Long v. F. W. Woolworth Co.
| Decision Date | 13 March 1942 |
| Docket Number | No. 37774.,37774. |
| Citation | 159 S.W.2d 619 |
| Parties | LONG v. F. W. WOOLWORTH CO. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.
Action for personal injuries by Ressie Long against F. W. Woolworth Company. Plaintiff having died, Oren Long, administrator of the estate of Ressie Long, deceased, was substituted as plaintiff. From a judgment for plaintiff, defendant appealed, and the appeal was certified by the dissent of the Presiding Judge of the Kansas City Court of Appeals, 153 S.W.2d 88.
Affirmed.
Louis R. Weiss and Mosman, Rogers & Bell, all of Kansas City, for appellant.
Rufus Burrus, of Independence, and Charles V. Garnett, of Kansas City, for respondent.
BARRETT, Commissioner.
The F. W. Woolworth Company's appeal from a $2,000 judgment was certified here by the dissent of the Presiding Judge of the Kansas City Court of Appeals. Long v. F. W. Woolworth Co., 153 S.W.2d 88.
On April 20, 1935, Ressie Long instituted this action, claiming to have been injured by reason of the defendant's negligence while she was an invitee in its store at Independence on August 28, 1934. In 1937 the Court of Appeals reversed and remanded her $3,000 judgment because of an erroneous instruction. Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W. 2d 85. Subsequently the defendant filed a suggestion of Ressie Long's death on August 28, 1938. Whereupon her husband, Oren Long, on March 10, 1939, filed a petition stating that he had been duly appointed the administrator of her estate and asked to be made a party plaintiff "so that the action as instituted by Ressie Long in her lifetime may be revived and the administrator proceed, unless the defendant shows good cause to the contrary." A summons to show cause why the case should not be so revived was served on the defendant. The trial court then made an order reciting his appointment and ordering the cause revived in the name of Oren Long, administrator. When the case came on for trial on June 10, 1940, the court permitted the plaintiff to amend the original petition by adding to the designation of the party plaintiff 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 style of the case read "Oren Long, Administrator of the Estate of Ressie Long, Deceased."
The defendant contends and the majority opinion of the Court of Appeals held that a demurrer should have been sustained to the petition for the reason "it did not affirmatively allege that plaintiff's decedent did not die as a result of her alleged injuries." The theory is that before a personal representative may continue an action for personal injuries "other than those resulting in death" under our survival statute (Sec. 3670, R.S.Mo.1939, Mo. Stat.Ann., § 3280, p. 3398), he must allege, prove and have the jury find that the injured party did not die as a result of the injuries complained of, but that death resulted from some other cause. The defendant contends that its construction of the statute is compelled by the following cases: State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W. 2d 762; Showen v. Metropolitan Street Ry. Co., 164 Mo.App. 41, 148 S.W. 135; Greer v. St. Louis, I. M. & S. Ry. Co., 173 Mo.App. 276, 158 S.W. 740; Longan v. Kansas City Rys. Co., 299 Mo. 561, 253 S.W. 758; Adelsberger v. Sheehy, 336 Mo. 497, 79 S.W.2d 109 and Jordan v. St. Joseph Ry. Light Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205.
There is and can be no question about the general rules with reference to the survival and abatement of actions announced by these cases and we do not believe it necessary to review them now. The cases do not, however, lay down a hard and fast rule inexorably applicable in all events to every instance of the injured party's death and the continuance of his cause of action in the name of his personal representative. On the contrary, every one of the cases was decided by applying the statute to the particular facts and circumstances of each case as it came before the court. Some of the cases are in point only in so far as the general principles discussed are applicable. For example, in O'Donnell v. Wells, supra, it was held to be jurisdictional that an administrator or other personal representative establish his right to maintain the action, consequently a wrongful death petition by an administratrix which failed to negative a surviving spouse did not state a cause of action. And, in State ex rel. National Refining Co. v. Seehorn, supra, the real question was whether the husband's action for the loss of his wife's society survived his death. No question is raised here as to whether or not this action survives, but the contention is that the continuation of the action is wholly dependent upon prescribed conditions which the plaintiff failed to plead and prove.
