Crohn v. The Kansas City Home Telephone Co.

• Decision Date: 08 June 1908
• Citation: 109 S.W. 1068,131 Mo.App. 313
• Parties: R. S. CROHN, Administrator, Etc., Respondent, v. THE KANSAS CITY HOME TELEPHONE COMPANY, Appellant
• Court: Kansas Court of Appeals

109 S.W. 1068

131 Mo.App. 313

R. S. CROHN, Administrator, Etc., Respondent, v. THE KANSAS CITY HOME TELEPHONE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

REVERSED.

Judgment reversed.

Ward Hadley & Neel for appellant.

(1) The trial court erred in overruling the objection of defendant the Kansas City Home Telephone Company, to the introduction of any evidence, for the reason that plaintiff's petition did not state facts sufficient to constitute a cause of action.

Laughlin & Kenworthy for respondent.

(1) If the objection to the legal capacity of plaintiff to sue as an administrator is not made by demurrer it is waived. Gregory v. McCormack, 120 Mo. 537; Fuggle v Hobbs, 42 Mo. 537; Clark v. Lopp, 80 Mo.App. 542; Sommer v. Bank, 108 Mo.App. 490. (2) This cause of action is brought under sections 2864, 2865 and 2866 of the Revised Statutes of 1899, as amended by laws of 1905, page 135. Defendant claims that these sections are distinct and independent provisions of law, having no more relation to each other than exists between separate and foreign acts or statutes, and an amendment of section 2864 cannot be construed as affecting the rights of parties arising under causes of action created by any other section of the act. McGinnis v. Car & Foundry Co. , 174 Mo. 232; Epperson v. Insurance Co., 90 Mo.App. 438; People v. Sweetser, 1 Dak. 295; Blocks Interpretation of Laws, sec. 131; Conrad v. Nall, 34 Mich. 225; Nichols v. Insurance Co., 176 Mo. 375; Kamerick v. Castleman, 21 Mo.App. 590; Railroad v. Anderson, 48 Ill.App. 130; Dowdy v. Wamble, 110 Mo. 280; Marsh v. Railway, 104 Mo.App. 577.

JOHNSON, J. Broaddus, P. J., concurs; Ellison, J., not sitting.

OPINION

JOHNSON, J.

--This action was brought by the administrator of the estate of John L. Simpson, deceased, against the Metropolitan Street Railway Company and the Kansas City Home Telephone Company to recover damages in the sum of five thousand dollars, alleged to have been caused by the negligence of both defendants. At the conclusion of the evidence, the street railway company was dismissed and the issues relating to the alleged negligence of the remaining defendant were submitted to the jury. A verdict was returned for plaintiff in the sum of two thousand dollars and defendant telephone company appealed from the judgment entered thereon.

It appears from the evidence that Simpson, who was an unmarried man thirty-four years old, was a laborer employed by the railway company in the construction of an electric railway from Kansas City to Dodson. On the 18th day of May, 1906, he was riding to his work on the construction train and was seated with a number of his fellow-laborers on top of a box car. He arose from his position and walked along the running-board to join another company of laborers who were seated on top of another car. While thus proceeding and while the car was crossing a public highway, he was struck by a telephone wire which the telephone company had strung across the street sometime before, and was thrown from the car and killed. It was shown that the wire which, when the telephone line was constructed, had been placed at a height of over twenty-two feet above the track, had sagged in the middle and thus become reduced to an elevation above the track of only about sixteen feet, three inches, so low that a person standing on a box car could not pass under it. It had been strung less than a month before and the specific charge of negligence against the telephone company alleged in the petition is that said defendant "was careless and negligent in erecting and maintaining said wire across said track at such a height that a person standing upright on a stock or box car would not clear the wire." No demurrer was offered to the petition but an answer was filed which tendered the general issue and several affirmative defenses. It did not allege that plaintiff was without legal capacity to sue. At the trial, defendant objected to the introduction of any evidence on the grounds that "the petition does not allege facts sufficient to constitute a cause of action," and "does not allege facts sufficient to show any right of action in R. S. Crohn, administrator of the estate of J. L. Simpson." The objection was overruled, evidently on the ground that the facts alleged do constitute a cause of action in favor of the administrator.

