Gilkeson v. Missouri Pac. Ry. Co.

• Citation: 121 S.W. 138,222 Mo. 173
• Parties: GILKESON v. MISSOURI PAC. RY. CO.
• Decision Date: 01 July 1909
• Court: United States State Supreme Court of Missouri

121 S.W. 138

222 Mo. 173

GILKESON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. DEATH (§ 31) — ACTION — RIGHT TO SUE.

At common law no action lies for an injury resulting in death, and an administrator is not entitled to sue therefor under Rev. St. 1899, § 2864 (Ann. St. 1966, p. 1637), giving a right of action to the husband or wife of the deceased or his minor child or children.

2. DEATH (§ 29) — SURVIVAL OF CAUSE OF ACTION.

Rev. St. 1899, § 96 (Ann. St. 1906, p. 369), provides that for all wrongs done to property, rights, or interests of another for which an action might be maintained against the wrongdoer such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, the same in all respects as actions founded on contract, and section 97 (Ann. St. 1906, p. 370) provides that the preceding section shall not extend to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. Held, that these sections were intended to provide for the survival by and against personal representatives of actions for wrongs to property rights and interests only, and not for actions based on the death of a human being, and that the right of a minor to care, support, and maintenance was not a property right, and the minor was not deprived of such a right, but of a personal right by the wrongful killing of the parent, the cause of action created by sections 2864 and 2865 (Ann. St. 1906, pp. 1637, 1644), and, where the minor dies before the damages are collected, his cause of action does not survive under sections 96 and 97 in favor of his executor or administrator.

3. CONSTITUTIONAL LAW (§ 38) — CONSTRUCTION IN CONFLICT WITH CONSTITUTION.

The construction of a state statute which brings it in conflict with the Constitution will nullify it as effectually as if it had in the first instance been enacted in conflict therewith.

4. STATUTES (§ 225) — CONSTRUCTION — CONFLICTING PROVISIONS.

Where there are two statutes, and the provisions of one apply specially to a particular subject, which clearly includes the matter in question, and the other general in its terms, and such that, if standing alone, it would include the same matter, and they thus conflict with each other, the former act must be taken as constituting an exception, if not a repeal of the latter or general statute; and especially is this true where the special statute was enacted subsequent to the passage of the general statute.

Appeal from Circuit Court, Johnson County; N. M. Bradley, Judge.

Action by George G. Gilkeson, administrator of Clifford Ragel, deceased, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This suit was brought in the circuit court of Johnson county by the administrator of the estates of Joseph A. and Clifford Ragel, deceased, against the defendant to recover the sum of $10,000 for each for the wrongful killing of their father and mother, Philip and Rose E. Ragel, on October 10, 1904, by a negligent head-end collision of two of its passenger trains near Warrensburg, Mo. The petition was in three counts, and in the court below the plaintiff dismissed the case as to each count as administrator of the estate of Joseph A. Ragel, and elected to proceed upon the first and second counts as administrator of the estate of Clifford Ragel, and also dismissed the cause stated in the third count of the petition.

The first count of the petition states: That said Gilkeson is the duly qualified administrator of the estate of Clifford Ragel, an unmarried minor, of the age of 14 years. That he was a child of Philip and Rose Emma Ragel, deceased, and that he and his brother Joseph A. Ragel, deceased, an unmarried brother, of the age of 20 years, were the only minor children and heirs at law of said parents. That said Philip and Rose Emma Ragel were both killed on the 10th day of October, 1904, on the same day and at the same time in a collision without having sued defendant or any one for damages for his death, and that since her death her personal representative has not brought suit for damages for his death against any one. That defendant was a corporation duly organized under the laws of Missouri, and was operating a line of railway through the counties of Cowley, Chautauqua, Montgomery, Labette, and other counties in the state of Kansas to and through Johnson county to St. Louis, Mo., and was at said dates a common carrier of passengers and freight. That on the ____ day of October, 1904, said Philip Ragel, the father of said minors, purchased from defendant at Edna, Kan., a ticket which entitled him to ride on defendant's train from there to St. Louis, Mo., as a passenger. That he paid to said defendant the regular passenger fare from Edna to St. Louis, Mo., and took passage on defendant's train as such passenger on said date to St. Louis, Mo. That while he was a passenger on defendant's train aforesaid, on October 10, 1904, about 1½ miles east of Warrensburg, in Johnson county, Mo., through the negligence of defendant the train on which said Philip Ragel was riding collided with another train on said road, traveling in the opposite direction, thereby wrecking said Ragel's train and killing him. That his said death was caused solely by the negligence of defendant as aforesaid, to the damage of said Clifford Ragel in the sum of $5,000. That said minors survived said Philip Ragel, and this plaintiff has been duly appointed administrator of their estate as aforesaid. Wherefore he prays judgment for $5,000 and costs.

