Superior Minerals Co. v. Mo. Pac. R.R. Co., 21792.

Decision Date02 February 1932
Docket NumberNo. 21792.,21792.
Citation45 S.W.2d 912
PartiesSUPERIOR MINERALS COMPANY, A CORPORATION, RESPONDENT, v. MISSOURI PACIFIC RAILROAD COMPANY, A CORPORATION, APPELLANT.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Washington County. Hon. E.M. Dearing, Judge.

AFFIRMED.

Thos. J. Cole, Russell L. Dearmont and W.C. Russell for appellant; Edw. J. White of counsel.

(1) Prior to the passage of the Workmen's Compensation Law only the persons named in the penalty section of the Damage Act could maintain a suit under the act. Coover v. Moore & Walker, 31 Mo. l.c. 576; Barker v. Railroad Co., 91 Mo. l.c. 94; Chandler v. Railroad Co., 251 Mo. l.c. 600; Frei v. Railroad Co., 222 S.W. l. c. 825; Langhan v. Railroad Co., 253 S.W. l.c. 761; Betz v. Railroad Co., 253 S.W. 1091; Betz v. Railroad Co., 284 S.W. 455; Clark v. Railroad, 219 Mo. 524; Herrell v. Railroad, 23 S.W. (2d) 102. (2) The subrogation section of the Workmen's Compensation Act does not create any new cause of action, nor does it amend or repeal the penalty section of the Damage Act. McKenzie v. Mo. Stables, Inc., 34 S.W. (2d) l.c. 140; Lucky v. Union Pacific Ry. Co. (Neb.), 219 N.W. 802. (3) If either the employer or the insurer could maintain this action, it would be the insurer and not the employer. Sec. 3304, R.S. 1929; Sec. 3304, R.S. 1929, Subdivision (c). (4) The respondent could not maintain this suit, even if Section 11 of the Workmen's Compensation Act were applicable, because the testimony shows that the Constitutional Indemnity Company has paid all payments which have been made to Lucy Golden, who was John Golden's widow. If there is no payment there can be no subrogation, conventional or equitable. State v. Daues, 289 S.W. 550; Ward v. Concordia Fire Ins. Co., 262 S.W. 450; Ames v. Huse, 55 Mo. App. 422; Matthews v. Switzler, 46 Mo. 301. (5) John Golden was guilty of contributory negligence as a matter of law. Therefore plaintiff's instructions Nos. 1, 2 and 4, on primary negligence, should not have been given, and defendant's demurrer sustained. Betz v. Ry. Co., 253 S.W. 1090; Henderson v. Railroad, 284 S.W. 788; State ex rel. v. Bland, 237 S.W. 1018; Dempsey v. Traction Co., 256 S.W. 155; Nichels v. Railroad, 250 S.W. 627; Dickey v. Railroad, 251 S.W. 112; Nun v. Railroad, 258 S.W. 20; Wallace v. Railroad, 257 S.W. 507; Aldrich v. Railroad, 256 S.W. 93; Monroe v. Railroad, 249 S.W. 644; Evans v. Railroad, 233 S.W. 397; Morrow v. Hines, 233 S.W. 493; Haworth v. Railway Co., 293 S.W. 508. (6) Under the facts disclosed by this record the court should not have submitted the case to the jury under the humanitarian or last-clear chance doctrine. Betz v. Ry. Co., 253 S.W. 1089. (7) The giving of Instruction No. 6 on the measure of damages was clearly erroneous and constituted reversible error. Treadway v. United Railway Co., 253 S.W. 1042; Grier v. Railway Co., 286 Mo. 523, 228 S.W. 454.

A.A. Alexander and Charles E. Morrow for respondent.

