McCord v. Schaff
| Decision Date | 14 October 1919 |
| Parties | JAMES McCORD, Administrator of Estate of ORVIS McCORD, v. CHARLES E. SCHAFF, Receiver of Missouri, Kansas & Texas Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis Judge.
Reversed and remanded.
J. W Jamison for appellant.
(1) The court erred in overruling defendant's peremptory instruction to find for the defendant. The specification of negligence on which plaintiff went to the jury was in substance and effect that the explosion was occasioned solely by the negligence of the engineer in failing to see that the engine was properly supplied with water. Plaintiff must stand or fall under the foregoing specific charge of negligence. Northam v. United Rys. Co., 176 S.W. 229; McNamee v. Ry. Co., 135 Mo. 447; Yall v Gillham, 187 Mo. 408; Roscoe v. Ry. Co., 202 Mo. 588; Kirkpatrick v. Ry. Co., 211 Mo. 83; Davidson v. Transit Co., 211 Mo. 361; Price v Ry. Co., 220 Mo. 454; Applegate v. Ry. Co., 252 Mo. 197. (2) If the explosion resulted from defects in the water glass and gauge cocks or other appliances, plaintiff cannot recover, because he elected to abandon that theory and relied solely on alleged negligence on part of the engineer. Authorities supra; Cunningham v. Journal Co., 95 Mo.App. 47; Jones v. Cooperage Co., 134 Mo.App. 324; Armour & Co. v. Arbuckle, 123 C.C.A. 435. (3) The inference is clear that the low water in the boiler was due to the negligence of the fireman, and, therefore, plaintiff has no case. Va. Ry. Co. v. Linkous, 144 C.C.A. 386; Louisville Ry. Co. v. Short, 73 So. 17; Gr. Northern Ry. Co. v. Wiles, 240 U.S. 444. (4) The evidence was insufficient to justify the court authorizing the jury to award the father and mother of deceased any amount as compensation on the theory that they had sustained a substantial pecuniary loss on account of the death of their son. The evidence, at most, merely showed that the deceased son made only occasional gifts of small amounts to his father and mother. An occasional contribution from a son to a parent does not establish a condition of dependency. Bortel v Northern Pac. Ry. Co. 111 P. 788; Garrett v. Ry., 235 U.S. 313; Vining v. Rexford, 120 C.C.A. 418. (5) The evidence was not sufficient to authorize the giving by the court of plaintiff's instruction authorizing the assessment of any damages. Moreover, neither the facts nor the law warrant the giving of said instruction. No tables of mortality, or other evidence, were offered tending to show the expectancy of life of the deceased son. No proof was offered as to the expectancy of life of the father and mother of deceased to each of whom the jury in its verdict awarded damages in the sum of $ 5000. No evidence was offered of the present cash value of the future benefits of which the beneficiaries were deprived by the death, making adequate allowance according to the circumstances for the earning power of money. Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 458; Stevens v. L. & P. Co., 208 S.W. 630; Smith v. Pryor, 195 Mo.App. 259; Jones v. Railroad, 78 So. 568. (6) The verdict of the jury in awarding the father and mother of deceased each the sum of $ 5000 was grossly excessive. Panhandle Ry. Co. v. Huckabee, 207 S.W. 329; Bagley v. St. Louis. 268 Mo. 259.
Claude Wilkerson and E. P. Sizer for respondent.
