Strode v. St. Louis Transit Company

• Decision Date: 20 June 1906
• Citation: 95 S.W. 851,197 Mo. 616
• Parties: STRODE, Curator, etc., v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

95 S.W. 851

197 Mo. 616

STRODE, Curator, etc., v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri

June 20, 1906

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded (with directions).

Boyle & Priest and Edward T. Miller for appellant.

The following authorities hold that a release given by the injured party bars an action for damages arising out of the death, whether brought by the personal representative or for the surviving husband or wife, or for the benefit of next of kin: Rice v. Railroad, 33 S.C. 556; Hecht v Railroad, 132 Ind. 507; Diddle v. Railroad, 25 Barb. 183; Littlewood v. N. Y., 89 N.Y. 24; Re Taylor Estate, 179 Pa. 254; Walkerton v. Erdman, 23 Can. S. C. 352; Fowlkes v. Railroad, 9 Heisk. (Tenn.) 829; Holton v. Daly, 106 Ill. 131; Hill v. Railroad, 178 Pa. St. 223; Birch v Railroad, 30 A. 826; Safford v. Drew, 3 Duer 672; Monroe v. D. & R. Co., 84 Cal. 515; Goodsell v. Railroad, 33 Conn. 52; State v Railroad, 60 Me. 490; Senior v. Ward, 102 E. C. L. 392; Griffiths v. Earl of Dudley, 9 Q. B. Div. 357; Cooley, Torts, 263, 264; 2 Redf. on Railroads (4 Ed.), 250; Pierce on Railroads, 392; Pat. Ry. Ac. Law, 410, 508; 1 Shear. & Redf. Neg. (5 Ed.), sec. 140; Tel. Co. v. Cassin, 111 Ga. 575; Tiffany, Death by Wrongful Act, sec. 124.

Gerald Griffin and A. R. Taylor for respondent.

Dill might have had an action of his own, if he had lived -- and this right of action he could control -- but can he, by any act of his, destroy the cause of action which the statute says shall belong to his widow or minor children after his death? The Proctor case, 64 Mo. 126, only decides that the action is a transmitted action, and that, as the servant injured by the negligence of his fellow-servant never had a cause of action, therefore, there was none to transmit; but here there was a cause of action, and, by force of the staute, it is transmitted upon the death of the party injured, and it never does become a right until after the death of the party injured. The injured party could not sue for his own death as long as he lived. After his death, the statute declares who shall sue and recover, so that we submit that, the remedy for the death of a party, injured by the negligence of a public conveyance like a street car, being given by the statute to the widow or minor children, the injured party has no power, by any act of his, to release or in any manner affect the right so given, and the release given by the deceased in this case cannot affect in any way the right of action bestowed by the statute on the minor children.

OPINION

In Banc

GRAVES J.

-- The facts of this controversy are so fairly stated by Valliant, J., in the opinion filed in Division One, 87 S.W. 976, that we adopt the same, which is as follows:

"Plaintiffs are the minor children of John D. Dill deceased suing by their curator to recover damages for the death of their father which they allege was caused by the negligence of defendant.

"The petition alleges negligence as at common law and also a violation of the vigilant watch ordinance.

"The answer was a general denial, contributory negligence on the part of the deceased, and a release by the deceased.

"The plaintiff's evidence tended to prove as follows:

"John D. Dill, the father of plaintiffs, was the driver of a wagon of the Walton-Knost Express Company. Defendant operated a double-track street railroad in Laclede avenue. On the night of the accident, December 14, 1899, Dill was driving a wagon in defendant's south track between Sarah street and Vandeventer avenue going east; a street car of defendant going in the same direction in the same track approached the wagon from the rear, running at the usual speed, about eight miles an hour; when the car was at a distance of 75 or 100 feet from the wagon the motorman commenced sounding his gong and continued doing so as he continued to come forward until the car struck the rear end of the wagon and turned it over, throwing the driver to the street; the wagon was struck with such force that it was badly broken; the car struck the wagon just as the driver began to turn to get out of the track; it was down grade going east; the street was not well lighted at that point, but a wagon in front of the car could have been seen by the motorman for a distance of 500 feet or more; the car could have been stopped within a space of 40 to 50 feet and by use of the reverse within a shorter space. There was no effort to stop this car until it struck the wagon. The driver of the wagon did not seem at the time to have been seriously hurt. He continued his usual occupation for ten or twelve days when he gave up his work and went home, after which he rapidly declined in health, and died February 6, 1900, fifty-four days from the date of the accident. The death certificate was that it resulted from 'heart trouble attributing traumatic injury,' and his attending physician testified that the disease was attributable to the accident.

