Hendon v. Kurn, 38474.

• Decision Date: 27 August 1943
• Docket Number: No. 38474.,38474.
• Parties: TOBITHA HENDON, Administratrix of the Estate of WILLIAM THOMAS HENDON, Deceased, for the benefit of herself as the widow, and for the benefit of RAYMOND HENDON, EARLING HENDON, BILLIE HENDON, EVELYN HENDON, and WILLIE IRENE HENDON, as the heirs and next of kin of WILLIAM THOMAS HENDON, Deceased, v. J.M. KURN and JOHN G. LONSDALE, Trustees in Bankruptcy for the ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellants.
• Court: Missouri Supreme Court

174 S.W.2d 806 TOBITHA HENDON, Administratrix of the Estate of WILLIAM THOMAS HENDON, Deceased, for the benefit of herself as the widow, and for the benefit of RAYMOND HENDON, EARLING HENDON, BILLIE HENDON, EVELYN HENDON, and WILLIE IRENE HENDON, as the heirs and next of kin of WILLIAM THOMAS HENDON, Deceased,
v.
J.M. KURN and JOHN G. LONSDALE, Trustees in Bankruptcy for the ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellants. No. 38474. Supreme Court of Missouri. Division Two, August 27, 1943. As Modified on Denial of Rehearing, November 1, 1943.

[174 S.W.2d 807]

Appeal from Dunklin Circuit Court. — Hon. James V. Billings, Judge.

AFFIRMED.

E.G. Nahler and Ward & Reeves for appellants.

(1) The deceased was chargeable with contributory negligence of such a degree as to preclude a recovery by plaintiff. It is admitted that automobile in which he was riding approached the crossing at a slow rate of speed and slowed down within fifty feet of crossing and that train was approaching at a rapid rate of speed, making much noise, and was in plain view for more than a mile. Under Arkansas comparative negligence statute, the court as a matter of law should have declared deceased's negligence equal to or greater than that of employees of defendants. Louisiana & Arkansas Ry. Co. v. Smith, 133 Fed. (2d) 436; Bradley v. Mo. Pac., 288 Fed. 484; Mo. Pac. v. Dennis, 166 S.W. (2d) 886; Mo. Pac. v. Davis, 125 S.W. (2d) 785; Mo. Pac. v. Hood, 131 S.W. (2d) 615; Mo. Pac. v. Price, 133 S.W. (2d) 645; Mo. Pac. v. Moore, 138 S.W. (2d) 384; Mo. Pac. v. Baldwin, 117 Fed. (2d) 510; Kansas City Southern v. Ray, 109 Fed. (2d) 708. (2) This suit is founded upon a foreign statute giving a cause of action to two different parties, one the administrator, and the other to the next of kin, if there be no administrator. The right to bring the action is determined by a pure question of fact, that is, whether or not a personal representative has been appointed. There was no proof, either documentary or oral, touching plaintiff's right as administratrix to prosecute this suit. Therefore, a material fact as to her right to maintain this suit was omitted, and the demurrer should have been given. Carpenter v. Kurn, 345 Mo. 877, 136 S.W. (2d) 997; Lyons