Powell v. Sherwood

• Decision Date: 21 May 1901
• Citation: 162 Mo. 605,63 S.W. 485
• Parties: POWELL v. SHERWOOD.
• Court: Missouri Supreme Court

63 S.W. 485

162 Mo. 605

POWELL v. SHERWOOD.

Supreme Court of Missouri.

May 21, 1901.

FELLOW-SERVANT LAW-RECEIVERS OF RAILROADS — APPLICABILITY — CONSTITUTIONALITY — CLASS LEGISLATION — DUE PROCESS OF LAW — EQUAL PROTECTION OF THE LAWS — BILL OF EXCEPTIONS — TIME FOR FILING — EXPIRATION — SUBSEQUENT FILING — PLEADING.

1. Where the period beyond the trial term granted by the court in which to file a bill of exceptions has expired, neither the court nor judge in vacation can extend it, and hence a bill of exceptions filed in pursuance of such a void order will not be considered on appeal.

2. The failure of a petition to allege that plaintiff's husband was exercising ordinary care when he was killed, and that he had not assumed the risk, etc., is remedied where the answer sets up these matters as defenses, and issue thereon is joined in the reply.

3. Laws 1897, p. 96, defining the liabilities of railroad corporations in relation to damages sustained by their employés, and stating who are fellow servants, applies to receivers of railroad corporations, as well as to the corporations themselves.

4. The statute is in pari materia with Rev. St. 1889, § 2666, defining the term "railroad corporation," and hence both statutes should be construed together.

5. The statute is not unconstitutional as class legislation.

6. The statute does not violate the federal constitution, since it neither deprives railroad companies of property without due process of law, nor denies them equal protection of the laws.

Marshall, J., dissenting in part.

In banc. Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Action by Eugenie Powell against Adiel Sherwood, receiver, etc. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The following is the opinion in division No. 1 (VALLIANT, J.):

"Suit for damages for the alleged negligent killing of plaintiff's husband by defendant's servants. Petition is to the effect that defendant is the receiver, appointed by the United States circuit court, in charge of and operating the St. Louis, Kansas City & Colorado Railroad; that on July 21, 1897, plaintiff's husband was in the service of defendant in the capacity of brakeman on a freight train of that railroad, and was thrown off the train and killed by reason of the negligence of defendant's `agents, officers, and servants,' in charge and control of the train, in suddenly and without warning starting the train with a jerk, etc., specifying with particularity the alleged negligent act. The answer admitted the capacity in which the defendant was sued and denied all other allegations of the petition. Then it pleaded three affirmative defenses, viz.: (1) That the accident was incident to and one of the known hazards of the employment. (2) That plaintiff's husband neglected to take proper precaution to guard against the consequences of the jerk which might have been expected. (3) If plaintiff's husband was thrown from the train, as alleged, by the negligence of any one in charge of it, it was that of his fellow servant. The reply was a general denial. The record proper shows that the cause came to trial at the September term, 1897, of the circuit court of St. Louis county, when there was a verdict and judgment for plaintiff for $5,000, which were followed by motions for a new trial and in arrest of judgment, which were overruled, an affidavit for appeal filed by defendant, appeal granted, and 60 days given defendant within which to file his bill of exceptions, all of which orders were made on October 2, 1897, and during that term. The cause is here on that appeal. There appears in the transcript filed in this court what purports to be an order of the judge of that court in vacation, made on March 8, 1898, granting defendant leave to file his bill of exceptions on or before March 15, 1898, and, as if in pursuance of that order, there is what purports to be a bill of exceptions filed March 10, 1898. The time granted defendant by the court in which to file his bill of exceptions expired December 3, 1897.

"1. It has been so often decided by this court that, when the period beyond the trial term granted by the court in which to file a bill of exceptions has expired, neither the court nor judge in vacation can extend it, and what purports to be a bill of exceptions filed in pursuance of such a void order will not be considered by this court, that we now deem it unnecessary to further discuss that subject. State v. Apperson, 115 Mo. 470, 22 S. W. 375; Burdoin v. Town of Trenton, 116 Mo. 358, 22 S. W. 728; State v. Mosley, 116 Mo. 545, 22 S. W. 804; Dorman v. Coon, 119 Mo. 69, 24 S. W. 731; Danforth v. Railway Co., 123 Mo. 496, 27 S. W. 575; State v. Chain, 128 Mo. 361, 31 S. W. 20; State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842. We have nothing, therefore, to consider, except what appears on the face of the record proper.