"On the part of defendant the evidence tended to show as follows:

"The point of the accident was 300 to 400 feet east of Sarah street; there was a street light at Sarah street and one at Vandeventer avenue, the distance between the two being 1200 or 1400 feet, there was no light between them. A policeman arrived on the scene a few minutes after the accident and proposed to take Dill to the hospital, but he declined, saying he was not hurt, and stood around there until another wagon came and assisted in transferring the contents of his wagon to the other. There was also expert testimony tending to show that the disease of which Dill died could not have been caused by the hurt received in the accident.

"A few days after the accident and while Dill was still at work for the express company, a claim agent of the defendant called at the office of the express company and offered to settle the claim for $ 37.50, the estimate of the damage to the wagon which the express company was willing to accept, but the defendant's representative said he would not settle with the express company unless Dill would also join in the settlement, so that it would be a release of the claims of both Dill and the express company. Dill was called into the office and informed of the proposition. Mr. Walton, the president of the express company said to Dill, 'You haven't lost anything by this accident have you?' Dill replied, 'No.' But when Mr. Walton read the release which it was proposed they were to sign and saw that it purported to discharge the railroad company from liability to Dill, he asked if he was hurt, and Dill said his back was hurt. Walton then said if that was the case he (Walton) would not sign it, and explained to Dill that if he should sign it he could not recover for his injury of the railroad company, but Dill said he would sign it and did so, and the money, $ 37.50, was paid to the express company, no part of which went to Dill.

"The case was given to the jury on instructions the correctness of but one of which is questioned and that one we will presently consider.

"There was a verdict for the defendant, the court sustained the plaintiff's motion for a new trial on the ground that it was error to have given the instructions referred to. Defendant appeals."

I. The instruction criticised and referred to above as well as in the motion for new trial, which was sustained by the trial court, is in this language:

"If the jury believe from the evidence that at the time of the accident detailed in the evidence, John Dill was suffering from phthisis pulmonalis, or consumption, and that he died from such disease, and that whatever injuries he received in said accident only hastened his death and were not the cause of the same, the plaintiff is not entitled to recover, and your verdict must be for the defendant; and that this is true without regard to whether or not the defendant was negligent at the time of said accident."

This instruction was clearly wrong and should not have been given; a similar instruction has been expressly disapproved by this court. [Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592.] In granting a new trial upon this point the trial court was right and were it not for other propositions its judgment should be affirmed.

II. The defendant pleaded and proved a written release, signed and given by deceased, John Dill, in his lifetime. This release was in the following words:

"For and in the consideration of the sum of $ 37.50 to us in hand paid by the St. Louis Transit Company, the receipt of which are hereby acknowledged, we and each of the undersigned, John Dill and the Walton-Knost Express Company, hereby fully and forever release, acquit and discharge the said St. Louis Transit Company, the Forest Park, Laclede and Fourth Street Company and the latter's successors and assigns from any and all claims and causes of action which we, or either of us may now, or hereafter have against the said St. Louis Transit Company, the said Forest Park, Laclede and Fourth Street Railway Company and the latters successors and assigns or any of these, on account of any and all injuries, damages and losses by us, or either of us sustained, though a collision between a wagon, driven by the said John Dill and owned by the said Walton-Knost Express Company, and an eastbound electric car of the said companies on Laclede avenue, at or east of its intersection with Sarah street, in the city of St. Louis, Missouri, on or about the fourthteenth day of December, 1899.

"Witness our hands this fourth day of January, 1900. "John D. Dill.

"Walton-Knost Express Company.

"Witness: S. A. Jenkins." By F. Walton, Vicepresident.

The evidence fails to disclose that this release was...