Buel v. United Rys. Co. of St. Louis

• Decision Date: 28 February 1913
• Citation: 248 Mo. 126,154 S.W. 71
• Parties: BUEL et ux. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

154 S.W. 71

248 Mo. 126

BUEL et ux. v. UNITED RYS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

1. DEATH (§ 13)—RIGHT OF ACTION—INJURED AND UNBORN CHILD.

Under Rev. St. 1909, § 5425, providing that, when any person shall die from any injury resulting from the negligence of any street railway employé, the railroad company shall pay as a penalty for every person so dying the sum stated, which may be recovered by the father or mother, if decedent be a minor, the parents cannot recover for the death of a child after birth resulting from negligent injuries to it before birth, while the mother was enceinte.

2. DEATH (§ 9)—STATUTES—CONSTRUCTION—RIGHT OF ACTION.

A statute, the only purpose of which was to give a right of action for wrongful death, not existing at common law, which abated such action on death of the injured party, should be interpreted in the light of that purpose, and to effectuate such object.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Cornelius H. Buel and Mary A. Buel, his wife, against the United Railways Company of St. Louis. From a judgment for defendant, plaintiffs appeal. Affirmed.

Plaintiffs are the mother and father of a child who was born on the 25th day of December, 1907, and died on the 5th day of July, 1908. On the 22d day of September, 1907 while the mother was enceinte of said child, she and her husband and another child were passengers on defendant's street railway, which was stopped at their signal to enable them to alight, and that while they were so doing, and the mother was assisting the child who was riding with them to leave the car, it was negligently put in motion, thereby dragging and throwing her to the ground, and inflicting injuries on the arm and body of her unborn child that caused his death as before stated. The petition prayed for judgment for $10,000. The defendant filed a demurrer to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained February term, 1909, of the circuit court of St. Louis. Plaintiffs declining to plead further, final judgment was rendered against them, from which they duly appealed to this court.

Phil H. Sheridan, Henry B. Davis, and A. R. Taylor, all of St. Louis, for appellants. Boyle & Priest and Geo. T. Priest, all of St. Louis, for respondent.

BOND, J. (after stating the facts as above).

The statute under which the petition herein was framed so far as applicatory to its allegations is, to wit: "Whenever any person shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employé whilst running, conducting or managing any * * * street, electric * * * car, the corporation, in whose employ such agent, servant, employé, * * * shall be at the time such injury is committed, or who owns, operates or conducts any such street * * * cars, at the time any injury is received resulting from or occasioned by any unskillfulness or negligence * * * above declared, shall forfeit and pay as a penalty for every such person * * * so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered * * * 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." R. S. 1909, § 5425.

The only point for review is whether the statute was intended to provide a penalty for the death of a person after birth, caused by negligent injuries before its birth. The statute in question, with some modifications and expansions of its scope and remedies, has existed in this state for more than 50 years. It was intended originally to...