The second count of the petition after the dismissals aforesaid is in substance the same as count one, supra, except that plaintiff asked judgment in the second count for $5,000 as administrator of the estate of Clifford Ragel, deceased, by reason of the damages which it is claimed he sustained on account of the death of said Rose Emma Ragel. The answer contains a general denial as to each of the above counts of petition.

A trial was had upon the following agreed statement of facts: "It is agreed by the parties to this cause that the facts herein are as follows: (1) The plaintiff, Gilkeson, is the administrator of the estates of Clifford Ragel and Joseph A. Ragel, deceased, having been duly appointed as such by the probate court of Pettis and Johnson counties, Mo., respectively, in which counties said deceased died. (2) Clifford Ragel died in Pettis county, Mo., on the 14th day of October, 1904, age 14 years, unmarried, having been injured in the wreck hereinafter described, and dying of said injuries. Joseph A. Ragel died on the 10th day of October, 1904, in Johnson county, Mo., age 20 years, unmarried, having been killed with his father and mother in the collision hereinafter referred to. Susan Cooper, wife of Joseph Cooper, also a daughter of Philip Ragel and Rose Emma Ragel, 23 years of age, was also killed in the same wreck and at the same time with her said father and mother. Clifford Ragel and Joseph A. Ragel were the only minor children of Philip Ragel and Rose Emma Ragel, deceased. The said Clifford Ragel survived his said mother and father, four days, from October 10 to October 14, 1904, and said Joseph A. Ragel did not survive either of them, but was killed at the same time they were killed. (3) Philip Ragel and Rose Emma Ragel, his wife, father and mother of Clifford Ragel and Joseph A. Ragel, purchased tickets from defendant at Edna, Kan., entitling them to passage on defendant's passenger trains from that point to St. Louis, and were passengers on one of defendant's passenger trains on its railroad on the morning of October 10, 1904, going eastward, when at a point about 1½ miles east of Warrensburg, Mo., in Johnson county, by reason of the negligence of the defendant, its agents, servants, and employés, whilst running, conducting, and managing defendant's locomotives and trains of cars, the train on which the said Philip Ragel and Rose Emma Ragel were traveling as passengers collided with another train of the defendant operated by defendant, its agents, servants, and employés, going westward on the same track, while both of said trains were running at a high rate of speed, and said tracks ran into each other, causing a head-end collision and wreck, demolishing the car in which said Philip Ragel and Rose Emma Ragel were riding, thereby killing said Philip Ragel and Rose Emma Ragel on the said 10th day of October, 1904. (4) Neither Philip Ragel or Rose Emma Ragel nor any one representing them has brought suit against any one for the death of either, nor has any one so brought suit for the said Susan Cooper for the death of either. (5) Philip Ragel and Rose Emma Ragel, deceased, left surviving them as their only minor child said Clifford Ragel. (6) The petition of this cause was filed on the 7th day of October, 1905, and summons was issued the same day and duly served on defendant on the 7th of October, 1905." In addition to the agreed statement of facts, it is further agreed between counsel for plaintiff and defendant that Clifford Ragel, Joseph A. Ragel, and Susan Cooper mentioned in said agreed statement of facts were the only children of Philip and Rose Emma Ragel. Counsel for defendant objected to the introduction in evidence of the agreed statement of facts, for the reason that the petition did not state facts sufficient to constitute a cause of action against the defendant, which was by the court overruled. To the ruling of the court the defendant duly excepted. Thereupon the court found for the plaintiff in each count of the petition for the sum of $5,000, and judgment was rendered therein accordingly. After taking the proper preliminary steps for that purpose, the defendant appealed the cause to this court.

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