Mennemeyer v. Hart

• Decision Date: 11 July 1949
• Docket Number: 41229
• Citation: 221 S.W.2d 960,359 Mo. 423
• Parties: Arnold J. Mennemeyer and Anna Mennemeyer, Husband and Wife, Appellants, v. Edward Hart, Administrator of the Estate of Virgil J. Mennemeyer, Deceased, Respondent
• Court: Missouri Supreme Court

221 S.W.2d 960

359 Mo. 423

Arnold J. Mennemeyer and Anna Mennemeyer, Husband and Wife, Appellants, v. Edward Hart, Administrator of the Estate of Virgil J. Mennemeyer, Deceased, Respondent

No. 41229

Supreme Court of Missouri

July 11, 1949

Appeal from Lincoln Circuit Court; Hon. Theodore Bruere Judge.

Affirmed.

SYLLABUS

The cause of action of parents for the loss of services of their minor child due to wrongful death does not survive the death of the wrongdoer. A subsequent amendment of the wrongful death statute, which permits such survival, will not be given retrospective effect.

Brevator J. Creech for appellants.

(1) Section 98, R.S. 1939, which provides "Actions for torts by and against administrators, what may be maintained. For all wrongs done to property rights, or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract." (2) History of Section 98, supra, is set out in the case of State ex rel. National Refining Co. v. Seehorn, 127 S.W.2d 418. (3) The loss of services of an unmarried minor son, living with his parents, is a loss of a property right or interest of another as is provided for under Section 98, supra. James v. Christy, 18 Mo. 162; Evans v. Farmers Elevator Co., 147 S.W.2d 593. (4) The right of a parent to recover for injuries to his child is based upon the relation of master and servant, and not that of parent and child. Scamell v. St. Louis Transit Co., 77 S.W. 1021, 103 Mo.App. 504; Scanlon v. Kansas City, 28 S.W.2d 84, 325 Mo. 125; Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326. (5) Wages and earnings to be lost by 11-year-old boy during a minority must be excluded as representing loss to parent, not to him. Lanasa v. Downey, 201 S.W.2d 179; Marks v. Parks, 39 S.W.2d 570; See Key 7 (1), Mo. Digest, Parent and Child. (6) Section 98 is not pari materia with Section 3652 or Section 3653, commonly known as the Death Statutes, set out at page 871 and page 874, R.S. 1939. Freie v. St. Louis-S.F. Ry. Co., 222 S.W. 824, 283 Mo. 457; Toomey v. Wells, 280 S.W. 441, 218 Mo. 534.

Moser, Marsalek, Carpenter, Cleary & Carter and G. W. Marsalek for respondent.

(1) The alleged cause of action is one arising out of the death of a human being; it is governed by the provisions of Section 3653, R.S. 1939, and related sections of the Damage Act. At the time of the accident involved, the Damage Act made no provision for survival of the cause of action against the personal representatives of the alleged tortfeasor. Therefore, plaintiffs alleged cause of action died with Virgil Mennemeyer, and plaintiffs cannot maintain this suit. Sec. 3653, R.S. 1939; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73, 11 L.R.A. (N.S.) 1157, 120 Am. St. Rep. 761, 12 Ann. Cas. 457; Hendricks v. Kauffman, 340 Mo. 74, 101 S.W.2d 84; Gilkeson v. Missouri Pac. Ry. Co., 222 Mo. 173, 121 S.W. 138, 25 L.R.A. (N.S.) 844, 17 Ann. Cas. 763; Ryan v. Ortgier, 201 Mo.App. 1, 208 S.W. 856; Clark v. K.C., St. L. & Chi. R. Co., 219 Mo. 524, 118 S.W. 40. (2) The cause of action cannot be maintained under the provisions of Section 98, R.S. 1939, as a suit for injury to property rights. The decisions holding that a parent's interest in the services of a child were property rights within the meaning of Section 98 were erroneous ab initio, and were based upon a misapprehension of the law. Cummins v. K.C. Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920. (3) The right in question is no longer regarded as a property right, but as a personal right. Gilkeson v. Missouri Pac. Ry. Co., 220 Mo. 173, 121 S.W. 138; Sec. 375, R.S. 1939; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73. (4) The Damage Act now includes and provides a remedy for all elements of damage which were formerly considered "property rights." Oliver v. Morgan, 73 S.W.2d 993. (5) The Damage Act replaced all other law pertaining to recovery for the death of a human being. Gilkeson v. Missouri Pac. Ry. Co., 220 Mo. 173, 121 S.W. 138.

