Clark v. Kansas City, St. Louis & Chicago Railroad Company

• Decision Date: 13 April 1909
• Citation: 118 S.W. 40,219 Mo. 524
• Parties: EMMA CLARK and THOMAS RITTER, Appellants, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY
• Court: Missouri Supreme Court

118 S.W. 40

219 Mo. 524

EMMA CLARK and THOMAS RITTER, Appellants, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY

Supreme Court of Missouri, First Division

April 13, 1909

Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.

Affirmed.

L. A Laughlin for appellants.

(1) The refusal of the father, Thomas Ritter, to join with the mother, cannot prevent the mother from suing. The father Thomas Ritter, refused to join with the mother because he had executed a release to defendant for a small sum. That by so doing he could deprive the mother of the right to sue is rank injustice. Each would have an equal interest in the judgment and neither could release the claim of the other. To say that the mother still has a claim but cannot enforce it by suit owing to the refusal of the father to join with her violates the legal maxim, ubi jus ibi remedium. Buel v. Transfer Co., 45 Mo. 562; Crockett v. Transfer Co., 62 Mo. 457; Senn v. Railroad, 124 Mo. 621; Hennessy v. Brewing Co., 145 Mo. 104; Cytron v Railroad, 205 Mo. 692. A release by one of several persons entitled to the proceeds arising from an action under such a statute is no bar to an action by the others, though it might affect his interest in the distribution of the proceeds. Tiffany, Death by Wrongful Act, sec. 125; Yelton v. Railroad, 134 Ind. 414; Railroad v. Sullivan, 59 Ala. 272; Dowell v. Railroad, 62 Iowa 629; Railroad v. Acuff, 92 Tenn. 26; Railroad v. Bradley, 45 Tex. 171; Railroad v. Tomlinson, 163 U.S. 369; Pierce v. Conners, 20 Colo. 178; Muldrow v. Railroad, 62 Mo.App. 431; Culver v. Smith, 82 Mo.App. 390; Cunningham v. Carpenter, 10 Ala. 109; Harris v. Swanson, 62 Ala. 299; Chambers v. Donaldson, 9 East 471; Wright v. McLemore, 10 Yerg. (Tenn.) 235; Gray v. Wilson, Meigs (Tenn.) 394; Whitehead v. Hughes, 2 Dowling, P. C. 258; Bolton v. Cuthbert, 132 Ala. 403. (2) The suit was not barred by the Statute of Limitations. In 1905 the Legislature amended Sec. 2868, R. S. 1899. This proviso took effect June 16, 1905. The nonsuit was suffered August 19, 1905. Respondent asserts the proviso did not apply to this action because it was pending when it went into effect. This statute makes a change in the practice of the court. Instead of suits being terminated by a dismissal, if the plaintiff renews them within a certain time, they shall be held not to be terminated. Black on Const. Law, p. 432; Cooley, Const. Lim. (7 Ed.), p. 381. There is no question that such a law would apply to causes of action already accrued. Stephens v. Bank, 43 Mo. 385; Watson v. Street & Ferry Co., 48 N.Y. 44, 93 N.Y. 522. The objection to retrospective statutes does not apply to remedial statutes which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy. Fisher v. Hervey, 6 Colo. 16; Willard v. Harvey, 24 N.H. 344; Rairden v. Holden, 15 Ohio St. 207; DeCordova v. Galveston, 4 Tex. 470; Phoenix Ins. Co. v. Shearman, 17 Tex. Civ. App. 456.

Scarritt, Scarritt & Jones for respondent.

(1) The amendment of 1905 does not apply to actions that had already been commenced before the Act of 1905 went into effect, but applied only to actions that "shall have been commenced," after the taking effect of the Act of 1905. Unless a statute is purely remedial it is held to be unconstitutional to interpret it other than prospective in its operation and effect. Even where the statute is purely remedial, the general and quite universal rule of consideration is that the statute will be construed to have prospective operation and effect unless the language of the act itself makes it clear and convincing that the Legislature intended that its act should operate retrospectively. The presumption in law is that the Legislature intended that the act in question was to operate prospectively only. Leete v. State Bank, 115 Mo. 195; Jones v. Bank (Colo.), 67 P. 178; Dewart v. Purdy, 29 Pa. 113. (2) The suit cannot be maintained by Emma Clark alone. Hennessy v. Brewing Co., 145 Mo. 104; Bellamy v. Whitsell, 123 Mo.App. 610; Oates v. Railroad, 104 Mo. 518; Barker v. Railroad, 91 Mo. 94; Barron v. Min. Co., 172 Mo. 228. Counsel for plaintiff practically concedes the correctness of our position, as stated above, and attempts to evade it by making the father, Thomas Ritter, a party plaintiff, although he refuses, as alleged in the petition, to join in the suit as a plaintiff. The statute does not authorize such a procedure. Ryan v. Riddle, 78 Mo. 521; Parks v. Richardson, 35 Mo.App. 197; McLaran v. Wilhelm, 50 Mo.App. 661; Muldrow v. Railroad, 62 Mo.App. 431.

OPINION

LAMM, P. J.

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 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, Revised Statutes 1899, 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, Revised Statutes 1899, 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) 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 of 1905, p. 330.]

I. There has long existed in our statutes (Chapter 48 on...