v. Railroad, 190 S.W. 859; Titus v. Delano, 210 S.W. 44; Marshall v. Mines Co., 129 Mo. App. 649. (3) The court erred in giving plaintiff's Instruction I-P. This instruction purported to cover the whole case and directed a finding for plaintiff without requiring the jury to find that plaintiff had the legal right to prosecute this suit, or to find that deceased left a widow surviving, or that he left any next of kin. It erroneously told the jury to find for plaintiff and against "said railroad company," without a finding that J.M. Kurn and John G. Lonsdale were its trustees. Carpenter v. Kurn, 345 Mo. 877, 136 S.W. (2d) 997; Titus v. Delano, 210 S.W. 44; Lyons v. Railway Co., 190 S.W. 859; Marshall v. Mines Co., 129 Mo. App. 649. (4) Instruction II-P, given for plaintiff, was error for the reason that it referred the jury to the petition as to the allegation of "negligence with reference to the ringing of the bell or the whistle." Kuhlman v. Transit Co., 307 Mo. 607, 271 S.W. 789; Ward v. City of Portageville, 106 S.W. (2d) 497; Bullmore v. Beeler, 33 S.W. (2d) 161; McCaslin v. Mullins, 17 S.W. (2d) 684; Rouse v. Ins. Co., 203 Mo. App. 604; Boomshaft v. Klauber, 196 Mo. App. 222; Webb v. Carter, 121 Mo. App. 147. (5) Instruction III-P, given for plaintiff, is on the measure of damages. This instruction contains the same error as Nos. I-P and II-P, because it does not submit to the jury the fact as to whether or not the parties therein named are the next of kin of deceased, nor does it submit the question of whether or not plaintiff is the administratrix. Under this instruction full compensation was authorized without regard to the comparative negligence statute. This was error. Sec. 11,153, Pope's Digest of Arkansas Statutes; Mo. Pac. v. McKinney, 189 Ark. 69, 71 S.W. (2d) 180; Bird v. Railway, 336 Mo. 316, 78 S.W. (2d) 389; Crecelius v. Railway, 274 Mo. 671, 205 S.W. 181; Norfolk Southern v. Ferebee, 238 U.S. 269; Seaboard Air Line v. Tilghmon, 237 U.S. 499; Sherry v. Railway Co., 290 N.Y.S. 17, 248 App. Div. 439; Graves v. Johnson, 176 So. 256; St. Louis-S.F. Ry. v. Nichols, 161 Miss. 795, 138 So. 364; Southern Ry. v. Bottoms, 35 Ga. App. 804, 134 S.E. 824. (6) The verdict of the jury for $15,000 is excessive. The deceased's regular monthly income was $20. His only other income was odd jobs. Out of this income he had to support himself and other child which was killed in same accident. This left a small amount of annual income for the widow and next of kin. His life's expectancy was 31.7 years, and the present value of the interest of widow and next of kin in his earnings as much less than $15,000. When this large verdict is considered with plaintiff's Instruction III-P, erroneously stating measure of damages, the harmful effect of the instruction is further emphasized.

