Hennessy v. Bavarian Brewing Company
| Decision Date | 22 June 1898 |
| Parties | Hennessy, Appellant, v. Bavarian Brewing Company |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.
Reversed and remanded.
Beebe & Watson for appellant.
(1) The petition states a cause of action under sections 4426 and 4427, Revised Statutes 1889, and it was not necessary to allege or prove that deceased at the time of his death was the servant of plaintiff. Buell v. Transfer Co., 45 Mo. 564; Owen v. Brockschmidt, 54 Mo. 285; Philpott v. Railroad, 85 Mo. 164; Parsons v Railroad, 94 Mo. 286; Tobin v. Railroad, 18 S.W. 997; Habel v. Union Depot Co., 140 Mo. 159. (2) The fact that plaintiff had remarried did not change the relation of parent and child. The plaintiff was the sole surviving parent and therefore was the party expressly named in the statute. Railroad v. Gaw, 57 Ga. 277; Buell v. Transfer Co., 45 Mo. 564; Davis v Guardian, 45 Ohio St. 470; Railroad v. Kuehn, 70 Tex 587.
Ben. T. Hardin for respondent.
(1) The judgment in this cause must be affirmed, as "the law of the case" has been settled by the Kansas City Court of Appeals in 63 Mo.App. 111. That court has decided that the petition in this case does not state a cause of action, and that the evidence, identically the same as here, did not make out a prima facie case. Right or wrong, that decision is the law of this case, as much so as if this court had rendered that opinion. Gwin v. Waggoner, 116 Mo. 143; Dowling v. Allen, 102 Mo. 213; Gaines v. Fender, 82 Mo. 497; Conroy v. Vulcan Iron Works, 75 Mo. 651; Lackland v. Smith, 75 Mo. 307; Adair Co. v. Owenby, 75 Mo. 282; Bank v. Taylor, 62 Mo. 338; Grumley v. Webb, 48 Mo. 563; Overall v. Ellis, 38 Mo. 209; Adams Express Co. v. Hoeing, 88 Ky. 373; 1 Herman Estoppel, p. 118; Crecelius v. Bierman, 68 Mo.App. 34; Cherry v. Railroad, 61 Mo.App. 303; Walser v. Graham, 60 Mo.App. 323; Dean v. Railroad, 43 Mo.App. 450; Koch v. Hebel, 40 Mo.App. 241; Young v. Thrasher, 123 Mo. 308; Stump v. Hornbeck, 109 Mo. 272; Atkinson v. Dixon, 96 Mo. 582; State ex rel. v. Givan, 75 Mo. 517; Chouteau v. Allen, 74 Mo. 56; Gamble v. Gibson, 83 Mo. 290; Shroyer v. Nickell, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116; Stilwell v. Glascock, 47 Mo.App. 554; Coquard v. Prendergast, 47 Mo.App. 243; Lane v. Railroad, 35 Mo.App. 567; McIntyre v. McIntyre, 24 Mo.App. 166; Connor v. Pope, 23 Mo.App. 344; Dulaney v. Railroad, 22 Mo.App. 597; Sparks v. Railroad, 31 Mo.App. 111; Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Czezewzka v. Railroad, 121 Mo. 201. (2) The petition fails to allege that the deceased was the servant of plaintiff; that by his death she would lose his services, or that she was damaged by such loss. Hennessy v. Bavarian Brewing Co., 63 Mo.App. 111; Buck v. Railroad, 46 Mo.App. 555; Matthews v. Railroad, 26 Mo.App. 75; Dunn v. Railroad, 21 Mo.App. 188. (3) The measure of a parent's damages, in an action under sections 4426 and 4427, for the loss of a minor child, is the value of the child's services from the date of his death to the date of his majority, burial and other expenses, if any, incurred in his death or sickness, less the expense of his support during that time, and the parent is so limited in his recovery in such action. Leahy v. Davis, 121 Mo. 227; Parsons v. Railroad, 94 Mo. 286; Rains v. Railroad, 71 Mo. 164; Frick v. Railroad, 79 Mo. 542. The evidence shows, and it is conceded by appellant, that she had been a widow, and had remarried long prior to the injury to her son, and she and her son being supported by his stepfather; and she was, therefore, no longer entitled to the services of her minor son. Whitehead v. Railroad, 22 Mo.App. 60; Matthews v. Railroad, 26 Mo.App. 75; Tetherow v. Railroad, 98 Mo. 84; Hollingsworth v. Swendenborg, 49 Ind. 378. After remarriage, if the minor remains in the family of the stepfather and, as shown by plaintiff's testimony in this case, is supported by him, then the stepfather is entitled to his earnings, and is liable for his support and education. Academy v. Bobb, 52 Mo. 357; Hennessy v. Bavarian Brewing Co., 63 Mo.App. 111; Brown's Appeal, 112 Pa. St. 18; Englehardt v. Young, 76 Ala. 534; Smith v. Rogers, 24 Kan. 140; Gerder v. Weisner, 54 Iowa 591; In re v. Bernoudy, 32 Minn. 385. (4) The above sections, 4426 and 4427, do not create any new right of action, but only transmit the right to sue, and confer upon the representatives of a deceased person the right to sue in such cases as the deceased might have maintained had he survived the injury. Hennessy v. Bavarian Brewing Co., 63 Mo.App. 111; Miller v. Railroad, 109 Mo. 360; Gray v. McDonald, 104 Mo. 311; Elliott v. Railroad, 67 Mo. 272; White v. Maxcy, 64 Mo. 552; Proctor v. Railroad, 64 Mo. 112; Crumpley v. Railroad, 98 Mo. 37. (5) The above sections allow only compensatory damages, and not a penalty, as in section 4425. Senn