We now are confronted with the question, argued with great learning and ability by counsel of both parties, whether the statute in force at the time of the occurrence conferred a cause of action which may be enforced by the legal representative of the estate. Plaintiff objects to the consideration of this question for the reason that, in failing to raise, either by demurrer or in the answer, the question of his legal capacity to sue, defendant waived the point. We shall postpone the discussion of this objection until after the expression of our views on the subject of whether a cause of action existed at any time which might be enforced by the administrator.

The common law gives plaintiff no cause of action and if one exists, it must be found in the statutory law. Plaintiff contends that his cause is founded on the provisions of section 2864, Revised Statutes 1899, as amended in 1905 (Acts of 1905, page 135) and sections 2865-2866, Revised Statutes 1899. Counsel for defendant argue that the wrong alleged, and which for present purposes we shall treat as proved, does not fall within the class for which a remedy was provided in section 2864, but belongs to another class for which sections 2865-2866 afford a remedy to certain relatives of the deceased, but none in favor of the administrator of his estate. Further, they say that, as the amendment of section 2864 in 1905 was not expressly made applicable to causes not embraced in that section, it cannot be extended by implication to such causes and, consequently, cannot be construed as an amendment of section 2866. The conclusion from these premises is that since the wrong alleged is not one for which an action may be prosecuted under section 2864 as amended, and since, for a wrong of that nature no cause inures in favor of the administrator under the provisions of section 2866, plaintiff is remediless and the action must fail.

Sections 2864, 2865 and 2866 first appear in the statutes of 1855, and the last two sections were carried down to 1907 without substantial amendment. Section 2864 as originally enacted (Revised Statutes 1855, page 647, section 2) gave a right of action for a death caused by the negligence of a servant operating an instrument of transportation, such right to inure to no other persons than those included in the following classes: First, the husband or wife of the deceased. Second, "If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased. Or, third, if such deceased be a minor and unmarried, then by the father or 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." The remedy provided was a penalty of five thousand dollars. By amendment of this section in 1885 (Session Acts, page 153), adopted children were added to the second class of beneficiaries. In 1905, other amendments were made, among them one which invested the jury with the discretion, in case they found for plaintiff, of giving him a verdict in any amount they might choose within the limits of two thousand dollars and ten thousand dollars; and another which provided: "If there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent." (Laws 1905, p. 135.)

In 1907 (Session Acts, page 252), section 2866 was amended to permit damages accruing under section 2865 to be "sued for and recovered by the same parties in the same manner as provided in section 2864 as amended by the laws of 1905, page 135" and by providing that "in every such action, the jury may give such damages not exceeding $ 10,000 as they may deem fair and just," etc. As this amendment was made after the death in the present case which, as stated, occurred May 18, 1906, it has no direct effect on the rights of the parties but its consideration is of some importance for two reasons: First, in the amendment of section 2864 in 1905, and in that of section 2866 in 1907, the Legislature clearly expressed the purpose of providing for the recovery of a penalty against the tort feasor in an action falling within the scope of section 2864 and providing only for the recovery of compensatory damages in actions prosecuted under sections 2865 and 2866; and, second, by the amendment of section 2866, the Legislature evidently construed the amendment of section 2864 in 1905, as not applicable to causes other than those coming within its provisions and, therefore, that an action brought under sections 2865 and 2866 could not be maintained by the administrator of the estate of the deceased. We do not treat this legislative interpretation as conclusive, but it should be given weight in the determination of the all important question of whether the Legislature which adopted the amendment of section 2864, by a reasonable construction of that act, should be said to have expressed the intent of making that amendment applicable to actions necessarily founded on sections 2865 and 2866 and which do...