O'Donnell v. Wells

• Decision Date: 14 October 1929
• Docket Number: 27632
• Parties: Gertrude O'Donnell, Administratrix of Elizabeth Thomas, v. Rolla Wells, Receiver of United Railways Company, Appellant
• Court: Missouri Supreme Court

21 S.W.2d 762

323 Mo. 1170

Gertrude O'Donnell, Administratrix of Elizabeth Thomas, v. Rolla Wells, Receiver of United Railways Company, Appellant

No. 27632

Supreme Court of Missouri

October 14, 1929

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge.

Reversed and remanded.

T E. Francis and Vance J. Higgs for appellant.

(1) The petition fails to state a cause of action in that it does not contain a single allegation which affirmatively establishes in plaintiff the right under the provisions of sec. 4217, R S. 1919, as administratrix of the estate of Elizabeth Thomas, to institute or maintain an action for the death of Elizabeth Thomas. It is thoroughly established law in this State that a party seeking recovery under the said statute must, both by his pleading and proof, bring himself squarely within the terms and requirements of the statute, and this requirement is jurisdictional. Betz v. Railroad Co., 284 S.W. 455; Bonnarens v. Ry. Co., 272 S.W. 1043; Smith v. Alee, 211 Mo.App. 82, 245 S.W. 1117; Chandler v. Railroad, 251 Mo. 592, 158 S.W. 35; Clark v. Railroad, 219 Mo. 524; Dudley v. Ry. Co., 167 Mo.App. 647; Sheets v. Ry. Co., 152 Mo.App. 376. (2) Demurrers to the evidence should have been sustained. The deceased was guilty of contributory negligence as a matter of law. All the evidence, viewed in a light most favorable to plaintiff, destroys the presumption that Elizabeth Thomas was exercising ordinary care for her safety at the time she was injured. The deceased had a clear view of the track for more than 300 feet and had she looked to the north, as it was her plain duty to do before going upon the track, she would have observed the approach of this well-lighted car. The conclusion inevitably follows that she did not look before going upon the track. There can be no presumption of ordinary care in the face of these facts, as they negative the exercise of such care. Huggart v. Ry. Co., 134 Mo. 673; Burge v. Railroad, 244 Mo. 76; Monroe v. Railroad Co., 297 Mo. 654, 249 S.W. 644, 257 S.W. 469; State ex rel. Hines v. Bland (Mo.), 237 S.W. 1018; Kelsay v. Ry. Co., 129 Mo. 364; Porter v. Ry. Co., 199 Mo. 82; Sanguinette v. Ry. Co., 196 Mo. 466; Evans v. Ill. Cent. Ry. Co., 289 Mo. 493, 233 S.W. 397; Alexander v. Ry. Co., 289 Mo. 599, 233 S.W. 44; Markowitz v. Ry. Co., 186 Mo. 350, 69 L. R. A. 389; Stotler v. Ry. Co., 204 Mo. 619; Stillman v. Ry. Co. (Mo. App.), 266 S.W. 1005. (3) Instruction 1, given at plaintiff's request, directing a verdict in her favor upon an hypothesized violation of the speed ordinance, is erroneous: (a) In taking from the jury the right to determine whether or not the operation of the street car at the rate of speed in excess of twenty-five miles an hour for more than the distance of one city block under the circumstances and conditions disclosed by the evidence constituted negligence. (b) In assuming negligence instead of leaving it to the jury to find this disputed question of fact as to whether the motorman was in fact negligent. Zini v. Terminal Ry., 235 S.W. 87; Coffey v. City of Carthage, 186 Mo. 583; Glaser v. Rothchild, 221 Mo. 180; Rice v. Transit Co., 216 S.W. 746; Miller v. Busey, 186 S.W. 983.

