194 Mo. App. 472 | Mo. Ct. App. | 1916
The petition in this action avers that the defendant company maintains a department of service for the establishment and management of a fund known as the Relief Fund, for the payment of a definite amount to the relatives or beneficiaries of its employees, who are killed and who have, in accordance with the provisions of the department, contributed to the Relief Fund and become a member thereof; that this department has been maintained by defendant since and prior to March 15, 1889, and continuously down to the date of the institution of this action (November 18, 1910), and that the defendant company guaranteed the fulfillment of the obligations of the Relief Department evidenced by a memorandum of agreement entered into between the defendant company and other affiliated companies, by which they jointly maintained the Relief Department and by which each became responsible for and guaranteed the payment of such amounts as might become due from that department to the beneficiary of the employees of. the respective roads in case of the death of the employees, who bad become members of and contributed to the Relief Fund in accordance with its- provisions and regulations. It is further averred
“If any suit shall be brought against the company or any other company associated therewith as aforesaid, for damages arising from or growing out of injury or death occurring to a member, the benefits otherwise payable and all obligations of the Relief Department and of the Company created by the membership of such member in the Relief Fund shall thereupon be forfeited without any declaration or other act by the Relief Department of the Company; but the superintendent may, in his discretion, waive such forfeiture upon condition that all pending suits shall first be dismissed.”
Setting out this regulation, it is averred that it is illegal, void and of no effect, and that under the membership of Matthews in the Relief Department his beneficiary was entitled to the sum of $1000 in case of his death. Averring that plaintiff was and is the beneficiary under the membership and as such entitled to the sum of $1000, which the defendant company agreed to pay, and that demand for the payment of the amount due plaintiff was made and refused, the demand, it being averred, having been made soon after the death of Matthews in 1906, and again specifically on March 9, 1910; that the payment was refused by both the Relief Department and" the defendant company, and that no payment had been made to plaintiff by either the Relief Department or by the defendant company, judgment is demanded against the defendant railroad company for $1000, together with interest at the rate of six per cent per annum from and after March 6, 1910, and for her costs.
Defendant filed an amended answer to this, which was demurred to and the demurrer overruled. Thereupon the defendant filed its second amended answer to the petition. In this answer, admitting that it was a corporation engaged in operating a railroad through Audrain county, Missouri, and that plaintiff was the wife of Marvin Matthews, and that he died from in
To this-second amended answer plaintiff demurred on the ground that the matters and things set out therein did not constitute a valid defense to her cause of action. The demurrer was overruled and plaintiff refusing to plead further, judgment went in favor of defendant, from which plaintiff has duly perfected her appeal.
REYNOLDS, P. J. (after stating the facts). — We have set out the answer with perhaps unnecessary fullness, and we do so to give the defendant the full benefit of exhibiting its claimed equities. The appellant has included in her abstract the first amended answer of the defendant, in which .defendant admitted that it was a corporation operating its railroad through Audrain county, Missouri, and that it then owned and was operating its railroad through portions of the State of Illinois and other States of the United States, that of course meaning that it was engaged in Interstate Commerce and so amendable to the Acts of Congress. This is not in the second amended answer, which is the only one we can consider on this demurrer. As we are remanding the case, we think it not improper to call attention to this so that it can he made clear by amended pleadings or stipulation, if it is desired to appeal to the Federal Employer’s Liability Law. As to whether this case comes under that law we now express no opinion.
The principal question involved in this case is practically indentical with that which was before the Kansas City Court of Appeal in Hartman v. Chicago, B. & Q. R. R. Co., not yet officially reported but see 182 S. W. 148. In that case it was argued that this defendant and its employer were at the time of the accident engaged and employed in interstate commerce. As we have said, that question is not now before us.
So also the Supreme Court of Nebraska held in its opinion on a motion for rehearing in Chicago, B. & Q. R. R. Co. v. Realy, 76 Neb. 786, reversing the original opinion to the contrary, which is in the same volume, commencing at page 783. See also note to the opinion on rehearing-in the Healy case in 10 L. R. A. (N. S.) 198.
Without further discussion of the case or of the points so ably briefed and argued by the respective counsel, we refer to the decision of the Kansas City Court of Appeals, in Hartman v. Chicago, B. & Q. R. R. Co., supra, for our view of the law here applicable.
It follows that the action of the- learned circuit court in overruling appellant’s demurrer to the second amended petition and in dismissing plaintiff’s action is reversed and the cause - remanded for such further proceedings as may be taken in line with what we have here determined.
OPINION ON MOTION FOR DIRECTION OF JUDGMENT.
PER CURIAM. — After the filing of our opinion in this case, reversing the judgment of the circuit court for error in overruling a demurrer to the second amended answer and remanding the cause to that court for further proceedings, the appellant has filed a motion asking us to modify that opinion reversing the
"While the answer, after making certain admissions of formal matters, does aver that defendant ‘ ‘ denies each and every other allegation in plaintiff’s petition contained except such as may he hereinafter admitted,” as stated in the opinion, the admissions and averments are to the effect that the husband of appellant was a member of the Relief Department referred to in the opinion, in good standing at the time of his death, and it seeks to avoid liability under the provisions of the sixty-third regulation, also set out in the opinion, pleading that plaintiff is bound by that, and that, under it, she cannot recover against the Relief Fund, she having knowingly brought suit for damages for the death cf her husband. Practically this is a plea of confession and avoidance. As all the facts are set out in this answer upon which the defense is founded, and as we have found that defense unavailable, there is nothing left in the defendant’s case.
Appellant’s motion is accordingly sustained, and the order of our court now is, that the judgment of the circuit court sustaining the demurrer to the amended answer of defendant is reversed and the cause remanded to that court with directions to sustain the demurrer to the second amended answer and to enter up a judgment upon the pleadings in favor of the appellant, plaintiff below, for the sum of $1000, with interest thereon at 6 per cent per annum from the date of the commencement of the action, to-wit, November 18, 1910, and awarding costs to appellant.