Ivy & Nailling and Hal H. McHaney for respondent.

(1) It is the duty of the Supreme Court in reviewing the case at bar to take judicial notice of the statutes of the State of Arkansas, wherein the collision occurred, pertinent to the cause, as well as the decisions of the Supreme Court of Arkansas construing those statutes. R.S. 1929, sec. 906; Barnes v. St. Louis-S.F. Ry. Co., 92 S.W. (2d) 164; Kirkdoffer v. St. Louis-S.F. Ry. Co., 321 Mo. 166, 37 S.W. (2d) 569; Newlin v. St. Louis-S.F. Ry. Co., 222 Mo. 375, 121 S.W. 125. (2) Under the laws of Arkansas, as pleaded in plaintiff's petition, in suits against railroads for personal injury or death caused by running of trains, contributory negligence does not prevent a recovery, if the negligence of the person injured or killed is of less degree than the negligence of the employees of the railroad causing the injury. And where contributory negligence is shown on the part of the person injured, it shall not be a bar to recovery but the amount of the recovery shall be diminished in proportion to the contributory negligence. Pope's Digest of the Statutes of Arkansas, sec. 11153; St. Louis-S.F. Ry. Co. v. Beasley, 170 S.W. (2d) 667; Kirkdoffer v. St. Louis-S.F. Ry. Co., 327 Mo. 166, 37 S.W. (2d) 569; Mo. Pac. Ry. Co. v. Foresee, 181 Ark. 471, 26 S.W. (2d) 108; Ramey v. Mo. Pac. Ry. Co., 323 Mo. 662, 21 S.W. (2d) 873; Davis v. Scott, 151 Ark. 34, 235 S.W. 407. (3) Under the laws of Arkansas, as pleaded in plaintiff's petition, it is the duty of a railroad company to ring a bell or blow a whistle at a distance of at least 80 rods from the place where the railroad shall cross any road or street and said bell or whistle shall be kept ringing or whistling until it shall have crossed said road or street and by said statute said railroad company shall be liable for damages which may be sustained by reason of the failure to so ring the bell or blow the whistle. Pope's Digest of the Statutes of Arkansas, section 11135; Mo. Pac. Ry. Co. v. Robertson, 169 Ark. 957, 278 S.W. 375. (4) Under these circumstances the question of the comparative negligence of the deceased and the train operatives was properly submitted to the jury. Mosley v. Thompson, 143 S.W. (2d) 310; Barnes v. St. Louis-S.F. Ry. Co., 92 S.W. (2d) 164; Oxford v. St. Louis-S.F. Ry. Co., 331 Mo. 53, 52 S.W. (2d) 983; Kirkdoffer v. St. Louis-S.F. Ry. Co., 327 Mo. 166, 37 S.W. (2d) 569; Ramey v. Mo. Pac. Ry. Co., 323 Mo. 662, 21 S.W. (2d) 873; Mo. Pac. Ry. Co. v. Rogers, 184 Ark. 725, 43 S.W. (2d) 757; St. Louis-S.F. Ry. Co. v. Beasley, 170 S.W. (2d) 667; Chicago, R.I. & P.R. Co. v. Thomas, 184 Ark. 457, 42 S.W. (2d) 762; Mo. Pac. Ry. Co. v. Howell, 132 S.W. (2d) 176; Mo. Pac. Ry. Co. v. Thomas, 198 Ark. 956, 124 S.W. (2d) 820; Mo. Pac. Ry. Co. v. Lemonds, 198 Ark. 1, 127 S.W. (2d) 120; Mo. Pac. Ry. Co. v. Ward, 195 Ark. 960, 115 S.W. (2d) 835; Mo. Pac. Ry. Co. v. Hunt, 193 Ark. 175, 98 S.W. (2d) 74; St. Louis-S.F. Ry. Co. v. Cole, 181 Ark. 780, 27 S.W. (2d) 992; Mo. Pac. Ry. Co. v. Foresee, 181 Ark. 471, 26 S.W. (2d) 108; St. Louis-S.F. Ry. Co. v. Haynes, 177 Ark. 104, 5 S.W. (2d) 737; Mo. Pac. Ry. Co. v. Bode, 168 Ark. 157, 269 S.W. 361; St. Louis-S.F. Ry. Co. v. Whitfield, 155 Ark. 560, 245 S.W. 323. (5) The suit was filed by Tobitha Hendon as administratrix of the estate of William Thomas Hendon, deceased, for the benefit of herself as the widow and for the benefit of Raymond Hendon, Earline Hendon, Billie Hendon, Evelyn Hendon, and Willie Irene Hendon, as the heirs and next of kin of William Thomas Hendon deceased. The petition further alleges that under Section 1277 of the Laws of Arkansas, a cause of action for wrongful death survived to the person representative of such deceased person for the exclusive benefit of the widow and next of kin of such deceased person. Attached to the petition was a sworn affidavit reciting that Tobitha Hendon was the duly appointed administratrix of the estate of William Thomas Hendon. The answer of the defendants did not specifically deny the appointment of the administratrix. The answer of the defendants as to such issue was merely a general denial. Under such pleadings such issue was admitted. There was no necessity of proof as to the appointment of the administratrix. Laws of Arkansas, 1937, secs. 1277, 1278; R.S. Mo. 1939, secs. 922, 926; State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W. (2d) l.c. 827; State ex rel. City of Maplewood v. So. Surety Co., 323 Mo. 150, 19 S.W. (2d) 691; State ex rel. Mo. State Highway Board to Use of Fredonia Portland Cement Co. v. Cox, 318 Mo. 387, 1 S.W. (2d) 787; Worheide v. Kelley, 243 S.W. 158; Crowl v. American Linseed Co., 255 Mo. 305, 164 S.W. 618; Ashton v. Penfield, 233 Mo. 391, 135 S.W. 938; Berry v. St. L.M. & S.E.R. Co., 214 Mo. 593, 114 S.W. 27; Gross v. Watts, 206 Mo. 373, 104 S.W. l.c. 36; Baxter v. St. Louis Transit Co., 198 Mo. 1, 95 S.W. 856...