(1) It is claimed the evidence was not sufficient to justify an award of damages to the father and mother. The trouble with appellant on this point is that he starts with the erroneous assumption that the evidence "at most only shows occasional gifts." This might be true as to the "dress patterns" and gifts to the mother and sister, but not so of the monthly payments of five to fifty dollars -- "and other times he would send every pay check; the largest amount was $ 50." "Then as he would have good or bad months it would range five, ten and twenty dollars per month." This is a substantial showing of pecuniary loss and should support the verdict. Railroad v. Callard, 185 S.W. 1108; Railroad v. Thome, 185 S.W. 840; Rains v. Railroad, 85 S.E. 294; Dooley v. Railroad, 79 S.E. 970. The case of Smith v. Pryor, 195 Mo.App. 259, cited and relied upon by appellant, is not in point, as deceased in that case left no children or parents and his only "next of kin" was a half sister, who had been married and was 47 years old. It is only when the action is prosecuted under the Federal Act for "next of kin" other than widow, children or parents, that it is necessary to show dependency of the beneficiaries. Dooley v. Railroad, 79 S.E. 970; Smith v. Pryor, 195 Mo.App. 264. (2) Appellant contends that it was error to give instruction 3 on measure of damages, because of the alleged failure to introduce the mortuary tables to show expectancy of the deceased and the parents. The case of Railroad v. Kelly, 241 U.S. 458, nowhere lays down the rule that the tables must be introduced. While such tables might be competent testimony under certain restrictions, they are not the absolute guide and are only advisory. Railroad v. Putnam, 118 U.S. 545. But as wise as are the judges of the Supreme Court of the United States, that court in the Kelly case, in the concluding paragraph, refuses to hazard even a guess at what should be the proper formula to submit to a jury the question of the pecuniary loss, and contents itself with subjoining an interminable list of decisions from the various states to show how hopelessly in conflict are the appellate courts. Railroad v. Kelly, 60 L.Ed. 1123. The next decision relied upon by appellant is the case of Stevens v. K. C. Light Co., 208 S.W. 630. This case is plainly authority for respondent instead of appellant, and shows the wisdom of refusing to follow such tables as absolutely guides. (3) Defendant is now precluded from raising any objection to the instruction on the measure of damages, because if he wanted a more definite instruction he should have requested such; and having failed to do so, is now precluded. Frisco v. Brown, 60 L.Ed. 970; Railroad v. Skaggs, 60 L.Ed. 531; Railroad v. Ernest, 60 L.Ed. 1100. When plaintiff's instructions are right as far as they go, the duty is on defendant to request more definite instructions before he will be permitted to convict the trial court of error. Browning v. Railroad, 124 Mo. 55; Minter v. Bradstreet, 174 Mo. 491; Smith v. Fordyce, 190 Mo. 31; Waddell v. Railroad, 213 Mo. 8; Armelio v. Whitman, 127 Mo.App. 698. (4) Under all the circumstances the verdict is fair and just and should not be disturbed. When we consider the value of all that McCord was doing for his parents, which was pecuniary, and that under the McCullough case, prospective gifts, etc., are elements of a pecuniary value to be taken into consideration by the jury, together with the natural increasing wants of the parents as age comes on apace, and the increasing ability of the son to support them, we respectfully claim the verdict is right and just. McCullough v. Railway, 160 Iowa 524; Dooley v. Railroad, 79 S.E. 970; Railroad v. Dyer, 172 S.W. 18.
MOZLEY, C. Railey, C., not sitting; White, C., concurs. Walker and Faris, JJ., concur; Williams, P. J., dissents.
This action was brought under the Federal Employers' Liability Act and seeks to recover damages on account of the death of Orvis McCord, who was a fireman on an engine and an inter-state employee of defendant. On the 4th day of July, 1916, the engine on which McCord was working as fireman, when about fifteen miles from Sedalia, Pettis County, Missouri, pulling an extra freight, exploded, and so injured McCord that he died a few hours later without regaining consciousness. The explosion occurred by reason of not having sufficient water in the boiler of the engine. In addition to the fireman, the engineer and a student fireman were on the engine at the time, but there is nothing in the record of any injury to either of them.
The petition was in two counts identical, except in count one it was sought to recover for alleged conscious pain between the time of the accident and the death of McCord a few hours later, but upon this count the jury found for the defendant. The second count was finally amended so that the cause of action was based upon the alleged negligence of the engineer in failing to see that said engine was supplied with sufficient water to the boiler to prevent an explosion. It is conceded, however, by both sides that the explosion happened because the water was allowed to get too low in the boiler to cover the crown shield.
At the time of the death of McCord he was 27 years of age, and the plaintiff, James McCord, was 56 years of age, and the mother, Laura McCord, 54 years of age. Trial of the case in the Circuit Court of Saline County where it had gone on a change of venue from Pettis County, after demurrer to the evidence had been overruled, resulted in a verdict for defendant on the first count of the petition, and a verdict for plaintiff on the second count in the sum of $ 10,000, apportioned by the jury $ 5000 to plaintiff and $ 5000 to the mother. Motion for new trial was overruled and the cause is properly lodged in this court on appeal.
I. The engineer on the engine that exploded was vice-principal of the defendant, and if his conduct amounted to negligence contributing in whole or in part to the death of McCord, the defendant is bound thereby, because the engineer's negligence was the defendant's negligence. It is conceded that the explosion of the engine was caused by lack of sufficient water to cover the crown shield. A great deal of speculation, expert testimony, etc., was indulged in as to whether the appliances for supplying water to the boiler were defective, but as the case was...
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