Matlock v. Williamsville, Greenville & St. Louis Railway Company
| Decision Date | 03 July 1906 |
| Parties | MATLOCK, Appellant, v. WILLIAMSVILLE, GREENVILLE & ST. LOUIS RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Wayne Circuit Court. -- Hon. Frank R. Dearing, Judge.
Reversed and remanded.
O. L Munger and C. M. Hay for appellant.
(1) The case falls under section 2864, Revised Statutes 1899. Miller v. Railroad, 109 Mo. 361; Sullivan v Railroad, 97 Mo. 113; Rinard v. Railroad, 164 Mo. 270. (2) The right to bring an action of this sort is founded upon the relation of parent and child and not that of master and servant; it is the right of the father and mother or father or mother to recover damages which the son might have recovered had he survived the injury. Hennessy v Brewing Company, 145 Mo. 104; Crockett v. Transfer Company, 45 Mo. 564; Proctor v. Railroad, 64 Mo. 112; Sharp v. National Biscuit Company, 179 Mo. 553. (3) This section, as well as being compensatory, is of a penal or police nature, and can, without objection, subserve both purposes at one and the same time. Philpott v. Railroad, 85 Mo. 164; Marsh v. Railroad, 104 Mo.App. 583. (4) Philpott v. Railroad, supra.
Gamble, Petherbridge & Taylor for respondent.
The giving of the instruction complained of did not constitute error. 11 Am. and Eng. Ency. Law, 421, 427, 428, 431.
This is an action brought by Jason L. Matlock against the defendant railway company for damages to the amount of $ 5,000, under section 2864, Revised Statutes 1899, for the killing of plaintiff's minor son.
The deceased was at the time of his death eighteen years and eight months old, and unmarried. The plaintiff is his sole surviving parent. The defendant is a railroad company owning and operating a line of railroad in Wayne county, Missouri. Deceased at the time of his death and for two weeks prior thereto, was in the employ of the defendant company as a brakeman on a log train running out to the woods from Greenville. While at his post of duty on said train, on the 24th day of April, 1901, he was killed, and this action is instituted for the damages arising to his father from his death.
There was evidence tending to show that the death of the son of plaintiff was the result of negligence and unskillfullness of the defendant's conductor in charge of the train, but it is unnecessary to set forth the evidence on this point for the reason that the only point alleged by plaintiff on this appeal is the alleged error of the court in giving the following instruction:
"The court instructs the jury that if you believe from the evidence that the son of plaintiff fraudulently represented himself to be twenty-one years of age in order to secure employment as a brakeman on defendant's railroad, and further find from the evidence that prior to his employment on the railroad, plaintiff had permitted him to be employed by the lumber company at Greenville, and had permitted him to receive his wages for such work without objection, and if you further find the defendant's superintendent believed the statement and representation of said son of plaintiff that he was of age, and further find that plaintiff learned of such before the death of his son and made no objection to said employment by defendant railroad company, then in that event, the plaintiff is not entitled to recover."
There was evidence tending to prove that the deceased Jason Matlock did represent himself to be twenty-one years of age for the purpose of securing employment from the defendant railroad, and that this representation was believed by the defendant's superintendent. There was also evidence that prior to his employment by the defendant, the deceased worked for the Holliday-Klotz Land & Lumber Company, and received a greater part of his wages therefor without any objection on the part of his father, the plaintiff herein. There was evidence also that the plaintiff learned of his son's employment as brakeman about four or five days before the latter's death, and in the interim made no objection to the same.
This action is predicated on section 2864, Revised Statutes 1899, which provides that: "Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant, or employee whilst running, conducting or managing any locomotive, car or train of cars . . . the corporation, individual or individuals in whose employ any such officer, agent, servant . . . or employee shall be at the time such injury is committed, or who owns any such locomotive . . . at the time any injury is received resulting from or occasioned by any . . . unskillfulness, negligence or criminal intent above declared, shall forfeit and pay for every person so dying, the sum of five thousand dollars, which may be sued for and recovered . . . if such deceased be a minor and unmarried . . . by the father and mother, who may join in the suit . . . or if either of them be dead, then by the survivor."
I. It is obvious that by this instruction the court directed the jury to pass upon issues entirely separate from the question of negligence charged in the petition, and made it possible for the jury to reach a verdict against the plaintiff without taking into consideration any other testimony than that bearing directly upon the questions of misrepresentation as to his age by the deceased or his emancipation by the plaintiff. If the jury believed that the plaintiff had in legal effect emancipated his son, and that the deceased had falsely represented himself to the defendant superintendent to be twenty-one years old for the purpose of securing employment, then the plaintiff could not recover whatever the jury might have found as to the defendant's conduct towards the deceased. The issue of negligence was practically eliminated from the case. That this instruction, in so far as it was predicated upon the emancipation of plaintiff's son by the plaintiff as a defense to this action was erroneous, was settled by this court in Philpott v. Railroad, 85 Mo. 164. The right to recover is not made to depend upon services which the deceased could have rendered to his father. As said by Judge Black in the Philpott...
To continue reading
Request your trial