Owen v. Brockschmidt

Decision Date31 October 1873
Citation54 Mo. 285
PartiesELLEN OWEN, et al., Respondents, v. J. F. BROCKSCHMIDT, et al., Appellants.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

Stewart & Wieting, for Appellants.

I. It was error to admit the testimony of Mrs Owens. Her husband was a party to the suit, and she was clearly incompetent. Her husband can collect and is entitled to receive every dollar of this money, and thus his wife is allowed to swear money into his pockets, in defiance of the principle that a “wife cannot testify for her husband.”

II. The instruction, that the jury are limited to the actual pecuniary loss of the mother, by being deprived of the services of her child during the period of its minority, should have been given. (Sedg. Dam., 552, and notes; 5 Am. Law R., 397.)

III. The instruction, that if Reifle “was authorized by defendants to buy wheat, and to have the same delivered at the mill, and that in consequence of such authority, &c., * * he bought this wheat, and, in order to deliver it, caused this wagon to be driven on the sidewalk,” &c., was wrong. He was employed in the office, and was going outside of his business in ordering this team to drive on the walk. There was no evidence to support this instruction. (Church vs. Mansfield, 20 Conn., 284; McKenzie vs. McLeod, 10 Bing., 385; Campbell vs. Staiert, 2 Murphy, 389; Satterlee vs. Groat, 1 Wend., 272; Shearm. & Red. Neg., 52, 70, 71; Storey vs. Ashton, 4 Q. B. [L. R.], 476.)

IV. The verdict and judgment against the city, rendered by agreement, released these defendants. It is well settled, that where several tort-feasors are sued for wrong for which they are jointly liable, and an accord and satisfaction is had with one of them, this releases all the others. (2 Greenl. Ev. § 30, and notes; 3 Taunt., 117; 2 Hen. & M., 38; 3 Coldw., 192, and cases cited; 2 Hammond (Ohio), 295; 3 Allen [Mass.], 474; 37 Barb., 317; 3 W. Va., ( contra). A judgment may be a good satisfaction if taken as such, as well as a note (2 Hammond, supra); or “an agreement to refer to arbitration.” (10 Ex., 569; 2 Johnson's cases, 195.)

Dillon & Taaffe, for Respondents.

I. Respondent, Ellen Owen, was a competent witness. (Tingley vs. Cowgill, 48 Mo., 291.)

II. The practice of driving horses and teams on this sidewalk had been constantly practiced for years, while appellants were the owners of the mill, and they assented to it, and sometimes directed it.

III. The instruction asked by defendants, expressly excluding the funeral expenses of the child, was properly refused. (Wagn. Stat., 520, § 4.)

IV. Defendants themselves admitted Reifle had authority to purchase wheat offered at the mill, in the absence of the owners. This necessarily included authority to tell the seller what to do with it after he had bought it.

V. The city not being a joint wrong-doer with defendants, even an accord and satisfaction with it would not be an accord and satisfaction with a stranger and would be no defense. (Grymes vs. Blofield, 1 Croke, 541; Clow vs. Borst, 6 Johns., 37; Bleakley vs. White, 4 Paige Ch., 654; Daniels vs. Hallenbeck, 19 Wend., 408; Stark's Adm'r vs. Thompson's Ex., 3 Monroe, 296.)

VI. The question, whether or not plaintiff, in the suit against the city, agreed to accept a verdict and judgment in satisfaction of her claim for damages, was submitted to the jury.

SHERWOOD, Judge, delivered the opinion of the court.

Action in the St. Louis Circuit Court by William Owen and Ellen Owen, his wife, against the defendants, Brockschmidt and others, for damages for the killing of the infant son of Mrs. Owen, formerly Mrs. Halpin, in whose name the suit was brought, but afterwards, upon her intermarriage with her present husband, he was added also as party plaintiff.

The petition in substance alleged, that the killing of the child occurred through the wrongful act, neglect and default of the defendants in causing and permitting a team of horses to be driven upon the sidewalk in front of their mill for the purpose of unloading a quantity of grain, and that the child was killed by being kicked by one of those horses, while thus on the sidewalk, and damages in the sum of $5000 were asked.

The answer of defendants contained a general denial, and, in addition thereto, the defense was set up, that a suit for the same cause of action had been brought against the city of St. Louis; that, while said suit was pending, it was arranged and agreed between the parties thereto, that the plaintiff would accept a verdict and judgment for the sum of $200, in lieu and satisfaction of said claim; that thereupon a verdict and judgment were entered for that sum; that that judgment is yet in full force, &c., and the said city of St. Louis is ready to pay and satisfy the same, &c., &c.

A reply to this answer was duly filed; a jury impaneled; evidence introduced tending to establish the allegations of the petition, and also evidence in support of the answer of the defendants, and at the conclusion of the testimony a verdict was returned in favor of the plaintiffs for the sum of $1,000.

A motion for a new trial was filed and overruled. The cause appealed to general term, where the judgment of the special term being affirmed, an appeal was taken to this court.

The errors, urged by defendants for a reversal of the judgment rendered against them, will now be examined.

There was no error in permitting Mrs. Owen to testify in the cause, although her husband was also a party thereto, as the husband was but a nominal, and the wife the real, party in interest. (Tingley vs. Cowgill, 48 Mo., 291; Fugate vs. Pierce, 49 Mo., 441, and cases cited; 1 Wagn. Stat., 519-20, § 2.)

The court properly refused to permit § 7, article 4, of City Ordinance No. 5399, to be read in evidence by defendants, even if the terms “merchants or manufacturers” could be so construed as to embrace millers, as that section, while permitting the limited and partial occupation of sidewalks when goods were being received or shipped, manifestly allows such permission to extend alone to “said goods,” and cannot by any legitimate rule of construction be made to grant leave to the teams and wagons, used in transporting those goods, to occupy the sidewalk.

The permission here referred to has its existence by virtue only of the ordinance, and obviously cannot exist or be extended...

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47 cases
  • Hildreth v. Key, 7893
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1960
    ...from such death,' having regard for mitigating and aggravating circumstances. As our Supreme Court tartly observed in Owen v. Brockschmidt, 54 Mo. 285, 289-290, burial expenses 'must, if any thing can, be one of the most obvious and necessary injuries resulting from death,' and other cases ......
  • Spalding v. Robertson, 40082.
    • United States
    • United States State Supreme Court of Missouri
    • November 10, 1947
    ...(Mo. Sup.), 63 S.W. (2d) 109, 114; Dalton v. St. Louis Smelting & Refining Co., 188 Mo. App. 529, 174 S.W. 468, 471; Owen v. Brockschmidt, 54 Mo. 285, 289. The instructions were in Respondent further contends that appellants' instructions on the measure of damages were general and that resp......
  • O'Bryan v. Allen
    • United States
    • United States State Supreme Court of Missouri
    • May 7, 1888
    ......Though she is a married. woman and her husband is a party to this suit, still she is. the real party in interest, and may testify. Owen v. Brockschmidt, 54 Mo. 285. It is not claimed that she can. testify as to conversations of her former husband, made to. herself or third parties. ......
  • Haehl v. The Wabash Railroad Company
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1893
    ...Stoher v. Railroad, 91 Mo. 509; Smith v. Railroad, 92 Mo. 359; Nichols v. Winfrey, 79 Mo. 544; Morgan v. Durfee, 69 Mo. 469; Owen v. Brockschmidt, 54 Mo. 285. By same authorities, a proper case is made out for such damages, when it is shown that the wrongful act which caused the death was w......
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