Hargis v. Denny

• Decision Date: 02 May 1938
• Docket Number: No. 19144.,19144.
• Citation: 117 S.W.2d 368
• Court: Missouri Court of Appeals
• Parties: HARGIS v. DENNY et al.

117 S.W.2d 368

HARGIS v. DENNY et al.

No. 19144.

Kansas City Court of Appeals. Missouri.

May 2, 1938.

Rehearing Denied May 23, 1938.

Appeal from Circuit Court, Howard County; Aubrey R. Hammett, Judge.

"Not to be published in State Reports."

Action by Hazel E. Hargis, executrix of the will of C. T. Hargis, deceased, against Clifton E. Denny and others, executors of the last will and testament of James H. Denny, deceased, for damages growing out of an automobile accident. Judgment for plaintiff, and defendants appeal.

Reversed.

Hogsett, Murray, Trippe & Depping, of Kansas City, for appellants.

Hunter & Chamier, of Moberly, for respondent.

SHAIN, Presiding Judge.

This is a suit for damages growing out of an automobile accident. The facts are that James H. Denny, whose car is involved, made a pleasure trip from his home in Fayette, Missouri, to Washington, D. C. Mr. Denny had as his guests on said trip his mother, Mrs. Belle Denny, and his neighbors and friends, Mrs. C. T. Hargis and Mrs. Hazel E. Hargis, the wife of C. T. Hargis. On the return trip from Washington, D. C., the party was traveling in a westerly direction on highway No. 36, in the state of Illinois. About one mile southwest of Tuscola the car, while being driven by C. T. Hargis, collided with a passenger train of the Chicago and Eastern Illinois Railroad Company which was being operated in a northward direction, and crossing said highway No. 36. As a result of said collision, C. T. Hargis, J. H. Denny, and Mrs. Belle Denny were killed. The accident occurred June _____, 1935.

Mrs. Hazel E. Hargis, the only surviver of the accident, as executrix of the will of C. T. Hargis, deceased, instituted this suit by filing petition in the circuit court of Howard county, Missouri, and wherein Clifton E., Thomas S., and Jack H. Denny, as executors of the last will of James H. Denny, deceased, are made defendants. Trial was had in this case on the second amended petition filed by plaintiff.

The amended petition, after allegations of qualified executrix, states as follows:

"Plaintiff for her cause of action states that on the 17th day of June, 1935, plaintiff's husband, the decedent, C. T. Hargis, was riding as a guest of said James H. Denny in an automobile owned and at the time driven by said Denny, in a westerly direction along a highway known as State Highway Number 121 and United States Highway Number 36 in Douglas County in the State of Illinois; that while said automobile was occupied by said C. T. Hargis and others, and while said C. T. Hargis was in the exercise of due care, the said James H. Denny negligently, recklessly, wilfully and wantonly drove it against and caused it to collide with a moving railroad locomotive and tender on a railroad crossing of the Chicago and Eastern Illinois Railroad about one mile southwest of the City of Tuscola in said County of Douglas and State of Illinois; that as a direct result of said negligent, reckless, willful and wanton misconduct in driving said automobile against and causing it to collide with said locomotive and tender the said automobile was wrecked and said C. T. Hargis was crushed in and about the breast and body and instantly killed and died on said 17th day of June, 1935."

Thereafter it is alleged that the collision, injury and death occurred in the state of Illinois, and Illinois laws are pleaded and invoked as follows: Section 1 of chapter 28, Illinois State Bar Statutes of 1935, adopting and enforcing common law; section 1 of chapter 70, providing that if one who, if death had not ensued, had a right to maintain action for damages, that the party liable for such injury shall be liable as though death had not ensued; section 2 of chapter 70, providing that action for damages for death shall be brought in name of personal representative of deceased party and for damages, if any, for exclusive benefit of widow and next of kin in proportion provided by law; section 125 of chapter 3, providing action for damages, except for slander and libel, survive against personal representative of one answerable.

The plaintiff further pleading alleges that C. T. Hargis left surviving him a widow, Hazel E. Hargis, and as next of kin, two sons, Lowell M. Hargis and Ralph E. Hargis, all of whom it is alleged sustained injury. Plaintiff further alleges that under the Illinois law, aforesaid, there is created and vested in plaintiff a right of action for damages against defendants. The amount of damages asked is $5000.00.

