Packard v. Hannibal & St. Joseph Railroad Co.
| Decision Date | 10 May 1904 |
| Citation | 80 S.W. 951,181 Mo. 421 |
| Parties | PACKARD et al., by next Friend, Appellants, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
I. J Ringolsky and J. A. Harzfeld for appellants.
(1) Under the terms of the statute, if the widow sues within six months, there being minor children, the one designated and made liable by the statute, she there-by appropriates the cause of action created by the statute, and the minor children are thereafter barred and estopped from suing upon or appropriating the same cause of action, and it is within the power of the widow to settle, compromise or dismiss her suit and the minor children should not complain of their mother's conduct. (2) But, if within the time specified in the law creating the right, the widow does not appropriate the cause of action created by the statute, by suing, within the time specified in the statute, the person or corporation made liable by the terms of the statute -- but on the contrary sues a person or corporation, neither liable individually or jointly, with the one designated and made liable by the statute, then the minor children, after the expiration of six months, are given the right by the statute to appropriate the cause of action created by the statute and can sue such other party, who is made liable by the statute. (3) In the creation of a new right of recovery or "cause of action," it is as essential to designate against whom the right can be enforced, as it is to designate for whom the right or cause of action is created. Therefore, the designating and naming of the persons from whom a penalty can be recovered, is as material a part of the cause of action as the designating and naming the persons for whom the right is created and by whom the same can be recovered. If this be true, and the widow, within the six months mentioned in the statute, brings suit against one not made liable by the statute for the penalty, and there exists one who is liable for the penalty, and the widow within the six months mentioned in the statute did not sue the one who is made liable by the statute, it must necessarily follow that the widow has not appropriated the "cause of action" created by and described in the statute, and that after the expiration of six months from the date of the death of the father, the minor children can appropriate the "cause of action," the right given by the terms of the statute, by suing the corporation mentioned and made liable by the terms of the statute. A "cause of action" is defined as "a right to bring an action, which implies that there is some person in existence who can assert, and a person who can lawfully be sued." Douglass v. Beasley, 40 Ala. 148; Parker v. Enslow, 102 Ill. 272. "It is composed of the right of the plaintiff and the obligation, duty or wrong of the defendant; these combined, it is sufficiently accurate to say, constitute the cause of action." Veeder v. Baker, 83 N.Y. 160; 3 Am. & Eng. Ency. of Law 46.
O. M. Spencer and Warner, Dean, McLeod & Holden for respondent; Geo. S. Grover, amicus curiae.
(1) The right of action given by section 2864, Revised Statutes 1899, is a single indivisible right to sue all the guilty parties. It vests in the widow or the minor children under the limitations fixed by the statute and can not exist concurrently in the widow and the children. The limitations imposed by the statute are subject to a strict construction. Coover v. Moore, 31 Mo. 574; Kennedy v. Burrier, 36 Mo. 128; McNamara v. Slavens, 76 Mo. 330; Shepard v. Railroad, 3 Mo.App. 550; Barker v. Railroad, 91 Mo. 86; Railroad v. Needham, 8 C. C. A. 52 F. 374; Dulaney v. Railroad, 21 Mo.App. 597; Reichla v. Gruensfelder, 52 Mo.App. 50; Munro v. Pacific Coast Co., 84 Cal. 515; s. c., 24 P. 303; Hartigan v. Railroad, 86 Cal. 142; s. c., 24 P. 851. (2) During the first six months the right of action is absolute in the wife. If she asserts her right by bringing suit, she then has the full year within which to institute any other litigation upon this right of action which she has claimed and asserted. Shepard v. Railroad, 3 Mo.App. 550; Hayes v. Williams, 17 Colo. 465; s. c., 30 P. 352; McNamara v. Slavens, 76 Mo. 330; Barker v. Railroad, 91 Mo. 86; Reichla v. Gruensfelder, 52 Mo.App. 50. (3) The failure of the widow to manifest her election by bringing suit upon this cause of action which the statute holds out to her, within six months, vests the cause of action in the minor children and in them only. It is the same cause of action -- her right to it has gone and the children's right has accrued. Kennedy v. Burrier, 36 Mo. 128; Hamilton v. Railroad, 39 Kan. 56. (4) There being but a single indivisible right of action, and the widow, if she elects to appropriate it by bringing an action, having the entire right thus vested in her, it becomes immaterial whether she sues the right or the wrong party or whether she recovers the penalty or is denied a recovery. The right of action is hers and the conditional right held out to the children is forever gone. Shepherd v. Railroad, 3 Mo.App. 550; McNamara v. Slavens, 76 Mo. 330; Hayes v. Williams, 17 Colo. 465; s. c., 30 P. 352.
