Proctor v. Hann. & St. Joe. R.R. Co.
| Decision Date | 31 October 1876 |
| Court | Missouri Supreme Court |
| Parties | EMMA F. PROCTOR, Respondent, v. HANN. & ST. JOE. R. R. CO., Appellant. |
Appeal from Sullivan County Circuit Court.
James Carr, for Appellant.
It is a well established principle of the common law, that the master is not liable to an employee for an injury produced by the negligence of a co-employee employed generally in the same business, provided the master has not been guilty of negligence in employing such negligent servant, or in retaining such servant after notice of his incompetency. .
The common law is not changed by this act, only to give a remedy to the representative of the party killed, where he would have a right of action if he had not been killed. If Proctor had had both legs cut off by this collision: had been internally injured, so much so that he would have been compelled to occupy his couch the remainder of his life, and he had suffered the excruciating pains and agonies of a thousand deaths, and his wife had been compelled to feed, clothe and care for him, still he could not have recovered a dollar. Is this statute to be construed as giving an action to the widow, when her husband would have had none if he had survived the accident? That would be strange construction indeed! As to the construction elsewhere of the expression “any person,” see Bent vs. St. Vrain, 30 Mo. 268; 1 Pow. Dev. 140; Dyer, 354; Osgood vs. Breed, 12 Mass. 528-30; Wilbur vs. Crane, 13 Pick. 289, 90; Reed vs. Davis, 8 Pick. 513.
The decision of this court in the case of Schultz vs. Pacific Railroad Company (36 Mo. 13) is not in line either with authority, with the true intent and meaning of the law makers--or with sound policy. The principle therein enunciated was impliedly overruled in the case of Higgins vs. The Hannibal & St. Joseph Railroad Company (36 Mo. 418).Huston & Banning, for Respondent.
The court did not err in giving instructions on the part of respondent, nor in refusing instructions asked by appellant. The petition is founded entirely on the statute. (Wagn. Stat. ch. 43, § 2.) The language of the statute is plain and easily understood. The term “any person” includes employees, or else the English language must be tortured into a denial of its plain import. If employees are within the words, they are within the intention of the statute, unless they are restrained or limited. That general words of a statute are to receive a general construction, see 6 Shepley, 308; 6 Ad. & El. ____. When the construction of a statute follows the words, it should not be overturned on, at least, doubtful evidence of intention. (Wannel vs. Smith, 15 Ohio, 134; Kenny vs. Greer, 13 Ill. 432.) The construction placed upon the section has become a part of it. ( This whole question has been ably considered by this court, and the statute has received this construction. (Schultz vs. Pacific Railroad Company, 36 Mo. 13.)
The case of Rohback vs. The Pacific Railroad Company (43 Mo. 187) was brought by the servant himself, and the court held that the action could not be maintained by the servant himself. The case of Schultz was cited approvingly in the opinion. The court, referring to that case, says: (43 Mo. 194; Brownell's case, 47 Mo. 243; Connor vs. Ch. &c. R. R. 59 Mo. 285.)
This statute has been in force twenty-two years. There have been ten sessions of the legislature since the section was construed in Schultz vs. P. R. Co., and no attempt has been made to amend section 2, so as to avoid the consequences of the construction placed upon it.NORTON, Judge, delivered the opinion of the court.
This is an action instituted by plaintiff as the wife of Joseph Proctor, for the recovery of five thousand dollars damages, under the provisions of Wagn. Stat., 519, § 2.
The petition alleges that Joseph Proctor, who was the husband of plaintiff, was, on the 19th of March, 1873, in the employ of defendant as engineer, having the charge of an engine going west on defendant's road, propelling a train of cars; that on said day a locomotive engine, with a train of cars thereto attached, bound east, belonging to defendant and operated on its said road by the agents and servants of the defendant and under its management, was by said agents and servants of defendant so carelessly, negligently and unskillfully run that said eastern bound train, without any fault of said Proctor, ran into and threw from the track the locomotive in charge of said Proctor, killing him instantly; for which plaintiff, as the widow of said Proctor, asks judgment for $5,000 damages under said section two.
There was a trial and judgment for plaintiff, according to the prayer of the petition, from which defendant appeals.
On the trial the defendant objected to the introduction of any evidence. 1. Because there is no cause of action stated in the petition; 2. Because the plaintiff seeks to recover in this cause on account of the death of her husband, Joseph Proctor, who was an employee of defendant at the time of his death, which was occasioned by the negligence or carelessness of co-employees of defendant; 3. Because the plaintiff, as the widow of an employee of defendant, is not entitled to recover on account of the death of said employee, occasioned by the negligence or carelessness of co-employees of defendant. 4. Because there is no allegation in said petition that the employees of defendant, through whose negligence or carelessness said Joseph Proctor is alleged to have been killed, were not sober, careful, skillful men, nor that defendant did not exercise due and proper care in the selection of said employees.
These objections were overruled, to which action of the court the defendant excepted.
The point presented for our determination involves the construction of Wagn. Stat., 519, § 2, especially as to whether, under the words “any person” in said section, a fellow-servant whose death is occasioned by the negligence of a fellow-servant, without fault of the master, is, or was intended to be included. The determination of this point will be decisive of this case.
Before proceeding to its consideration it may be preliminarily observed that it is well established law, both in England and this country, that a common master or employer cannot be held liable for injuries received by...
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