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

Decision Date10 May 1904
CourtMissouri Supreme Court
PartiesPACKARD et al. v. HANNIBAL & ST. J. R. CO.

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 death of James I. Packard. Under the admissions made by the plaintiffs' petition and reply, the trial court, upon the motion made by the defendant, the Hannibal Company, for a judgment on the pleadings, rendered the judgment prayed for; holding that inasmuch as the pleadings in the case showed, as a matter of fact, that the widow did sue before the six months had elapsed, she had, under the statute, appropriated the cause of action, and thereby deprived her children of the right to maintain an action in their own behalf; that her intention to appropriate the benefits of the statute was manifested in the most solemn manner possible by bringing her action against the Rock Island Company, and whether she was right or wrong in her selection of the defendant was not material. Her error if such it was, was a mistake of law, and did not alter the fact that she had elected to appropriate the benefit of the statute and bring the action, and had thereby deprived her children of that right."

The right of action given by section 2864, Rev. St. Mo. 1899, for the death of the father of the plaintiffs, is a single, indivisible right to sue all the guilty parties. It rests in the widow or the minor children, under the limitations fixed by the statute, and cannot and does not exist concurrently in the widow and the children. Coover v. Moore, 31 Mo. 574; Kennedy v. Burrier, 36 Mo. 128; McNamara v. Slavens, 76 Mo. 330; Barker v. R. R. Co., 91 Mo. 86, 14 S. W. 280. During the first six months after the death of the husband and father, the right of action is absolute in the wife alone. If she failed to bring suit upon this single cause of action within six months, it vests in the minor children, and in them only. It is, however, the same cause of action. If she fails to sue within the six months, her right to it is gone, and that of the children accrues. Kennedy v. Burrier, supra; McNamara v. Slavens, supra. The right...

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    ...of action. [See, also, Chandler v. C. & A. Railroad Co., 251 Mo. 592, 158 S.W. 35.] In Packard v. Hannibal & St. Joseph Railroad Co., 181 Mo. 421, 80 S.W. 951, the father of plaintiffs, employed by the Rock Island Railroad, was killed. His widow brought suit within six months against that c......
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