Long v. F. W. Woolworth Co.

• Decision Date: 30 June 1941
• Docket Number: No. 19851.,19851.
• Citation: Long v. F. W. Woolworth Co., 153 S.W.2d 88 (Mo. App. 1941)
• Parties: LONG v. F. W. WOOLWORTH CO.
• Court: Missouri Court of Appeals

153 S.W.2d 88

LONG v.F. W. WOOLWORTH CO.

No. 19851.

Kansas City Court of Appeals. Missouri.

June 30, 1941.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

Action by Oren Long, administrator of the estate of Ressie Long, deceased, against the F. W. Woolworth Company for injuries allegedly suffered by deceased during her lifetime.From a judgment in favor of plaintiff, defendant appeals.

Judgment reversed, and cause remanded.

Mosman, Rogers & Bell and Louis R. Weiss, all of Kansas City, for appellant.

Rufus Burrus of Independence, and Charles V. Garnett, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries alleged to have been suffered by one Ressie Long, deceased, during her lifetime.She brought suit against the defendant and recovered but, upon defendant's appeal, the judgment was reversed and the cause remanded.SeeLong v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85.Subsequently, she died and the suit was revived in the name of her husband, Oren Long, administrator of her estate.There was a verdict and judgment in favor of plaintiff in the sum of $2,000.Defendant has appealed.

On the day of the trial the court allowed plaintiff to amend the petition by interlineation by adding to the designation of the partyplaintiff before the words "Ressie Long" the following: "Oren Long, Administrator of the Estate of", and after the words "Ressie Long", the word, "deceased", so that after the amendment the designation of the partyplaintiff in the cause read as follows: "Oren Long, Administrator of the Estate of Ressie Long, Deceased, plaintiff".This was the only amendment made to the petition.

Thereupon, defendant filed a general demurrer, which was described therein as "Demurrer to the Petition".No formal amendment to the petition was filed, but the original petition, in effect, was amended by interlineation.In view of these facts, the defendant, in filing its demurrer, no doubt, treated the petition as amended by interlineation as "The Petition".The fact that the demurrer did not describe it as the "Amended Petition", made much of by plaintiff, is of no consequence but, as we view it, the demurrer should be regarded as directed to the petition as amended by interlineation.The demurrer was overruled and, thereafter, defendant filed an answer consisting of a general denial "To Plaintiff's Petition".

It is insisted that the petition, as amended by interlineation, fails to state a cause of action, for the reason that it does not allege that Ressie Long, the original plaintiff, did not die as a result of the personal injuries alleged in her petition to have been suffered by her.It is also contended that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of all of the testimony, for the reason, that there was no proof that she did not die as a result of the injuries alleged in the petition.Defendant also complains of the giving of plaintiff's general instruction directing a verdict, for the reason, that it did not have the jury find that Ressie Long did not die as a result of the personal injuries alleged in the petition.

We think the defendant's points in this respect are well taken.The administrator did not attempt to amend the petition, in any way, except to show that he was prosecuting the case as the administrator of the estate of deceased.At common law the cause of action of Ressie Long abated at her death and could only be continued by reason of the statute, Section 3670, R.S.1939, Mo.St.Ann. § 3280, p. 3398, which provides that a cause of action upon which suit has been brought by the injured party for personal injuries, "other than those resulting in death", shall not abate by reason of his death, but shall survive to the personal representative of such injured party, against the person, receiver or corporation liable, and the measure of damages shall be the same as if such death had not occurred.

Under this statute it is essential, before recovery may be had by the administrator, for him to allege, prove and have the jury find, that the injured party did not die as a result of the injuries suffered but that he died from some independent cause.Showen v. Met. St. Rys. Co., 164 Mo.App. 41, 148 S.W. 135; Greer, Adm. v. R.R.173 Mo.App. 276, 158 S.W. 740;Longan v. K. C. Rys. Co., 299 Mo. 561, 253 S.W. 758, 761;Adelsberger v. Sheehy, 336 Mo. 497, 79 S.W.2d 109;Jordan v. St. Jos. Ry. L. H. & P. Co, 335 Mo. 319, 73 S.W.2d 205.

