Clark v. Kansas City, St. L. & C. R. Co.

• Decision Date: 31 March 1909
• Citation: 219 Mo. 524,118 S.W. 40
• Parties: CLARK et al. v. KANSAS CITY, ST. L. & C. R. CO.
• Court: Missouri Supreme Court

118 S.W. 40

219 Mo. 524

CLARK et al. v. KANSAS CITY, ST. L. & C. R. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. LIMITATION OF ACTIONS (§ 5)—STATUTES— CONSTRUCTION.

Rev. St. 1899, c. 48, art. 2 (Ann. St. 1906, pp. 2345-2365), relating to limitations in personal actions, provides (section 4285) that, in case of a nonsuit, plaintiff may commence a new action from time to time within one year after the nonsuit. Section 4292 provides that the provisions of the chapter shall not extend to any action which is otherwise limited by any statute, but such action shall be brought within the time limited by such statute. Held, that as chapter 17 (pages 1637-1658), relating to damages for torts, carries its own statute of limitations, section 4285 does not apply to actions brought thereunder.

2. CONSTITUTIONAL LAW (§ 191) — RETROSPECTIVE STATUTES.

The laws forbidden by Const. art. 2, § 15 (Ann. St. 1906, p. 137), prohibiting the passing of laws retrospective in operation, are laws impairing existing vested civil rights, and as there is no vested right in a particular mode of procedure or civil remedy, the prohibition does not apply to a statute limiting the time within which actions may be brought, and embracing actions already instituted.

3. STATUTES (§ 267)—CONSTRUCTION—RETROSPECTIVE OPERATION.

The general rule that statutes will be construed to be prospective in operation does not apply to statutes affecting procedure or a legal remedy.

4. STATUTES (§ 181)—CONSTRUCTION—OFFICE OF COURTS.

Courts cannot by construing a statute substitute their ideas of legislative intent for that unmistakably held by the Legislature and unmistakably expressed in legislative words, and must not interpret where there is no need of it.

5. LIMITATION OF ACTIONS (§ 6)—STATUTES—CONSTRUCTION—"SHALL HAVE BEEN COMMENCED."

Rev. St. 1899, § 2868, repealed by Laws 1905, p. 138 (Ann. St. 1906, p. 1652), provides that if any action under chapter 17 (pages 1637-1658), relating to damages for torts, shall have been commenced within one year after the cause of action shall accrue and plaintiff suffer a nonsuit, etc., he may commence a new action within one year after the nonsuit, etc. Held, that the phrase "shall have been commenced" includes pending as well as future actions, especially in view of section 4160 (page 2252), requiring that words and phrases shall be taken in their plain or ordinary and usual sense, and hence, where a death action was commenced within a year after the death and before section 2868 took effect, and a nonsuit was suffered after it was in force, plaintiff was entitled to recommence suit within a year after the nonsuit.

6. DEATH (§ 9)—ACTIONS—CONSTRUCTION OF STATUTE.

As there was no right of action at common law for a wrongful death, the statute giving such action, being in derogation thereof, must be construed with reasonable strictness.

7. DEATH (§ 31)—ACTIONS—PARTIES ENTITLED TO SUE.

The action for wrongful death being purely statutory, only such persons can bring it as are designated in the statute.

8. DEATH (§ 42)—ACTIONS—NECESSARY PARTIES.

Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), provides that when a person shall die from an injury resulting from the negligence of a railway employé conducting a train, etc., and shall be an unmarried minor, the corporation in whose service the employé was shall forfeit a sum which may be sued for by the father and mother, if both living, who may join in the suit and shall each have an equal interest in the judgment. Held, that the penalty is indivisible, and all of it or none must be sued for, both parents joining prior to judgment, though they are divorced, and decedent has been in the exclusive custody of the mother, and, if the father refuses to join, the mother cannot recover by making him a coplaintiff against his consent.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Death action by Emma Clark and another against the Kansas City, St. Louis & Chicago Railroad Company. A demurrer to the petition was sustained, and plaintiffs appeal. Affirmed.

Emma Clark had a son, Charles Ritter (at his death an unmarried minor), by a former divorced husband, Thomas Ritter. Joining her former husband in the suit as a coplaintiff against his consent, she sues for the statutory penalty of $5,000 for the wrongful death of Charles. Defendant demurred. Cast thereby, plaintiff refused to plead over, and, judgment going against her, she appeals.

