Adelsberger v. Sheehy

• Decision Date: 08 February 1935
• Parties: Catherine A. Adelsberger, Administratrix of Estate of Frank J. Adelsberger, v. Richard P. Sheehy, Administrator of Estate of William P. Sheehy, Appellant
• Court: Missouri Supreme Court

79 S.W.2d 109

336 Mo. 497

Catherine A. Adelsberger, Administratrix of Estate of Frank J. Adelsberger, v. Richard P. Sheehy, Administrator of Estate of William P. Sheehy, Appellant

Supreme Court of Missouri

February 8, 1935

Rehearing Overruled February 8, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Reversed and remanded (with directions).

Jones Hocker, Sullivan, Gladney & Reeder and Web A. Welker for appellant.

(1) An action ex delicto for personal injuries does not survive plaintiff's death and cannot be revived and continued in the name of the representative of plaintiff's estate, unless it is alleged and proved that such injuries did not cause plaintiff's death. Sec. 3280, R. S. 1929; Greer, Admr., v. Railroad Co., 173 Mo.App. 276; Showen, Admr., v. Met. St. Ry. Co., 164 Mo.App. 41; Heil v. Rule, 327 Mo. 84; Beer v. Martel, 55 S.W.2d 482; Sterling v. Parker Co., 185 Mo.App. 192. (2) Where death is the result of an existing disease aggravated by an injury, such injury is the cause of death. De Maet v. Storage Packing Co., 231 Mo. 618; Strode v. St. Louis Transit Co., 197 Mo. 616; McDonald v. Railroad Co., 219 Mo. 483. (3) Whether the decompensation of the heart which occurred following this accident was the result of the accident rested on pure surmise or conjecture and the evidence did not justify a finding that it was caused by this accident. Adelsberger v. Sheehy, 59 S.W.2d 644. (4) The amount of the verdict and judgment were grossly excessive. Adelsberger v. Sheehy, 59 S.W.2d 644; Clark v. Ry. Co., 324 Mo. 407; Gales v. United Rys., 286 Mo. 521; Potschmidt v. Lonsdale, 253 S.W. 487; Shubb v. Kansas City, 282 S.W. 128; Hoffman v. Peoples Motorbus Co., 288 S.W. 948; Mahmet v. American Radiator Co., 294 S.W. 1014; Kleinbein v. Foskin, 13 S.W.2d 648; Faulks v. Lehman, 17 S.W.2d 998.

B. Sherman Landau and Everett Hullverson for respondent.

(1) As plaintiff's death was not caused by the injuries sustained in this accident, this action must be prosecuted only in the name of the representative of plaintiff's estate. Sec. 3280, R. S. 1929; Greer v. Railroad Co., 173 Mo.App. 276, 158 S.W. 740; Mott v. Kansas City, 60 S.W.2d 736; Longan v. Kansas City Rys. Co., 299 Mo. 561, 253 S.W. 758. (2) In considering any alleged excessiveness of the verdict, all evidence tending to support the verdict must be taken as true. Peterson v. Kansas City, 23 S.W.2d 1049. (3) It is the peculiar province of the jury to determine the extent of plaintiff's injuries and the damages to be assessed therefor. In the case at bar two separate juries have assessed plaintiff's damages at precisely the same amount. Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487; Grott v. Shoe Co., 2 S.W.2d 790; Hoover v. Ry. Co., 277 S.W. 77. (4) The trial judge is in a better position than a reviewing court to pass upon the reasonableness of the verdict. Two separate trial judges have, on two separate occasions, signified their approval of the juries' determination in this case. Meeker v. Union Electric Co., 279 Mo. 574, 216 S.W. 933; Rockenstein v. Rogers, 31 S.W.2d 803. (5) The verdict should not be disturbed unless the amount is such as to shock the judicial conscience, or there are indications that the jury was swayed by passion, prejudice or in some way unduly influenced. Laughlin v. Ry. Co., 275 Mo. 459, 205 S.W. 7; Manley v. Wells, 292 S.W. 67; Grott v. Shoe Co., 2 S.W.2d 785. (6) When considered in the light of all prior decided cases, the verdict in the case at bar is not excessive, and is but a modest assessment in view of the severity and extent of the plaintiff's injuries, and of the accompanying physical suffering and mental anguish. Capstick v. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480; Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W.2d 963; Gately v. Ry. Co., 56 S.W.2d 54; Potashnick v. Pearline, 43 S.W.2d 790; Margulis v. Stamping Co., 23 S.W.2d 1049; Messing v. Judge & Dolph, 18 S.W.2d 408; Grott v. Shoe Co., 2 S.W.2d 785; Stein v. Rainey, 315 Mo. 535, 286 S.W. 53; Brown v. Railroad Co., 315 Mo. 409, 286 S.W. 45; Brickell v. Fleming, 281 S.W. 951; Hughes v. Ry. Co., 309 Mo. 560, 274 S.W. 703.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Frank J. Adelsberger was injured in a collision between his automobile and an automobile operated by William P. Sheehy. The collision occurred July 14, 1928, at the intersection of Magnolia and Nebraska avenues in the city of St. Louis. On September 13, 1928, Frank J. Adelsberger commenced an action in the Circuit Court of the City of St. Louis, against the said William P. Sheehy, for damages for the injuries so received. The trial of the cause resulted in a verdict and judgment for plaintiff in the sum of $ 10,000 and defendant appealed. On September 24, 1930, while the appeal was pending in this court, the plaintiff died and thereupon his widow, Catherine A. Adelsberger, was appointed as administratrix of his estate and as such was substituted as plaintiff and respondent here. The judgment was reversed and the cause remanded (Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644), whereupon the cause was revived and continued in the Circuit Court of the City of St. Louis in the name of Catherine A. Adelsberger, administratrix of the Estate of Frank J. Adelsberger, deceased, plaintiff and, the defendant William P. Sheehy having died during the pendency of the appeal, against Richard P. Sheehy, administrator of the estate of William P. Sheehy, deceased, as defendant. The cause was then tried in January last, upon an amended petition filed by plaintiff administratrix and answer thereto by defendant administrator, resulting in a verdict and judgment for plaintiff in the sum of $ 10,000 from which judgment defendant has appealed.

