Wallace v. Woods

• Decision Date: 05 February 1937
• Docket Number: 32995
• Citation: 102 S.W.2d 91,340 Mo. 452
• Parties: Robert T. Wallace and Mary Baskin, Administrators of the Estate of John William Wallace, Appellants, v. Clarence M. Woods
• Court: Missouri Supreme Court

102 S.W.2d 91

340 Mo. 452

Robert T. Wallace and Mary Baskin, Administrators of the Estate of John William Wallace, Appellants, v. Clarence M. Woods

No. 32995

Supreme Court of Missouri

February 5, 1937

Motion for Rehearing Overruled December 14, 1936.

Motion to Transfer to Banc Overruled February 5, 1937.

Appeal from Chariton Circuit Court; Hon. Paul Van Osdol Judge.

Reversed and remanded.

Scott J. Miller, Roger S. Miller and W. T. Ragland for appellant.

This cause of action is based upon Sections 3262, 3263 and 3264 insofar as these sections are applicable to the cause of action. In Section 3262, damage section, it specifically sets out: ". . . or of any driver of any stage coach automobile, motor car or other public conveyance whilst in charge of the same as a driver . . . or who owns, operates or conducts . . . any automobile, motor car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskillfulness, negligence . . . pilot, engineer or driver whose negligence, unskillfulness . . . shall cause such injury shall forfeit and pay as a penalty for every such person . . . so dying, the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury . . . If there be no husband, wife, minor child or minor children, natural born or adopted . . . or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor. . . ." Now in this case the evidence shows that the deceased, John Wallace, was a bachelor and a suit to recover for his death came under Division Four of the Damage Act which was done. The allegations as above seen in the petition set forth that the defendant was the owner of and the driver of a large truck and at the very time of the killing of the deceased, he was operating the same as driver and owner as a common carrier. The Act of 1905 making the present statute of Section 3262 is constitutional. Myers v. Kennedy, 267 S.W. 813.

Thomas P. Burns and Chapman & Chapman for respondent.