Sufficient of the record to determine questions raised will appear in the following statement of the case: (Nota bene: Dates are material.) The petition was filed September 11, 1905. After alleging that plaintiffs had been married, and that Charles Ritter was born to them as lawful issue; that on the 21st day of July, 1904, he was a minor without descendants and had never been married; that on that day he was negligently killed at a street crossing by defendant's servants operating a train (seven specific acts of negligence being set forth)—the petition makes the following substantive allegations at which the demurrer is aimed: "Plaintiff Emma Clark further states: That on the _____ day of August, 1887, at which time said minor was about five months old, she was duly divorced from the bonds of matrimony with said Thomas Ritter by a decree of the circuit court of Marion county, in the state of Illinois, and since that time she has married one Edward H. Clark. That the exclusive care and custody of said minor was given to her by said decree of said Marion circuit court, and she retained the same up to the time of his death. That on the 20th day of September, 1904, plaintiff filed her petition in this court against the defendant for damages for causing the death of said Charles Ritter, in which suit said Thomas Ritter afterwards joined as a coplaintiff. That said suit was transferred to the circuit court of the United States for the Western District of Missouri on the 12th day of October, 1904, and plaintiffs suffered a nonsuit in said cause in said United States court on the 19th day of August, 1905. That said Thomas Ritter has refused to join in this suit, but his name is used herein to assert the rights of this plaintiff Emma Clark, and said Emma Clark hereby offers to indemnify her coplaintiff against any costs or expenses which may be incurred by him because of the use of his name as coplaintiff."

The demurrer follows: "Comes now the defendant, and demurs to the plaintiff's petition for the following reasons, to wit: (1) That there is an improper and unlawful joinder of parties plaintiff. (2) That the petition shows upon its face that Thomas Ritter refuses to be joined as a party plaintiff to this suit, and that the said Thomas Ritter cannot be joined, and is not joined, as a party plaintiff within the meaning of the statutes of Missouri under which this suit is instituted. (3) That the plaintiff Emma Clark alone under the statutes of Missouri cannot maintain this suit. (4) That the petition does not state facts sufficient to constitute a cause of action against this defendant. (5) Because it appears upon the face of the petition that this suit was filed and instituted more than one year from the date of the death of the said Charles Ritter, and that the plaintiff was at the time of the institution of said suit, and is now, barred by the statutes of limitations from bringing any suit on account of the death of the said Charles Ritter."

It is conceded on all sides that the case must ride off on a construction of our statutes. The statutes passing in review follow: Section 2864 (Rev. St. 1899 [Ann. St. 1906, p. 1637]) of the damage act, in its third subdivision, touching the persons who may sue for a wrongful death, provides: "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." Section 2868 (Rev. St. 1899 [Ann. St. 1906, p. 1652]) of the damage act reads: "Every action instituted by virtue of the preceding sections of this chapter (chapter 17, devoted to damages for torts) shall be commenced within one year after the cause of such action shall accrue." On April 12, 1905 (Laws 1905, p. 138 [Ann. St. 1906, p. 1652]), the Legislature repealed section 2868, supra, and enacted a new one in lieu thereof, numbered 2868, reading: "Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of such action shall accrue: Provided, that if any action shall have been commenced within the time prescribed in this section, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action, from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed." Absent an emergency clause, the new section went into force under the provisions of our Constitution on June 16, 1905 (Laws 1905, p. 330).

L. A. Laughlin, for appellants. Scarritt, Scarritt & Jones, for respondent.

LAMM, P. J. (after stating the facts as above).

1. There has long existed in our statutes (Rev. St. 1899, c. 48 [Ann. St. 1906, pp. 2335-2365] on Limitations of Actions, art. 2, Personal Actions) a section containing a saving clause in case of a nonsuit, and providing that a plaintiff "may commence a new action from time to time, within one year after such nonsuit suffered" (section 4285). This saving clause was substantially borrowed and used in the new section (2868), supra, now part of chapter 17, on damages and contributions in actions of tort. But in said article 2, c. 48, it is further provided as follows (section 4292): "The provisions of this chapter shall not extend to any action which is or shall be...