Raisor v. Chicago & A.R. Co.

• Decision Date: 17 April 1905
• Citation: 215 Ill. 47,74 N.E. 69
• Court: Illinois Supreme Court
• Parties: RAISOR v. CHICAGO & A. R. CO.

215 Ill. 47

74 N.E. 69

RAISOR

v.CHICAGO & A. R. CO.

Supreme Court of Illinois.

April 17, 1905.

Error to Appellate Court, First District.

Action by Laura P. Raisor against the Chicago & Alton Railroad Company. From a judgment of the Appellate Court affirming a judgment in favor of defendant, plaintiff brings error. Affirmed.Darrow, Masters & Wilson, for plaintiff in error.

Winston, Payne & Strawn (F. S. Winston and Ralph M. Shaw, of counsel), for defendant in error.

The following is the statement of the facts in this case made by the Appellate Court:

‘Laura P. Raisor, appellant, sued appellee in case for negligence causing the death of her husband, Isaac S. Raisor. The declaration was demurred to by appellee. The court sustained the demurrer, and, appellant electing to stand by her declaration, gave judgment for appellee.

‘The declaration contains six counts. It is averred, in substance, that Isaac S. Raisor, appellant's husband, was in the employ of the United States Express Company as a messenger, and July 10, 1901, was engaged in the discharge of his duties as such in the baggage car of defendant's train which was running westerly between Slater and Marshall, in Saline county, in the state of Missouri, and was exercising due care for his personal safety, when a locomotive and train of freight cars of the defendant, approaching in the opposite or easterly direction, were so negligently and carelessly managed and operated by the defendant that the same, at a point between said Slater and Marshall, struck and ran into the train on which said Isaac S. Raisor was being carried, whereby he was struck with great force and violence and was killed.

‘In each of the counts except the sixth, the plaintiff pleads sections 2864, 2873, 2875, and 2876 of a statute of the state of Missouri. (Rev. St. 1899.) In the sixth count she pleads only section 2864. The sections so pleaded are as follows:

“Sec. 2864. Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant, or employé whilst running, conducting or managing any locomotive, car or train of cars, or of any master, pilot, engineer, agent or employé whilst running, conducting or managing any steamboat or any of the machinery thereof, or of any driver of any stage coach or other public conveyance whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any steamboat or the machinery thereof, or in any stage coach or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employé, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received, resulting from or occasioned by any defect or insufficiency, unskillfulness,negligence or criminal intent above declared, shall forfeit and pay for every person or passenger so dying the sum of $5,000.00, which may be sued for and recovered, first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased: provided, that if adopted, such minor child or children shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption; or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, if such deceased unmarried minor shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment, or if either of them be dead, then by the survivor. In suits instituted under this section it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency and that the injury received was not the result of unskillfulness, negligence or criminal intent.'

“Sec. 2873. That every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof, while engaged in the work of operating such railroad, by reason of the negligence of any other agent or servant thereof: provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.'

“Sec. 2875. That all persons who are engaged in the common service of such railroad corporation, and who, while so engaged, are working together at the same time or place to a common purpose of same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow employés, are fellow-servants with each other: provided, that nothing herein contained shall be so construed as to make any agnet or servant of such corporation in the service of such corporation a fellow-servant with any other agent or servant of such corporation engaged in any other department or service of such corporation.

“Sec. 2876. No contract made between any railroad corporation and any of its agents or servants, based upon the contingency of the injury or death of any agent or servant, limiting the liability of such railroad corporation for any damages under the provisions of this act, shall be valid or binding, but all such contracts or agreements shall be null and void.”

MAGRUDER, J. (after stating the facts).

The following opinion delivered by the Appellate Court for the First District, speaking through Mr. Justice Adams, correctly disposes of the questions involved in this case, and is adopted as the opinion of this court:

‘Under the declaration, plaintiff can only recover, if at all, under section 2864, Rev. St. Mo. 1899, and the arguments of counsel for the parties, respectively, are on this hypothesis. The questions argued are whether section 2864 is penal, and whether the enforcement of the section would be contrary to the policy of this state; appellee urging the affirmative, and appellant the negative, of both questions. If the section is penal in its character, it cannot be enforced in this state. Story on Conflict of Laws, § 620 et seq.; Shedd v. Moran, 10 Ill. App. 618, 623;Sherman v. Gassett, 4 Gilman, 521, 523. In the last case the court say: ‘It is a well-settled rule of jurisprudence that the courts of one country will not enforce either the criminal or penal laws of another.’

‘The language of the statute (section 2864) is, ‘shall forfeit and pay for any person or passenger so dying, the sum of $5,000.00, which may be sued for and recovered,’ etc. The plaintiff is not required to prove any damage, but only that the death was occasioned by such defect, negligence, or criminal intent as is mentioned in the section and averred in the declaration. The declaration in this case is framed on this theory, except the fifth count, in which it is averred that the plaintiff was dependent for support on the deceased, and by his death has been deprived of her means of support. Each count except the sixth contains this averment: ‘That, by reason of the premises and said sections, the defendant has become liable to pay plaintiff the sum of $5,000.’ The sixth count has the same averment, with the exception that the word ‘section,’ instead of ‘sections,’ is used.

‘As the statute is administered in Missouri, no proof of damage is required. In Philpott v. Missouri Pacific Railway Co., 85 Mo. 164, the suit was brought by the parents of a minor son, between nineteen and twenty years of age at the time of his death. It was objected that the father had emancipated the deceased, and therefore was not entitled to his earnings, and that the statute was compensatory, and there could be no recovery. The court acceded to the proposition that, if the deceased had been emancipated, the father had no right to his earnings, but said: ‘Whether the amount awarded is denominated damages, compensatory damages, liquidated, as was said in Coover v. Moore, 31 Mo. 574, or a penalty, is not material. The law, as well as being compensatory, is of a penal and police nature, and can, without objections, serve both purposes at one and the same time.’ Thus the court, by the nature of the defense, namely, that no pecuniary loss had been suffered by the plaintiff by their son's death, was forced, in order to sustain the action, to hold that the statute was penal. In Rafferty v. Missouri Pacific Railway Co., 15 Mo. App. 559, which was a suit by parents, under the same section of the statute, to recover for the death of a minor child, the jury, contrary to the instructions of the court, returned a verdict for $2,500, which the court, on motion for a new trial by the defendant, set aside, saying of the statute: ‘It is penal in its nature, and it is right that the carriers and corporations named in it, and against whom a heavy penalty is assessed, which goes to the surviving relatives, in each case of a death caused by the negligence of their servants, should have whatever benefit they may derive under the statute from the size and fixity of the sum named as damages.’ Thus the Missouri courts have construed the section as penal.

‘By the terms of the statute, and as it is administered in Missouri, whether the plaintiff has or not suffered pecuniary loss or damage is immaterial. His right to...