Bonnarens v. Lead Belt Railway Company

• Citation: 273 S.W. 1043,309 Mo. 65
• Decision Date: 05 June 1925
• Docket Number: 24736
• Parties: LOUIS B. BONNARENS, by ANNTE BONNARENS, Next Friend, v. LEAD BELT RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

273 S.W. 1043

309 Mo. 65

LOUIS B. BONNARENS, by ANNTE BONNARENS, Next Friend, v. LEAD BELT RAILWAY COMPANY, Appellant

No. 24736

Supreme Court of Missouri

June 5, 1925

Appeal from St. Francois Circuit Court; Hon. Peter H. Huck Judge.

Reversed and remanded.

Jerry B. Burks and Parkhurst Sleeth for appellant.

(1) The petition wholly failed to state or show a cause of action in plaintiff. There was no allegation that the widow of deceased, mother of plaintiff, failed to appropriate the cause of action within the allotted six months. Absent this jurisdictional averment, no cause of action was stated. Sec 4217, R. S. 1919; Smith v. Allee, 245 S.W. 1118; Barker v. Railway, 91 Mo. 86; McNamara v Slocum, 76 Mo. 329; Clark v. Railway, 219 Mo. 524, 538; Chandler v. Railway, 251 Mo. 592; Sheets v. Railway, 152 Mo.App. 380; Packard v. Railway, 181 Mo. 421; Casey v. Transit Co., 116 Mo.App. 235; Elliott v. Water Light & Tr. Co., 245 S.W. 570; McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496. (2) Plaintiff, being a posthumous child, never had a right of action. The cause of action accrued at the date of death of Bonnarens, and the right of action vested in those only surviving at that time. The widow being the only survivor entitled to sue, she would have one year in which to sue, and a posthumous child cannot cut off that right. Section 4217 is a penal statute, and strictly construed. Buel v. Rys. Co., 248 Mo. 126; Grier v. Railway, 286 Mo. 523; See dissenting opinion in Betz v. K. C. So. Ry., 253 S.W. 1094. (a) Moreover, Sections 4217, 4218 and 4219 are in derogation of common law. Barker v. Railway, 91 Mo. 91; Bates v. Sylvester, 205 Mo. 493; Troll v. Laclede Gas Light Co., 182 Mo.App. 604. (b) The right to sue is not a property right. Hopkins v. Fogler, 60 Me. 266; Bates v. Sylvester, 205 Mo. 493. (3) The demurrer to the evidence should have been sustained, for the reason that the testimony failed to show that the death of Bonnarens was due to any specified negligence of defendant. The jury simply guessed at it. Grant v. Railway, 190 S.W. 589; Weber v. Milling Co., 242 S.W. 988; Hartman v. Railway, 261 Mo. 279; McGrath v. Tr. Co., 197 Mo. 97; Byerly v. Light & Power Co., 130 Mo.App. 600; Kane v. Mo. Pac. Ry., 251 Mo. 13. And plaintiff having alleged specific acts of negligence, it was incumbent on him to show that the precise acts pleaded caused the injury and death. Painter v. Construction Co., 269 Mo. 104; McGrath case, 197 Mo. 105.

Foristel, Mudd, Hezel & Habenicht and James T. Blair for respondent.

(1) A posthumous child has a right of action under the section of the statutes applicable in this case. The George and Richard, 24 L. T. Reps. 717, 3 Ad. & Eccl. 466; Nelson v. Galveston Railroad Co., 78 Tex. 621; Herndon v. Railroad Co., 37 Okla. 256; Chicago & Alton Railroad Co. v. Logue, 47 Ill.App. 295; Quinlan v. Welch, 23 N.Y.S. 963; Tiffany on Death by Wrongful Act (2 Ed.) sec. 84, p. 202; 1 Shearman & Redfield on Negl. (5 Ed.) sec. 133; 5 Sutherland on Damages (4 Ed.) sec. 1267, pp. 4894, 4895; Aubuchon v. Bender, 44 Mo. 569; Harper v. Ancher, 4 Smedes & Marshall, 99, 43 Am. Dec. 473, 474; and note; Copper Co. v. Industrial Com., 57 Utah 142. (2) If the judgment be reversed for errors assigned the cause should be remanded for a new trial. Stewart v. Gas Light Company, 241 S.W. 909; Rutledge v. Mo. Pac. Ry. Co., 123 Mo. 140; Schmitt v. Distilling Co., 90 Mo. 295; Finnegan v. Railroad, 244 Mo. 608; Riggs v. Rys. Co., 220 S.W. 697. (3) The statute must be liberally construed to attain the remedy intended. Sec. 7048, R. S. 1919; Betz v. Ry. Co., 253 S.W. 1089; Grier v. Ry. Co, 286 Mo. 523.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

This action was commenced December 13, 1921, against Federal Lead Company and appellant to recover damages on account of the death of plaintiff's father, Ben Bonnarens. An amended petition was filed September 1, 1923. At the conclusion of the evidence for the plaintiff the action was dismissed as to Federal Lead Company and, the defendant standing on a demurrer to the evidence, the cause was submitted, and nine of the jurors returned a verdict for plaintiff, assessing his damages at $ 10,000, and from a judgment thereon the defendant appeals.

