Brownell v. Pacific R.R. Co.

• Citation: 47 Mo. 239
• Parties: ELIZA M. BROWNELL, Defendant in Error, v. THE PACIFIC RAILROAD COMPANY, Plaintiff in Error.
• Decision Date: 31 January 1871
• Court: United States State Supreme Court of Missouri

47 Mo. 239

ELIZA M. BROWNELL, Defendant in Error,

v.THE PACIFIC RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Ewing & Smith, for plaintiff in error.

I. There are two counts in plaintiff's petition upon different sections of the law. The jury rendered a general verdict when it should have been special, and for this cause the Circuit Court ought to have granted a new trial. There are clearly two causes of action attempted to be set out in the petition. First, under the second section of the act in relation to damages, the damages are liquidated--fixed at $5,000, no more, no less--and the jury are bound to find their verdict for that sum if at all. The second count is based upon the third section of said act, and under which the jury would be authorized to find for plaintiff from $1,000 to $5,000. If this is so, then the verdict of the jury ought to have been special, and to have shown upon which count they based their verdict. The jury could not, under the law, find for the plaintiff upon both counts of the petition, because that would be giving damages twice for the same thing. If plaintiff had sued alone under the second section of the law and recovered $5,000 damages, of course he could not then have sued under the third section and recovered again for the same negligence--the same killing. Then if this is true, the two counts in the petition for the same offense--two causes of action in the same petition for the same killing, but for different damages--are surely not maintainable; one liquidated the other. (41 Mo. 405; Pitts v. Fugate's Adm'r, 36 Mo. 202; Clark's Adm'r v. Hann. & St. Jo. R.R. Co., 21 Mo. 149; Downing et al. v. Bourlier, 19 Mo. 551; Mooney v. Kennett, 1 Mo. 401; Fenwick v. Logan, id. 495.)

II. The Circuit Court erred in admitting in evidence the dying declarations of the deceased. Dying declarations are not competent evidence in civil cases under any circumstances. (Marshall v. C. & G. E. R.R. Co., 48 Ill. 475; Am. Law Reg. 1870, p. 262; 1 Greenl. Ev., §§ 156, 162, 346; Rex v. Mead, 2 B. & C. 605, 608, note; 15 Johns. 286.)

H. B. Johnson, Attorney-General, for defendant in error.

It has been held that dying declarations are admissible in civil just the same as in criminal cases (Clymer v. Littler, 3 Burr. 1255; Wright v. Lettler, 1 W. Bl. 346; Rex v. Mead, 2 B. & C. 605; McFarland v. Shaw, 2 N. C. Law Rep. 105; Aveson v. Kinnaird, 6 East, 195; Durham v. Beaumont, 1 Campb. 211; Doe v. Ridgway, 4 B. & Ad. 55; Mataun v. Ammon, 1 Grant's Cases, 123; Wilson v. Boerum, Anthon, 174; 2 Halst. Ev. 461), the rules of evidence in both classes of cases being the same. (State v. Hays, 23 Mo. 314; Stone's Case, 25 Howell's St. Tr. 1314; Melville's Case, 29 Howell's St. Tr. 764.) This is clearly so when suit is brought for the death of a person, and the dying declaration is offered to establish the cause of death. (1 Phil. Ev., 5th Am. ed., 286, 287; 1 Greenl. Ev., § 156, note.) But the declaration or exclamation of deceased admitted in evidence was competent upon the further ground that it was a part of the res gestæ. (Ins. Co. v. Moseley, 8 Wall. 397; Commonwealth v. Pike, 3 Cush. 181; Baker v. Griffin, 10 Bosw. 140; Frink v. Coe, 4 Greene, Iowa, 555; State v. Ah Loy, 5 Nevada, 99; 1 Greenl. Ev., supra.) The authority of the above cases is not impaired by the case of Ill. Central R.R. Co. v. Sutton, 42 Ill. 438. The view here presented in regard to dying declarations was not considered in the case of Marshall v. C. & G. E. R.R. Co., 48 Ill. 475, or in the case of Daily v. New York, etc., R.R. Co., 32 Conn. 356.

WAGNER, Judge, delivered the opinion of the court.

There are no objections urged here against the instructions given by the court below, and an inspection of the record has led us to the conclusion that there are but two questions requiring any special consideration. The first is the nature of the petition and the sufficiency of the verdict; and the second is whether the declarations of Brownell, just previous to his death and shortly after the accident happened, were admissible in evidence.

The suit was commenced in the Circuit Court against the defendant for damages for the death of the plaintiff's husband. The petition contains two counts. The first is based upon the second section of the damage act, charging that Charles F. Brownell, the husband, through the negligence, unskillfulness, and criminal intent of the officers, agents, servants, and employees of defendant, whilst running and conducting a certain locomotive and train of cars belonging to defendant, was violently thrown, with said locomotive and train of cars, from the railroad track of defendant and instantly killed, and asks damages to the amount of $5,000. The second count is based upon section 3 of the same act, and charges that by reason of the neglect and default of the defendant in not providing and using a safe and secure locomotive and headlight, in not providing competent and reliable switchmen, etc., the said husband was violently thrown, with said locomotive, from the railroad track and instantly killed, and asks judgment for $5,000. The answer was simply a denial of the matters set forth in the petition. The cause was tried before a jury, who, after hearing the evidence, returned a general verdict in favor of the plaintiff for $4,500. Upon this verdict the court entered up judgment, and the defendant appealed.

The first question is, was the general verdict rendered in the cause the proper one, or should there have been a verdict on each count? The answer to this question depends upon the inquiry, did the two counts in the petition embrace each a separate and distinct cause of action? If they did, the verdict is bad, and the damages should have been assessed upon each cause of action separately. When the petition sets out several distinct causes of action, a verdict for an entire and gross sum can not be sustained. There should be a separate assessment on each cause or count, in order that the court may know how the issues were found and what amount was assessed on each count. (Mooney v. Kennett, 19 Mo. 551; Clark's Adm'r v. Hann. & St. Jo. R.R. Co., 36 Mo. 215; Pitts v. Fugate, 41 Mo. 405; State ex rel. Collins v. Dulle et al., 45 Mo. 269.) But if there is one entire cause of action, and one good count in the declaration, a general verdict and a general assessment of damages will answer. (Clemens v. Collins, 14 Mo. 604.)

It is conceded that there might be a cause of action based on the second section of the act concerning damages, and a different cause founded on the third section, but this certainly could not be done in the same petition and against the same party. The second section applies where the injury is occasioned indirectly by the corporation or owner through the negligence, unskillfulness, or criminal intent of the officers or employees; the third section, where the injury is committed directly by the wrongful act, neglect or default of another. To constitute two causes of action there must be two subjects of complaint. But in the present case there is but one injury, one subject-matter of complaint--the killing of the plaintiff's husband. There being but one cause of action, there could be only one assessment of damages. There could not be a verdict for causing the death one way, and another verdict for causing the death in a different way. The law declares that if the injury is caused under the circumstances mentioned in one section, the damages shall be for a fixed amount; and if under the circumstances mentioned in another section, the damages shall not exceed a certain amount. It is for the jury to determine from the evidence whether the injury was caused and the death resulted under...