Betz v. Kansas City Southern Railway Company

• Citation: 284 S.W. 455,314 Mo. 390
• Decision Date: 24 May 1926
• Docket Number: 25164
• Parties: LOUIS BETZ, Administrator of Estate of JENNIE BAKER, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

284 S.W. 455

314 Mo. 390

LOUIS BETZ, Administrator of Estate of JENNIE BAKER, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

No. 25164

Supreme Court of Missouri

May 24, 1926

Transferred from Springfield Court of Appeals.

Reversed.

Cyrus Crane, Hugh E. Martin and Ray Bond for appellant.

Under the statute the plaintiff as the administrator of the estate of Jennie Baker, deceased, had no capacity to sue, because Charles Baker, the husband of Jennie Baker, survived her. Chandler v. Railroad, 251 Mo. 592; Clark v Railroad, 219 Mo. 524; Freie v. Ry. Co., 283 Mo. 457; Gibbs v. Hannibal, 82 Mo. 143; Gilkeson v. Railroad, 222 Mo. 173; Wilcox v. Warren Const Co., 186 P. 13, 95 Ore. 125; Hamman v. Coal & Coke Co., 156 Mo. 242; Bean v. L. & N. Railroad Co., 29 S.W. 370; Frazier v. Ga. Railroad, 22 S.E. 936; Sanders v. L. & N. Ry. Co., 111 F. 708; Hammond v. Lewiston, A. & W. St. Ry., 76 A. 672; Woodward v. Chicago, 23 Wis. 400.

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

The court properly held that Louis E. Betz, administrator of the estate of Jennie Baker, deceased, was entitled to bring suit in this case. Gibbs v. City of Hannibal, 82 Mo. 143; Gilkenson v. Railroad, 222 Mo. 173; Freie v. Frisco Railroad, 283 Mo. 465; Sheppard v. Railroad, 3 Mo.App. 553; Miller v. Transit Co., 216 Mo. 105; Pakard v. Railroad, 181 Mo. 428; Baker v. Railroad, 91 Mo. 92; R. S. 1919, sec. 4217; David v. Railroad, 41 Ga. 223; Chivers v. Rogers, 23 So. 100; Huberwald v. Railroad, 23 So. 474; Garrald v. Railroad, 126 N.E. 53; Morris v. Gas Co., 49 S.E. 854; Railroad v. Moore, 30 Am. Rep. 98; Shawnee v. Cheek, 41 Okla. 227, 51 L. R. A. (N. S.) 672; Johnson v. Railway, 222 Mass. 583, L. R. A. 1918A, 650.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is an action by plaintiff, the administrator of the estate of Jennie Baker, deceased, to recover, because of deceased's alleged wrongful death, the penalty prescribed by Section 4217, Revised Statutes 1919. A jury was waived by the parties, and the cause was submitted to the trial court, sitting as a jury, resulting in a finding and judgment for plaintiff in the sum of $ 5,000. Having taken the necessary preliminary steps therefor, defendant appealed to the Springfield Court of Appeals, where, by a divided court, the judgment nisi was reversed and the cause remanded. One of the learned judges of that court, however, dissented from the majority opinion, and asked that the case be certified to this court under the mandate of Section 6 of Amendment of 1884 to Article VI of the Constitution of this State, which was accordingly done. The majority and dissenting opinions of the Court of Appeals are fully reported in Betz v. Kansas City Southern Railway Co., 253 S.W. 1089.

The petition alleges that, at the time of the casualty, Jennie Baker, with her husband, Charles H. Baker, was riding in an automobile then and there being driven by the said Charles H. Baker, upon a public highway which crosses defendant's railroad track, and that defendant, its servants and employees, in charge of a locomotive and train of cars, negligently and carelessly ran and operated the same so as to cause the same to run upon and strike said automobile, resulting in the instant death of said Jennie Baker. The petition charges defendant with negligence in failing to give the statutory warnings by bell or whistle, and in failing to keep a reasonable and proper lookout for persons and vehicles approaching and crossing over said crossing, and with negligence under the humanitarian rule. It is furthermore alleged in the petition that "although said Charles Baker lived a short time after said collision and injury, and after the instant death of the said Jennie Baker, in truth and fact and within the purview of Section 4217 of Revised Statutes of Missouri of 1919, under which this action is brought, the said Charles Baker and Jennie Baker perished together in the same disaster." It is also alleged that Jennie Baker left surviving her no minor child or children, natural born or adopted, and that she was over the age of twenty-one years and left surviving her no father or mother.

