Midway National Bank & Trust Company v. Davis

• Decision Date: 08 July 1921
• Citation: 233 S.W. 406,288 Mo. 563
• Parties: MIDWAY NATIONAL BANK & TRUST COMPANY, Administrator of Estate of RALPH APPLEBY, v. JAMES G. DAVIS, Director General of Railroads, Appellant
• Court: Missouri Supreme Court

233 S.W. 406

288 Mo. 563

MIDWAY NATIONAL BANK & TRUST COMPANY, Administrator of Estate of RALPH APPLEBY, v. JAMES G. DAVIS, Director General of Railroads, Appellant

Supreme Court of Missouri

July 8, 1921

Appeal from Jackson Circuit Court. -- Hon. Williard P. Hall, Judge.

Affirmed (on condition).

Edward J. White, Thos. Hackney and Leslie A. Welch for appellant.

(1) The trial court erred in ruling that the Federal Compensation Act of September 7, 1916, did not apply and fix and govern the compensation payable by the Government to the widow and minor children of deceased. The Director General in operating the Missouri Pacific Railroad was not personally liable for damages for Appleby's death. He was a mere agent of the United States Government and the Government alone was obligated to make compensation therefor. Sec. 8932a, U. S Comp. Stat. 1916; 39 Statutes at Large, 742. The tenth section of that act fixes the compensation where death ensues within six years from date of injury, at a monthly compensation equal to certain percentages of the deceased employee's monthly pay. Neither the Federal Control Act nor the orders of the Director General of Railroads altered changed or increased the compensation to be made by the Government for the death of its employee, nor did the Federal Control Act, nor the orders of the Director General, nor both of them, have the effect of repealing these provisions of the Compensation Act. (2) Plaintiff's petition was fatally defective. (a) It is not alleged that the deceased at the time of his fatal injury was engaged in interstate commerce. (b) While it is alleged as a ground of negligence that the defendant had allowed the switch engine to become out of repair, yet it is not averred that the defendant knew its condition or by the exercise of ordinary care might have known it. Current v. Railroad, 86 Mo. 62, 66; Mueller v. Shoe Co., 109 Mo.App. 517. (3) The court erred in giving instruction P-1 for the plaintiff. (a) By this instruction the court told the jury that the defendant was liable if the engine was out of repair and this condition of the engine was known to the defendant, or through the exercise of ordinary care could have been known to him prior to the accident. This instruction wholly eliminated the important qualification that the master must have known of the defect or danger in time to have repaired it or to have procured another engine prior to the injury. Kelley v Railroad, 105 Mo.App. 376; Pavey v. Railroad, 85 Mo.App. 222; Hurst v. Mining Co., 160 Mo.App. 58; Abbott v. Marion Mining Co., 112 Mo.App. 555; Schoppendorf v. Traffic Co., 141 N.Y.S. 486. (b) This instruction is erroneous for the further reason that it assumes that the evidence justified a finding that the engine "was out of repair so that and in such a way that the brakes on said engine could not be properly controlled." The evidence is insufficient to justify the submission of the case on this ground. Although the petition alleged both that the engine was out of repair and that the engineer negligently handled same, thus causing the jerks, the case was submitted solely on the ground of alleged defects. The fallacy of that theory is that there was no competent evidence that the engine was out of repair so that the brakes could not be properly handled. (c) This instruction also assumes that the condition of the engine "caused the car on which said Ralph Appleby was riding . . . to be jolted and jarred in a violent and unusual manner." The evidence is insufficient to justify this conclusion. (d) This instruction was erroneous for the further reason that in the latter part it says: "and if you further believe and find from the evidence that after defendant knew, or by the exercise of ordinary care could have known of said condition of said engine, if any, he negligently continued to use the same," etc. By this paragraph the court assumes as a fact that defendant did know, or could have known of the condition of the engine, and the language was well calculated to impress the jury with the belief that the court had decided this important issue in favor of the plaintiff. (4) The court erred in giving plaintiff's instruction P-5 defining what acts of the deceased would constitute interstate commerce. The mere fact that a number of cars had been assembled in the Missouri Pacific yards, some of which cars contained interstate freight, and the further fact that it became necessary to cut out the empty stock car not destined for a point out of the State, would not and did not make the movement of cutting out the stock car interstate commerce. (5) The switching of the empty stock car from track 9 to track 10 did not constitute interstate commerce. The empty stock car with broken coupler was not between any cars loaded with interstate freight. It was the 18th car in the drag and the 19th, 20th and 21st cars were empties not in interstate transportation. The mere fact that one or more interstate cars were coupled onto the stock car and as a mere matter of convenience were moved in switching the stock car onto track 10 did not make the movement interstate commerce. The interstate cars could have been sent on to their destination without moving the empty stock car and the 19th, 20th and 21st cars, all of which could have been left standing on track 9, or these four cars could have been separately handled. The facts in this case are wholly unlike those in the Carr case, 238 U.S. 260. (6) The damages assessed by the jury are grossly excessive and the verdict shows that the jury were controlled by passion, prejudice and sympathy, and wholly disregarded the evidence and instructions of the court, and the trial court erred in not sustaining defendant's motion for new trial and in not requiring plaintiff to remit the excessive damages. Assuming that the deceased would live the entire period accorded to persons of his age under the mortality tables; assuming that he would always be able to work, would lose no time on account of sickness or other disability; would always find constant employment at the high wages he was receiving at the time of his death; assuming also that his widow would live for the full period of his life expectancy under the mortality tables, and that the three children would each live the full period of their respective minorities, what then was the present value of the interest of the widow and children in his earnings which constituted their pecuniary loss recoverable by this action under the Federal Employers' Liability Act on account of his death? No fixed rule to determine this question has been laid down by the Federal Statute nor by the Federal Courts. Like many other questions arising in the administration of the Federal Employers' Liability Act, this question appears to have been left to be determined in a practical way by the law of the forum. C. & O. Ry. v. Kelly, 241 U.S. 491. In Missouri we have a statute (Secs. 8499, 8500 and 8501, R. S. 1909), lays down a rule for determination of similar questions and rights, and furnishes a reasonably fair guide for determining the amount of recovery in cases of this character.