v. Railroad, 135 Mo. 517; Leahy v. Davis, 121 Mo. 227; McGowan v. Ore & Steel Co., 109 Mo. 531; McPherson v. Railroad, 97 Mo. 253; Parsons v. Railroad, 94 Mo. 286. (6) We submit that this court has no jurisdiction of this appeal for the reason that "the amount in dispute" does not exceed $ 2,500. From an inspection of appellant's petition, it will be seen that it does not state that she is damaged in any amount, but merely "prays a judgment" for $ 5,000. It is the "amount in dispute" and not the sum demanded that marks the limits of the appellate jurisdiction of this court. Kerr v. Simmons, 82 Mo. 269; Anchor Milling Co. v. Walsh, 97 Mo. 287; Wolff v. Matthews, 98 Mo. 246; Reichenbach v. Masonic Benefit Ass'n, 112 Mo. 22.
Action for $ 5,000 damages for death of a minor son of plaintiff. Thomas Dolin, an unmarried minor, thirteen years old, was the son of plaintiff by her former marriage. After her second marriage the stepfather supported the minor. His mother permitted him to work for defendant and he turned over his wages to his mother, who used them to buy clothing for him. The death is alleged to have been caused by the negligence of the defendant in not providing proper appliances and safeguards in its factory to prevent injury to the employe, who was required to work close to but not with or on the defective appliances. The plaintiff obtained judgment for $ 900, the defendant appealed to the Kansas City Court of Appeals, where the judgment was reversed and the cause remanded. Hennessey v. Bavarian Brewing Co., 63 Mo.App. 111. The case was tried anew in the circuit court upon exactly the same pleadings and evidence, on plaintiff's part, as it was on the first trial. Pursuant to the opinion of Kansas City Court of Appeals the circuit court sustained a demurrer to the evidence, and entered judgment for defendant. Plaintiff then appealed to this court.
I. The Kansas City Court of Appeals based its decision upon two grounds, first, that the petition did not state facts sufficient to constitute a cause of action, in that it did not allege a loss of services to the plaintiff by the death of her son, and, second, that the evidence does not establish such a loss. The first conclusion is predicated upon the idea that, "the right to recover for loss of service is founded on the relation of master and servant, and not on that of parent and child," (63 Mo.App. 111), and that upon the death of the child's father the mother was obliged to support him during minority, and hence was entitled to his services during her widowhood, but that upon her remarriage the "stepfather would stand in the place of the natural parent, and the reciprocal rights, obligations and duties of parent and child would attach," if the stepfather "admitted the child into his family and treated him as a member thereof, and thereby assumed the relation of parent."
The second conclusion rests upon the facts deduced from the evidence that the stepfather did admit the child into his family, treated him as a member thereof and assumed the relation of parent to him, and that the relation of master and servant between the mother and child ended as soon as the stepfather so acted, and that as the mother was no longer obligated to support the child, she was not entitled to his services, and not being entitled to his services, she lost nothing by his death, but that notwithstanding the stepfather was, in this case, obliged to support the child, and therefore was entitled to his earnings, he could not maintain an action of this character because neither under the statute of this State nor at common law, could a stepfather maintain an action for the death of a minor caused by the wrongful act of another.
Bluntly but logically stated, this reasoning asserts the startling proposition that if a widow with a minor child remarries, and the stepfather admits her child into his family as a member of it and assumes the relation of father to him, and if a third party wrongfully kills the child, there is no civil liability to anyone therefor -- not to the mother, because her rights were cut out by her second marriage and the assumption by the stepfather of the natural father's place toward the child, and not to the stepfather because neither the common law nor the statute gives a stepfather a right to maintain such an action.
The error that underlies such conclusions arises from confusing the common law obligation of the parent, natural or standing in loco parentis to the child, to support it during minority, carrying with the obligation the correlative right to the earnings of the child, with the right, conferred by statute, upon the father (natural) and mother or the survivor of them, to maintain an action against a third party for the wrongful killing of their child.
The case of Academy v. Bobb, 52 Mo. 357, is a fair...
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