Goldschmidt v. Pevely Dairy Co.

• Citation: 111 S.W.2d 1,341 Mo. 982
• Parties: Henrietta Goldschmidt; Henrietta Goldschmidt, Mother and Natural Guardian of Earline Goldschmidt and Henrietta Goldschmidt, Minor Children; Donnell Milk Company, a Corporation, and United States Casualty Company, a Corporation, as Their Interest May Appear, Appellants, v. Pevely Dairy Company, a Corporation, and Erwin Juengel
• Decision Date: 14 December 1937
• Court: Missouri Supreme Court

111 S.W.2d 1

341 Mo. 982

Henrietta Goldschmidt; Henrietta Goldschmidt, Mother and Natural Guardian of Earline Goldschmidt and Henrietta Goldschmidt, Minor Children; Donnell Milk Company, a Corporation, and United States Casualty Company, a Corporation, as Their Interest May Appear, Appellants, v. Pevely Dairy Company, a Corporation, and Erwin Juengel

Supreme Court of Missouri

December 14, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge.

Affirmed.

Wilton D. Chapman for appellants.

(1) The court erred in sustaining defendants' demurrer to plaintiffs' second amended petition, over the timely objections and exceptions of plaintiffs. (a) The second amended petition shows upon its face that each of the plaintiffs named therein has a substantial interest in any recovery had, therefore they are proper parties plaintiff in said cause. Norton v. Reed, 161 S.W. 847; State ex rel. Gardiner v. Dickmann, 157 S.W. 1014; Scott v. Alton Banking & Trust Co., 175 S.W. 923. (b) Though there be a plaintiff having no interest, everyone who had any interest in the cause of action attempted to be pleaded being joined as plaintiff, there is not a defect of parties plaintiff. (c) The demurrer reaches only to the four corners of the petition, and matters elsewhere of record in the action cannot be considered on demurrer. Clark v. Grand Lodge of Brotherhood of Railroad Trainmen, 43 S.W.2d 405; Miss. Valley Life Ins. Co. v. Riddle, 43 S.W.2d 1059; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142, 65 S.W. 1037. (d) Demurrer herein did not raise the question of the capacity of any one or all of the plaintiffs to sue, as that must be raised by special demurrer. Baxter v. St Louis Transit Co., 95 S.W. 856. (e) Demurrer herein did not raise the point that any one or all of the plaintiffs are barred by a Statute of Limitations. That point to be raised by demurrer must appear upon the face of the petition, and the demurrer must specifically specify that ground. Knisely v. Leathe, 166 S.W. 261; State v. Spencer, 79 Mo. 314; Murphy v. De France, 105 Mo. 53, 15 S.W. 949, 16 S.W. 861; Allison v. Mo. P. & L. Co., 59 S.W.2d 771; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Dennig v. Meckfessel, 303 Mo. 525, 261 S.W. 55; Steinbrugge v. Prudential Ins. Co., 196 Mo.App. 194, 190 S.W. 1018; Lorberg v. Jaynes, 298 S.W. 1059. (2) Even if the entire record can be considered and reviewed by this court on this appeal, which is not conceded: (a) The filing of an amended petition relates back to the time of the filing of the original petition, and the joining of additional parties plaintiff or the substitution of a new plaintiff relates back to the filing of the original petition, and the joining of such additional plaintiffs or the substitution of a new plaintiff is not barred even though they were at the time of the amendment barred by limitations from instituting a new action. Drakopulos v. Biddle, 231 S.W. 924; Vaughan v. St. L.-S. F. Ry. Co., 164 S.W. 148; Missouri, etc., Railroad Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355; American Railroad Co. v. Didricksen, 227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456; Cytron v. Transit Co., 205 Mo. 698; Clark v. Railroad, 219 Mo. 540; Gresham v. Talbot, 31 S.W.2d 766, 326 Mo. 523. (b) Employer's cause of action, under Workmen's Compensation Act, accrues as of the date of the award by the commission against the employer. Tenny v. Lashly, 80 Mo. 668; Burckhardt v. Helfrich, 77 Mo. 381; Burton v. Rutherford, 49 Mo. 255; Thompson v. Brown, 121 Mo.App. 531; Stevens v. Stevens, 172 Mo. 36; Binz v. Hyatt, 200 Mo. 309; State ex rel. v. Tillmann, 134 Mo. 168; Burrus v. Cook, 117 Mo.App. 402, 215 Mo. 496; Elms Realty Co. v. Wood, 285 Mo. 139; Dennig v. Meckfessel, 261 S.W. 55; Petty v. Tucker, 166 Mo.App. 98; Bauer v. Gray, 18 Mo.App. 172; Singleton v. Townsend, 45 Mo. 379; Burhong v. Taylor, 82 Mo. 671; Reynolds v. Schade, 131 Mo.App. 13; Superior Mineral Co. v. Mo. Pac. Ry. Co., 45 S.W.2d 912, 59 S.W.2d 690.

Lashly, Lashly & Miller and Oliver J. Miller for respondents.