Brewster, Kelly, Brewster & Buchholz and Kimbrell & O'Donnell for respondent.

(1) The trial court did not err in ruling that the Federal Compensation Act of September 7, 1916, was not applicable to the case at bar. U. S. Compiled Statutes 1918, sec. 3115 3/4 J and sec. 10; U. S. Compiled Statutes 1918, sec. 1974A; Dahn v. McAdoo, 256 F. 552. (2) Plaintiff's petition contained the necessary allegations to bring the case under the Federal Employers' Liability Act. Thornton's Federal Employers' Liability Act (3 Ed.) sec. 201; Roberts Federal Liability of Carriers, sec. 689; Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 42; R. S. 1899, secs. 2082, 2119. (a) The petition was sufficient as to the knowledge of the defendant of a dangerous condition of its engine. Fassbinder v. Mo. Pac. Ry. Co., 126 Mo.App. 570; Johnson v. Ry., 96 Mo. 345; Kane v. Ry., 87 Mo. 588; Young v. Shickle Iron Co., 103 Mo. 328; Zimmerman v. Pryor, 190 S.W. 28. (b) Even if the petition was defective, the defects are cured by the verdict and judgment. Sexton v. St. Ry. Co., 245 Mo. 263; Sawyer v. Wabash Ry. Co., 156 Mo. 476; Machinery Co. v. Bottling Co., 273 Mo. 148; Sec. 1850, R. S. 1909. (3) The court did not err in giving Instruction 1 in behalf of plaintiff. Popejoy v. Brick Co., 193 Mo.App. 616; Morgan v. Zinc Co., 190 Mo.App. 26, 199 S.W. 592; Staggs v. Mining Co., 199 S.W. 719; Green v. Ry. Co., 31 Minn. 248, 47 Am. Rep. 787; Redmond v. Railroad, 225 Mo. 739; Shimmin v. Mining Co., 187 S.W. 77; Oboron v. Nelson, 141 Mo.App. 428. Said instruction did not assume any controverted facts. The instruction as given was proper. Sotebier v. Ry., 203 Mo. 702; Fullerton v. Fordyce, 121 Mo. 13; Dunavant v. Co., 188 Mo.App. 93; Davidson v. Co., 211 Mo. 356. (4) This case came clearly under the provisions of the Federal Employers' Liability Act. New York Central Railroad Co. v. Carr, 238 U.S. 780; Robert's Federal Liability of Carriers, sec. 500; Pennsylvania Co. v. Donat, 239 U.S. 50; Louisville & Nashville Ry. Co. v. Parker, 242 U.S. 13. (5) The judgment is not excessive. Crecelius v. Chicago, Milwaukee & St. Paul, 223 S.W. 413; Gulf Ry. Co. v. Carpenter, 201 S.W. 270; Peters v. Railway, 160 Cal. 48; Zucher v. Whitridge, 143 A.D. 191, 128 N.Y.S. 233; Texas Ry. Co. v. Cunningham, 168 S.W. 428; Moorehead v. Richmond Light Co., 111 A.D. 35, 98 N.Y.S. 124; Houston Ry. Co. v. Davenport, 110 S.W. 150; Nearing v. Northern Pac. Ry., 110 P. 226; Steinfels v. Ry., 73 A.D. 494, 174 N.Y.S. 512; Meng v. Bank, 169 A.D. 27, 154 N.Y.S. 509; Kress & Co. v. Markline, 117 Miss. 37; Louisville & Northern Ry. Co. v. Holloway, 168 Kan. 262, 246 U.S. 525; Hines, Dir....