Cole v. Mayne

• Decision Date: 04 November 1901
• Docket Number: 2,513.
• Parties: COLE et al. v. MAYNE.
• Court: U.S. District Court — Western District of Missouri

122 F. 836

COLE et al. v. MAYNE.

No. 2,513.

United States Circuit Court, W.D. Missouri, Western Division.

November 4, 1901

Jno. J Wolfe, J. J. Hitt, and E. E. Chesney, for plaintiffs.

Galen &amp A. E. Spencer, for defendant.

PHILIPS District Judge.

This case has been submitted on demurrer to the petition. The substantive averments of the petition, inter alia, are that the plaintiffs are the only surviving heirs (minor children) of Marion I. Cole, who died from injuries received in a lead and zinc mine of the defendant at Joplin, Mo. The petition avers that the mother of the plaintiffs, the first wife of the said Marion I. Cole, was divorced from him . . . years before his death; that he was afterwards married to one Mary Jane . . ., who survives him as his widow; that said Mary Jane Cole, before and up to the time of the death of said Marion I. Cole, lived apart from him, and in open adultery with one John Wall, in Jasper county, Mo.

The first question to be decided is as to the right of these plaintiffs, the minor children of the deceased, to maintain this action independent of the widow. Counsel for plaintiffs concede and assert that the right of action in these plaintiffs is based upon section 8820 of the Missouri Statutes of 1899, which is as follows 'For any injury to persons or property occasioned by any violation of this article or failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; and in case of loss of life by reason of such violation or failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or to any person or persons who were, before such loss of life dependent for support on the person or persons so killed, for a like recovery of damages sustained by reason of such loss of life or lives, provided, that all suits brought under this article shall be commenced within one year after any case of action shall have accrued under this article and not afterward: and provided further, that any person entitled to sue under this section for loss of life or lives may recover any sum not exceeding ten thousand dollars.'

The plain grammatical construction of this statute, which names the beneficiaries disjunctively, gives the right of action, first, 'to the widow of the person so killed'; next 'to his lineal heirs or adopted children'; and, third, if there be no widow, lineal heirs, or adopted children, 'to any person or persons who were, before such loss of life, dependent for support on the person or persons so killed.' The Supreme Court of the state of Missouri, in Hamman v. Central Coal & Coke Company, 156 Mo. 232, 56 S.W. 1091, has so construed this statute. The court say:

'The statute is complete within itself, and in no way depends for its enforcement upon any other statute not a part of amendatory thereof. It gives to the widow a right of action, the only limitation upon which is that she bring her suit within one year after the death of her husband. It says that in case of the death of the husband 'a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children,' etc., which clearly means, first, to his widow; next, to his lineal heirs or adopted children, and not to them jointly.'

The contention of plaintiffs' counsel that this declaration of the court was mere obiter dictum is not sustained by the facts of the case. It is quite apparent from the decision that one of the contentions was that the petition should have made some allegation with respect to the children not being made parties, for the court says:

'The petition shows that the action was brought within the prescribed time, and no allegations with respect to the children of the deceased were necessary. Here the right of action was not affected by the fact that the deceased left children surviving him, notwithstanding he did in fact do so.'

The necessary conclusion from which is that the statute does not give a joint cause of action to all the designated beneficiaries, but an exclusive cause of action to the parties designated, if living, in their order. The logical result therefrom is that no cause of action under this statute arises in favor of the children where the deceased left a widow. The only limitation, as asserted by the court supra, placed by the statute upon her right of action, is that the suit shall be brought within one year after the death of her husband. As said by Judge Sanborn, speaking for the Court of Appeals, in Western Union Tel. Company v. McGill, 57 F. 700, 6 C.C.A. 521, 21 L.R.A. 818:

'Where such a statute giving a new right of action for damages specifies the person or class of persons for whose exclusive benefit the damages are to be recovered, no damages to any other person or class of persons can be allowed in the action based on the statute.' The Legislature, in giving this cause of action in contravention of any common-law right, saw fit to designate the widow of the deceased as the first person to maintain the action. The recognized definition of the term 'widow' is 'a woman who has lost her husband by death; a wife that outlives her husband. ' Wherever a right by law has been attached by reason of widowhood, there must be some law by which it is divested, or it will remain. Commonwealth v. Powell, 51 Pa. 441. The fact that a wife may desert her husband and commit adultery with a third person does not disentitle her as the widow of the deceased husband. In the absence of a divorce dissolving the bonds of matrimony, which in this country is a civil contract, her status is that of his widow, and she would be entitled to dower in his estate in the absence of a statute forfeiting the right on account of desertion and adultery. It is true that the Queen's Bench, in Stimpson v. Wood & Son, 59 N.S.Law Term Report, 218, held, under Lord Campbell's act, in an action brought at the relation of the widow of the deceased, to recover damages for his death, that she could not recover, where at the time of the husband's death she was living apart from him, and in open adultery with another. This was based on the theory that the design of that act was to secure compensation to those who by law were entitled to support from the deceased, or had reasonable ground of expectation of support at this hands while living. There is a radical difference between Lord Campbell's act and the statute under consideration. The former is for the benefit of the husband, wife, parent, and child. The designated parties, if living, are joint beneficiaries in the right of action. Each named beneficiary has a separate independent interest. The executor or administrator brings the action in the name of the beneficiary for his or her proportion, and the jury makes the apportionment on the basis of compensation, dependent upon the relation of dependence and expectancy of the beneficiary in the life of the deceased. But under a statute like the one in question, giving a sole right of action to a designated person, eo nomine, to the exclusion of other designated beneficiaries, so long as the first in right under the statute is living, no misconduct of such preferred person constitutes a disqualification to maintain the action, unless imposed by the Legislature which gives the right. In the absence of some judicial construction of the terms employed by the Legislature, imposing a disability, which it may be assumed was in the mind of the Legislature in employing such terms, it is not the province of the court to enlarge or to restrict the language of the statute.

The Supreme Court of this state, in construing statutes in pari materia has established a rule of construction which should be followed in this jurisdiction. In Philpott v. Missouri Pacific Railroad Company, 85 Mo. 164, the court, in construing section 2121 of the then state statute (now section 2864, Rev.St.Mo. 1899), under the general damage act, which gave a cause of action for the death of an unmarried minor to the father and mother of the deceased, held that the emancipation of the minor son by his parents was no defense to an action by them for his death. Judge Black, speaking for the court, said:

'The statute is remedial, and is designed to be compensatory in part. But it is more than this. The case at bar demonstrates the fact that it cannot be wholly compensatory (as held in the English case supra), for the amount of the recovery, being fixed, as it is, is altogether out of proportion to the value of the services of the son for the remainder of the period of his minority. The law is also designed to guard and protect persons and the traveling public against the wrongful acts thereby prohibited. Whether the amount awarded is denominated damages, compensatory damages, liquidated, as was said in Coover v. Moore et al., 31 Mo. 574, or a penalty, is not material. The law, as well as being compensatory, is of a penal and police nature, and can, without objection, subserve both purposes at one and the same time. The

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