Bellamy v. Whitsell

• Decision Date: 04 March 1907
• Citation: 100 S.W. 514,123 Mo.App. 610
• Parties: THOMAS BELLAMY et ux., Respondents, v. H. J. WHITSELL, Appellant
• Court: Kansas Court of Appeals

100 S.W. 514

123 Mo.App. 610

THOMAS BELLAMY et ux., Respondents, v. H. J. WHITSELL, Appellant

Court of Appeals of Missouri, Kansas City

March 4, 1907

Appeal from Barton Circuit Court.--Hon. H. C. Timmonds, Judge.

AFFIRMED.

Cole Burnett & Moore for appellant.

(1) This action is for loss of services, and therefore it is necessary that there should be an averment that the boy was the servant of the parents and that they were deprived of his services. We respectfully insist that the petition is absolutely barren of any allegation from which these essentials may even be inferred. Scamell v. Transit Co., 103 Mo.App. 511; Dunn v. Railroad, 21 Mo.App. 203. (2) Again, the petition is fatally defective in not alleging that the master knew, or by the exercise of ordinary care might have known, of the alleged vicious disposition of the animals. McCready v. Stepp, 104 Mo.App. 340; Beckett v. Beckett, 48 Mo. 396; O'Neill v. Blase, 94 Mo.App. 655; 2 Cyc. 368 and 383; Current v. Railroad, 86 Mo. 66; Mueller v Shoe Co., 109 Mo.App. 517; Wojtylak v. Coal Co., 188 Mo. 260. (3) Again, if this petition is based upon the statute, it is fatally defective in not averring that the son was unmarried and left no child or children. Barker v. Railroad, 91 Mo. 94; Dulaney v Railroad, 21 Mo.App. 599; Sparks v. Railroad, 31 Mo.App. 111; Cutshall v. McGowan, 98 Mo.App. 705; Lilly v. Menke, 126 Mo. 212; Munchow v Munchow, 96 Mo.App. 556; Jackson v. Min. Co., 106 Mo.App. 445; Case v. Cordell Co., 103 Mo.App. 479; Barron v. Mo. L. & Z. Co., 172 Mo. 233; Packard v. Railroad, 181 Mo. 427; Czezewzka v. Railroad, 121 Mo. 212; Baird v. Railroad, 146 Mo. 280. (4) The jury should have been instructed to find for defendant. This injury might have been caused in various ways, some negligent, some purely accidental. Smart v. Kansas City, 91 Mo.App. 592; Schureman v. Railroad, 88 Mo.App. 185; Spiro v. Transit Co., 102 Mo.App. 261; Young v. Railroad, 88 S.W. 768; Rickaly v. Boiler Works Co., 108 Mo.App. 138; Breen v. Cooperage Co., 50 Mo.App. 212; Fuchs v. St. Louis, 167 Mo. 635.

VanPool & Martin and Scott & Bowker for respondent.

(1) After verdict every matter that can be inferred from the allegations of a petition will be taken to uphold the petition. Todd v. Hulin, 72 Mo.App. 565. (2) Under our practice act the court should liberally construe all pleadings. Revised Statutes 1899, secs. 659, 672. (3) If the petition is defective it is good after verdict. Revised Statutes 1899, secs. 659, 672. (4) The allegation in the respondents' petition that appellant was guilty of negligence in furnishing respondents' son with a wild runaway and unsafe team was equivalent to saying that appellant knew the dangerous character of said team. Johnson v. Railroad, 96 Mo. 340; Crane v. Railroad, 87 Mo. 588. (5) It was not necessary to allege in respondents' petition that the deceased was the servant of the respondents; the cause of action is a statutory action and based solely upon the statute. Hennessy v. Brewing Co., 145 Mo. 104; Revised Statutes 1899, secs. 2864, 2865. (6) The allegation in the plaintiff's petition that their son was a minor of thirteen years of age was a sufficient allegation from which to draw the inference that he was single and unmarried. Baird v. Railroad, 146 Mo. 265; Czezewzka v. Railroad, 121 Mo. 201; McIntosh v. Railroad, 103 Mo. 131. (7) At the common law an infant could not even make a marriage contract until they arrived at the age of puberty which was fourteen in the males and twelve in the females. This has not been changed by our statutes. 16 Am. and Eng. Ency. of Law (2 Ed.), 263. (8) Under our statute marriage is a civil contract and the parties must be capable of contracting. Revised Statutes 1899, sec. 4311.

OPINION

JOHNSON, J.

This is a statutory action by the plaintiffs as the father and mother of Leo Bellamy, their minor son, for damages for his death, alleged to have been the result of negligence of defendant. The judgment was for the plaintiffs and defendant appealed.