R. E. LaDriere for respondent.

(1) The petition clearly demonstrates the right of the administratrix to maintain this action under Section 4217. Baker v. Soltau, 94 N.J.Eq. 544; Farrish v. Cook, 6 Mo.App. 328; Colvin v. Gideon, 200 S.W. 715; Bright v. Thatcher, 202 Mo.App. 301; Elliott v. Water, Light & Transit Co., 245 S.W. 568. (2) The deceased was not guilty of contributory negligence as a matter of law: Riska v. Union Depot Rd. Co., 180 Mo. 168; Cihla v. United Rys. Co., 221 S.W. 427; Burtch v. Ry. Co., 236 S.W. 340; O'Neill v. Rys. Co., 239 S.W. 879; Sterr v. Wells, 273 S.W. 1095; Unterlachner v. Wells, 296 S.W. 762; Lackey v. United Rys. Co., 288 Mo. 140, 231 S.W. 956. (3) Objection made by counsel for appellant on trial is not same objection to death certificate made in this court, and should not be allowed. Long v. Ry. Co., 258 S.W. 747. Furthermore, the objection made at trial was not saved by incorporation in motion for new trial. Bartner v. Darst, 285 S.W. 449, 452 (Sup.); Robinson v. Ry. Co., 288 S.W. 112. (a) Construction urged by appellant of secs. 5802, 5803 and 5816, R. S. 1919, is error. Said sections should be read in connection with Sec. 5916, R. S. 1919. Simpson v. Wells, 237 S.W. 520. (b) No reason to exclude death certificate because physician testified. (4) The giving of respondent's Instruction 1 does not take from the jury the right to determine whether or not the operation of the street car in question at the rate of speed in excess of twenty-five miles an hour for one city block constituted negligence. It is the duty of one who is dissatisfied with instructions given by the court to himself offer corrective instructions. Berns v. Starck, 296 S.W. 242. If any error was committed the same was cured by the action of the court in giving, at the request of appellant, instructions 8a, 9 and 10. Stahlberg v. Brandes, 299 S.W. 837; Flannagan v. Frisco, 297 S.W. 467.

OPINION

Gantt, J.

This case came to me on reassignment. Action by the administratrix under Section 4217, Revised Statutes 1919, for the death of Elizabeth Thomas, alleged to have been caused by the negligence of defendant in operating a street car in St. Louis. The charges of negligence follow: (1) humanitarian rule; (2) violation of speed ordinance; (3) violation of vigilant-watch ordinance; (4) failure to sound the gong or give any warning of the approach of the car. Defendant answered by a general denial and a charge that deceased saw or heard the moving car or could have done so by the exercise of ordinary care in time to have avoided the collision. Reply was a general denial. The case was submitted on the last three charges of negligence, the court withdrawing from the consideration of the jury the charge of negligence under the humanitarian doctrine. Judgment for $ 8250, and defendant appealed.

I. It is contended the petition states no cause of action in that it does not exclude a right of action in the persons named in the first, second and third provisions of the statute fixing a right of recovery according to certain contingencies.

Defendant objected to the introduction of testimony under the petition for the reason it fails to state a cause of action and objected to the introduction of the testimony tending to show the surviving relatives of the deceased, for the reason no foundation for the introduction of such testimony was laid in the petition. Exceptions were taken to the rulings on these objections. The question is jurisdictional and the administratrix must by both pleading and proof establish a right of recovery under the statute. [Chandler v. Railroad, 251 Mo. 592, 158 S.W. 35; Bonnarens v. Ry. Co., 273 S.W. 1043; Clark v. Railroad, 219 Mo. 524, 118 S.W. 40; Betz v. Ry. Co., 284 S.W. 455, l. c. 456.] The statute provides a right of recovery as follows:

"First, by the husband or wife of the deceased; or, 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 and mother, . . . or if either of them be dead, then by the survivor; or, fourth, if there be no husband, wife, minor child or minor children, . . . 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. . . ." [Sec. 4217, R. S. 1919.]

The only allegations touching the question follow:

"Plaintiff, for her cause of action, states that on the 17th day of September, 1924, she was, by the Probate Court of the City of St. Louis, Missouri, appointed, and is now acting as, administratrix of the estate of Elizabeth Thomas, deceased, who died a resident of St. Louis, Missouri, on the 28th day of July, 1924. . . .

"Plaintiff states that by reason of the death of said Elizabeth Thomas her heirs, consisting of Gertrude Stellman, sister, and Gertrude O'Donnell, daughter, heirs capable of inheriting, have suffered financial loss and have been damaged in a large sum, to-wit, the sum of ten thousand dollars."

Plaintiff argues the allegation that she was appointed administratrix is in effect an allegation that she was not a minor, for an administratrix must be twenty-one years of age. She further argues the petition shows the names of the daughter and mother to be different and that this is equivalent to an allegation that the daughter is married, which, coupled with the allegation, in effect, that plaintiff is twenty-one years of age, is, in effect, an allegation that deceased was not an unmarried minor. She further argues that the words "consisting of" in the allegation with reference to the heirs of deceased excludes the possibility of heirs other than those named in the petition.

If this construction be allowed still the petition does not negative a surviving husband, who comes first by legislative mandate. In this condition the petition does not state a cause of action. However, plaintiff had judgment below and we should reverse the judgment and remand the cause that the petition may be amended and the case retried. [Chandler v. Railroad, 251 Mo. 592, l. c. 603, 158 S.W. 35, l. c. 38; Finnigan v. Railroad, 244 Mo. 608, l. c. 662, 149 S.W. 612, l. c. 628; Haseltine v. Smith, 154 Mo. 404, l. c. 414, 55 S.W. 633, l. c. 636.] In view of a retrial we will consider some of the questions presented.

II. Defendant charges the deceased...