However, plaintiff contends that there is no merit in the contention, for the reason, that the administrator did not abandon the original petition and plead anew the cause of action against the defendant, as was done in the Greer and Showen cases, supra, but merely adopted the petition of the deceased and, plaintiff claims, that under the provisions of Section 1046, R.S.1939, Mo. St.Ann. § 895, p. 1179, this was all plaintiff was required to do in order to state a cause of action.Section 1046, R.S.1939, reads as follows: "In all cases where a representative or successor is made a party to an action as herein provided, the pleadings of the party whom he represents or succeeds shall be taken to be his, which he may be allowed to amend; and proceedings may be had in all respects in favor of or against him, as if he had been an original party to the action."

There is no merit in this contention.Whether the petition states a cause of action is not to be determined by whether it was formally amended or amended by interlineation, on principle there could be no difference.As before stated, this proceeding is governed by the provisions of Section 3670, R.S.1939.

However, it is contended by the plaintiff that the record shows that both parties tried the case upon the theory that Ressie Long did not die as a result of the injuries she suffered and, in this connection, calls our attention to an occurrence at the trial in connection with the cross-examination of plaintiff, when defendant's counsel asked him:

"Q.Youas plaintiff administrator in this case don't claim that that accident or anything, any injury she received in that accident, caused her death, do you?

"Mr. Burris: I object to that because the pleading is the best evidence, and what it contains, what the claim of this plaintiff is, what this witness has to say about it doesn't make any difference at all, and I will say to the Court that the petition doesn't show this injury had anything to do with her death.We are only asking for injuries she sustained up to the time of death, that is the reason I think it is incompetent".

The court sustained the objection of counsel for plaintiff on the statement of said counsel that there was no claim in the petition that deceased came to her death because "of these injuries and that there is no allegation of such a state of facts nor no prayer for recovery based upon that in the petition, and that plaintiff is not here so claiming, the objection to the question will be sustained".

Defendant attempted to get the court to change its ruling and made a long argument in reference to the matter, amounting to a complaint that he was being unduly limited in the matter of his cross-examination of plaintiff.The court adherred to its ruling, stating that, the admission of plaintiff's counsel had enabled defendant's counsel to apprize "the jury of the fact that no such claim is being made, and thereby enables defendant's counsel to argue to the jury that so far as the element of damages is concerned they are not to take into consideration the fact if they believe it to be true or that it might have been true that deceased may or might have come to her death by virtue of these injuries.Defendant is certainly as completely at this time enabled to so argue as were the witness himself to answer the question which his counsel has disposed by admission.Hence the objection is sustained".

As defendant's counsel was not permitted to pursue his cross-examination of plaintiff along the line indicated by his question, it is not clearly shown by a reading of the question alone, that he propounded to plaintiff, to ascertain exactly what counsel for defendant was attempting to elicit by the question.However, it was treated by the court, and opposing counsel, as an effort to bring out whether plaintiff was seeking to include as damages those suffered as a result of the death of Ressie Long.It undoubtedly was the theory of counsel for plaintiff, and the court, that plaintiff was entitled to recover for the personal injuries suffered by his wife during her lifetime, without a consideration of the question as to whether she died as a result of those injuries, and that so long as plaintiff did not include a claim in his petition for damages for her death on account of her injuries, defendant had no right to examine plaintiff further about the matter.

Defendant had already attacked the petition by demurrer and, in view of the court's overruling of it, it was not at all inconsistent for defendant to attempt to do what it could to prevent a recovery for damages to include that for death, if that was its purpose.There was nothing inconsistent in such an attitude and the claim now made that the petition did not state a cause of action, because it did not allege any facts tending to show that deceased did not die as a result of the injuries she received from her fall.The admission of counsel for plaintiff"that the petition doesn't show that this injury had anything to do with the death", amounts to nothing, as plaintiff could not, by an admission, supply what he was required to plead and prove as a fact.

There is no evidence that defendant acquiesced, in...