Marshall v. Wabash Railroad Company

• Decision Date: 19 February 1894
• Citation: 25 S.W. 179,120 Mo. 275
• Parties: Marshall, Appellant, v. The Wabash Railroad Company
• Court: Missouri Supreme Court

25 S.W. 179

120 Mo. 275

Marshall, Appellant, v. The Wabash Railroad Company

Supreme Court of Missouri, First Division

February 19, 1894

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

Ball & Ball and J. T. Simon for appellant.

Under the pleading and evidence in this cause plaintiff made out against defendant a clear case of negligence, and the case should have been submitted to the jury. The instruction asked for by the defendant, and given at its instance by the court taking the case from the jury, was, we think, manifestly erroneous, and we ask a careful consideration of this error. The chief points relied upon by the appellant for the reversal of this case is the giving of the instruction at the conclusion of the evidence offered by the plaintiff withdrawing the case from the consideration of the jury. The plaintiff in this case is the proper, legal and only party entitled to maintain this action. The fact that she was never married, and that her deceased son, William H. Taylor, was born out of wedlock, was her child, and that Charley Taylor the putative father of William H. Taylor, deceased, was not made a party to this suit does not in any way affect her rights as the mother of William H. Taylor. The putative father is not recognized either by the written or unwritten law and has no legal existence, and is therefore dead to all intents and purposes. He is only known, if known at all, as a matter of fact to be living, as a matter of law he has no existence, and is an unknown quantity. Easly v. Gordon, 51 Mo.App. 637; Buel v. St. Louis Transfer Co., 45 Mo. 562; Crockett v. St. Louis Transfer Co., 52 Mo. 457 (affirming 45 Mo. 562).

F. W. Lehmann and Geo. S. Grover for respondent.

(1) Illegitimate relations are not within the meaning of the act giving a right of action on account of death resulting from a wrongful or negligent act. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; 1 Bacon's Abridgement, 757, 758; 2 Kent's Com., 212; 2 Roll. Abridgement, 785; Coke Litt., 123b; Westminster v. Gerrard, 2 Bulst. 346; Priestly v. Hughes, 11 East, 1; Blake v. Railroad, 18 Ad. & E. 93; Dickinson v. Railroad, 2 H. & C. 734; Gibson v. Railroad, 2 Ont. 658; Good v. Towns, 56 Vt. 410; Harkins v. Railroad, 15 Phil. 286; Marshall v. Railroad, 46 F. 269; Bent's Adm'rs v. St. Vrain, 30 Mo. 268; Safford v. Houghton, 48 Vt. 236; Stevenson's Heirs v. Sullivant, 5 Wheat. 207; Barnes v. Allen, 9 Am. Law Reg. (O. S.) 747. (2) In any event this suit can not be maintained by the mother alone, the father being alive. Coover v. Moore, 31 Mo. 574; Phillpot v. Railroad, 85 Mo. 164; Brooks v. Danville, 95 Pa. St. 158; Vawter v. Railroad, 84 Mo. 679; Hubbard v. Topeka, 34 F. 510; Blake v. Railroad, 10 Eng. Law & Eq. 443; Railroad v. La Gierse, 51 Texas, 189; Railroad v. Spoker, 59 Texas, 435; Railroad v. Culberson, 68 Texas, 664; Railroad v. Needham, 52 F. 371; S. C., 10 U. S. App. 129; S. C., 3 U.S.C. C. App. 129.

OPINION

Black, P. J.

This is an action under section 4425, Revised Statutes, 1889, generally known as the second section of the damage act, to recover $ 5,000 for the death of William H. Taylor. Besides a general denial, the answer states that the deceased was the illegitimate child of plaintiff and that the father is still living.

The deceased was about sixteen years old at the time of his death. He was the illegitimate child of the plaintiff and one Charles Taylor. The latter, though living, was not made a party to this suit. William H. Taylor died from injuries occasioned by the negligence of the servants of the defendant in running its train. The trial court directed a verdict for defendant. The questions presented here are whether the mother and her illegitimate child are within the meaning of the statute; and, if they are, whether the mother of such a child can prosecute the suit without joining the father of such child, the father being alive.

Section 4425 as it appears in the Revised Statutes of 1855, provides that whenever any person shall die from any injury occasioned in the manner and under the circumstances there stated, the negligent corporation or person shall "forfeit and pay" for every person so dying, the sum of $ 5,000, "which may be sued for and recovered," first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor." It was amended in 1885 under the title, "An act to amend sections * * * extending the rights of adopted children and their parents by adoption," so as to describe the persons who may sue as follows:

"First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; * * or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child * * * then by the father and mother who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor." Laws 1885, p. 153.

Counsel for the plaintiff place some reliance upon the words natural born child brought in by the amendment; but we can not see that these words are of any aid to the plaintiff. The term natural born as sometimes used means bastard; born out of wedlock. Bouv. Dict.; Cent. Dict. On the other hand it has been held that natural in a statute providing that adopted children shall have all the rights of natural children means legitimate. 9 Am. Law Reg. (O. S.) 747. Here the words are used simply to show that adopted children and the adopting parents are to have the benefit of the act, the same as in case of children by procreation. The title of the act indicates very clearly the object which the legislature had in view, namely, to "extend the rights of adopted children and their parents by adoption." It was believed the law as first enacted did not include adopted children or their parents by adoption, and hence the amendment. The words natural born child or children as here used mean, and mean no more than did the word child as it appeared in the act before the amendment.

The questions presented by this record are new in this court, and but few precedents are found in other courts. Dickinson v. Railroad, 2 H. & C. 735, was an action brought under the statute of 9 and 10 Vic. c. 93, known as Lord Campbell's Act, passed in 1846. That act provides "that every such action shall be for the benefit of the wife, husband, parent and children of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased," the amount recovered to be divided among the parties as the jury shall direct. The suit was brought in behalf of the mother and an illegitimate child of the deceased. It was held damages for the benefit of the child could not be recovered. Pollock, C. B., said: "But beyond all doubt in the construction of this act of parliament the word 'child' means legitimate child only." That case was decided in 1863, and was cited and approved in Gibson v. Railroad, 2 Ontario, 658, and, so far as we are advised, is the law in England at this day. See, also, Harkins v. Railroad, 15 Phil. 286, and Marshall v. Railroad, 46 F. 269.

Muhl's Adm'r v. Railroad, 10 Ohio St. 272, was based upon a statute of that state which provided that the action should be brought by the personal representative of the deceased and that the amount recovered should be distributed between the "widow and next of kin, in the proportion provided by law in relation to the distribution of personal estates left by persons dying intestate." The deceased left a lawful sister and and an illegitimate son. The trial court nonsuited the plaintiff because the child alleged in the petition to be next of kin was an illegitimate child. The supreme court reversed this ruling, holding that the...