Herrell v. Railway Co.

• Decision Date: 15 November 1929
• Docket Number: No. 27129.,27129.
• Citation: 23 S.W.2d 102
• Parties: DAVID J. HERRELL and LIZZIE HERRELL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

23 S.W.2d 102

DAVID J. HERRELL and LIZZIE HERRELL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 27129.

Supreme Court of Missouri, Court en Banc.

November 15, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

E.T. Miller, A.P. Stewart and C.H. Skinker for appellant.

(1) The court erred in striking out the pleaded defense of contributory negligence of David J. Herrell, one of the parents and beneficiaries. Under our statute the right of action for the wrongful death of an unmarried minor vests in the father and mother, and one cannot alone maintain the action. The contributory negligence of one parent causing the death of the minor bars recovery by both parents, since they are joint and equal beneficiaries. R.S. 1919, sec. 4217; Clark v. Railroad, 219 Mo. 524; 13 Cyc. 324; 17 C.J. 1244; Wiese v. Remme, 140 Mo. 289; Jensen v. Kansas City, 181 Mo. App. 359; Turner v. Railway (Kan.), 189 Pac. 376; Heath v. Wylie (Wash.), 186 Pac. 313; Flintoff v. Traction Co. (Mich.), 175 N.W. 438; Shaffer v. Mowery (Pa.), 108 Atl. 654; Sandel v. State (S.C.), 104 S.E. 567; Anderson v. Railway (Tenn.), 227 S.W. 39; Wolf v. Railroad (Ohio), 45 N.E. 708; Cleveland, etc. Ry. v. Workman (Ohio), 64 N.E. 582; Clay Co. v. Budno, 269 Fed. 508. (2) The contributory negligence of the father was a defense, at least pro tanto, and it was error to strike out this defense. Where both parents bring the suit for the death of their minor child the contributory negligence of the father is at least a good defense as to him. 8 R.C.L. 786, sec. 67; 17 C.J. 1244, sec. 93. A contrary holding is not authorized by Phillips v. Denver City Tramway Co., 53 Colo. 458, and under the greater weight of authority and under the rule of reason and justice, where the father and mother sue for the death of their minor child, the contributory negligence of the father is at least a good defense as against him.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) The question whether and how far, if at all, the contributory negligence of one parent bars recovery in an action by both is answered in the case of Kokesh v. Price, 136 Minn. 304, 23 A.L.R. 643. (2) The answer in this case pleaded the contributory negligence of the father as a complete bar to the action, and that was the part stricken out. The question whether the negligence of the father can be imputed to the mother was fully answered in the negative in the divisional opinion. Other cases to the same effect are: Danforth v. Emmons, 124 Me. 156; Hines v. McCullers, 121 Miss. 666.

RAGLAND, J.

The plaintiffs sue for the wrongful death of their son Roy Herrell, an unmarried minor, asking the $10,000 penalty allowed by Section 4217, Revised Statutes 1919. The son was an able-bodied young man over nineteen years old, living with his parents and working on their farm in Jefferson County. In January, 1924, he was driving his father in the latter's Ford coupe to a near-by town where the father intended to pay his taxes. The automobile was struck by one of the defendant's freight trains at a public highway crossing in the unincorporated village of Imperial, and as a result the son received injuries from which he died and the father was badly hurt. This suit was filed in the city of St. Louis. In a jury trial the plaintiffs were awarded the full $10,000, and the defendant has appealed.

The father also brought a separate action for his own injuries and recovered a judgment which was recently affirmed by this court, the cause being entitled David J. Herrell v. St. Louis-San Francisco Railway Co., 322 Mo. 551. The facts are fully stated in this other case. The evidence, the instructions and the assignments of error in the two proceedings are so much alike that we shall, without further statement, treat the ruling in the father's case as decisive of all questions presented here, except one.

The respondents submitted their case to the jury on issues as to the appellant's primary negligence and also under the humanitarian doctrine. The appellant sought by its answer to plead as a defense the contributory negligence of the father, viz., negligent failure to look and listen for the approach of the train and to warn his son. The respondents moved to strike out this plea, alleging it constituted no defense to the plaintiff's cause of action. The court sustained the motion, and at the close of the testimony also gave an instruction for respondents on the measure of damages, permitting them to recover up to the $10,000 maximum fixed by the statute.

