State v. May

CourtCourt of Appeal of Missouri (US)
Citation160 S.W. 1030,177 Mo. App. 717
PartiesSTATE ex rel. HAMILTON et al. v. MAY et al.
Decision Date04 November 1913

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by the State, on relation of James A. Hamilton and wife, against William E. May and others. From a judgment for plaintiffs, defendants appeal. Reversed.

McShane & Goodwin, of St. Louis, for appellants. M. T. Farrow, of St. Louis, for respondents.

REYNOLDS, P.J.

This is an action on the official bond of a constable for wrongful death of a child of relators. It comes before our court upon the record proper which discloses these facts:

Appellant May was the duly elected constable of the justice's court within and for the Fifth District of St. Louis. He gave bond in the statutory form in the sum of $5,000, conditioned that May "will execute all process to him directed and delivered, and pay over all money received by him by virtue of his office, and in every respect discharge all the duties of constable according to law." Appellants Henry and Stocker signed and executed this bond as sureties.

About January 26th, 1910, in a cause duly and properly pending before the justice, a writ of replevin and summons was issued and delivered to defendant May as constable for service. This writ was in the usual form and commanded the appellant May, as constable, to take from the possession of James A. and Clara Hamilton, husband and wife, and respondents here, certain personal property therein described and deliver it to the plaintiff named in the cause pending before the justice.

Upon receiving the writ and summons, May, acting as constable, turned it over to his deputy with directions to execute it. The deputy proceeded to the home of the Hamiltons, where the property mentioned was located, and executed the process. But just before actually removing the property therefrom, in the language of the petition, "and as a means to, and in furtherance of, the execution and service of said writ and summons," the deputy, with gross negligence and in total disregard of his duty, opened an outer door of the building where the property was located and let it remain open for a half hour before actually removing the property called for in the writ; and it is charged that by reason of so leaving the door open, James Elmer Hamilton, an eight-months old infant son of the relators, then in the building, contracted pneumonia from which he thereafter died.

Appellants Henry and Stocker took no part in and had nothing whatever to do with any act causing or contributing to the death of the child in question; nor had May, personally, the writ and summons having been executed by his deputy.

It is charged in the amended petition that relators were compelled to expend the sum of $100 for medicines and doctor's bills, and likewise the sum of $100 for funeral and burial expenses as the result of the exposure of their son as above. Relators further claim they suffered a loss of services of the child in the amount of $2,300 in consequence of its death. Then follows a prayer for judgment for actual damages in the sum of $2,500, and for punitive damages in the sum of $2,500.

In the trial court, which was to a jury, a verdict went in favor of the State of Missouri against all defendants for the penalty of the bond, that is, $5,000, and actual damages assessed at $300, in favor of relators judgment following accordingly. No punitive damages were awarded, the jury refusing to assess any. From the judgment all defendants prosecute this appeal.

Standing upon the record proper, it is argued by counsel that the statutory action for damages for death caused by wrongful act does not lie against the principal and sureties on a constable's bond; that the Death Damage Act (sections 5425, 5426, Revised Statutes 1909) does not create any new cause of action but transmits the right to sue which the deceased would have had had he lived and that if the deceased would have had no claim nothing is transmitted. Both these propositions, it is claimed, find support in the decisions of our Supreme Court in Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S. W. 851, 7 Ann. Cas. 1084, and Buel and Wife v. United Rys. Co., 248 Mo. 126, 154 S. W. 71.

It is further argued that the right of action thus transmitted is only in tort and not in contract. This proposition, it is claimed, is sustained by the decisions of our Supreme Court in Hennessy v. Bavarian Brewing Co., 145 Mo. 104, loc. cit. 113, 46 S. W. 966, 41 L. R. A. 385, 68...

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9 cases
  • State ex rel. Kaercher v. Roth, 30050.
    • United States
    • Missouri Supreme Court
    • April 8, 1932
    ...Constable of Central Township and were not done under colore officii. R. S 1919, sec. 2151; State v. Pritchett, 219 Mo. 696; State ex rel. v. May, 177 Mo. App. 717; Jordan v. Neer, 34 Okla. 400, 18 A.L.R. 200; Chandler v. Rutherford, 101 Fed. 774, 18 A.L.R. 200; State v. Mankin, 68 W. Va. 7......
  • Citizens Trust Company v. Tindle
    • United States
    • Missouri Supreme Court
    • December 22, 1917
    ... ... was "receiving deposits." Nothing of that kind ... appears anywhere in this petition. The prohibition in the ... statute is leveled against a bank "receiving ... deposits" from making a general assignment of its ... business and affairs. No such state of facts is pleaded in ... this petition. On the contrary, the petition, in the most ... direct and positive way, states the purpose of the assignment ... -- to liquidate. Therefore the Citizens Trust Company had the ... right under the circumstances detailed in this petition, to ... take and ... ...
  • State ex rel. Hamilton v. May
    • United States
    • Missouri Court of Appeals
    • November 4, 1913
  • Clark v. West
    • United States
    • Texas Court of Appeals
    • January 19, 1939
    ...for resulting damages when the act is done by the deputy by virtue of or under color of his office. In State ex rel. Hamilton et al. v. May et al., 177 Mo.App. 717, 160 S.W. 1030, cited by defendant in error, it was said that no recovery could be had because it was not charged that the act ......
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