OPINION

Douglas, J.

The question to be decided in this case is whether a parents' action for damages for the loss of services of their minor son caused by his wrongful death survived the death of the wrongdoer, and could be brought against the latter's administrator, under the laws existing at the time of the death of the wrongdoer. The decision involves a supplemental question whether such loss of services is a wrong done to the parents' property rights.

The plaintiffs are the parents of Gregory Mennemeyer, a minor son, deceased. He was riding in an automobile driven by his brother Virgil when he was killed. Virgil died as a result of the same accident. Plaintiffs filed this action against the administrator of Virgil's estate. In their petition they state that Virgil was negligent in permitting his automobile to collide with a loaded truck causing Gregory's death. They then allege the value to them of Gregory's services on their farm from the time of his death up to the date he would have attained his majority. They deduct from the total value of his services the estimated cost of supporting him for such period, and ask judgment for the balance, or $ 7,725.

Plaintiffs assert they are proceeding under Section 98, R.S. 1939, Mo. RSA, which provides: "For all wrongs done to property rights, or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract."

Under this section actions for wrongs done to property rights survive the death of the wrongdoer, and a plaintiff may proceed against his representative. On the other hand an action under the wrongful death statutes, Section 3652, et seq., R.S. 1939, Mo. RSA, did not survive the death of the wrongdoer. Therefore, if plaintiffs' action may be maintained under Section 98, it has been properly brought against the administrator of the wrongdoer. The trial court held otherwise, and dismissed the petition. We agree with the trial court. We hold this action is, in reality, a suit for wrongful death, and did not survive the death of the wrongdoer under the laws existing at the time of the latter's death.

Plaintiffs' reliance on Section 98 is based on an early decision of this court, James v. Christy, 18 Mo. 162. That case decided that a father has a property right in the services of his minor son, and therefore could recover under the section which then corresponded to Section 98 for damages for the loss of such services resulting from the wrongful death of the minor.

To understand the basis of the decision in the James case we must look to a prior decision because we find the statement in the James case: "That section [now Sec. 98] formerly underwent a discussion in this court, in the case of Higgins v. Breen. (9 Mo. 497.) That case settles the principles which will govern this. It was there held that the statute extends to all acts by which personal property is lessened in value."

The Higgins case was a suit in contract for work and labor which had been performed under an implied promise to pay. Recovery was permitted under present Section 98 against the administrator of the promissor's estate on the theory a contractual property right was involved.

Therefore, if the principles of the Higgins case controlled the decision in the James case, as the opinion said, then the James case must have proceeded on the theory that the relationship between the plaintiff father and his minor son was the contractual relationship of master and servant. The reason which prompted the court to follow that theory was, no doubt, the rule that a master has a property right in the contract of employment with his servant. Therefore since that doctrine invested the father with a property right, his action survived under Section 98.

The doctrine of master and servant was thereafter applied to a parent and minor child in similar cases. In a discussion of the theory on which a parent may recover for the loss of services of his minor child we find in Dunn v. Cass Avenue Ry. Co., 21 Mo.App. 188, "The right to recover for the loss of services is predicated on the relation of parent and child." In a suit for the loss of services of a minor son it was later held that the petition must expressly allege the existence of the relationship of master and servant between the parent and the child. Matthews v. Mo. Pac. Ry., 26 Mo.App. 75. And see Burton v. Mo. Pac. Ry. Co., 32 Mo.App. 455 which held a petition was sufficient against the attack that there was no allegation that the son was the plaintiff father's servant. In Scamell v. St. Louis Transit Co., 103 Mo.App. 504, 77 S.W. 1021 it was stated that the right of a parent to a minor's earnings "originates not by virtue of the relationship of parent and child, but is based on the relationship of master and servant." To the same effect is Franklin v. Butcher, 144 Mo.App. 660, 129 S.W. 428.

However we believe the better view is the modern and more liberal one, followed in other jurisdictions and now in this state, that the true ground of recovery by a parent in such cases arises from the reciprocal duty of the child to render to its parent such services or earnings as the latter may reasonably expect of it. See 39 Am. Jur., Parent and Child, § 74. See also 46 C.J., Parent and Child, § 79. This...