Appellant assigns error in the ruling on the motion and in the giving of the instruction, on the grounds that the contributory negligence of the father would have been and was a good and complete defense against its alleged primary negligence: (1) as affecting both respondents, the father and the mother; (2) or, if not that, it was good at least as to the father, limiting the recovery to the mother's one-half interest in the judgment, a maximum of $5000. This question, or these two questions really, are the only ones remaining in the case.

I. The statute, Section 4217, was enacted in 1855. From the beginning this court has held that contributory negligence, generally speaking, is a defense to an action Contributory thereunder, absent pleading and proof bringing the Negligence case within the humanitarian doctrine. We have held of Father that contributory negligence of the deceased is a as Defense. defense; that contributory negligence of both parents suing for the death of an unmarried minor is a defense; and that contributory negligence of the surviving parent is a defense where he or she prosecutes the action alone. But we have never expressly held that the contributory negligence of one parent where both sue for the death of an unmarried minor is a defense, either to the entire cause of action or to the extent of the alleged interest of the parent whose negligence concurred in causing the death. The question is one of first impression.

The defense of contributory negligence is grounded on the assumption that a court of law cannot apportion the damages arising from an injury caused by the co-operating negligence of both parties. [20 R.C.L. 102, sec. 88.]

"The maxim, that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, has no application... . The doctrine of contributory negligence does not rest on that maxim. Different grounds for the doctrine have been stated by judges and text-writers, but the most satisfactory is that the law will not undertake to apportion the consequences of concurring acts of negligence; and so when injury is caused by the concurring negligence of two or more persons, each is liable for all the damages thus caused, and for the same reason when damage is caused by the concurring negligence of both the plaintiff and defendant, the former cannot recover at all." [McKay v. Syracuse R.T. Ry. Co., 208 N.Y. 359, 363.]

In an action under Section 4217 no question of apportioning damages can arise: such an action is not for damages, but for penalty — assessed as a punishment for the commission of a wrongful act which results in death. In some instances the penalty is recoverable by persons who presumptively sustained pecuniary loss through the death; in others it is not. When it goes to persons sustaining loss, its serving in a measure as compensation — damages — is purely incidental. The recovery in its entirety is penalty: not damages. [Grier v. Railroad, 286 Mo. 523, 228 S.W. 454.] The allowance of the defense of contributory negligence in such an action is to relieve the wrongdoer against whom the statute is leveled of the consequences of his wrongful act — the payment of the penalty, merely because the act of another concurred with his in causing the death.

The statute recites:

"And such corporation, individual or individuals or such officer, servant, agent, employee master, pilot, engineer, or driver, may show as a defense that such death was caused by the negligence of the deceased. In suits instituted under this section, it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency, and that the injury received was not the result of unskillfulness, negligence or criminal intent."

Such defenses would seem obvious without being mentioned in the statute: the fact that they were designated seems to indicate that the lawmakers intended them to be preclusive: and there can be no question as to their power to so limit the defenses as to exclude that of contributory negligence. [Hines v. McCullers, 121 Miss. 666, 673.]

This court's construction of the statute permitting the defense of contributory negligence in certain cases is of too long standing to be set aside; but there is no rational ground for broadening it so as to include cases not now covered by our precedents.

We now turn to the case at hand. The applicable portion of the statute is as follows: "which" (the penalty) "may be sued for and recovered, ... if such deceased be a minor and unmarried ... by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor." Under settled construction, this language discloses "a legislative intent to vest the right of action in the parents jointly, with the incident of survivorship in favor of either parent in event of death of the other before judgment. [Senn v. Railroad, 124 Mo. 621, 626, 28 S.W. 66; Chawkley v. Railroad, 317 Mo. 782, 297 S.W. 20.] The cause of action, the right to the penalty, so vested in both parents is with respect to their ownership of it analogous to an estate by the entirety. Neither owns an undivided moiety of it: the survivor takes the whole. There is no separable interest until after the rendition of the judgment: the...