Betz v. Kansas City Southern Ry. Co

• Decision Date: 26 June 1923
• Docket Number: No. 3151.,3151.
• Citation: 253 S.W. 1089
• Parties: BETZ v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

253 S.W. 1089

BETZ v. KANSAS CITY SOUTHERN RY. CO.

No. 3151.

Springfield Court of Appeals. Missouri.

June 26, 1923.

Rehearing Denied July 16, 1923.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Louis Betz, as administrator of the estate of Jennie Baker, deceased, against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, and certified to Supreme Court.

Cyrus Crane and Hugh Martin, both of Kansas City, and Ray Bond, of Joplin, for appellant.

Hugh Dabbs, Norman A. Cox, and Walden & Andrews, all of Joplin, for respondent.

COX, P. J

Action by administrator of Mrs. Jennie Baker, deceased, for damages on account of her death. Jury waived; trial by court, who found for plaintiff for $5,000, and defendant appealed.

The defendant objected to the introduction of any testimony on the ground that the petition did not state a cause of action. This objection was overruled. The objection to the petition is based on the allegation therein that Mrs. Baker left no minor children, and that she and her husband were both killed in the same disaster, but that the husband, Chas. Baker, lived for about two hours after she died.

It is contended by appellant that, since the husband survived the wife, though for only two hours, and there were no minor children, instantly upon her death the right to sue for damages for her death vested immediately in her husband, and upon his death the right to sue died with him, and did not survive to the administrator of the wife. If it be true, as contended by appellant, that the right of action vested in the husband at the very instant of the death of the wife in the same sense that title to real estate would have vested had he been her only heir, then her administrator never acquired any right to sue, and this judgment should be reversed outright. We do not think, however, that the right of action vested in the husband in that sense at the instant of the death of the wife, within the purview of the statute under which this action is brought. The statute (section 4217, Rev. Stat. 1919) does not in terms, so vest it. It provides that, in case of the death of a person, the damages, if any, to be recovered "may be sued for and recovered: First, by the husband or wife of the deceased;" second, by the minor children; third, if the deceased be a minor, by the parents. The fourth division of the section provides that, if none of the classes named in the first three divisions survive, action may be maintained by the administrator of the deceased. The right of the administrator of Jennie Baker, the plaintiff, to sue in this case is based on the fourth provision of the statute. It is conceded that the deceased left no minor children, and it is contended by respondent that, since the husband of Jennie Baker was fatally injured at the same time and in the same disaster in which she was instantly killed, and he only lived two hours after her death, and could not sue in that time, within the purview of the statute they were both killed at the same time, and hence the husband did not survive her, and no right of action ever vested in him. To our mind, the reason of the law supports this contention. The right to sue for the death of the wife is first given to the husband, but, if he should fail to sue within six months, he would lose the right, and the minor children could then sue; but, as there were no minor children in this case, the right to sue must go to the administrator of the deceased or be entirely lost.

It would seem to be but a fair interpretation of this statute to say that, in a case like this, where husband and wife are both killed in the same catastrophe, and one may survive the other for a few minutes or hours, but not long enough to permit the filing of a suit for the death of the other, within the purview of the statue neither survived the other. This was expressly so held by the Supreme Court of this state in the case of Gibbs v. City of Hannibal, 82 Mo. 143. In that case the petition alleged, in substance, that the husband and wife and two minor children all perished in the same catastrophe, but that the wife survived the others for a short time. Suit was brought by the administrator of the wife and mother for the death of all the others; this on the theory that the cause of action vested in the wife and mother immediately on the death of the others. The same point is now made by appellant in this case. The court held in that case that the right of action did not so vest, because within the purview of the statute the parties all died at the same time. The court there said, on page 149:

"In the case at bar all the beneficiaries, within the purview of the statute, perished together in one common disaster and there was no person left to whom the action could survive."