"2. In the brief for appellant there are some objections made to the petition, as that it does not show that the dangers incident to the running of the train were known to defendant and unknown to plaintiff's husband, nor that the injury was not within the ordinary risk of the employment, nor that he was exercising ordinary care. If those were matters that should have been stated in the petition, and were not, they were fully supplied by the answer, which pleaded them as defenses, and issue thereon was joined in the reply. The petition pleads with sufficient certainty that the plaintiff's husband was thrown off and killed by the negligence of defendant's servants in charge of and handling the train. Whether or not it shows, as appellant contends, that the negligence complained of was that of fellow servants, is perhaps doubtful; but, for the purpose of appellant's contention, it may be so conceded.

"3. It is contended in behalf of appellant that the record proper in this case shows that the accident which resulted in the death of the plaintiff's husband was caused by the negligence of a fellow servant, and that, therefore, the defendant is not liable because — First, the act entitled `An act to define the liabilities of railroad corporations in relation to damages sustained by their employés, and to define who are fellow servants and who are not fellow servants, and to prohibit contracts limiting liability under this act,' approved February 9, 1897 (Laws 1897, p. 96), does not apply to a receiver in charge of a railroad; and, second, that the act is unconstitutional. Since we have nothing but the pleadings and the judgment and orders of the court to look to, it is at least questionable if the record justifies a consideration of those points; that is, whether or not the plaintiff's judgment depends on the validity of the statute mentioned, and, if so, whether or not its validity was questioned in the trial court. Defendant in his answer does not plead the invalidity of the act, and if, in his motions or instructions, he drew it in question, they are not before us. The answer pleads affirmatively that the negligence complained of was that of a fellow servant of plaintiff's husband, and the reply denies that averment. What the evidence was on that point we do not know, but the verdict on the whole case was for the plaintiff. But, conceding that those questions are in this record, they have both been authoritatively answered.

"For his first proposition appellant relies mainly on two decisions of the supreme court of Texas. In the first of those decisions (Turner v. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262) the statute of that state under consideration authorized an action for damages `when the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, or hirer of any railroad, steamboat, stagecoach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence, or carelessness of their servants or agents.' The court held that the receiver of a railroad was not liable under that statute, because he was not included in the lexicographical definition of owner, charterer, or hirer. But the learned chief justice delivering the opinion approved a decision in an Ohio case (Meara's Adm'r v. Holbrook, 20 Ohio St. 137, 5 Am. Rep. 633) which held a receiver liable under a statute which gave such a right of action against `any person or corporation through whose wrongful act, negligence,' etc., death resulted, indicating that a receiver in such case possessed an individuality within which he was liable, and which was not entirely merged in his artificial character as an arm of the court. In the second case relied on, the Texas court, construing a statute of that state defining fellow servants, held that a brakeman in the service of a receiver of a railroad company was not `in the service of a railway corporation,' within the meaning of the statute. Campbell v. Cook, 86 Tex. 630, 26 S. W. 486. But, after reading those decisions and giving them the careful and respectful consideration that they deserve, we are not persuaded that they afford the correct interpretation of our statute. Indeed, if we should hold that our statute applies to servants engaged in operating railway trains in the control of railway corporations, but that it does not apply to servants engaged in operating trains of a railway corporation in the control of a receiver, we should thereby give to the statute that character of inequality before the law and invidious classification which appellant contends renders it repugnant to the constitution of this state and that of the United States. It is one of the canons of construction that, if the statute is susceptible of two constructions, the one rendering it in harmony, and the other in discord, with the constitution, we must give it that construction which will preserve its validity. Section 2666, Rev. St. 1889, is: `The term "railroad corporation," contained in this chapter, shall be deemed and taken...