(1) The court does not have jurisdiction of this cause and the appeal should be dismissed as the record of the trial court shows that the plaintiff took a voluntary nonsuit. Chouteau v. Rowse, 90 Mo. 191; Graham v. Parsons, 88 Mo.App. 385; Greene County Bank v. Gray, 146 Mo. 568; McClure v. Campbell, 148 Mo. 96; Natl. Live Stock Comm. Co. v. Thero, 154 Mo.App. 508; Diamond Rubber Co. v. Wernicke, 166 Mo.App. 128; Armstrong v. Dunn, 180 Mo.App. 123; Lewis v. Center Creek Mining Co., 199 Mo. 463; McFarland v. O'Reilly, 308 Mo. 322; Segall v. Garlichs, 313 Mo. 406; McDonald v. Peck Dry Goods Co., 228 S.W. 759; Bank of Rockville v. Corbin, 276 S.W. 880; Hogan-Sunkel Heating Co. v. Bradley, 7 S.W.2d 255; Owens v. Washington Fidelity Natl. Life Ins. Co., 85 S.W.2d 193; Kane v. Kaysing Iron Works, 89 S.W.2d 532. (a) Whether a nonsuit is voluntary or involuntary is not to be determined from its designation by the trial court of plaintiffs, but by the manner in which it is invoked to be ascertained by the attendant circumstances. Simply to call a nonsuit involuntary does not make it so. Greene County Bank v. Gray, 146 Mo. 568; McFarland v. O'Reilly, 308 Mo. 322; Segall v. Garlichs, 313 Mo. 406; Natl. Live Stock Comm. Co. v. Thero, 154 Mo.App. 508; Hogan-Sunkel Heating Co. v. Bradley, 7 S.W.2d 255; Stephenson v. American Natl. Ins. Co., 78 S.W.2d 881. (b) The mere fact the court intimated or announced its intention to sustain a demurrer to the evidence is not an adverse ruling but a mere expression of an opinion. Graham v. Parsons, 88 Mo.App. 385; Diamond Rubber Co. v. Wernicke, 166 Mo.App. 128; McClure v. Campbell, 148 Mo. 96; Hogan-Sunkel Heating Co. v. Bradley, 7 S.W.2d 255; Owens v. Washington Natl. Ins. Co., 85 S.W.2d 193; Kane v. Kaysing Iron Works, 89 S.W.2d 532. (c) In order to constitute an involuntary nonsuit, the instruction must be actually given. McClure v. Campbell, 148 Mo. 96; Lewis v. Center Creek Mining Co., 199 Mo. 463; McDonald v. Peck Dry Goods Co., 228 S.W. 759; Owens v. Washington Natl. Ins. Co., 85 S.W.2d 193; Kane v. Kaysing Iron Works, 89 S.W.2d 532. And this is true even though the court marks it "given," indicating his intention to give, but does not actually read same to jury. Kane v. Kaysing Iron Works, 89 S.W.2d 533. (d) Where there is a conflict or discrepancy between the bill of exceptions and the record proper, the latter must control. Jacobs v. Western Fertilizer & Chemical Works, 9 Mo.App. 575; Jones v. Lime Co., 128 Mo.App. 345; Ricketts v. Hart, 150 Mo. 64. (2) Plaintiffs in order to recover for the wrongful death of their brother must both by their pleading and proof bring themselves within the terms of the statute. Betz v. Ry. Co., 284 S.W. 455; Smith v. Allee, 211 Mo.App. 82. (3) Plaintiffs' petition does not state facts sufficient to constitute a cause of action under Sections 3263 and 3264, Revised Statutes 1929 (the damage sections). Johnson v. Dixie Mining Co., 171 Mo.App. 134, affirmed, 187 S.W. 1; Troll v. Laclede Gas Light Co., 182 Mo.App. 600; Cooley v. Dunham, 196 Mo.App. 399; McCullough v. Powell Lumber Co., 205 Mo.App. 15; Smelser v. Ry. Co., 262 Mo. 25; O'Hara v. Lamb Construction Co., 200 Mo.App. 292. (a) To recover under Sections 3263 and 3264, Revised Statutes 1929, plaintiffs must allege in their petition, and offer evidence to show, someone suffered pecuniary injury by reason of the death of John William Wallace. (b) The plaintiffs concede that they did not plead or prove any cause of action under Sections 3263 and 3264, Revised Statutes 1929. (4) Under the second clause or division of Section 3262, Revised Statutes 1929, the cause of action is against the owner or operator of the instrument of transportation for the death of a passenger resulting from a defect or insufficiency in the instrument of transportation. Schultz v. Railroad Co., 36 Mo. 13; Proctor v. Railroad Co., 64 Mo. 112; McKenna v. Ry. Co., 54 Mo.App. 161; Crumpley v. Railroad Co., 98 Mo. 34; Miller v. Ry. Co., 109 Mo. 350; Chicago, R. I. & Pac. Ry. Co. v. Stepp, 151 F. 908. (a) The petition is not bottomed on any negligence of the defendant due to any defect or insufficiency in the instrument of transportation nor is there any allegation that the deceased was a passenger on the defendant's truck; therefore, said petition states no cause of action under second clause of Section 3262, Revised Statutes 1929. (b) If one (not a passenger) in bringing his action chooses to place it on Section 3262, Revised Statutes 1929, the negligence of the defendant alone as such will avail him nothing. McKenna v. Mo. Pac. Ry. Co., 54 Mo.App. 161. (5) The word "own" and "owner" is used in connection with the second clause or division of Section 3262, Revised Statutes 1929. Proctor v. Railroad Co., 64 Mo. 112; Schultz v. Railroad Co., 36 Mo. 13; Chicago, R. I. & Pac. Ry. Co. v. Stepp, 151 F. 908. (6) Plaintiffs' petition does not state facts sufficient to constitute a cause of action under the first clause of Section 3262, Revised Statutes 1929 (the penalty section), because there is no allegation that an agent, servant or employee was operating the instrument of transportation. Schultz v. Railroad Co., 36 Mo. 13; Peters v. Railroad Co., 150 Mo.App. 721; Hegberg v. Railroad Co., 164 Mo.App. 514; Crohn v. Telephone Co., 131 Mo.App. 313; Gray v. Railroad Co., 157 Mo.App. 92; Griggs v. Dunham, 204 S.W. 573; Drakesmith v. Ryan, 57 S.W.2d 727; Higgins v. Ry. Co., 197 Mo. 300; Casey v. St. Louis Transit Co., 205 Mo. 721; Young v. Railroad Co., 227 Mo. 307; State ex rel. Iba v. Mosman, 231 Mo. 474; Chicago, R. I. & P. Ry. Co. v. Stepp, 151 F. 908; McKenna v. Railroad Co., 54 Mo. 161; Rawie v. Railroad Co., 310 Mo. 99; St. Louis, I. M. S. Railroad Co. v. McNamare, 122 S.W. 102; Denver & R. G. Railroad Co. v. Fredric, 140 P. 463; Mallory v. Pioneer Southwestern Stages, 54 F.2d 559. (7) The word "driver" in Section 3262, Revised Statutes 1929, is used in association with other admitted words of "agency," and is, therefore, used in the sense of an agent or servant being in charge of the instrument of transportation such as the stage coach or automobile. Droeshagen v. Railroad Co., 186 Mo. 258; Casey v. Transit Co., 205 Mo. 721; Peters v. Railroad Co., 150 Mo.App. 721; Higgins v. Ry. Co., 197 Mo. 300. (8) In construing Section 3262, Revised Statutes 1929, with a view of determining the meaning of the word "driver," all provisions of said section must be considered. Bowers v. Missouri Mutual Assn., 62 S.W.2d 1063. (9) Sction 3262, Revised Statutes 1929, creates purely statutory rights of action which are not recognized by the common law. Casey v. Transit Co., 205 Mo. 721; Crohn v. Telephone Co., 131 Mo.App. 313; Hegberg v. Railroad Co., 164 Mo.App. 514. (10) The wrongful death statutes are in derogation of the common law and are strictly construed. Strottman v. Ry. Co., 211 Mo. 227; Troll v. Laclede Gas Light Co., 182 Mo.App. 600; Chicago, R. I. & P. Ry. Co. v. Stepp, 151 F. 908.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for $ 10,000 for the wrongful death of John William Wallace brought by his administrators. At the trial plaintiffs took an involuntary nonsuit. Motion to set this nonsuit aside was overruled by the court and judgment of dismissal entered. From that judgment, plaintiffs have appealed.

Defendant has filed a motion to dismiss this appeal on the ground that the nonsuit was voluntary. At the close of plaintiffs' evidence, the court adjourned "until the hour of 9:30 o'clock A. M. of the following day, to-wit, Saturday November 26, 1932." Evidently, although the bill of exceptions...