Philpott v. Missouri Pacific R.R. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 164
• Parties: PHILPOTT et al. v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 164

PHILPOTT et al.

v.THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

H. S. Priest and T. J. Portis for appellant.

(1) The date of the emancipation of an infant, as fixed by law, is purely arbitrary. There was no proof in this case of the duration of the period of infancy in the state of Texas. (2) This state, by its statutory law, can not create or affect that period, or so far extend its jurisdiction over the wards of the state of Texas as to affect the relation of parent and child, or ignore what might, upon proof, have shown a legal and binding emancipation, sanctioned by the laws of that state, allowing such contracts between father and son to terminate this relation as to all the world. This right of action in this state is purely statutory, and in derogation of the common law, and arises solely by virtue of the relation of infancy, and that, together with the law as to when, how and by whom it should be terminated, depends solely upon the municipal laws of Texas, about which there was no proof. The right of the father to recover at common law for loss of services, depends solely upon proof of that fact. This was the gist of the action. 2 Kent's Com. (12 Ed.) 195. (3) The right of recovery under the statutes of this state is measured by a proper compensation for the loss of services by the death of the deceased to the person supposed by the legislature to have a pecuniary interest in the labors of such deceased. The rule is compensation. Coover v. Moore, 31 Mo. 574. A parent may emancipate his child and divest himself of any right of service. Ream v. Watkins, 27 Mo. 519. (4) The parents having emancipated the child, and the rule being compensation, the parents suffered no loss as charged in the petition, and, therefore, could recover nothing. Stanbury v. Bertron, 7 W. & S. (Pa.) 632; Robinson v. English, 34 Pa. St. 324; Lehigh Iron Co. v. Rupp, 100 Pa. St. 95; s. c. 7 Am. & Eng. R. R. Cases, 25.

Collins & Jameson for respondents.

(1) Section 2121, of Revised Statutes, is not in any respect contrary to the provisions of article 2, sections 10 and 30, of the constitution of this state, nor of section 1, of article 14, of the constitution of the United States. It falls under the head of police regulation laws, and is constitutional. State, etc., v. Wabash, etc., Ry., decided December 1, 1884; Kaes v. R. R., 6 Mo. App. 397; Trice v. R. R., 49 Mo. 438; Munn v. Illinois, 97 U. S. 113; Thorp v. R. R., 27 Vt. 140. (2) Said section 2121, of Revised Statutes, is penal, and the amounts of damages are liquidated and fixed by its terms. Rafferty v. R. R., -- Mo. App.; Irwin v. R. R. (decided by Judge McCrary, March 31, 1883). (3) The statute is not confined to citizens of this state. Trice v. R. R., 49 Mo. 438; Stockman v. R. R., ___ Mo. App. (4) The statute being penal, the cause of action is not based on the loss of services. The parent cannot make a valid contract whereby he irrevocably divests himself of the custody of his children. In matter of Scarrit, 76 Mo. 565; Courtright v. Courtright, 40 Mich. 633; Schouler's Domestic Relations, 342. (5) To authorize a verdict for substantial damages in an action by a parent for the negligent killing of his infant child, it is not necessary to make proof of the amount of damages sustained. The jury may infer this from all the facts in evidence. Nagel v. Mo. Pacific Ry. Co., 75 Mo. 653, 665; Ihl v. Railroad Co., 47 N. Y. 317; City of Chicago v. Major, 18 Ill. 349; Owen v. Brockschmidt, 54 Mo. 289. (6) “In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with any degree of propriety, make in his favor.” Buesching v. St. Louis Gas Light Co., 73 Mo. 230; Wilson v. Board of Education, 63 Mo. 137.

BLACK, J.

The plaintiffs, husband and wife, recovered judgment against the defendant for the sum of $5,000, because of the death of their minor son, between nineteen and twenty years of age, occasioned by the collision of two trains of cars on the defendant's road, at Washington, in this state. The son was, on the night of the thirtieth of May, 1881, traveling in the caboose car of a stock train, in charge of stock, when this car collided with the caboose car of another train. From the effect of the injuries thus received he died in some ten or twelve days. The collision was occasioned by the negligence of defendant's servants, as found by the jury. The defendant, among other things, answered that the plaintiffs and their son were residents and citizens of the state of Texas; and, further, that they had emancipated their son from all paternal control and interference. These defences were, on motion of plaintiffs, stricken out. Of this ruling error is assigned.

1. The cause of action accrued in this state. The plaintiffs assert their rights under the provisions of our damage act. There is nothing in the act which, in the least, indicates a legislative intent to limit the rights thereby conferred to residents or to persons domiciled in this state. Its provisions are for the benefit of the traveling public--alike for the resident and non-resident.

2. There was no evidence as to what the age of majority is in the laws of the state of Texas. Proof...