Appellant concedes, "that the evidence was sufficient to justify a finding by the jury that the injuries sustained by Frank J. Adelsberger were the result of the negligence of William P. Sheehy" and therefore makes no point as to the sufficiency of the evidence to sustain the charges of negligence made by the petition and submitted by instructions to the jury but contends that the demurrer to the evidence should have been sustained on the ground that it conclusively appears from the evidence that the injuries sustained by Frank J. Adelsberger caused or resulted in his death and therefore this cause of action abated with his death and did not survive to his legal representative. Appellant also asserts the proposition in this way, that in order to maintain the action plaintiff administratrix was required to allege and prove that the injuries sustained did not result in the death of Frank J. Adelsberger and that the petition does not allege nor the proof show that his death did not result from such injuries.

The action for personal injuries brought by Frank J. Adelsberger was a common-law action which by the common law abated with his death. However, under our statute (Sec. 3280, R. S. 1929) such an action "brought by an injured party for personal injuries, other than those resulting in death," does not "abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued" but survives "to the personal representative of such injured party, and against the person receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages" is "the same as if such death or deaths had not occurred." (Italics ours.) But "whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who . . . would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured" (Sec. 3263, R. S. 1929) and in such case damages for death of the injured party "may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased," etc.; third, if the deceased be an unmarried minor "by the father and mother . . . or if either of them be dead, then by the survivor" or, fourth, if there be no husband, wife, minor child or children or if the deceased be an unmarried minor and there be no father or mother surviving "then . . . suit may be instituted and recovery had by the administrator or executor of the deceased." [Secs. 3264, 3262, R. S. 1929.] Actions instituted by virtue of the last three sections cited, i. e., Sections 3263, 3264, 3262, Revised Statutes 1929, the wrongful death statutes, must be commenced "within one year" after the cause of action accrues Section 3266, Revised Statutes 1929. Plaintiff rests her right to revive the present action and continue and maintain it as administratrix upon the authority of the survival statute, Section 3280, first above cited and quoted, but defendant contends that the evidence conclusively shows that the injuries sued for in the action brought by Frank J. Adelsberger resulted in his death and therefore the action abated with his death, did not survive to his personal representative, and that upon his death an entirely new cause of action arose by virtue of the wrongful death statutes, supra, in favor of the persons named therein. For a discussion of the cause of action, and the nature thereof, arising under the wrongful death statutes see Jordan v. St. Joseph Ry., Light, Heat and Power Co., 335 Mo. 319, 73...