Ben Bonnarens was employed by the defendant as a brakeman to assist in handling cars operated by appellant over its tracks in transporting material to the lead company's shafts and plants. The amended petition alleges it was Bonnarens' duty to ride defendant's locomotives, and that for the convenience of its employees defendant had provided a foot-board at the rear end of the tender of its locomotives for them to stand on when riding from one point to another; also a hand-rail, called by some of the witnesses, a grab-iron, attached to the tender three or four feet above the footboard, consisting of a metal rod extending across the end of the tender and attached to brackets at each corner of the tender, for employees to hold to while riding on the foot-board. That it was defendant's duty to provide a reasonably safe place and appliances for its employees to work with and upon and to use reasonable care that the foot-board and handrail were reasonably safe and suitable for the purposes for which they were intended; that, disregarding its duties, defendant carelessly and negligently allowed said foot-board and hand-rail to become in a worn, weakened, loose, rotten, bent and unsafe condition, which was known to defendant, its servants and agents, or by the exercise of ordinary care could have been known to it, and was unknown to said Ben Bonnarens. That on March 7, 1921, while said Ben Bonnarens, plaintiff's father, as defendant's employee, was in the discharge of his duty as brakeman, and riding on said footboard and holding to said hand-rail, in line with his duties, said foot-board, on account of its worn, rotten and unsafe condition, gave way, and the loose, bent condition of the hand-rail turning and slipping, the said Ben Bonnarens was caused to fall from said foot-board in defendant's track and in front of its locomotive and was run over by said tender and engine, producing instant death; that the direct and proximate cause of his death was the negligence and carelessness of defendant, its servants and agents in permitting said foot-board to become in a worn, rotten, weakened and unsafe condition and said hand-rail to become loose and bent.

Bonnarens was six feet in stature, weighed two hundred pounds, and was twenty-six years of age at the time of his death. He left surviving him his wife, Addie, but no child or children. Plaintiff was born June 26, 1921, three months and nineteen days after his father's death. Plaintiff's mother was duly appointed and qualified as his next friend.

John Watts testified: I had worked for the defendant sixteen years as machinist-foreman, but not in the capacity all the time; saw Bonnarens about seven A. M., March 7, 1921, at the roundhouse of which I had charge at that time. Bonnarens was switchman or brakeman on engine number 2 and had been in service twelve or thirteen years. My duty with reference to the locomotives was to see after general repairs. The foot-board is a pine board about 2 x 12, six feet long, and there is a toe board 2 x 6, to keep the foot from slipping over the foot-board. The foot-board is attached to the tender by bolts and is about twelve inches above the rails. There was no break in it to my knowledge. For convenience of employees riding on the foot-board there was a grabiron on the top of the end to which the foot-board was fastened. It is a one-inch pipe about six feet long; it was bent some in the middle, about an inch and a quarter or an inch and a half. It was loose in the brackets. In taking hold of the hand-rail it would turn. I have ridden on this locomotive; have been on this foot-board; don't know that I got on it when the engine was moving. I wouldn't say that I paid any particular attention to this engine. Never saw the foot-board after the accident. I couldn't say this foot-board was worn out of the ordinary. Saw the engine about two or three hours after the accident; it had on a new foot-board then; didn't see the foot-board that was taken off. The hand-rail was loose in the brackets; it fit close, yet would revolve in these brackets.

Edwin Hood: I have worked there as a switchman twelve years. I saw Bonnarens at the roundhouse about 7:15 that morning; he worked on engine number 2. The next time I saw him he was out there in the track about ten minutes after I saw him at the roundhouse; he was dead; his legs were broken; the engine was about two hundred feet from the body. There was a bend in the hand-rail close to the middle; don't know how much of a bend; it was loose in the brackets. It is safer if the rod is tight in the brackets. These conditions had existed over a month. It fit fairly snug in these sockets, yet it would turn. The customary way of getting on a foot-board as the engine approaches is to raise one foot, grab the rod with one hand and step on from the end of the ties.

"Q. If you got on that foot-board and had hold of that rail with a reasonably firm grip there would be no danger of losing your hold on that rail, would there? A. Well, I don't know. It never happened to me.

"Q. Well, you did have hold of it while it was being used? A. Yes, sir.

"Q. And it didn't give you any trouble at any time? A. No, never gave me any. That was my experience.

"Q. When you get upon the engine and grab hold of that iron to hold yourself, what would happen? A. Well, it is liable to turn with you, of course."

Henry Pelot had worked for the Federal Lead Company as locomotive engineer and knew deceased; was familiar with the foot-board on engine number 2; saw the hand-rail and...