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

• Decision Date: 06 March 1911
• Citation: 135 S.W. 979,153 Mo.App. 689
• Parties: EMMA CLARK, Appellant, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY et al., Respondents
• Court: Kansas Court of Appeals

135 S.W. 979

153 Mo.App. 689

EMMA CLARK, Appellant, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY et al., Respondents

Court of Appeals of Missouri, Kansas City

March 6, 1911

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

Judgment affirmed.

L. A Laughlin for appellant.

Scarritt Scarritt & Jones for respondents.

JOHNSON J. Ellison, J., concurs in separate opinion.

OPINION

JOHNSON, J.

After plaintiff in Clark v. Railroad, 219 Mo. 524, suffered defeat in the Supreme Court, she refiled her suit in the circuit court of Jackson county. In substance the new petition was the same as that considered by the Supreme Court, with the following exceptions:

First, instead of attempting to make her divorced husband a party plaintiff against his will, she made him a defendant along with the railroad company and, second, she added as a new matter the allegation that her divorced husband "has settled and released defendant for his claim for damages for the wrongful death of said Charles Ritter and refuses to join with plaintiff in the suit and, therefore, is made a defendant herein."

The defendant railroad company demurred to this petition on the grounds, among others: "1. Because there is a defect of parties plaintiff. 2. Because there is an improper and illegal joinder of parties defendant. 3. Because the plaintiff, Emma Clark, alone under the statutes of Missouri, cannot maintain this suit as plaintiff. 4. Because the petition does not state facts sufficient to constitute a cause of action against this defendant."

The court sustained the demurrer, plaintiff refused to plead further, judgment was rendered for defendant and plaintiff appealed.

It appears that plaintiff was encouraged to renew her efforts to circumvent the hard letter of the law by what was said by LAMM, J., in the following paragraph of this opinion filed in the former case (p. 537):

"It is argued by appellant's counsel that Thomas Ritter settled with defendant, hence his refusal to join. We are cited to cases elsewhere holding that one of two persons entitled to jointly share in a statutory penalty, or who are jointly interested in the proceeds of a judgment based on such statute, may not execute a release barring the other. We doubt not that such doctrine is good law in this jurisdiction. But, at the outset, it is well to keep the case within the channel marked out in the petition. There is no allegation that Thomas settled with defendant or executed a release. Therefore, that phase of appellant's brief must be taken as coloring matter, used arguendo by way of hypothesis."

Considered in the light of the context, that paragraph does not support the contention of plaintiff that she is entitled to prosecute the action as the sole plaintiff, because her divorced husband will not join her, having made his peace with the railroad company. We concede, arguendo, as did Judge LAMM, "that one of two persons entitled to jointly share in a statutory penalty, or who are jointly interested in the proceeds of a judgment based on such statute, may not execute a release barring the other." But this concession still leaves plaintiff in the predicament of attempting to go it alone when the law, senselessly enough, insists that she be yoked with her whilom spouse from whom she parted company for the reason that with him as a mate the yoke was too galling.

The common law afforded the parents of the deceased child no cause of action for the negligence of the defendant railroad company that caused his death. The cause asserted by plaintiff is founded on section 2864, Revised Statutes 1899, which provides "if such deceased be a minor and unmarried, whether such deceased unmarried...