Defendants answer by general and special denial. Defendants admit the existence of Illinois statutes as alleged in plaintiff's petition, but make issue as to construction of same.

Defendants answer by further alleging that plaintiff's original petition, filed Dec. 27, 1935, stated no cause of action against defendant, in that said petition failed to allege that C. T. Hargis died leaving next of kin who sustained pecuniary loss by reason of his death and failed to allege that action was brought within one year as provided by the statutes of Illinois, and failed to allege that deceased C. T. Hargis was free from contributory negligence. Defendants allege that as no amended petition was filed until Sept. 27, 1936, that, therefore, no cause of action was stated until more than one year after death, and, therefore, action is barred under the Illinois law. Defendants allege that the first amended petition of plaintiff of Sept. 27, 1936, failed to state a cause of action under the Illinois law, in that same failed to allege that deceased died leaving next of kin who sustained pecuniary loss.

Defendants in their answer set forth in full section 1 of chapter 70, and also section 2 of said chapter of the statutes of Illinois, 1935. Section 1 being as to the right of action for death in case action for injury existed though death had not ensued; section 2 providing for action to be brought by personal representatives for and on behalf of wife and next of kin, and providing that such action shall be brought within one year after death.

The defendants in their answer cite and quote from Hanley v. Waters, 255 Ill.App. 239; McGirr v. Pritchard, 258 Ill.App. 467; Devaney v. Otis Elevator Co., 251 Ill. 28, 95 N.E. 990; Lincoln Park C. & B. Co. v. Wabash Railroad Co., 254 Ill.App. 323; Holden v. Schley, 271 Ill.App. 159; Day v. Talcott, 361 Ill. 437, 198 N.E. 339.

The purport of the opinions cited are to the effect that, "A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of action." Also, as per opinion in Holden v. Schley, supra, wherein the law of Illinois is stated as follows:

"Where an action is brought under the Injuries Act in death cases the plaintiff must bring himself within the conditions of the act. [Citing cases.] A declaration must allege all the circumstances necessary for the support of the action, and one which fails to allege a fact without the existence of which the plaintiff is not entitled to recover, does not state a cause of action. [Citting cases.] In a case of injury causing death it must be alleged and proved that the next of kin or beneficiaries were free from negligence. This is a material part of a plaintiff's case. [Citing cases.] Likewise, in a case of injury, not causing death, the allegation that plaintiff was in the exercise of due care and caution is a necessary and material one. [Citing cases.]

"The Injuries Act is not a statute of limitations but creates a new liability which did not exist at common law. The time fixed for bringing an action is a condition of liability and operates as a limitation of the liability itself and not alone of the remedy and procedure. [Citing cases.]

"An allegation in a declaration that deceased left surviving next of kin who sustained pecuniary loss is an essential element of a cause of action under the Injuries Act. [Citing cases.] In an action brought under the Injuries Act, the allegation in the declaration as to the date of the death of the injured party is a most material one. [Citing cases.] A declaration, not showing upon its face that the action was brought within one year after the death, stated no cause of action and was insufficient to support a judgment in plaintiff's favor. * * *

"The rule is well established that when a cause of action is stated for the first time in an amended count of a declaration the suit is regarded as having been commenced as to such cause of action at the time of filing the amended count, and if the statute of limitations has then run, it will be a bar to the new cause of action stated in the amended count. [Citing cases.]"

Also as in Day v. Talcott, supra, it is held that averment of due care is necessary and material, or in lieu thereof allegations of fact equivalent to such averment.

Further answering, defendants allege that plaintiff failed to state a cause of action, for reasons stated above, in the original and first amended petition, and plead the bar of the statutes of the state of Illinois, for reason of fact that no cause of action was ever stated by plaintiff until the period of one year from death had expired.

Further answering, defendants plead chapter 95a, paragraph 47 (5), of Illinois Revised Statutes of 1935, as follows:

"No person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle, or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought * * *."

Defendants further plead chapter 95a, paragraph 43, of...