The answer denies generally the allegations of the petition, except the allegations that said Jennie Baker left her husband surviving her and that her said husband died after Jennie Baker died and did not bring any suit during his lifetime for the death of Jennie Baker. The answer furthermore pleads, as a defense, the contributory negligence of Jennie Baker, in certain specified respects, and "that said Charles H. Baker lived for some time after the death of said Jennie Baker and that said Charles H. Baker survived said Jennie Baker, by reason whereof, if there were any right of action for the death of said Jennie Baker against this defendant (which defendant denies), such right of action was and is not vested in the plaintiff in this cause and plaintiff is without legal capacity to sue in this action." The reply is a general denial.

Defendant objected to the introduction of any testimony in the cause for the reason that the petition does not state facts sufficient to constitute a cause of action, and for the further reason that, if there is a right of action in any one, the petition discloses on its face that such right of action is not in the plaintiff, administrator of the estate of Jennie Baker. The objection was overruled and exceptions were taken and saved by defendant to that ruling of the trial court.

Plaintiff's evidence showed that Jennie Baker was instantly killed in the catastrophe and that she left surviving her no child or children, natural born or adopted, and no father or mother, but that she was survived by two brothers and one sister. Jennie Baker was fifty-seven years of age at the time of her death. Plaintiff was duly appointed as the administrator of Jennie Baker's estate on April 10, 1920, prior to the institution of this action, by the Probate Court of Jasper County, and duly qualified as such administrator. The casualty occurred on Easter Sunday, April 4, 1920. Plaintiff admitted, as part of his case-in-chief, that the casualty happened about 11:30 a.m., and Jennie Baker was instantly killed, and that Charles Baker, her husband, survived her and died about 2:30 p.m. on the same day. The evidence shows that Charles Baker was badly scarred and mutilated, his nose was broken, one hand was cut off, and his body was covered with blood. He was placed upon the train and taken to a hospital in Pittsburg, Kansas, where he died within three hours after the casualty. It is also admitted that no suit was instituted by Charles H. Baker, under the statute, to recover for the death of his wife, Jennie Baker.

Defendant demurred to the evidence at the close of plaintiff's case-in-chief and again at the close of the whole case. Both demurrers were overruled and exceptions were taken and saved by defendant.

We are at the outset confronted with the contention of appellant that, under the wrongful death statute upon which this action is predicated, the plaintiff administrator of the estate of Jennie Baker, deceased, has no right or capacity to sue, or to maintain this action, inasmuch as it is an admitted fact upon the record that Jennie Baker was instantly killed in the collision and her husband survived her for the space of some three hours after her demise, and that Jennie Baker left surviving her no minor child or children, natural born or adopted, and she was not an unmarried minor leaving a father or mother surviving her. The portion of the statute (Sec. 4217, R. S. 1919) bearing upon the precise question now before us, and which names the beneficiaries or persons entitled to sue for the death of any person caused by the negligence of a railroad company and the order in which they may sue, is as follows:

"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, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased . . .; or, third, if such deceased be a minor and unmarried, . . . then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor; or, fourth, if there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent." (Italics ours.)

The precise question herein raised is an interesting one, and is one which, so far as we have been able to find, this court has heretofore not been called upon to rule under the same or a similar, state of facts. There is no question, upon the record before us, that the decedent, Jennie Baker, died instantly as a result of injuries suffered by and inflicted upon her in the collision between defendant's train and the automobile in which she was riding, and that this action is brought by the administrator of her estate to recover a penalty (so called and designated by the statute) because of her death. Neither is there any question that, under the common law, adopted in this State in 1816, a right of action for personal injuries resulting in death died with the injured person. It was not until 1855, when our wrongful death statute, patterned after and borrowed largely from Lord Campbell's Act, was enacted, that a right of action for wrongful death was given in this...