(1) The cause of action being for a death occurring in Missouri from an accident in Missouri is founded upon the wrongful death statutes of Missouri, to-wit, Revised Statutes 1929, Sections 3262-3264 and 3266. King v. Smith Baking Co., 71 S.W.2d 115; Tobin v. Bell Tel. Co., 199 S.W. 952. (a) The widow does not state a good cause of action when she files her petition after six months have elapsed and fails to aver that there are no minor children surviving. Chandler v. Chicago Ry. Co., 251 Mo. 592, 158 S.W. 35; Tiller v. St. Louis Railroad Co., 189 F. 994; King v. Smith Bak. Co., 71 S.W.2d 115. (b) An amended petition filed after the statute has run does not relate back to the time of the filing of the original petition to avoid the bar of the Statute of Limitations where the original petition failed to state a cause of action. A demurrer interposed on a failure to state a cause of action should be sustained. Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; Russel v. Nelson, 295 S.W. 118; Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 266; Burke v. Unger, 88 Okla. 226, 212 P. 993. (c) In considering the demurrer the court is entitled to look and see the filing date on the petition to determine when it was filed. Bright v. Thacher, 215 S.W. 788. (2) Where the original petition is filed by one who has no right to maintain the suit, and an amended petition is subsequently filed bringing in those who have a right of action for the first time, the amendment does not relate back to the filing of the original petition. Meservey v. Pratt-Thompson Const. Co., 291 S.W. 174; Atlanta Ry. Co. v. Hooper, 92 F. 820. (3) The Workmen's Compensation Act of Missouri creates no new cause of action for death in the employer, but merely subrogates to him the rights, if any, which the dependents may have under the wrongful death statute of Missouri. Superior Mineral Co. v. Mo. Pac. Ry. Co., 45 S.W.2d 915; Fidelity & Casualty Co. v. St. Paul G. L. Co., 188 N.W. 265. (a) The cause of action for death accrues at the death and the statute runs from that time. Kennedy v. Burrier, 36 Mo. 128. (b) The right of subrogation commences at the time of death. General Box Co. v. Mo. Utilities Co., 55 S.W.2d 442; State ex rel. v. Haid, 59 S.W.2d 690. (4) Where the right of action is originated by the statute its existence depends upon strict compliance with the statutory provisions and a failure to plead those in detail renders the petition nugatory and subject to a demurrer based upon the failure of the petition to state a cause of action. Chandler v. Chicago Ry. Co., 158 S.W. 35.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is an action by the widow, minor children, the employer and its insurer, against third parties (under the Workmen's Compensation Law) to recover $ 10,000 for the death of Henry C. Goldschmidt. A demurrer to a second amended petition was sustained and this appeal followed. It appears from the second amended petition that Henry C. Goldschmidt, on April 8, 1934, was in the employ of plaintiff, Donnell Milk Company, as a truck driver, and that he and his employer were under the Workmen's Compensation Act; that plaintiff, United States Casualty Company, was the insurer; that on said date the employee, while on duty, was killed in a collision between the truck he was driving and a truck of defendant, Pevely Dairy Company, being driven at the time by defendant, Juengel, who was at the time in the employ of the Pevely Dairy Company, and on duty. The acts of alleged negligence on the part of defendant Juengel are pleaded.

It further appears from the second amended petition that on May 29, 1934, the Compensation Commission made an award in favor of the widow, Henrietta Goldschmidt, and her two minor children, Earline and Henrietta, all of whom are plaintiffs, in the sum of $ 8055, and an additional sum of $ 150 for burial expenses; that a part of this award has been paid and "a part will be paid from time to time in the future."

The demurrer alleges (1) misjoinder of parties plaintiff; (2) misjoinder of causes of action; and (3) that the "second amended petition does not state facts sufficient to constitute a cause of action upon behalf of the plaintiffs against the defendants, or either of them." It will only be necessary to consider the third ground of the demurrer.

The case history is as follows: As appears above, the employee was killed April 8, 1934, and on May 29, 1934, compensation was awarded the widow and minor children. The record discloses that on October 18, 1934, six months and ten days after the death of her husband, the widow filed the original petition against defendants in which petition she was the sole plaintiff. A general denial to this petition was filed by defendants January 16, 1935. June 17, 1935, a year, two months and nine days after the death of Henry C. Goldschmidt, the first amended petition was filed in which the widow, minor children, the employer and insurer were joined as parties plaintiff. Demurrer to the first amended petition was filed June 21, 1935, and was overruled September 16, 1935. Then on September 18th (in same term) the order overruling the demurrer was set aside and an order entered sustaining the demurrer. November 27, 1935, the second amended petition (the one at bar) was filed, in which were the same parties plaintiff as in the first amended petition. December 2, 1935, demurrer was filed to the second amended petition, which demurrer was sustained February 17, 1936, cause was dismissed, and this appeal followed.

It is contended by defendants (respondents here) that any cause of action that plaintiffs or either of them may have had against them for the death of Henry C. Goldschmidt is barred by...