Brink v. Wabash Railroad Company
| Decision Date | 12 February 1901 |
| Citation | 60 S.W. 1058,160 Mo. 87 |
| Parties | BRINK et al., Appellants, v. WABASH RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
L. M Conkling for appellants.
(1) The law will not suffer a wrong or injury to be done to the person of another, or to his legal rights or vested interests, without furnishing the means or remedy to redress the same. The plaintiffs had, under this contract with their son, a legal or vested interest in the life of their son for and during the balance of their natural lives, which according to their life expectancy, would have reached or continued for a period of sixteen and three-fourth years after the death of their son. This interest in, and the right to the yearly payment of, the $ 300 were fixed by the contract, and any interruption or destruction of that right and interest by the defendant, directly or indirectly without any contributory fault of the plaintiffs or their son, is a wrong upon the plaintiffs and an injury to their legal or vested rights in that contract. (2) If a person do an act or a wrong to another whereby he sustains an injury or suffers damages, in consequence of the wrongful act, he will have the legal right to an action for damages therefor. Baird v. Daly, 15 Am. Rep. 488. (3) Every invasion or injury to a right imports a damage, even if it does not result in pecuniary loss, for wherever the plaintiff establishes some legal right in himself, by or through any act, agency or agreement independent of the defendant, and that right has been invaded, weakened or destroyed by or through the negligent or wrongful act of the defendant, without contributory liability of plaintiff, there is a wrong and damage in law resulting therefrom, and an action will lie for pecuniary compensation. Sec. 2, Const. (N. Y.) 204; 4 Selden (N. Y.) 375; 38 Barb. (N. Y.) 574; 1 Addison on Torts (Ed. 1876), pp. 9, 10, 16 and 17; Green v. Clark, 12 N.Y. 357. (4) It is a legal maxim that where there is a wrong there is a remedy. It is also a fundamental principle that the law will never suffer a wrong and a damage to be done without furnishing a remedy therefor. So, if one commits a wrong against another, he has a remedy in an action for damages to recover compensation for the wrong. 1 Addison on Torts (Ed. 1876), pp. 43, 57; Story's Balm (3 Ed. 1843), secs. 94, 150, 152, 280, 352, 387; Blair v. Railroad, 89 Mo. 334; Baird v. Daly, 15 Am. Rep. 488. (5) The master can recover damages for beating or wounding his servant or enticing him from his employment, or for forcibly abducting the servant, or for wrongfully debauching or impregnating with child, or for inmparting a disease. All the law requires is that an injury and damage by wrongful act shall be done, and when this fact occurs then the right to an action legally follows. Mohelsky v. Hartmeister, 68 Mo.App. 324; White v. Nellis, 35 N.Y. 405; 2 Addison on Torts (Ed. 1876), pp. 1088, 1089, 1090, 1091, 1105, 1106.
Geo. S. Grover for respondent.
(1) The common law of England was adopted in Missouri in 1816. Lindell v. McNair, 4 Mo. 380. (2) At common law no civil action could be maintained against a person causing the death of a human being. Barker v. Railroad, 91 Mo. 91; Tiffany on Death by Wrongful Act, sec. 1, p. 2; Baker v. Bolton, 1 Campbell 493; Insurance Co. v. Brame, 95 U.S. 754; The Harrisburg, 119 U.S. 199. (3) A third party can not maintain an action at common law, or under our statute, for injuries resulting from a breach of a contract between two other contracting parties. Roddy v. Railroad, 104 Mo. 245; Heizer v. Mfg. Co., 110 Mo. 611.
This is an action by plaintiffs, husband and wife, and parents of F. W. Brink, deceased, against defendant, to recover damages claimed to have been sustained by and through the wrongful acts of the defendant in destroying the deceased and thereby preventing him from carrying out the terms of a contract entered into between himself and plaintiffs for their support and maintenance.
The facts briefly stated in the petition are about as follows:
On the twenty-sixth day of June, 1897, and for some time prior thereto plaintiffs' said son was and had been a mail clerk or agent in the mail or postal service of the government of the United States, and while enroute from Kansas City, Missouri, east on defendant's road in the discharge of his duties, and as a passenger of defendant, at a point on its road in Clay county where it crosses a stream by means of a bridge over a creek, called and known as Rose creek, defendant's train of cars upon which plaintiff's said son was a passenger, by reason of the carelessness and negligence of defendant's servants and employees in charge of the train, left the track while crossing or about to cross said bridge, by reason of which it displaced some part of the structure of said bridge and it gave way, precipitating the entire train of cars into the creek, killing plaintiff's said son immediately. That at the time of the death of plaintiff's said son and prior thereto, they had a contract with him by which he contributed a certain amount of his earnings monthly to their support, and by reason of the carelessness and negligence of defendant in causing his death the performance of said contract on the part of their son with them has been rendered impossible, to their damage in the sum of $ 5,000, for which they ask judgment.
Defendant demurred to the petition upon the ground that it fails to state a cause of action. The demurrer was sustained, and plaintiff declining to plead further, judgment was rendered in favor of defendant. The case is before us upon plaintiffs' appeal.
It is well understood that the common law of England has been in force in this State ever since its admission into the Union of States. It was adopted by the Territorial Assembly in 1816. [Lindell v. McNair, 4 Mo. 380.] So that, as we have no statute upon which an action of the character of the one at bar can be predicated, it must necessarily be based upon the common law, if any of its principles furnish a bottom for it to stand upon.
Plaintiffs in their brief call our attention to several authorities which they insist sustain the position that such an action may be maintained, but without reviewing them here, we think the great weight of authority, and that which is sustained by better reason, the other way.
Baker v. Bolton and others, 1 Campbell 493, was an action against defendants as proprietors of a stage coach, on the top of which plaintiff and his wife were riding when it overturned, whereby they were both hurt, the plaintiff bruised and the wife so seriously injured that she died about a month thereafter. The declaration, besides other special damage, stated that by means of the premises, the plaintiff had wholly lost, and been deprived of, the comfort fellowship and assistance of his said wife, and had from thence hitherto suffered and...
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