Johnson v. Dixie Mining & Dev. Company
| Citation | 156 S.W. 33,171 Mo.App. 134 |
| Parties | JOHN Q. JOHNSON, Administrator of the Estate of ARTHUR JOHNSON, Deceased, Appellant, v. DIXIE MINING & DEVELOPMENT COMPANY, Respondent |
| Decision Date | 07 April 1913 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Jasper Circuit Court, Division Number One.--Hon. Joseph D. Perkins, Judge.
Judgment affirmed.
Clay & Davis for appellant.
(1) The demurrer should have been overruled, because: First. The petition alleges that the deceased was, at the time of his death, above 21 years of age, that he left surviving him neither wife, minor child or minor children, natural born or adopted, the appointment of plaintiff as administrator, and that the deceased lost his life on account of certain specified acts of negligence of defendant. Second. Trial courts have no authority to order distribution of the amount recovered by administrators and executors in actions founded upon Sec. 5426, R. S. 1909, and it was, therefore unnecessary for plaintiff to set out in his petition the names of the next of kin of the deceased. Railroad v Then, 42 Ill. 791; United Breweries Co. v O'Donnell, 77 N. E. (Ill.) 547; Howard v. Canal Co., 40 F. 195, 6 L. R. A. 75; Railroad v. Bradford, 6 So. (Ala.) 90; Warner v. Railroad, 94 N. Car. 250; Tel. Co. v. Simmons' Admr., 36 S.W. 171; Searl's Admr. v. Railroad, 9 S. E. (W. Va.) 248; Budd v. Railroad, 37 A. 683; Pilkin v. Railroad, 30 A. 772; James v. Railroad, 9 So. (Ala.) 335; Southern Pac. Co. v. Wilson, 85 P. 401. Third. The damages recoverable under Sec. 5426, R. S. 1909, are general damages, and it is not required of the pleader to plead facts showing how the husband, wife, minor child or minor children, the next of kin, or the estate of the deceased, as the case may be, are damaged. Ellings v. Railroad, 60 Mo.App. 679. Fourth. Sec. 5426, R. S. 1909, imposes an absolute liability upon the person or corporation causing the death of another by wrongful act, neglect or default, and the law presumes that the husband, wife, minor child or minor children, the next of kin, or the estate of a person losing his or her life on account of the wrongful act, neglect or default of another, as the case may be, suffers damages; and plaintiff was, therefore, entitled to a judgment for nominal damages, at least, if he could have sustained the charges of negligence. Railroad v. Brodie, 40 N. E. (Ill) 942; Rhodes v. Railroad, 81 N. E. (Ill.) 371, II Am. & Eng. Ann. Cases 3; Howard v. Canal Co., 40 F. 195, 6 L. R. A. 75; Railroad v. Weber, 6 Pac. (Kan.) 877; Fordyce v. McCants, 4 L. R. A. (Ark.) 296; Railroad v. Ryan, 64 P. 603; Anderson v. Railroad, 52 N.W. 840; 4 Southerland on Damages (3 Ed.), sec. 1264; Coal Co. v. Limb, 28 P. 181. Fifth. The damages recoverable under Sec. 5426. R. S. 1909, in an action prosecuted by the executor or administrator, are for the benefit of the estate of the deceased, to be administered as other personal estate; and, in such an action, the measure of damages is what the deceased would have saved to his estate, if he had lived. Electric Co. v. Bowder, 45 So. 755, 15 L. R. A. (N. S.) 451; Railroad v. Sullivan, 120 F. 799, 57 C. C. A. 167; Coal, Coke & Iron Co. v. Enslen, 30 So. 603; In re Meeking, 164 N.Y. 145, 51 L. R. A. 235; Railroad v. Spencer, 51 L. R. A. (Col.) 121; Southern Pac. Co. v. Wilson, 85 P. 401. (2) When the law presumes a fact, it should not be pleaded. Bliss on Code Pleading (2 Ed.), sec. 175. Facts which are implied or presumed to exist, from facts stated, need not be pleaded. Duff v. Fire Association, 129 Mo. 460; McIntosh v. Rankin, 134 Mo. 340. (3) It is generally presumed that a person dying left heirs capable of succeeding to his estate, unless the contrary appears. 14 Cyc. 99, d, and cases cited; 22 Am. & Eng. Ency. Law (2 Ed.), p. 1291, and cases cited; Daudt v. Music, 9 Mo.App. 169; In re Taylor, 20 N.Y.S. 960; In re Clark, 116 N.Y.S. 101. (4) The presumption that a person dying intestate has left heirs capable of succeeding to his estate can be repelled only by proof. Harvey v. Thornton, 14 Ill. 217, cited in 16 Cent. Dig., title Des. & Dis., sec. 233, col. 1609.
Spencer, Grayston & Spencer for respondent.