As it is contended earnestly that the petition does not state a cause of action, we incorporate enough in the opinion for a proper understanding of the question. After alleging the employment by defendant of said Leo, their minor son, aged thirteen years, as a farm hand, the petition alleges: "That while in the employ of said defendant as aforesaid on the 16th day of September, 1903, while driving a bull-rake, for said defendant on his said hay farm, their son was killed. . . . That owing to the tender age and small size of plaintiffs' said son and the character of the work in handling said bull-rake, the defendant was guilty of negligence in placing one of his age and size in such employment. That owing to his tender age and small size and character of employment, the same was extra-hazardous and dangerous. That defendant was guilty of negligence in furnishing their said son with an unsafe, wild and fractious and runaway team to drive said bull-rake. That by reason of the aforesaid negligence of defendant, on the 16th day of September, 1903, plaintiffs' said son, while in the employment of defendant in driving said team to said bull-rake in said defendant's hay field, said team ran away, tipped over said rake and threw plaintiff's son in front of said rake to the ground and thereby caused his death. That the sole cause of said death of plaintiffs' son, was the aforesaid negligence of said defendant." There are other grounds alleged for recovery, but as the case was submitted upon those quoted it is not necessary that they should be noticed.

The plaintiffs were allowed to introduce their evidence without any suggestion to the court that the petition did not state a cause of action, but at the close of plaintiff's testimony defendant interposed a demurrer, and at the close of the case after all the testimony had been introduced, he again interposed a demurrer, on the ground that under the pleadings and evidence plaintiffs were not entitled to recover. These demurrers were overruled.

It is urged as a reason why the petition does not state a cause of action, that there is no averment that the son was the servant of the parents and that they were deprived of his services, it being a necessary allegation, as the action is for loss of services. It had been held: "The right of a parent to the earnings of minor child during its minority originates not by virtue of the relationship of parent and child, but from the relationship of master and servant; it is therefore an essential averment, in an action by a parent to recover the loss of the earnings of a minor child, that the child was the servant of the parent who has been deprived of its services." [Scamell v. Transit Co., 103 Mo.App. 504, 77 S.W. 1021; Dunn v. Railway, 21 Mo.App. 188; Matthews v. Railway, 26 Mo.App. 75; Schmitz v. Railway, 46 Mo.App. 380.] And so this court held in Hennessey v. Bavarian Brewing Co., 63 Mo.App. 111. But afterwards the case was appealed to the Supreme Court where it is held that the father and mother of the child in such cases do not recover ex contractu or in assumpsit, "but in tort on the right which the child would have had if he had survived the injury, and which right died with the injured party at common law, but has been by our statute expressly transmitted to them, eo nomine. No new right of action is given by our statute. It is solely a preserved, transmitted right." [Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 46 S.W. 966.] The court in support of the ruling cited Proctor v. Railroad, 64 Mo. 112; White v. Maxcy, 64 Mo. 552; Elliott v. Railroad, 67 Mo. 272; Gray v. McDonald, 104 Mo. 303, 16 S.W. 398; Miller v. Railroad, 109 Mo. 350. The St. Louis Court of Appeals in Scamell v. Transit Co., it seems, overlooked the decision in Hennessy v. Bavarian Brewing Co., supra.

The petition is claimed to be fatally defective in not alleging that the defendant knew that the team was wild and vicious, or by the exercise of ordinary care should have so known. "An allegation that defendant negligently furnished plaintiff an appliance which was not safe or sound, is an equivalent averment and is sufficient." [Johnson v. Railway, 96 Mo. 340; Crane v. Railway, 87 Mo. 588.]

Another point made is that the petition fails to allege a cause of action for the reason that while it states the deceased minor was thirteen years old at the time of his death it does not state he was unmarried. It was said in Baird v. Railway, 146 Mo. 265, in an action of this character that to state a cause of action the petition must contain an averment that the minor died unmarried "unless it appears from the petition that the deceased was of such tender years as to justify the inference that he was unmarried and childless at his death," and under an allegation that the minor was six years old when he died held that as he was incapable of entering into a contract of marriage and "in view of the code rules requiring a liberal construction of pleadings," the averment of his age presumptively included the fact that he was unmarried, citing McIntosh v. Railroad, 103 Mo. 131; Czezewzka v. Railroad, 121 Mo. 201.

But it is argued by defendant that the declaration in section 4311, Revised Statutes 1899, that "Marriage is considered in law as a civil contract to which the consent of the parties capable in law of contracting is essential," is but a legislative recognition of a common law rule and that at common law while a marriage made between infants under seven years of age was absolutely void, one made between infants over that age was not void. It is pointed out that in the Baird case the minor was only six years old and therefore it is conceded that the court was justified in indulging in the presumption that he was unmarried...