Lochmann v. Brown

• Decision Date: 08 October 1929
• Docket Number: No. 20511.,20511.
• Parties: LOCHMANN v. BROWN et al.
• Court: Missouri Court of Appeals

20 S.W.2d 561

LOCHMANN v. BROWN et al.

No. 20511.

St. Louis Court of Appeals. Missouri.

October 8, 1929.

As Modified on Denial of Rehearing October 23, 1929.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Lena Lochmann against John W. Brown and others. Judgment of nonsuit against all defendants except Joseph W. Pickus, and, from a judgment against the latter, he appeals. Affirmed.

Kelley, Starke & Hassett, of St. Louis, for appellant.

Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

SUTTON, C.

Plaintiff brings this action for the wrongful death of her minor son, Joseph Lochmann. The action was originally brought against John W. Brown, Louis Pickus, Joseph W. Pickus, and Pickus Engineering & Construction Company. At the close of all the evidence, demurrers to the evidence were sustained as to defendants John W. Brown and Louis Pickus, whereupon plaintiff took an involuntary nonsuit as to said defendants with leave to move to set the same aside, and took a voluntary nonsuit as to defendant Pickus Engineering & Construction Company.

Plaintiff in her petition alleges that at and prior to the time of the death of her son he was single and unmarried, and was under the age of 21 years, to wit, of the age of 17 years, and left surviving him no children either natural born or adopted; that plaintiff is a widow, and that the father of her said son died long prior to the death of her said son; that on or about May 26, 1925, her said son was in the employ of defendants, and, while engaged in his duties as such employé at and about a certain automobile truck possessed and operated by defendants, her said son was severely burned and injured by the flames of gasoline, which directly and proximately resulted from negligence on the part of defendants, in this, to wit: (1) That defendants negligently ordered and directed plaintiff's said son to ride upon said automobile truck and to carry gasoline thereon; (2) that defendants negligently failed and omitted to equip said truck with an exhaust pipe, and by reason thereof there was danger of flame being emitted in such manner as to ignite said gasoline so carried on said truck; (3) that defendants negligently furnished plaintiff's son with said truck upon which to ride and carry said gasoline, when said truck was unsafe and dangerous, in that it would back-fire, and by reason thereof there was danger of said gasoline becoming ignited; (4) that defendants negligently suffered and permitted the vessel containing said gasoline to be exposed and uncovered and subject to ignition; (5) that defendants negligently failed and omitted to warn plaintiff's said son of the danger aforesaid.

The separate answer of defendant Joseph W. Pickus is a general denial, coupled with a plea of contributory negligence.

The trial, with a jury, resulted in a verdict for plaintiff against defendant Joseph W. Pickus for $8,000. The court required a remittitur of $1,500, and judgment was accordingly given for $6,500. Defendant Joseph W. Pickus appeals.

Appellant assigns error on the part of the trial court for the refusal of his demurrer to the evidence. He does not controvert the sufficiency of the evidence to make out a cause of action against him for negligence resulting in the death of plaintiff's son, but insists that his demurrer to the evidence should have been given, for the reason that there was no evidence to show that plaintiff's son was unmarried at the time of his death, or that he left no minor child or children surviving him, or that his father was dead. The failure to join both father and mother in an action for the wrongful death of their minor child is a mere defect of parties which must be challenged by demurrer, if the defect is apparent on the face of the petition, and, if not, then by answer. A compliance with this rule of procedure is essential; otherwise the defect will be considered waived. Sections 1226 and 1230, R. S. 1919; Godfrey v. Kansas City Light & Power Co., 213 Mo. App. 139, 247 S. W. 451; State ex rel. Kansas City Light & Power Co. v. Trimble (Mo. Sup.) 262 S. W. 357; Dunn v. Hannibal & St. Joseph R. Co., 68 Mo. 268; Rickey v. Tenbroeck, 63 Mo. 563; Butler v. Lawson, 72 Mo. 227; Garrett v. Cramer, 14 Mo. App. 401; Baxter v. St. Louis Transit Co., 198 Mo. 1, 95 S. W. 856; Ashton v. Penfield, 233 Mo. 391, 135 S. W. 938. Since the defect of the failure to join the deceased's father as a party plaintiff was not challenged by answer, the insistence that the evidence fails to show that the father was dead need not be further noticed.

As to the insistence that there was no evidence to show that plaintiff's son was unmarried and had no minor children at the time of his death, the evidence shows that he was a minor, slightly under the age of 18 years at the time he met his death; that he lived with his mother, and turned over all his earnings to her, except during a short period while he was working for the appellant near De Soto, when he retained only enough out of his wages to pay his board; that plaintiff provided him a small sum each week as pocket money and bought and paid for his clothing, even accompanying him when it was purchased, and paid for his medical attention. These facts shown in evidence were quite sufficient to warrant an inference that the deceased was unmarried and had no children. This is especially so in view of the fact that appellant offered not a scintilla of evidence, or even a suggestion, to the contrary, at the trial, and raised no question as to deceased's celibacy, and conducted himself throughout the trial as though this was not a contested issue. Jett v. Central Electric R. Co., 178 Mo. 664, 77 S. W. 738; Penney v. St. Joseph Stockyards Co., 212 Mo. 309, 111 S. W. 79; Lucius v. Wells (Mo. App.) 263 S. W. 546; Moffett v. Railroad Co. (C. C. A.) 220 F. 39, 41; Texas & Pacific R. Co. v. Lacey (C. C. A.) 185 F. 225, 227; Gray v. Hammond Lumber Co., 113 Or. 570, 232 P. 637, 233 P. 561, 234 P. 261; Lackland v. Nevins, 3 Mo. App. 335; Rucker v. Jackson, 180 Ala. 109, 60 So. 139, Ann. Cas. 1915C, 1058; Gaunt v. State, 50 N. J. Law, 490, 14 A. 600; Simpson v. Wells, 292 Mo. 301, 237 S. W. 520; Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 39 Am. Rep. 503; Roddy v. Missouri Pacific R. Co., 104 Mo. 234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333; Holmes v. Braidwood, 82 Mo. 610.

In Moffett v. Railroad Co., which is directly in point here, the court said:

"Among other things, it is contended by the defendant in error (who will hereinafter be referred to as defendant) that `there was no evidence that the decedent was a bachelor, or that he left no widow or child.' In view of the provisions of the statutes, it was necessary to allege and prove that the deceased left no widow or children surviving him in order to entitle plaintiff in this instance to recover. Garrett v. Louisville & N. R. Co., 197 F. 715, 117 C. C. A. 109; Michigan Central Railroad Co. v. Vreeland, 227 U. S. 59, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914-C, 176; American Railroad Co. v. Didricksen, 227 U. S. 145, 33 S. Ct. 224, 57 L. Ed. 456.

"While it is true that there was no direct evidence that the decedent was not married and had no children yet there was proof that he was about twenty-one years of age and resided with his mother; that his average wage was $53.27 per month. His stepfather, in testifying as to the contributions that he made to his mother after be became of age, among other things, said:

"`* * * He was always giving his mother; he was a mother's boy, and always giving to her. At any and all times he had anything to give he would give it to his mother.'

"* * * As we have stated, the mother of the decedent testified that he always contributed to her support, and that he would give her the last dollar he had; further, that he spent very little for himself, and that he only paid his board, and that she did not know that he bought any clothes while working for the company, but that he gave his money to her. These things probably would not have happened if he had had a wife and children. Indeed, the record shows that the trial was conducted by counsel on both sides on the assumption that the father and the mother were the nearest relatives. In view of this evidence, it...