Bagley v. City of St. Louis
| Decision Date | 02 June 1916 |
| Citation | 186 S.W. 966,268 Mo. 259 |
| Parties | JOHN J. BAGLEY, Administrator of Estate of BERNARD GLEASON, v. CITY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Reversed and remanded.
Charles H. Daues and Everett Paul Griffin for appellant.
(1) The demurrer to the evidence offered at the close of the plaintiff's case and renewed at the close of the entire case should have been sustained, because the evidence in the case did not warrant a recovery for the reason that the action was brought under Secs. 5426 and 5427, R. S. 1909 which are compensatory statutes and not penal, and the evidence did not show that any surviving relative had sustained any pecuniary damage of any kind or character whatsoever. Troll v. Gas Light Co., 182 Mo.App. 600; Kirk v. Railroad, 177 S.W. 592; Hegberg v Railroad, 164 Mo.App. 559; McGowan v. Steel Co., 109 Mo. 518; Knight v. Lead Co., 75 Mo.App. 541; Barth v. Railroad, 142 Mo. 535; Schaub v. Railroad, 106 Mo. 74; Honea v. Railroad, 245 Mo. 645; 2 Sedgwick on Damages, sec. 574-A, also sec. 579; Tiffany, Death by Wrongful Act (2 Ed.), secs. 170, 154, 159, 180. The weight of authority is against awarding nominal damages where there has been no pecuniary damage. At most, nominal damages only could have been awarded plaintiff, but in Missouri and in many States nominal damages alone cannot be recovered in an action of this kind. Hearst v. Detroit City Ry., 84 Mich. 539; Railroad v. Cregan, 23 Ind.App. 1; Railroad v. Drumm, 32 Ind.App. 547; Chicago & Alton Ry. Co. v. Shannon, 43 Ill. 338; Rhoads v. C. & A. Ry. Co., 227 Ill. 328; Anderson v. Railroad, 35 Neb. 95; Burke v. Railroad, 125 Cal. 364; Sorensen v. Railroad, 45 F. 407; Howard v. Canal Co., 40 F. 195. (2) The right of the mother to recover abated on her death before the trial. In this action the administrator was suing not for the benefit of the estate of the deceased, but as a trustee for the beneficiaries, and as the mother died before the trial and the action had abated as to her, the administrator could recover nothing on her behalf. Gilkeson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493; McMurray v. Railroad, 161 Mo.App. 131; Hauld v. Wallace, 109 Tenn. 346; Troll v. Gas Light Co., 182 Mo.App. 600; 17 Am. & Eng. Ann. Cases, p. 763. (3) Even if a recovery could have been had on behalf of the mother, the damages were grossly excessive, as there was no evidence in the case that deceased had ever contributed one cent to his mother, and no evidence on which any fair and just estimate of damages could have been based.
Virgil Rule and Albert E. Hausman for respondent.
(1) It is proper for the jury to award substantial damages when an adult has been killed, and parent, brothers or sisters survive him. Hersted v. Railroad, 143 Mo.App. 623; Illinois Central v. Brown, 5 Wall. 90; Railroad v. Cutter, 19 Kan. 91; Grotekamp v. Harris, 25 Ohio St. 510; Murphy v. Wabash, 228 Mo. 56. (2) An instruction on measure of damages which is in the language of the statutes (as is the instruction in the case at bar) is good. If defendant thought it too broad it should have qualified it by offering one itself. Not having done so, defendant cannot complain. Barth v. Railroad, 142 Mo. 555; Dalton v. Refining Co., 188 Mo.App. 529; Tethrow v. St. Joseph, 98 Mo. 74; Browning v. Wabash, 124 Mo. 55; Baultger v. Scherp, 124 Mo. 87; Geisman v. Mo. Edison, 173 Mo. 654; Gentry v. Railroad, 172 Mo.App. 638; Kettlehake v. Casualty Co., 171 Mo.App. 528; Murphy v. Wabash, 228 Mo. 87. (3) In absence of evidence to contrary, the decedent is presumed to have exercised ordinary care for his own safety. Wack v. Railroad, 175 Mo.App. 111; Buesching v. St. Louis, 73 Mo. 219. (4) The death of the mother before the trial did not prevent the recovery of substantial damages.
I.
-- This is a suit for ten thousand dollars for the death of Bernard Gleason, on July 7, 1909, alleged to have been caused by the negligence of the defendant, the city of St. Louis, in failing to keep Union Avenue in a proper state of repair at the place of the injury.
The plaintiff, John J. Bagley, is the administrator of Bernard Gleason, who died intestate at the age of fifty-one years, and was survived by his mother and four half brothers and sisters, the mother dying before the trial of the suit.
On the day of the injury, January 7, 1909, about one o'clock, Gleason, accompanied by one Lynch, left John J. Bagley's place for the Hamilton Brown Shoe Company. They were driving Bagley's team and were to get a load of empty shoe boxes and return with them to Bagley's. On the return trip they stopped on several occasions, at which times, the evidence tends to show, they had drinks of intoxicating liquor. About seven o'clock that evening Lynch left the wagon and Gleason drove on alone.
Gleason was next seen about nine o'clock that evening driving north on Union Avenue, by one Mrs. Bragg, who lived at 3019 Union Avenue. When the wagon got opposite her house she saw it suddenly upset and fall into a large ditch on the side of the street, killing the intestate.
At the place of the injury there was a gully or depression in Union Avenue, which was in an unimproved condition. Car tracks ran down the center of the street, both sides of which were for the use of vehicles. There was no pavement at this part of Union Avenue, which is a dirt street, lighted in the usual manner in outlying districts of the city.
There was testimony tending to show that Gleason had frequently passed over this part of Union Avenue and was familiar with its condition and had knowledge of the rut or depression which is claimed caused the injury.
At the time of his death Gleason, as far as it is shown, had no property of any kind, either real or personal. His earning capacity was anywhere from one to two dollars per day, and he had no steady employment.
The case was tried in the circuit court of the city of St. Louis, before a jury, which found in favor of the plaintiff in the sum of fifteen hundred dollars, from which an appeal was duly taken to this court.
II. This action is based on the statutory right of the administrator of a person whose death was caused by the negligence of another, to sue therefor and recover, not exceeding ten thousand dollars, what the jury may deem fair and just with reference to the necessary injury resulting from such death to the persons entitled to sue, in view of the mitigating and aggravating circumstances attending the wrongful act, neglect or default. [R. S. 1909, secs. 5426, 5427.]
In this case the deceased left a mother who died after the bringing of the suit but before the trial, which is now prosecuted for his half brothers and sisters. The statute provides for the inclusion of plaintiff and proper distribution of any recovery in cases like the present. [R. S. 1909, sec. 5425.].
The first contention of appellant is that since the statute on which the action is founded is purely compensatory, there was no proof of injury to the beneficiaries to sustain a judgment of fifteen hundred dollars.
The jury were instructed, in case they found for the plaintiff, to give only such damages as were "fair and just with reference to the necessary injury" to the beneficiaries. There being no elements of aggravation shown on the trial this instruction was in accordance with the statute. [Troll v. Gas Light Co., 182 Mo.App. 600, 169 S.W. 337, and cases cited.]
There was...
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