Senn v. The Southern Railway Company
| Decision Date | 12 November 1894 |
| Citation | 28 S.W. 66,124 Mo. 621 |
| Parties | Senn v. The Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Reversed and remanded.
Lubke & Muench for appellant.
(1) The action abated entirely on the death of Mrs. Senn. The statute which gives the right to sue for the death of a person caused by the negligence of a carrier, fixes the "forfeit" at $ 5,000. R. S., sec. 4425. This statute creates a new cause of action penal in its character. The recovery must be $ 5,000 or nothing; and a judgment for a smaller amount will be arrested on motion of the defendant. Rafferty v Railroad, 15 Mo.App. 559; McNamara v. Slavens, 76 Mo. 329; Buel v. Transfer Co., 45 Mo. 562; Gibbs v. Hannibal, 82 Mo. 143. (2) The evidence clearly establishes contributory negligence on the part of the plaintiff. It is conclusively shown that plaintiff failed to exercise such care concerning the safety of his child, as an ordinarily prudent parent would have exercised under the like circumstances. The boy was small and of tender years. He had not yet attended school, although he was just beginning to be of the statutory school age (R. S., 7999). He had only attended the kindergarten some months. He lacked nearly four years of being a competent witness without special qualification (R. S., 8925), and nearly eight years of competency to choose a guardian (R. S., 5286). At common law he was conclusively presumed to be incapable of committing crime. Bishop's Criminal Law [8 Ed.], sec. 368; State v. Adams, 76 Mo. 355. (3) The ordinance was invalid because of its title, the city charter providing that no ordinance shall contain more than one subject, which shall be clearly expressed in its title.
Dodge & Mulvihill for respondent.
(1) The father, as the sole surviving parent of Charlie Senn, is entitled to proceed with this action, having been commenced within the statutory period by both father and mother. R. S 1889, sec. 4425; Tobin v. Railroad, 18 S.W. 996, and cases cited; Marshall v. Railroad, 25 S.W. 179. (2) First. The part of the city where plaintiff lived and where the injury took place, was within three blocks of the southern city limits; cars passed only once in fifteen minutes at this time of day; the track was single, as this was the end of the road. There was not a scintilla of evidence of negligence on the part of the plaintiff and his then wife, Mary Senn; and there being none, it was the duty of the court to so declare. Walter v. Hoeffner, 54 Mo.App. 554; Dunn v. Railroad, 98 Mo. 652. Second. The question of the contributory negligence on part of the boy Charlie was submitted to the jury under proper instructions. Senn v. Railroad, 108 Mo. 143. (3) First. The third amended petition was drawn to recover the penalty of $ 5,000, under the statutes of this state, and the ordinances passed by the city of St. Louis, to all of which the defendant was subject. The ordinances read were competent and valid. R. S. 1889, sec. 4846; City of Tarkio v. Cook, 25 S.W. 202; Fath v. Railroad, 105 Mo. 540; St. Louis v. Green, 7 Mo.App. 468; St. Louis v. Tiefel, 42 Mo. 578. Second. No defense as to the invalidity of the ordinance was set up in the answer, and hence can not be urged in this court under a general denial with a plea of contributory negligence. Bliss on Code Pleading, sec. 352; Bluedorn v. Railroad, 121 Mo. 258. Third. The defendant is estopped from claiming the invalidity of the ordinance in question. Fath v. Railroad, supra. (4) The instructions fairly present the law applicable to the case and are correct. Number 1 is about the same instruction which was passed on by this court in the former appeal as being correct. The same can be said of numbers 3, 4 and 6. Number 2 is correct, according to the law in Britton v. St. Louis, 25 S.W. 338.
A former appeal of this case is reported in 108 Mo., pages 142 to 153. 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.
I. 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." R. S. 1889, sec. 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 five thousand dollars. 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 can not 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. 562.
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 one of this court in the case of Tobin v. Railroad, and the opinion is reported in 18 S.W. 996. The case was afterwards transferred to court in banc, on account of the dissent of one of the judges of the division, and was settled by the parties without consideration by the court, and the opinion was never officially published. I take the opinion, however, to be that of all of the concurring judges.
In that case Barclay, J., who delivered the opinion of the court, disposed of the question in this language:
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