Smelser v. Missouri, Kansas & Texas Railway Company
| Decision Date | 24 November 1914 |
| Parties | JOSEPH E. SMELSER, Administrator, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. Alex. H. Waller, Judge.
Reversed.
J. W Jamison for appellant.
(1) Plaintiff's action was bottomed on Sec. 5426, R. S. 1909 known as the compensatory section of the Damage Act, and not on section 5425 of said act, as the latter section has application only in those cases where death is occasioned "by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running conducting or managing any locomotive, car or train of cars." The right of action given under Sec. 2864 (now Sec. 5425) is not that given under Sec. 2865 and 2866 (now Secs. 5426 and 5427) and that given under the two last named sections is not that given under the former. These are purely statutory rights of action, and each must rest on its own statute. Casey v. Transit Co., 205 Mo. 724; Peters v. Railroad, 150 Mo.App. 728. When a laborer employed by a railroad company is killed in consequence of the use of defective apparatus, a cause of action accrues under section 5426 and not under section 5425 of the Damage Act. Holmes v. Railroad, 69 Mo. 536; Higgins v. Railroad, 197 Mo. 312; Rapp v. Railroad, 106 Mo. 423. (2) The petition being under the compensatory, and not the penal, section of the Damage Act, under the allegations of the petition and the evidence, the court committed error, both in overruling defendant's demurrer to plaintiff's petition and in overruling defendant's instruction in the nature of a demurrer to the evidence. Johnson v. Mining & Development Co., 171 Mo.App. 134; Boyd v. Railroad, 155 S.W. 13; Railroad v. McGinnis, 228 U.S. 173; Railroad v. Daugherty's Admr., 155 S.W. 1119; Rich v. Railroad, 148 S.W. 1011. (3) Under the authorities supra, plaintiff's instruction on the measure of damages, authorizing the jury to assess plaintiff's damages "at such sum as they deem fair and just with reference to the necessary injury resulting from the death of the deceased, James Edward Riley, not exceeding the sum of $ 10,000," was erroneous. (4) The evidence clearly shows that the deceased was guilty of contributory negligence as a matter of law. Huss v. Bakery Co., 210 Mo. 44. Upon the admitted facts "reasonable men can entertain but one view of the conduct of the deceased, and that adverse to him, and the question, therefore, resolves itself into one of law." Mockowik v. Railroad, 196 Mo. 550; Buckner v. Horse & Mule Co., 221 Mo. 700. The narrowness of the platform was not the proximate cause of his death, but his negligence in placing himself in a perilous position, and his negligent signaling for the engine. Fulwider v. Gas Light & Power Co., 216 Mo. 582; Devitt v. Railroad, 50 Mo. 302; Stoeckman v. Railroad, 15 Mo.App. 503; Woodson v. Railroad, 224 Mo. 685; Wheeler v. Wall, 157 Mo.App. 38; Sands v. Brewing Co., 131 Mo.App. 413. Where a person fails to employ his faculties to become aware of confronting dangers, or, knowing thereof, to use reasonable care to avoid it, the law calls his conduct careless because out of harmony with ordinary prudence and loads it with entire responsibility of the consequences, notwithstanding the negligence of another may have aided in producing them. Diamond v. Kansas City, 120 Mo.App. 185; Purcell v. Shoe Co., 187 Mo. 276; Hulett v. Railroad, 67 Mo. 238. (5) Deceased chose the obviously dangerous position on the platform beside the coal chute, and remained there when he had every opportunity to get in or upon the car in a safe place, before signaling for the engine to back and push the car forward. There can be no recovery by his administrator in this action. Hulett v. Railroad, 67 Mo. 239; Smith v. Box Co., 193 Mo. 715; Moore v. Railroad, 146 Mo. 572; Brewer v. Railroad, 56 Mich. 620.
Samuel C. Major and Frank W. McAllister for respondent.