In Showen v. Metropolitan Street Ry. Co., Greer v. St. Louis, I. M. & S. Ry. Co., and Longan v. Kansas City Rys. Co., it was held that the plaintiff's personal representative failed to show that the deceased's death did not result from the injuries and negligence complained of and therefore such representative could not maintain the action. But in the Showen case the administrator filed an amended petition after the death of the injured plaintiff and thus abandoned the original petition and assumed the burden of pleading the elemental facts of the cause of action and the facts upon which depended his right to prosecute the action as well. But, the compelling circumstance in the case was, we submit, this [164 Mo.App. 41, 148 S.W. 136]: "The specific cause of his death is not shown, but a very strong inference arises from the evidence that the injury was the cause." Of course, if the death was due to the accident the administrator would not have a right to maintain the action unless he brought himself within the class entitled to do so. In the Longan case [299 Mo. 561, 253 S.W. 761] the court stressed the fact that "it does not appear from the record" whether Lucy Longan died from the effects of the injuries or from natural causes. In the Greer case Judge Sturgis very carefully weighed every fact and circumstance in the entire record in deciding whether or not it affirmatively appeared that the child's death was due to being burned or to other causes. There, it should be noted, the child was burned on August 16, 1911, and died on October 30, 1911. The administrator filed an amended petition, the latter part of which detailed the serious injuries and concluded by saying [173 Mo. App. 276, 158 S.W. 742] "that by reason thereof said Berryl suffered until his death great physical pain and mental anguish." The conclusive fact, however, was "the latter part of the petition, above quoted, would suggest that the injuries complained of did result in the death of this child, rather than the contrary." Again, of course, if the child died because of the accident and its resulting injuries the case would then fall under the death statutes and not the survival statute. Finally, it should be noted that the accident, death and revival were all well within the statute of limitations for death cases.
In Adelsberger v. Sheehy, supra, the petition and instructions specifically excluded death from the injuries but the question was one of fact which, under the evidence, was for the jury.
In contrast to the above cases it was held in Jordan v. St. Joseph Ry. Light Heat & Power Co., supra, that the administrator had discharged his burden of affirmatively showing that the deceased's death was not due to the injuries though the fact was not pleaded. There Jordan died while an appeal was pending and the case was revived in the Supreme Court by agreement of the parties. After the appeal was remanded the plaintiff amended the original petition by interlineation, apparently in exactly the same manner as in the instant case. The second appeal was ten years after the accident. Again, Judge Sturgis very carefully considered every fact and circumstance in the case. If it were not for unduly lengthening this opinion, it would be profitable to quote fully from the many things considered by him. No one factor was determinative, all the facts were considered. The entire record was searched. The issues on the first trial and the second trial were identical, the only change was in the caption of the petition. There was no reference in the petition or elsewhere to Jordan's being dead. There was no reference in the body of the petition to the plaintiff as "Administrator." The petition stressed the injuries received, medical attention required and especially great pain and suffering. That the case had been revived in the Supreme Court by agreement had some weight. Even that the parties had agreed that death was not due to the injuries was not final. Some weight was given the fact that any cause of action for wrongful death was barred by the lapse of time and that death cases constitute new causes of action which are not derivative, transmissible or survival actions.
This case demonstrates that the rule is not a fixed, definite formula applicable in any circumstance to every action for personal injuries continued by one's personal representative under the survival statute. Each case must be determined on its facts and if it clearly appears that the action was in fact a continuation of the suit as originally instituted and that the plaintiff's death was not due to the negligence and injuries complained of and there was and could be no issue as to the fact it is not necessary to plead and prove it. In such instances the "pleadings of the party whom he represents or succeeds shall be taken to be his." Sec. 1046, R.S.Mo.1939, Mo.Stat.Ann., § 895, p. 1179.
Applying these cases and the tests suggested to the instant case, it was not necessary for ...
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