State v. Reynolds

• Citation: 226 S.W. 579
• Decision Date: 13 December 1920
• Docket Number: Mo. 22234.
• Parties: STATE ex rel. ST. LOUIS BREWING ASS'N v. REYNOLDS, Judge, et al.
• Court: United States State Supreme Court of Missouri

226 S.W. 579

STATE ex rel. ST. LOUIS BREWING ASS'N v. REYNOLDS, Judge, et al.

Mo. 22234.

Supreme Court of Missouri, in Banc.

December 13, 1920.

Action by Wilhelmine Lampe against the St. Louis Brewing Association. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which affirmed the judgment (221 S. W. 447), and the state, on the relation of the defendant, brings certiorari. Writ quashed.

Jourdan, Rassieur & Pierce, of St. Louis, for relator.

Holland, Rutledge & Lashly, of St. Louis, for respondents.

JAMES T. BLAIR, J.

Certiorari. The writ brings here the record of the St. Louis Court of Appeals in an action by Wilhelmine Lampe against relator for damages for the death of her husband, Fred Lampe, who, she alleges, died from injuries he received as a result of relator's negligence. Lampe v. St. Louis Brewing Association (App.) 221 S. W. 447. Lampe lived for some time after he was injured. He instituted an action against relator for damages for his injuries. His deposition was taken in that case. Before a trial was had Lampe died. His widow then instituted her action, and recovered judgment for 32,000. On appeal this judgment was affirmed by the Court of Appeals, and it is that record which is here.

In Mrs. Lampe's action the trial court permitted her to read in evidence the deposition of the deceased husband taken in his case. This ruling is said by relator to conflict with controlling decisions of this court.

The Court of Appeals pointed out that the deposition was vital to plaintiff's case and contained the only evidence of negligence which she produced. It ruled the deposition was competent against relator in the action by the widow, and grounded that ruling principally upon Harrell v. Railroad. 186 S. W. 677.

It is argued this ruling conflicts with Borders v. Barber, 81 Mo. 336, 644, Leslie v. Rich Hill Coal Mining Co., 110 Mo. 31, 37, 19 S. W. 308, and Bank v. Thayer, 184 Mo. 61, 99, 82 S. W. 142. Those cases discuss the sufficiency of the identity of parties and issues and the mutuality requisite to justify the admission in one case of a deposition taken in another. They were all discussed in Harrell v. Railroad, supra. In that case the conclusion was reached that the rule they announced did not preclude the use in an action by minor children of a deposition taken in a previous action brought by their mother for the death of the husband and father, which latter action failed because not brought in time. It was held that in an action for damages for death under our statute (Rev. St. 1919, § 4217):

"The cause of action is the wrongful act of defendant in killing the deceased, and that cause of action is involved in every suit brought for the recovery of the damages growing out of it. The same question arises in every legal rroceeding for relief. The title of the applicant is a matter incident to all. In case of the death of the party injured the statute may give the right of recovery on account of the wrong that killed him to his executor or administrator, or heirs, or next of kin, or to any other person who, in the opinion of the Legislature, deserves it. This it may do absolutely or conditionally. If the condition be one of time in which parties to whom the law gives the right may successfully sue, then upon failure to perform the condition the right passes on as effectually as it would pass by death and descent, or voluntary transfer. Every reason that justice and equality suggest is alike applicable in either case. The right comes to both in its entirety from the same source. The cause of action is the same in its entirety, the defendant is the same, and the defense is the same against the children as it would have been against the injured party, and we see no reason why a deposition taken by the defendant upon the merits should not be equally available to each successive plaintiff."

This court in that case held that an action like this is not a new cause of action, but the death statute simply "transmits the right to sue which the party whose death is occasioned would have had had he lived." "It is solely a preserved, transmitted right." The cases cited are Proctor v. Railroad, 64 Mo. 120; White v. Maxey, 64 Mo. 558; Strode v. Transit Co., 197 Mo. 616, 95 S. W. 851, 7 Ann. Cas. 1084, and Hennessy v. Brewing Co., 145 Mo. 112, 46 S. W. 966, 41 L. R. A. 385, 68 Am. St. Rep. 554. This ruling is supported by authorities elsewhere, and the cases are collected and discussed in Hartis v. Electric Ry. Co., 162 N. C. 236, 78 S. E. 164, Ann. Cas. 1915A, 811. No contention is made that Harrell v. Railway has been overruled or modified. The rule it lays down was controlling on the Court of Appeals. On certiorari to a court of appeals no question concerning the correctness of a controlling decision of this court, which that court has followed, can arise. State ex rel. v. Robertson, 232 Mo. loc. cit. 618, 172...