(1) The attempt to authorize an administrator to sue without providing the beneficiaries for such a suit coupled with the provision that the jury shall give damages with reference to the necessary injury to survivors who are entitled to sue may be void for uncertainty or by reason of the contradictory provisions which render the statute unenforceable as written. The courts are not authorized to rewrite statutes or to supply provisions to remedy the mistakes and omissions of the legislative department of our government. Bank v. Hale, 59 N.Y. 57 and 58; State ex rel. v. Ashbrook, 154 Mo. 393; Kehr v. Columbia, 136 Mo.App. 322. (2) There is no presumption of injury to one who is not specifically authorized to sue for the death of another. A petition is not sufficient which does not disclose facts showing how such plaintiff suffered loss by reason of the death. Regan, Admr. v. Railroad, 51 Wis. 599, 8 N.W. 292; Schwartz, Admr., v. Judd, 28 Minn. 371, 10 N.W. 208. (3) The injured survivor sues through the administrator as a trustee rather than as an administrator. Hegberg v. Railroad Co., 164 Mo.App. 514, 147 S.W. 192. (4) The use of the word "surviving" in section 5427 to qualify "parties who may be entitled to sue," is inconsistent with the idea that a cause of action is given to the general estate of the deceased. A recovery in behalf of the general estate of deceased would inure to the benefit of creditors. The word "survivor" would not include creditors. Koerts v. Grand Lodge, 119 Wis. 520, 97 N.W. 163. (5) An unbroken line of decisions in this State hold that secs. 5426 and 5427 contemplate only the recovery of compensation. The statute authorizes the recovery of such "damages" as the jury "may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue." This means the pecuniary injury necessarily resulting from such death. McGowan v. Ore & Steele Co., 109 Mo. 518; Knight v. Co., 75 Mo.App. 541, and cases cited. (6) Where an infant sues for death of father, the loss of father's services as means of support during minority, is the correct measure of damages. McPherson v. Railroad, 97 Mo. 253; Goss v. Railroad, 50 Mo.App. 614; Sipple v. Co., 125 Mo.App. 81. (7) "Necessary injury" resulting to parent from negligent killing of minor child consists in loss of services of child during minority, with medical and funeral expenses. Rains v. Railroad, 71 Mo. 164; Calcaterra v. Iovaldi, 123 Mo.App. 347. (8) Loss of society is not an element of damage. Marshall v. Co., 119 Mo.App. 270, and cases cited; Leahy v. Davis, 121 Mo. 227. (9) Nor is plaintiff's mental anguish or distress for the death. Cases last above cited; Parsons v. Co., 94 Mo. 286; Goss v. Ry., 50 Mo.App. 614; Barth v. Ry., 142 Mo. 535; Knight v. Co., 75 Mo.App. at 550. (10) Nor is the physical pain of the deceased. McGowan v. Co., 109 Mo. 531. (11) Sec. 8523, R. S. 1909, provides that in case of death of injured "then damages for such injury or death may be recovered as provided by section 5425." This permits only a recovery for damages, by way of compensation, and not for a penalty. The reference only means that the parties therein designated may sue for and recover damages for such injury or death. In other words the act, by reference only, adopts the designation of the parties, who may sue. It does not adopt the penalty provision, and of course does not adopt the scheme of distribution of the money when recovered by an administrator. Nicholas v. Kelley, 159 Mo.App. 20. (12) The action is statutory and the person suing must bring himself within the statutory requirements necessary to confer the right of action, and this must appear in the petition; otherwise, it will show no cause of action. Barker v. Railroad, 91 Mo. 86; McIntosh v. Mo., 103 Mo. 131. (13) If in a suit by an administrator under section 5427, the recovery can only be by way of compensation for the pecuniary injury necessarily resulting from the death, then facts must be pleaded showing the existence of some person who sustained such injury and is entitled to be compensated therefor. The administrator, as such, does not occupy this position.
This action was instituted in the circuit court of Jasper county by John Q. Johnson, the administrator of the estate of Arthur Johnson, deceased, for damages for the alleged negligent killing of the deceased while in defendant's employ. Deceased at the time of his death was over the age of twenty-one years, and left no wife, minor child or minor children, natural born or adopted, surviving him. The petition charges that deceased lost his life by reason of the negligent failure of the defendant to furnish him a reasonably safe place in which to do his work. The suit was brought under sections 5426 and 5427, Revised Statutes 1909. The defendant demurred to the petition for the reason that it failed to state facts sufficient to constitute a cause of action in that the administrator failed to allege the name or names of the beneficiaries for whom he sued and for a failure to allege a state of facts from which the measure of damages in an action brought under these sections could be ascertained. The petition merely alleged that plaintiff was the duly appointed administrator, set out the acts of negligence complained of and the death of the deceased resulting therefrom, and alleged that the estate of the deceased had sustained injury, and the prayer was as follows "Wherefore, plaintiff says the estate of the deceased has been damaged...
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