The appellants in this case are the minor children of James I. Packard, and Sarah Packard, his wife. The father, James I. Packard, on and prior to February 9, 1898, was in the employ of the Chicago, Rock Island and Pacific Railway Company, hereafter called the Rock Island Company, as a freight switchman and brakeman in Kansas City. His duties in this employment, as alleged in the plaintiffs' petition, were to work on the top of freight cars, setting brakes, coupling and cutting out cars, and generally to perform the duties of a switchman in handling the local freight business of the Rock Island Company. This, the petition alleges, was the duty he owed to his employer, the Rock Island Company, and from the petition it further appears by affirmative allegation that it was also his duty to his employer, from time to time, to accompany Rock Island transfer trains, with other Rock Island employees and Rock Island switch engines, to the yards of the defendant, The Hannibal & St. Joseph Railroad Company, herein called the Hannibal Company, in said city, and there deliver the cars upon the tracks of the Hannibal Company.
While engaged in this work on February 9, 1898, James I. Packard received injuries which resulted in his death on February 12, 1898, in Kansas City, Missouri, leaving these appellants as his minor children, and Sarah Packard, their next friend in this action, as his widow.
On August 11, 1898, one day prior to the expiration of the first period of six months after his death, his widow, Sarah Packard, elected to accept the benefits given by Revised Statutes 1899, section 2864, and brought her action to recover the statutory penalty of $ 5,000 in the Jackson circuit court, against the Rock Island Company which action in due time was removed to the United States circuit court for the western division of the western district of Missouri, and was thereafter on December 12th, 1899, duly tried on the pleadings and evidence before a jury, and resulted in a verdict for the defendant, the Rock Island Company, at the direction of the court.
The answer filed by the Rock Island Company in that action raised several defenses and it is not apparent from the record now before the court upon which of the issues thus raised the learned federal court directed the verdict. But it is sufficient to say the record shows that the case was fully heard and tried upon the merits, resulting in a judicial finding against the plaintiff, Sarah Packard.
Upon February 9, 1899, within a day or two of the expiration of one year from the death of said James I. Packard, and during the pendency of the first mentioned action, brought by his widow, these plaintiffs, as his minor children, by the said Sarah Packard as next friend, filed the present action in the Jackson circuit court against the Hannibal & St. Joseph Railroad by which they also sought to appropriate the benefits of said statute, and to claim the penalty therein defined. In their petition, they allege, not that their mother had failed to sue, as the wording of the statute runs, but that she had failed to sue this defendant, the Hannibal Company, within six months, whereby, as it is claimed by them, the statutory right of action had passed to and became vested in the minor children. Thus is presented the situation of two actions pending between February 9, 1899, and December 12, 1899, the one by the widow against the Rock Island Company, and the other, by the minor children, against the Hannibal Company, and both based upon the same identical cause of action, to-wit, the death of James I. Packard.
Under the admissions made by the plaintiffs' petition and reply the trial court upon the motion made by the defendant, the Hannibal Company, for a judgment on the pleadings, rendered the judgment prayed for, holding that inasmuch as the pleadings in the case showed as a matter of fact that the widow did sue before the six months had elapsed, she had under the statute appropriated the cause of action, and thereby deprived her children of the right to maintain an action in their own behalf; that her intention to appropriate the benefits of the statute was manifested in the most solemn manner possible by bringing her action against the Rock Island Company, and whether she was right or wrong in her selection of the defendant was not material. Her error if such it was, was a mistake of law, and did not alter the fact that she had elected to appropriate the benefit of the statute and bring the action and...
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