King v. St. Louis & S. F. R. Co.

• Decision Date: 14 April 1908
• Citation: 109 S.W. 859,130 Mo. App. 368
• Parties: KING v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

109 S.W. 859

130 Mo. App. 368

KING v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. ACTION — JOINDER OF CAUSES OF ACTION — STATUTORY ACTIONS FOR DEATH — PETITION — SEPARATE COUNTS.

The right of action given by Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), for a death caused by the negligence of an employé operating a train, and the right of action given by section 2865 (page 1644) for a death caused by negligence of defendant, etc. may be joined in one petition when stated in separate counts.

2. DEATH — ACTIONS FOR CAUSING DEATH — INSTRUCTIONS — AMOUNT OF RECOVERY.

A petition in an action against a railroad for negligent death alleged a negligent failure to provide regulations for the management of cars where the accident occurred, and a failure to give warning to decedent, who was killed between cars which were being coupled, that a coupling was to be made. The court submitted the issue of the negligence of the railroad in running and operating its trains. Held that a recovery was predicated on the right of action given by Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), for death caused by negligence in the operation of trains, and an instruction authorizing a recovery for such damages as the jury believed to be just, not exceeding $5,000, was erroneous; a finding for plaintiff in an action under that section requiring a verdict for the full amount of $5,000.

3. SAME.

Where, in an action against a railroad for negligent death, the instructions requested by it only dealt with its alleged negligence in operating a train, it did not waive its objection to a recovery under Rev. St. 1899, § 2865 (Ann. St. 1906, p. 1644), authorizing an action for death caused by the negligence of defendant, and could insist that the action was predicated on section 2864 (page 1637), authorizing an action for death caused by the negligence in the operation of trains, especially where it objected to the instruction authorizing the jury to return a verdict for such damages as they believed to be just, not exceeding $5,000; a verdict, under section 2864, in plaintiff's favor, being required to be for the full amount of $5,000.

Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Action by Mary J. King against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. J. Orr, for appellant.

GOODE, J.

Plaintiff, as the widow of W. C. King, obtained judgment against defendant for $4,000 for the death of her husband alleged to have been caused by defendant's negligence. Aside from the proposition that it conclusively appeared the deceased contributed to his death by his own negligence, the main contention of the defendant in favor of a reversal of the judgment is an instruction on the measure of damages permitting the jury, if they found the issues for plaintiff, to return a verdict for such damages as they believed to be fair and just, not exceeding $5,000. The petition is said to declare on section 2864, Rev. St. 1899 (Ann. St. 1906, p. 1637). It was held by the Supreme Court in Casey v. Transit Co. (Mo.) 103 S. W. 1446, that, when the facts of an action for damages for a death negligently caused ranged the case under section 2864 of the Statutes, a verdict for the plaintiff must assess the damages at the full statutory penalty, to wit, $5,000, as otherwise the defendant would be deprived of the right to appeal to said court, which said section intends it shall enjoy. It is true this statute has been amended so as to provide both a minimum and a maximum penalty; but the present cause accrued prior to the amendment. In the Casey Case, which was certified from this court to the Supreme Court, the latter tribunal ruled in opposition to the opinion of this one that, if the negligence which caused the death is of the character described in section 2864, an action for damages will not lie under sections 2865 and 2866 (pages 1644, 1646), but must be founded on section 2864. In other words, the recovery must be for the full penalty instead of for an amount not exceeding the penalty, as section 2866 provides it may be in an action founded on section 2865. This was a determination of the very point at issue; but two arguments are advanced by plaintiff's counsel to show it should not occasion a...