Senn v. Southern Ry. Co.

• Decision Date: 12 November 1894
• Citation: 124 Mo. 621,28 S.W. 66
• Parties: SENN v. SOUTHERN RY. CO.
• Court: Missouri Supreme Court

28 S.W. 66

124 Mo. 621

SENN v. SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 1.

November 12, 1894.

ACTION FOR WRONGFUL DEATH — SUIT BY PARENTS — DEATH OF ONE PENDING SUIT — STREET-RAILROAD COMPANY — DEATH OF CHILD.

1. Rev. St. 1889, § 4425, provides that if deceased be a minor, and unmarried, the action may be brought by the father and mother, or, "if either of them be dead, then by the survivor." Held, that if, pending an action for the death of an unmarried minor, brought by his father and mother, the mother dies, the father may continue it in his own name.

2. Rev. St. 1889, § 4425, provides that one wrongfully causing the death of another shall forfeit $5,000, which may be recovered by the father and mother jointly if deceased was a minor, and unmarried, and that "each shall have an equal interest in the judgment, or, if either of them be dead, then by the survivor." Held, that the statute confers on a parent surviving at the date of judgment the right to the full amount of the forfeiture.

3. The charter of St. Louis provides that no city ordinance shall relate to more than one subject, and that the subject of an ordinance shall be clearly expressed in its title. Held, that an ordinance entitled "Public Carriers" may properly provide for the regulation of street-railway cars.

4. In an action for the death of plaintiff's son, 6½ years old, it appeared that deceased was sent, with plaintiff's knowledge, to bring home cows from a field, and that it was necessary for him, in returning, to cross defendant's tracks. While returning diagonally across the tracks, which at that place ran on a decline of 2½ feet to a block, deceased was struck and killed by defendant's car. The evidence showed that plaintiff saw the boy coming up with the cows, and saw the car going down, at a time when he was 50 feet from the car, and when it was 100 feet from the boy, and did not warn the boy or the car driver. Held, that there was evidence of contributory negligence on the part of plaintiff.

Appeal from circuit court, St. Louis county; Rudolph Hirzel. Judge.

Action by Christian Senn and wife against the Southern Railway Company for the death of their minor son through negligence of defendant. The mother died pending suit, and the father filed an amended petition, and continued the action in his own name From the judgment entered on a verdict for plaintiff, and from orders denying motions for a new trial and in arrest of judgment, defendant appeals. Reversed.

For opinion on former appeal, see 108 Mo. 142, 18 S. W. 1007.

Lubke & Muench, for appellant. Dodge & Mulvihill, for respondent.

MACFARLANE, J.

A former appeal of this case is reported in 108 Mo. 142-153, 18 S. W. 1007. The suit was commenced by Christian Senn and his wife to recover damages on account of the death of their minor son, occasioned, as alleged, by the negligence of defendant in the management of one of its street cars in the city of St. Louis. Pending the former appeal the mother of the deceased child died. After the cause had been remanded to the circuit court, plaintiff, as the surviving parent of deceased, filed an amended petition, in which he claimed the entire damage given by the statute in such case. To this defendant made appropriate objection, claiming that the cause of action did not survive, but abated upon the death of the mother. The objection was overruled by the circuit court. Under this amended petition the negligence charged was the alleged violation of an ordinance of the city of St. Louis entitled "An ordinance in relation to public carriers," which required that "the conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible." This ordinance was objected to as being in violation of the charter of the city. The circumstance of the death of plaintiff's son, as developed on the trial, was substantially the same as is detailed in the opinion on the former appeal, and only such of the evidence as is necessary in order to make clear the questions of law involved need be stated in the opinion. By the answer, defendant pleaded contributory negligence of both the child and the parents.

1. It is claimed by counsel that, upon the death of the mother of the child pending the suit, the father could not lawfully continue the action alone, and it necessarily abated. The statute, in conferring a right of action for the death of a person, caused by the wrongful or negligent act of another, in designating the parties by whom the suit should be prosecuted, declares: "If such deceased be a minor and unmarried * * * 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." Rev. St. 1889, § 4425. The party guilty of the wrongful act or neglect is made liable, by the statute, to "forfeit and pay" for such death, to the person or persons entitled to sue therefor, the sum of $5,000. The amount of the damage is thus fixed, and no greater or less amount can be recovered. There is only one cause of action, which cannot be divided. In case the person whose death results be a minor, and unmarried, as in this case, the cause of action accrues to the father and mother, if both be living, or, if one be dead, to the survivor. In each case the cause of action is the same. The nonjoinder of the father and mother would not abate the suit, though they were not joined until the period in which suit is required to be commenced had expired. Buel v. Transfer Co., 45 Mo. 563. By commencing a joint suit, each appropriated the right of action. The right to prosecute the suit for the entire damage is joint while the suit is pending, and both parents are living. The division is not made between them until after judgment. Each shall then "have an equal interest in the judgment." In case of the death of one of the parties pending the suit, no reappropriation of the cause of action by the other becomes necessary. We think it clear, from the express language of the statute, to say nothing of the reason and justice of the case, that it intended to confer the right, not only to the cause of action, but to the forfeiture, or damage recovered, upon both parents, or the one surviving at the date of the judgment. It is true that the word "survivor," as used in the statute, literally imports that one of the parents had died before the suit was commenced; but taking the language of the entire statute, and its manifest purpose, we think the word should be given a meaning more consistent with the clear intention of the legislature. The precise question was passed upon by Division 1 of this court in the case of Tobin v. Railway Co., and the opinion is reported in 18 S. W. 997. The case was afterwards transferred to court in...