Crockett v. St. Louis Transfer Co.

• Decision Date: 31 March 1873
• Parties: RUTH CROCKETT, (late BUELL,) et al., Respondents, v. ST. LOUIS TRANSFER COMPANY, Appellant.
• Court: Missouri Supreme Court

52 Mo. 457

RUTH CROCKETT, (late BUELL,) et al., Respondents,

v.ST. LOUIS TRANSFER COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

S. M. Breckinridge, for Appellant.

I. The plaintiffs were barred of their action by the statute of limitations, by failure to bring suit within the year. The court below erred in allowing plaintiffs to amend because the amendment changed “substantially the claim and defense.” It substituted a new and wholly different action for the old one. Ruth Buell the mother of the deceased child could not sue alone under the statute, she must be joined by her husband,--though divorced--who was father of the deceased child. He could not be made party defendant. He must be a coplaintiff.

( a.) No action proper was pending so long as the mother was sole plaintiff, and especially during the interval of four months when her husband was not a party on either side. (Knickerbocker Insurance Company vs. Hoeske, 32 Maryland, 317.)

( b.) An amendment in a material matter, as in making a new party plaintiff without whose joinder recovery was impossible, without notice to defendant, is improper. (Keller vs. Blasdel, 2 Nev., 162; Alexander vs. Stewart, 23 Ark., 18; State vs. Martin, 20 Ark., 636.)

Plaintiff, Samuel F. Buell, was barred by statute and beyond doubt, if he is barred, all are barred. (30 Ga., 873-4; 10 B. Monroe, 83; 34 Miss., 437; 4 T. R., 516; 20 Mo., 530; 32 Mo., 144; 37 Maine, 563.)

II. The court erred in permitting the amendment of the plaintiff, in making the second husband John Crockett a party plaintiff. Plaintiffs had full notice by motion of defendant for non-suit at the close of plaintiff's case, that defendant claimed that Crockett was a necessary party. He might at that time have asked to make him a party, though even that is to be doubted. He did not ask to do so until the proof was all in, the case closed and instructions submitted, when up on intimation from the judge of this view of the law, he asked and was allowed to add a new party. Liberal as our statute is in this respect, it is not believed it was intended to cover o does allow such amendments. Plaintiff although fully in formed of the defect of parties, refused to amend until the case has reached its last stage, and then ask leave to amend only to avoid an instruction framed and approved, aimed at the de fect. But observe the accompanying irregularities, flowing from this untimely amendment. ( a.) A new party is added, and yet the jury is not sworn anew. Is the verdict by it rendered binding as to Crockett? Is it a verdict at all--if the jury be not sworn to try the issues as between the parties? ( b.) The verdict by its terms excluded John Crockett. Is that a verdict in this case? And can a judgment be entered properly in favor of plaintiffs, designed to include Crockett, which rests only on a verdict expressly giving to the plaintiffs, Ruth and Samuel F. Buell, by name and to them only, “$5,000 damages for the killing of their child?” The verdict does not support the judgment. ( c.) If Crockett is a necessary party as beyond doubt he is, (2 W. S., Ch. 110, § 8, p. 1001,)--how is he affected by the limitation, and if he is barred, how can the other parties sue? (King v. Avery, 37 Alabama, 169.)Theodore Sternberg, with J. C. Moody, and M. W. Hogan, for Respondents.

I. The question raised in relation to the amendment of the original petition by making Samuel F. Buell a party plaintiff instead of defendant, and the questions growing out of the divorce were settled when this case was in this court before. (Buel vs. Transfer Company, 45 Mo., 562.)

II. There was no error in the action of the court at special term in causing John Crockett the husband of the female plaintiff, to be joined as co-plaintiff. (W. S., 1034, § 3-6.) Where there is a defect of parties, advantages of such defect can only be taken by demurrer or answer. If not so taken it is waived. (W. S., Vol. 2, p. 1015, § 10; Goetz vs. Ambs, 27 Mo., 35.)

ADAMS, Judge, delivered the opinion of the court.

This was an action brought under the Damage Act, (1 W. S., § 2, p. 519,) by the father and mother to recover the sum of five thousand dollars as a forfeiture for the death of their infant child, occasioned by the alleged carelessness of defendant's agent in driving one of their transfer wagons.

The suit was instituted by the mother alone, near the close of the statute year for bringing the suit, she being unable to obtain the father's consent to join as co-plaintiff; a demurrer for non-joinder of the father as plaintiff was sustained June the 19th, 1867.

The accident which caused the death, happened March 22d, 1866. And on motion, the father who had been made a party defendant was stricken out as defendant, and made plaintiff so as to meet the ground on which the demurrer was sustained. This amendment to the petition was made October Term 1867.

The plaintiff's Ruth Buell and Samuel F. Buell, had been divorced, as appears from the record.

The defendant's answer was a general denial of all the allegations of the petition, and also set up the statutory bar of one year as having elapsed after the suit was as...