(1) It may be conceded that this action is based on Sec. 5426, R. S 1909. (2) Appellant contends that plaintiff's petition fails to state a cause of action, because it does not allege what deceased was earning or that he "contributed in any sum toward the support of his father, mother, brothers and sister, who were his next of kin;" and that, as there was no evidence of these facts, defendant's instruction, in the nature of a demurrer, at the close of plaintiff's evidence should have been given. This contention is based, and appellant relies for support of it solely, upon the majority opinion of the Springfield Court of Appeals in the case of Johnson v. Dixie Mining and Development Company, 171 Mo.App. 134. That case was decided by a divided court, Robertson, J., dissenting from the majority opinion of Farrington, P. J., and the concurring opinion of Sturgis, J., and the former being of the opinion that the majority opinion was in conflict with recent decisions of this court, requested that the case be certified to this court, where it is now pending. The majority opinion and the concurring opinion therein entirely ignores the earlier case of Morgan v. Oronogo Circle Mining Company, 160 Mo.App. 99, decided by that court. The opinion in the Johnson case is directly in conflict with the holding in the Morgan case, but the latter case is not referred to in the opinion in the former case. The majority opinion and the concurring opinion in the Johnson case hold, in effect, that in suits brought under Sec. 5427, R. S. 1909, by the administrator of a deceased adult who left no wife, minor child or minor children, the administrator sues as the trustee of an express trust for the benefit of those who are entitled to the amount recovered under the laws of descent, as provided in section 5425, and that it is necessary for him to allege and prove the names of such persons and facts showing the pecuniary loss they have sustained, that is, that they were dependent upon, had some financial interest in, or received some financial benefit from the deceased. The conclusions reached rest primarily upon the assumption that the provision of section 5425, directing that in a suit by an administrator the amount recovered shall be distributed according to the laws of descent, applies to a suit and recovery by an administrator under section 5427. We do not believe that the language of section 5427 justifies such construction. Section 5426 fixes the liability of the offending party, and does no more. It is left entirely to section 5427 to designate the parties who shall be entitled to sue and recover on the liability fixed by section 5426, and it does this by providing that "the damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 5425." Under section 5425, the parties who are entitled to sue and recover are: first, the husband or wife; second, the minor child or minor children; third, if the deceased be a minor, the father and mother; and fourth, "if there be no husband, wife, minor child or minor children, natural-born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased." Section 5427 refers to the above section for two purposes only: first, to designate the parties who may sue for and recover the damages; and, second, that the damages shall be sued for and recovered in the manner provided in that section. It does not expressly or by implication refer to the provision of section 5425 that the amount recovered shall be distributed according to the laws of descent, and it is a far-fetched judicial construction that can make it appear to apply the damages recovered under section 5426. If the provision of section 5425, that "the amount recovered shall be distributed according to the laws of descent," does not apply to suits under section 5427, then the theory and contention that plaintiff sues as trustee of an express trust for the benefit of those who would take the amount recovered according to the laws of descent must, of course, necessarily fail, and it must be held that the administrator sues in his capacity as administrator for the benefit of the estate of deceased. Although it should be concluded that the provision of section 5425 applies to suits under section 5427, yet, appellant's contention must fail. There is no sort of basis in the language of the statute for the contention that an administrator or executor can sue only when deceased left next of kin dependent upon him for support, or that dependency of next of kin in any wise affects his right to sue and recover. The language is "in such case, suit may be instituted and recovery had by the administrator or executor of the deceased." In construing a new statute of doubtful meaning, amendments to the original bill should be looked to, and the journal of the General Assembly may be resorted to for this purpose. Sec. 6287, R. S. 1909; 36 Cyc. 1138; Ex parte Helton, 117 Mo.App. 609; State v. Koock, 202 Mo. 223. It is evident that the Legislature did not intend to limit the right of recovery by an administrator or executor to the pecuniary loss suffered by those who were dependent upon deceased, and that to so construe the statute is to interpolate into it words which were stricken out of the House bill by amendment 21905, and the effect of which is to give the statute a meaning directly in conflict, not only with the plain words of the statute itself, but with the evident purpose and intention of the Legislature. Southern Pacific Co. v. Wilson, 85 P. 401 (Ariz.) ; James v. Railroad, 95 Ala. 231; Railroad v. Sullivan, 120 F. 799 (Fla.) ; Searle's...
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