That case was decided before the statute was amended and the fourth provision, which gives the administrator the right to sue in certain contingencies, added to it. The court held that as the statute then stood the administrator could not sue under any circumstances, for the reason that he was not designated in the statute as a party who might sue. The other point, however, that the right of action for the death of the husband and minor children vested in the wife and mother at the instant of their death because she survived them, was urged, and the court held against that contention. This case has been cited and the language quoted above, with other language used in the same case, quoted with approval by the Supreme Court in the later cases of Gilkeson v. Railroad, 222 Mo. 173, 184, 121 S. W. 138, 24 L. R. A. (N. S.) 844, 17 Ann. Gas. 763, and Freie v. Frisco Ry. Co., 283 Mo. 457, 465, 222 S. W. 824, 13 A. L. R. 204.

The history of the Damage Act is given in Gilkeson v. Railroad, supra, and it is there said at page 202 of 222 Mo., at page 147 of 121 S. W. (24 L. R. A. [N. S.] 844, 17 Ann. Gas. 763), that the purpose of the act was not only to compensate those named in the statute who suffer a pecuniary loss as a consequence of the injury done, "but also to induce common carriers to exercise a higher degree of care towards the traveling public and for the individual safety of the passenger than they would otherwise do." The casualty giving rise to the Gilkeson Case occurred prior to the amendment of 1905 (Laws 1905, p. 135) giving the administrator the right to sue

The amendment, however, did not change or modify the purpose of the act. If the fact that Mrs. Baker's husband survived her a few hours unconditionally and for all time vested in him the exclusive right to sue, then in the case at bar and all others like it the second purpose of the statute is not of consequence, because the husband's administrator cannot maintain a suit under the Damage Act for damages accruing to the husband for the death of the wife. Gilkeson v. Railroad and Freie v. Railroad, supra. The amendment of 1905 does not authorize suit by the administrator of the beneficiary. Such was the character of suit in the Gilkeson and Freie Cases.

In Shepard v. Railroad, 3 Mo. App. loc. cit. 553, it is said that, "if the husband or wife fails to sue within six months, it is as if there were no husband or wife." If there were no individual beneficiaries as named in the statute, then there certainly would be a right of action in plaintiff's administrator. There were no individual beneficiaries as named in the statute at the time of Mrs. Baker's death except her husband, and he survived only a few hours, and did not appropriate the action accruing to him within six months; hence, if the language in the Shepard Case is the law, then there was no husband. Reasoning thus, the conclusion is inevitable that Mrs. Baker's administrator has the right under the statute to maintain this action. Also, if Mrs. Baker and her husband "perished together in one common disaster," as. ruled in the Gibbs Case, supra, then the same conclusion is inevitable.

It is contended that the Damage Act is in derogation of the common law, and should therefore be strictly construed, and that, if such construction be applied, plaintiff administrator cannot maintain this cause. There is no doubt about the Damage Act being in derogation of, or in conflict with, the common law. The Legislature, however, in 1917 (Laws 1917, p. 324), amended section 8047, R. S. 1909, relating to the common law, and enacted that—

"No act of the General Assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that the same may be in derogation of, or in conflict with, such common law, or with such statutes or acts of parliament; but all such acts of the General Assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof."

See section 7048, R. S. 1919.

In view of the language in the Gibbs Case and the Shepard Case, supra, and the law that the administrator of a beneficiary named in the statute cannot sue, and considering the purpose of the Damage Act and its amendment in 1905 and the act of 1917 relative to the common law, it is our conclusion that plaintiff administrator can maintain this cause.

The pertinent facts necessary to a determination of the other questions involved in this case may be briefly summarized as follows: The deceased and her husband, Chas. Baker, were traveling north in an automobile on a public highway in Jasper county, and attempted to cross the track of defendant at a public crossing. The automobile was struck by the engine of a train on defendant's track, and Mrs. Baker instantly killed. Chas. Baker, her husband, was fatally injured, but lived about two hours, when he died. The public highway ran north and south and the railroad track ran from southeast to northwest, so that the angle between the highway and the railroad track was about 25 degrees. The automobile was...