Powell v. Sherwood
| Decision Date | 21 May 1901 |
| Citation | 63 S.W. 485,162 Mo. 605 |
| Parties | POWELL v. SHERWOOD, Receiver, Appellant |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Affirmed.
Adiel Sherwood for appellant.
(1) The record proper, that is, the petition, answer and reply, show that the intestate came to his death after the Act of February 9, 1897, took effect, and the facts stated show that but for the provision in said law, plaintiff would have no right of recovery. The question of the constitutionality of said act is therefore before the court irrespective of the question whether the bill of exceptions was properly filed. The Act of February 9, 1897, is illegal, unconstitutional and void, because: (a) Said act attempts to subdivide a class, to-wit, employers of labor, and carve out of that class a separate class which only is to be made liable under the terms of the act, to-wit, railroad companies, as such employers of labor a greater burden than is at the same time placed upon other employers of labor under similar and exactly the same cirsumstances, and, thereby, deny to railroad companies the equal protection of the laws guaranteed by amendment 14 to the Constitution of the United States. (b) The act is a denial of due process of law, under amendment 5 of the Constitution of the United States and under section 30 of article 2 of the Missouri Constitution. (c) The act is illegal, unconstitutional and void, because one class of persons in the State, to-wit, railroad companies, have by the terms of the act a greater burden and charge placed upon them at the same time and under the same circumstances than upon other persons of the same class, to-wit, employers of labor, and all contrary to the provisions of the fourteenth amendment to the Constitution of the United States. State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 139; State v. Goodwill, 38 W.Va. 183; State v. Coal & Coke Co., 33 W.Va. 189; Millett v. People, 117 Ill. 302; Godcharles v. Wagenan, 113 Pa. St. 437; Kuhn v. Common Council, 70 Mich. 634; Aukow v. Numan, 5 Sawyer, 552; Vick Wo v. Hopkins, 118 U.S. 356; In re Quong Wo, 13 F. 229; Frorer v. People, 31 N.E. 395; Ward v. Floyd, 48 Cal. 51; In re Ah Chong, 2 F. 737; Pearson v. City of Portland, 69 Me. 269; Waly's Heirs v. Kennedy, 2 Yerg. 554; Lewis v. Wood, 3 Me. 326; Com. v. Johnson, 78 Ky. 509; Turke v. Janeville, 28 Wis. 464; Leffert v. Railroad, 38 N.W. 660; Milan v. Railroad, 38 N.W. 289; Zeigler v. Railroad, 58 Ala. 594; Railroad v. Lackie, 78 Ill. 55; Railroad v. George, 21 Fla. 669; In re Jacobs, 98 N.Y. 98; Com. v. Bacon, 13 Bush (Ky.), 210, s. c., 26 Am. Rep. 189; Pierce v. Kimball, 9 Me. 54; s. c., 23 Am. Dec. 537; State v. Walsh, 136 Mo. 400; Railroad v. Ellis, 165 U.S. 150. (d) Section 4 of the act which prohibits any contract in violation of its provisions is undoubtedly void, being an infringement of the liberty of contract. State v. Loomis, 115 Mo. 307; Shaver v. Railroad, 71 F. 937. It seems clear enough that the Legislature would not have passed the act with section 4 omitted, and hence, the whole act must fail. (2) The act does not apply to a receiver operating a railroad in the State of Missouri, and this exemption appears at large upon the record proper. Turner v. Cross, 18 S.W. 578; Lamphear v. Buckingham, 33 Conn. 238; Dillingham v. Blake, 32 S.W. 77; Burke v. Dillingham, 60 F. 729; Campbell v. Cook, 86 Texas, 630, 26 S.W. 486; Trust Co. v. Railroad, 69 F. 353; Henderson v. Walker, 55 Ga. 481; Thurman v. Railroad, 56 Ga. 376; Youngblood v. Comer, 99 Ga. 152; Brown v. Comer, 97 Ga. 801; Robinson v. Huidekoper, 98 Ga. 306; Clyde v. Railroad, 59 F. 394; Baltimore Co. v. Atlanta Co., 69 F. 358.
