Meyer v. Pevely Dairy Co.

• Decision Date: 19 October 1933
• Docket Number: 31145
• Citation: 64 S.W.2d 696,333 Mo. 1109
• Parties: Elizabeth Meyer v. Pevely Dairy Company, a Corporation, Appellant
• Court: Missouri Supreme Court

64 S.W.2d 696

333 Mo. 1109

Elizabeth Meyer v. Pevely Dairy Company, a Corporation, Appellant

No. 31145

Supreme Court of Missouri

October 19, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg for appellant.

(1) The court erred in refusing the instruction in the nature of a demurrer to the evidence requested by the defendant Pevely Dairy Company at the close of plaintiff's evidence, and also the instruction in the nature of a demurrer to the evidence requested by the defendant Pevely Dairy Company at the close of all the evidence in the case. (a) The suit by the plaintiff as widow was not brought within six months after the death of her husband, and there were minor children, to whom the cause of action went after the lapse of six months from the death of her husband because she failed to sue within that time. Secs. 3262, 3264, R. S. 1929; Coover v. Moore, 31 Mo. 547; Barker v Railroad, 91 Mo. 86; Tobin v. Telephone Co., 199 S.W. 952; Case Cordell Zinc & Lead Co., 103 Mo.App. 477. (b) This suit was originally brought against defendant William J. Doran, and more than six months after the death of the plaintiff's husband the defendant Pevely Dairy Company, a new defendant, was brought into the case by an amended petition and the suit against defendant Pevely Dairy Company was not brought within the time required by statute. Jaicks v. Sullivan, 128 Mo. 177; Hiller v Schulte, 184 Mo.App. 42. (c) The wrongful death statute which creates plaintiff's alleged cause of action, also creates and gives the remedy for its violation, and that remedy is exclusive, and a party suing under that statute must bring himself in his proof strictly within the statutory requirement necessary to confer the right, and the statute provides that such a suit as this must be brought within six months by the widow where, as in this case, there were minor children, and after the lapse of six months the cause of action under the wrongful death statute vests in the minor children. This suit, having been brought against the defendant Pevely Dairy Company more than six months after the death of her husband, cannot be maintained. Chandler v. Railroad, 251 Mo. 592. (2) Instruction 1, given by the court at the request of the plaintiff, is erroneous for the reason that it does not require the jury to find that the defendant Pevely Dairy Company was guilty of negligence in the respects pleaded by the plaintiff in her petition, in that it does not require the jury to find that the horse and wagon was driving in such close proximity to the automobile of the defendant Doran as to cause him to swerve his automobile in such manner as to strike and injure and kill plaintiff's husband. Lauff v. J. Kennard & Sons Carpet Co., 186 Mo.App. 136.

Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondent.

