Strottman v. St. Louis, I. M. & S. Ry. Co.

Decision Date27 February 1908
Citation211 Mo. 227,109 S.W. 769
CourtMissouri Supreme Court
PartiesSTROTTMAN v. ST. LOUIS, I. M. & S. RY. CO.

The fellow servant law (Laws 1897, p. 96) relates to the liability of railroad corporations in relation to damages sustained by employés. Section 1 provides that a railroad shall be liable for all damages sustained by any agent or servant thereof while engaged in operating the railroad, by reason of the negligence of any other agent or servant thereof. Section 2 provides who are vice principals and not fellow servants. Section 3 (page 97) provides who shall be fellow servants. Held, that section 1, when construed with the other sections, evidences an intention to give a cause of action to an injured railroad employé where the injury was caused, not by the negligence of any other employé in the master's employ, but where it was caused by the negligence of a fellow servant.

4. ABATEMENT AND REVIVAL — STATUTES — JUDICIAL INTERPRETATION OF PRIOR ACT — PRESUMPTIONS.

Rev. St. 1899, §§ 2864, 2865 (Ann. St. 1906, pp. 1637-1644), provide for a recovery for the death of a person caused by wrongful act, where the injured person would have been entitled to recover had death not ensued. By judicial construction the act was held not to include a claim for damages for injuries occasioned by the negligence of a fellow servant. Held, that the Legislature in subsequently passing the fellow servant act of 1897 (Laws 1897, p. 96, § 1), giving a right of action for injuries to a servant, caused by the negligence of a fellow servant, without providing for a survival of the action, will be presumed to have known the judicial interpretation placed upon sections 2864, 2865, and hence will not be held to have intended that the right of action, given under the later act, should be transmitted, under those sections, to the injured employé's representatives where his death ensues.

5. SAME.

Section 2865, Rev. St. 1899 (Ann. St. 1906, p. 1644), does not create a new cause of action, but simply transmits one that theretofore existed, and would have ceased to exist upon the death of the injured party but for its provisions.

6. SAME — EXCLUSIVENESS OF REMEDY GIVEN.

Where a statute creates a new right unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive; and hence the fellow servant act of 1897 (Laws 1897, p. 96, § 1), giving a remedy to an injured fellow servant, cannot be enlarged to confer on his representatives the remedy in event of his death from the injury.

7. STATUTES — CONSTRUCTION — INCORPORATION IN REVISED STATUTES.

The mere fact that acts are incorporated into a revision of the statutes, and the sections given new numbers by the revisers, does not change the force or effect of the acts.

8. DEATH — ACTIONS — RIGHT OF ACTION.

Prior to Act April 13, 1905 (Laws 1905, p. 135), amending Rev. St. 1899, c. 17, § 2864 (Ann. St. 1906, p. 1637), providing an action for wrongful death, so as to authorize a recovery for the death of an employé, servant, or agent of a railroad company, etc., caused by a fellow servant's negligence, there was no statute in force allowing a recovery for a death so occasioned.

9. SAME — STATUTES — CONSTRUCTION.

Rev. St. 1899, §§ 2864, 2865 (Ann. St. 1906, pp. 1637-1644), providing a remedy for a death by negligent act, and the fellow servant act of 1897 (Laws 1897, p. 96), are in derogation of the common law, and must be strictly construed.

On Motion for Rehearing.

10. MASTER AND SERVANT — INJURIES FROM NEGLIGENCE OF FELLOW SERVANTS — RIGHTS TO RECOVER AT COMMON LAW.

At common law no action could be maintained by a fellow servant to recover damages against a corporation, or other person, by reason of the negligence of a fellow servant.

Gantt, C. J., and Lamm and Valliant, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Death action by Magdalene Strottman against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Martin L. Clardy and Louis F. Dinning, for appellant. H. B. Irwin and Byrns & Bean, for respondent.

BURGESS, J.

This is an action by plaintiff, Magdalene Strottman, widow of Fred W. Strottman, against the defendant company to recover $5,000 damages for the death of her husband, who was injured in a collision on defendant's railway on October 22, 1902, from which injuries he thereafter died. The petition alleges as follows: "Plaintiff for her amended petition states that on and prior to the 24th day of October, 1902, Fred W. Strottman was her lawful husband, and that she is now his widow, and that defendant was at said time and long prior thereto a railroad corporation, duly organized and existing under the laws of the state of Missouri, and having capacity to sue and be sued as such. Plaintiff says that at said time and long prior thereto defendant owned and operated a railroad extending from the city of St. Louis, in the state of Missouri, to the city of Texarkana, in the state of Arkansas. Plaintiff says that defendant, on said date and prior thereto, maintained and operated many trains on said railroad, both north and south bound, that all said trains were run as ordered by the agents, officers, servants, and employés of said defendant, and that its said trains were being run on the dates hereinafter mentioned. Plaintiff says that on the 22d day of October, 1902, and long prior thereto, Fred W. Strottman was in the employment of said defendant as locomotive engineer, and that on said 22d day of October, 1902, said Fred W. Strottman took charge of a locomotive engine of defendant, as engineer, at defendant's request, which said engine was pulling a train of cars for the purpose of running the same and the train of cars attached thereto; and was ordered by the defendant to run the same south, on its main track, from De Soto, Mo., through and beyond Blackwell Station. Plaintiff says that, in pursuance of said orders of defendant, that said Fred W. Strottman, on the day aforesaid, was running said engine and said train of cars south over defendant's road, and that at the same time defendant's agents and servants, acting in the line of their duties, were conducting and running an engine and train from beyond Blackwell Station to the north on its road, and that defendant's train dispatcher, acting in the line of his duties, transmitted an order to defendant's telegraph operator and agent at Blackwell Station, whose duty it was to receive the same and deliver it to defendant's servants in charge of said north-bound train; that said order required said north-bound train to stop at Blackwell Station, and there pass the aforesaid south-bound train; that the aforesaid agent of defendant at Blackwell Station negligently and carelessly failed to deliver said order to defendant's servants in charge of said north-bound train, and negligently allowed said train to pass Blackwell Station, and in consequence thereof, and the negligence and carelessness of the agents and servants of defendant in conducting, managing, and directing the movements of said train, that the said trains, while running at a high rate of speed, came into collision, and the said Fred W. Strottman, without fault on his part, sustained injuries thereby, from which he died on the 24th day of October, 1902. That said collision was caused by the negligence and unskillfulness of defendant's agents, officers, and servants in ordering managing, and directing the movements of said engines and trains, and that by reason thereof the said Fred W. Strottman was killed." The defenses were a general denial (except as to the allegation that defendant was a railway corporation) and a plea of contributory negligence. The trial before the court and jury resulted in a verdict and judgment in favor of plaintiff for the sum of $5,000. Having duly filed motions for new trial and in arrest, which were overruled, defendant saved exceptions, and appealed.

The facts disclosed by the record are but few, and are substantially as follows: Fred W. Strottman was at the time of the accident an engineer in the service of defendant, and, as such engineer, in charge of an engine which was pulling out a train of cars at De Soto, Mo. He was ordered by defendant to run said engine and train south, on defendant's main track, from De Soto through and beyond Blackwell Station, a station about nine miles south of De Soto, and situated in St. Francois county, Mo., and in pursuance of said order he was running said engine and train of cars south over defendant's road. At the same time defendant's agents and servants, acting in the line of their duties, were conducting and running an engine and train from beyond Blackwell Station to the north on its road; and defendant's...

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