James Booth for respondent.
(1) The bill of exceptions in this cause was filed in vacation in March, 1898, and under the repeated rulings of this court, constitutes no part of the record. (2) The record proper only being before this court, it is impossible to say from the face of the petition that the deceased was injured by the negligence of a fellow servant as defined in the Missouri fellow servant act (Laws 1897, p. 96). (3) The issues in this case, under proper instructions, were all submitted to the jury, which was found then against appellant. This is conclusive. Jefferson v. Life Assn., 69 Mo.App. 134; State ex rel. v. Hart, 89 Mo. 590; Newland College v. Bork, 44 Mo.App. 19; Henry v. Railroad, 109 Mo. 488; State v. Richardson, 117 Mo. 586. (4) Under the plain wording of the statute defendant is made liable for all damages sustained by any "agent or servant while engaged in the work of operating such railroad." And the act applies to a receiver operating a railroad as such. Fullerton v. Fordyce, 121 Mo. 1; 5 Thompson on Corporations, secs. 7151, 7159; Farrell v. Union Trust Co., 177 Mo. 475. (5) The act is not subject to any of the objections urged against it by appellant. It applies to all of a class, and hence, is not special or class legislation. Phillips v. Railroad, 86 Mo. 540; State ex rel. v. Woodford, 121 Mo. 61; State ex rel. v. Marion County Court, 128 Mo. 427; State v. Jennings, 98 Mo. 493. (5) A prospecting statute or constitutional ordinance, which abrogates the rule of the common law under which a railroad company is not liable to one of its servants for an injury sustained by him through the negligence of a fellow servant engaged in the same common employment, does not deprive the railroad company of its property without due process of law, nor deny to it the equal protection of the laws, nor create a discrimination against railroad companies within the prohibition of the Constitution of the State; but is a police regulation, such as is competent for the Legislature of a state, in the absence of other restraints in its Constitution, to make. Such statutes, it is perceived, are merely intended to abolish the rule of judge-made law, not properly called a rule of the common law, for it is not more than fifty years old, making one servant remediless against the common master, where he received an injury through the negligence of a fellow servant engaged in the same common employment. 4 Thompson on Corporations, sec. 5454, p. 4186; Railroad v. Mackey, 127 U.S. 205; Railroad v. Herrick, 127 U.S. 210; Railroad v. Mackey, 33 Kan. 298.
Morton Jourdan also for respondent.
(1) The sufficiency of plaintiff's petition is unchallenged. There is no contention that there is error in the record proper. Upon the rule that the bill must be filed at the term or within the time allowed by the court during the term or before the time allowed has expired, defendant criminals have been legally executed, others incarcerated and the rights of property to the value of thousands of dollars determined. Dorman v. Coon, 119 Mo. 69; Fulkerson v. Murdock, 123 Mo. 292; Dansforth v. Railroad, 123 Mo. 196; Linahan v. Barley, 124 Mo. 561; State v. Dillon, 132 Mo. 183; State v. Clark, 119 Mo. 426; State v. Scott, 113 Mo. 559; State v. Apperson, 115 Mo. 470; State v. Seaton, 106 Mo. 198; Burdoin v. Town, 116 Mo. 358; State v. Mosley, 116 Mo. 545; State v. Harris, 121 Mo. 445.
VALLIANT, J. Burgess, C. J., Robinson, Brace and Gantt, JJ., concur; Marshall, J., concurs in all except paragraph 1; Sherwood, J., has the privilege of filing a separate opinion hereafter.
OPINIONIn Banc
The following opinion by Valliant, J., in Division One is adopted as the opinion of the Court in Banc. Burgess, C. J., Robinson, Brace and Gantt, JJ. concur; Marshall, J., concurs in all except paragraph 1; Sherwood, J., has the privilege of filing a separate opinion hereafter.
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 United States Circuit Court, in charge of and operating the St. Louis, Kansas City and Colorado railroad; that on July 31, 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.: first, that the accident was incident to and one of the known hazards of the employment; second, that plaintiff's husband neglected to take proper precaution to guard against the consequences of the jerk which might have been expected; third, 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 sixty 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...
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