(1) Defendant's instructions in the nature of demurrers to the evidence were properly refused: (a) The suit against Pevely Dairy Company was filed in time. When plaintiff filed suit against defendant Doran within six months after her husband's death she appropriated the entire cause of action to herself and thereafter the minor children had no right to file suit. When the widow appropriated the cause of action unto herself, she had the right to join Pevely Dairy Company as a defendant in the suit at any time within a year after her husband's death. Packard v. Railroad, 181 Mo. 421, 80 S.W. 951; Huss v. Bohrer, 217 Mo. 204, 295 S.W. 95; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688. (b) Plaintiff's evidence shows that defendant operated its wagon into Grand Boulevard without bringing it to a full and complete stop. The defendant thus violated the boulevard-stop ordinance of the city of St. Louis, introduced in evidence, and this ordinance violation constituted negligence per se. Lewis v. St. Louis Ind. Packing Co., 3 S.W.2d 244; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681. (2) Plaintiff's Instruction 1 is correct and was properly given: (a) It is within the issues made by the pleadings and evidence and submits the substance of the negligence pleaded in the petition. It is not necessary that the instruction follow the exact language and verbiage of the petition. Pittan v. Otis Elevator Co., 7 S.W.2d 412; Start v. Natl. Newspaper Assn., 253 S.W. 42; Petera v. Railway Exchange Bldg., 42 S.W.2d 947. (b) The instruction required the jury to find that the negligence of Pevely Dairy Company in not bringing the wagon to a stop before crossing Grand Boulevard and in driving it into close proximity to the automobile of defendant Doran was the proximate cause of the death of plaintiff's husband. To have included the additional requirement that this negligence of appellant caused defendant Doran to swerve so as to injure and kill plaintiff's husband would simply have required the jury to find again that appellant's negligence was the proximate cause of defendant's death.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Action for damages by a widow under the wrongful death statutes (Secs. 3262, 3263 and 3264, R. S. 1929) on account of the death of her husband alleged to have been caused by the negligent acts of defendants. Plaintiff's husband, Matthew O'Malley, a pedestrian while crossing Grand Boulevard in the city of St. Louis near the plant of defendant Pevely Dairy Company, was struck and killed by an automobile owned and being driven by defendant William J. Doran. The petition charges negligence against the Pevely Dairy Company in that (1) said defendant "negligently, carelessly and unlawfully drove" one of its wagons from a driveway, leading from its premises, into Grand Boulevard, "which was a legally designated boulevard there, without bringing the aforesaid vehicle to a full and complete stop before entering or crossing said boulevard, in violation of" an ordinance of the city of St. Louis, referred to by number, section and paragraph, and which provides in substance that every vehicle shall be brought to a full and complete stop before entering or crossing any street lawfully designated as a boulevard" and (2) that "defendant Pevely Dairy Company, in driving said wagon into said Grand Boulevard, failed to stop the same before entering said boulevard, and did continue to drive the same into said boulevard in such close proximity to the automobile of defendant Doran as to cause him to swerve said automobile in such manner as to strike and injure and kill plaintiff's husband." Other charges of negligence made against the dairy company were abandoned. The jury found for defendant Doran and for plaintiff as against defendant Pevely Dairy Company assessing damages in the amount of $ 10,000; from the judgment entered thereon against it the dairy company appeals.

The unfortunate event which resulted in O'Malley's death occurred about two-thirty a. m., November 4, 1927. The situation and preliminary facts may be briefly sketched. O'Malley was employed by the defendant dairy company as a driver of one of its horse-drawn delivery wagons and assigned to a certain regular route in the city of St. Louis. The dairy company plant, out of which O'Malley worked, was located at the southwest corner of the intersection of Choteau Avenue, an east and west street, and Grand Boulevard a north and south street, the property extending some distance south along and adjacent to the west side of Grand Boulevard. The dairy company maintained a driveway upon and at the south side of its premises which led out from its yard and loading docks and extended to and connected with the west side of Grand Boulevard. It seems that daily, at about this hour, a large number of delivery wagons were loaded at the loading docks and dispatched to their respective routes. As the wagons were loaded and dispatched they left defendant company's premises over this driveway, into Grand Boulevard. On this morning O'Malley's wagon, having been loaded, was left standing on defendant's premises while he, with the announced intention of "getting something to eat and some cigarettes" before starting on his route, walked across Grand Boulevard to a restaurant on the east side of that street. He was returning from the restaurant, crossing Grand to the dairy company plant on the west side of that street when he was struck by the Doran automobile. We come now to a statement of the evidence most favorable to and tending to support and sustain plaintiff's theory as to the manner and cause of O'Malley's injury and death. Doran was driving his automoile south on Grand Boulevard traveling to the right of the center of that street at a speed of from twenty to twenty-five miles an hour. As the automobile neared the point where defendant company's driveway connected with and entered Grand Boulevard on the west side of that street one of the company's delivery wagons drawn by a horse, without making a stop at the entrance of the driveway into the boulevard and without signal or warning being given, came out of the driveway and continued straight ahead toward the east and center of the street and directly in the path, and in front, of the south bound automobile. Doran testified the horse came out of the driveway "on a run." To avoid the impending collision with the horse and wagon Doran swerved to the left (the east) and "just missed the horse and wagon" by "possibly a foot or something like that." This swerve turned the automobile to the east and slightly to the east or left of the center of the street and it was there and then that it struck O'Malley who was in the act of crossing from the east side of the street to the company plant on the west side. The front left side of the automobile struck O'Malley. Doran stated that "the first...