Packard v. Hannibal & St. J. R. Co.

• Court: United States State Supreme Court of Missouri
• Citation: 181 Mo. 421,80 S.W. 951
• Decision Date: 10 May 1904
• Parties: PACKARD et al. v. HANNIBAL & ST. J. R. CO.

80 S.W. 951 181 Mo. 421 PACKARD et al.
v.
HANNIBAL & ST. J. R. CO. Supreme Court of Missouri, Division No. 2. May 10, 1904.

WRONGFUL DEATH — ACTIONS — PARTIES ENTITLED TO SUE — WIDOW — ELECTION TO SUE — EFFECT ON CHILDREN — JOINT TORT FEASORS — LIABILITY — JUDGMENTS — EFFECT ON THIRD PARTY.

1. Under Rev. St. 1899, § 2864, giving a right of action for wrongful death to the surviving husband or wife of the person killed, or, in case there be no husband or wife, or if he or she neglect to sue within six months, then to the children, the right is not a concurrent one in the surviving husband or wife and the children, but during the first six months after the death it

[80 S.W. 952]

is absolute in the husband or wife alone, and if he or she fails to sue within that time the right vests in the children, and in them only.

2. Under Rev. St. 1899, § 2864, giving a widow a right of action for the wrongful death of her husband, her right of action exists against all whose negligence caused her husband's death, and she has absolute control thereof, and may sue all jointly, or as many as she sees fit; all parties being liable at her election until satisfaction.

3. The fact that a widow, whose husband was killed while engaged in the employ of one railroad about the yards of another, was unsuccessful in a suit brought for her husband's death against the railroad by which he was employed, does not fix the liability of the other railroad, which was not a party to that suit, nor bound thereby.

4. Under Rev. St. 1899, § 2864, giving a right of action for wrongful death to the widow of the person killed, or, if she fails to sue within six months, to the children, the act of the widow in suing within six months constitutes an election to appropriate the cause of action, and cuts off the right of the children to sue after the expiration of six months, although the widow elects to sue the wrong defendant, and does not sue the one actually liable for the wrong.

Appeal from Circuit Court, Jackson County; J. W. Slover, Judge.

Action by Arthur J. Packard and others, minors, by Sarah Packard, their next friend, against the Hannibal & St. Joseph Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

I. J. Ringolsky and J. A. Harzfeld, for appellants. O. M. Spencer, Warner, Dean, McLeod & Holden, and Geo. S. Grover, for respondent.

GANTT, P. J.

The appellants in this case are the minor children of James I. Packard and Sarah Packard, his wife. The father, James I. Packard, on and prior to February 9, 1898, was in the employ of the Chicago, Rock Island & Pacific Railway Company, hereafter called the Rock Island Company, as a freight switchman and brakeman in Kansas City. His duties in this employment, as alleged in the plaintiffs' petition, were to work on the top of freight cars, setting brakes, coupling and cutting out cars, and generally to perform the duties of a switchman in handling the local freight business of the Rock Island Company. This, the petition alleges, was the duty he owed to his employer, the Rock Island Company; and from the petition it further appears by affirmative allegation that it was also his duty to his employer, from time to time, to accompany Rock Island transfer trains, with other Rock Island employés and Rock Island switch engines, to the yards of the defendant, the Hannibal & St. Joseph Railroad Company, herein called the Hannibal Company, in said city, and there deliver the cars upon the tracks of the Hannibal Company. "While engaged in this work on February 9, 1898, James I. Packard received injuries which resulted in his death on February 12, 1898, in Kansas City, Missouri, leaving those appellants as his minor children, and Sarah Packard, their next friend in this action, as his widow. On August 11, 1898, one day prior to the expiration of the first period of six months after his death, his widow, Sarah Packard, elected to accept the benefits given by Rev. St. 1899, § 2864, and brought her action to recover the statutory penalty of $5,000 in the Jackson circuit court against the Rock Island Company, which action in due time was removed to the United States Circuit Court for the Western Division of the Western District of Missouri, and was thereafter, on December 12, 1899, duly tried on the pleadings and evidence before a jury, and resulted in a verdict for the defendant, the Rock Island Company, at the direction of the court. The answer filed by the Rock Island Company in that action raised several defenses, and it is not apparent from the record now before the court upon which of the issues thus raised the learned federal court directed the verdict. But it is sufficient to say the record shows that the case was fully heard and tried upon the merits, resulting in a judicial finding against the plaintiff Sarah Packard. Upon February 9, 1899, within a day or two of the expiration of one year from the death of said James I. Packard, and during the pendency of the first-mentioned action, brought by his widow, these plaintiffs, as his minor children, by the said Sarah Packard as next friend, filed the present action in the Jackson circuit court against the Hannibal & St. Joseph Railroad, by which they also sought to appropriate the benefits of said statute, and to claim the penalty therein defined. In their petition they allege, not that their mother had failed to sue, as the wording of the statute runs, but that she had failed to sue this defendant, the Hannibal Company, within six months, whereby, as it is claimed by them, the statutory right of action had passed to, and became vested in, the minor children. Thus is presented the situation of two actions pending between February 9, 1899, and December 12, 1899 — the one by the widow against the Rock Island Company, and the other by the minor children against the Hannibal Company, and both based upon the same identical cause of action, to wit, the...