(1) The fact that the widow and sole dependent, Lucy Golden, was not made a party to this suit appears upon the face of the petition, and such an objection can be raised only by demurrer. The fact that the insurer was not made a party does not appear upon the face of the petition, and such an objection must be raised by answer. The defendant having failed to demur to plaintiff's petition waived the first objection, and having failed to raise the second objection by answer, has waived that objection. R.S. 1929, Secs. 773-774. The only question now open is whether the plaintiff, the employer, is a proper party plaintiff in this suit, regardless of who else should, or might have been, joined as parties. Kerr v. Bell, 44 Mo. 120; Hat Co. v. Hombs, 127 Mo. 392; Johnson v. Railways Co., 247 Mo. l.c. 357, 358; Mitchell v. Parlin, 255 Mo. l.c. 124; Automatic Sprinkler Co. v. Stevens, 306 Mo. 518, l.c. 532; City of DeSoto v. Dover, 38 S.W. (2d) 267; Kemper v. Gluck, 39 S.W. (2d) 330, l.c. 334-335. (2) There can be no question that the plaintiff, as employer, is a necessary and proper party plaintiff in this case. Laws 1927, p. 497; R.S. 1929, Sec. 3309; McKenzie v. Missouri Stables, 34 S.W. (2d) 136, l.c. 139. (3) A judgment against the plaintiff, as employer, had been rendered against it by the Compensation Commission in the sum of $3000, as compensation to the widow as sole dependent of John Golden, deceased, and plaintiff became liable therefor, and under Section 11 of the Compensation Act, now Section 3309, Revised Statutes 1929, the plaintiff, as employer, was a proper and necessary party to bring this suit, and by the terms of the statute became subrogated to all the rights which the widow of deceased had at law to recover against defendant, a third party, for the wrongful death of her husband, the employee. This section of the Compensation Act invests the plaintiff, as employer, with all the rights which the plaintiff, as widow, would have had against the defendant for the wrongful death of her husband if he had not been an employee under the Compensation Act. R.S. 1929, Sec. 3309; Travelers Ins. Co. v. Lewis Padula Co., 224 N.Y. 397; Basso v. Clarke & Sons, 177 N.Y. Supp. 484; Fidelity & Cas. Co. v. Llewellyn Iron Works (Cal.), 184 Pac. 402; Georgia Cas. Co. v. Haygood (Ala.), 97 So. 87; Wright & Nave Contr. Co. v. Ala. Fuel & Iron Co. (Ala.), 99 So. 728; Golden & Bates Transf. Co. v. Brown & Schler Co. (Mich.), 177 N.W. 202; Marshall Jackson Co. v. Jeffrey et al., 167 Wis. 63; Otis Elev. Co. v. Miller & Paine, 240 Fed. 376, l.c. 380; Shreveport v. S.W. Gas & Elec. Co., 145 La. 680. (4) The plaintiff became liable in the sum of $3000, the amount of the judgment against it. But a small portion of the judgment, which was due in monthly payments, had been paid by the insurer at the time this suit was brought. It was not necessary to show that plaintiff had actually paid any part of this judgment for the reason that it was liable therefor, and under the facts shown it was subrogated by Section 11 of the Compensation Act to the rights of the dependent widow, and had a right to bring this suit, and had and has sufficient interest in the subject matter to be and was a proper party plaintiff, regardless of who else may also be a proper party plaintiff or defendant. McKenzie v. Missouri Stables, 34 S.W. (2d) 136, l.c. 139; Otis Elev. Co. v. Miller & Paine, 240 Fed. 376, l.c. 380; R.S. 1929, Sec. 3309; Shreveport v. S.W. Gas & Elec. Co., 145 La. 680. (5) The view at the crossing was obstructed; deceased stopped before going upon the track; no bell, whistle or other signal was given by the train; and there is a presumption that deceased was in the exercise of ordinary care. Toenebohn v. Railroad Co. (Mo. Sup.), 298 S.W. 795; Ward v. Railroad, 311 Mo. 92; Flannigan v. Railroad, 297 S.W. 463; Moore v. Wabash R.R. Co., 147 Mo. App. l.c. 65; Brown v. Chicago R.I. & P. Ry. Co. (Mo. Sup.), 252 S.W. 55; Swift & Co. v. St. Louis Transfer R.R. Co., 15 S.W. (2d) 387. (6) The evidence tended to prove that the defendant's servants and employees saw, or by the exercise of ordinary care could have seen, the deceased and his wagon and team in imminent peril and danger in time to have stopped said train, or to have checked the speed thereof, and to have avoided killing deceased. The humanitarian doctrine applies. Banks v. Morris & Co., 302 Mo. 254. (7) Instruction No. 6 on the measure of damages is a correct declaration of law, and has been approved by the Supreme Court. Ward v. Railroad Co., 311 Mo. 92, l.c. 107-110; Superior Minerals Co. v. Missouri Pacific Railroad Co., No. 21792; Appellant's motion for rehearing overruled February 17, 1932; Writ of certiorari granted by Supreme Court March 15, 1932; Writ of certiorari quashed by Supreme Court April 20, 1933, 59 S.W. (2d) 690.

BENNICK, C.

This is an action for the wrongful death of John Golden, which his employer, Superior Minerals Company, seeks to maintain pursuant to Section 3309, Revised Statutes 1929, upon the theory that its liability to Golden's dependent widow, Lucy Golden, for compensation under the provisions of the Workmen's Compensation Act (Sections 3299-3376, R.S. 1929) has subrogated it to her right of action against the defendant, Missouri Pacific Railroad Company, under Section 3262, Revised Statutes 1929. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $5,000; and following the overruling of its motion for a new trial, defendant has duly appealed.

The petition alleged that on and prior to October 15, 1928, John Golden was in the employ of plaintiff, and was engaged as such servant at the time he was killed; that both plaintiff and the deceased were at the time operating under, and were subject to, the Workmen's Compensation Act; that the deceased left surviving him a widow, Lucy Golden, but no child or children, either natural born or adopted; that his widow had been dependent upon him for support and maintenance as his wife; that she was his sole dependent under the terms and provisions of the compensation act; and that prior to and at the time of the death of the deceased, he was living with the said Lucy Golden as his wife, and was supporting, maintaining, and caring for her as such.

It was then alleged that by the terms of the compensation act, plaintiff was obligated to pay the amount of compensation provided therein to the said Lucy Golden, as the widow and sole dependent of the deceased; and that it had become liable for, and was paying, compensation to the widow, in accordance with the act, in the aggregate sum of $3,165.

It was further alleged that by the provisions of Section 3309, Revised Statutes 1929, plaintiff was and is subrogated to the right of action of the dependent widow of the deceased against the...

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