Hennessy v. Bavarian Brewing Co., 63 Mo.App. 111; Brown's Appeal, 112 Pa. St. 18; Englehardt v. Young, 76 Ala. 534; Smith v. Rogers, 24 Kan. 140; Gerder v. Weisner, 54 Iowa 591; In re v. Bernoudy, 32 Minn. 385. (4) The above sections, 4426 and 4427, do not create any new right of action, but only transmit the right to sue, and confer upon the representatives of a deceased person the right to sue in such cases as the deceased might have maintained had he survived the injury. Hennessy v. Bavarian Brewing Co., 63 Mo.App. 111; Miller v. Railroad, 109 Mo. 360; Gray v. McDonald, 104 Mo. 311; Elliott v. Railroad, 67 Mo. 272; White v. Maxcy, 64 Mo. 552; Proctor v. Railroad, 64 Mo. 112; Crumpley v. Railroad, 98 Mo. 37. (5) The above sections allow only compensatory damages, and not a penalty, as in section 4425. Senn v. Railroad, 135 Mo. 517; Leahy v. Davis, 121 Mo. 227; McGowan v. Ore & Steel Co., 109 Mo. 531; McPherson v. Railroad, 97 Mo. 253; Parsons...

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