Pryor v. Payne, 244 S.W. 369

Pryor v. Payne

244 S.W. 369 | Mo. Ct. App. | 1922

This action was brought by the plaintiff against John Barton Payne, Agent of the United States Railroad Administration, based on what is now section 4217, Revised Statutes of Missouri of 1919, for the death of her husband, W.A. Pryor.

The petition alleges that W.A. Pryor died on November 25, 1919, as a direct result of an injury received by him on the 23rd day of November, 1919, at a railroad crossing in Newton county, Missouri, and charges that the servants and employees of Walker D. Hines, who was at that time the Director General, were negligent, the petition stating a cause of action under the humanitarian doctrine. The cause was tried in the circuit court of McDonald county, having been taken there on change of venue, resulting in a verdict for the plaintiff in the sum of $2500. The appellant being unsuccessful in having the judgment set aside in the circuit court, has lodged his appeal in this court, and several grounds for reversal are pressed in the brief. The only error assigned is that the court failed to direct a verdict for the defendant. One of these grounds is that the Director General of Railroads, during the period of federal control, is not liable for statutory penalties for violation of State laws, citing as an *11 authority for that position the case of Mo.-Pac. Ry. Co. and Walker D. Hines, Director General of Railroads, Plaintiff in Error, v. H.A.F. Ault, a case decided by the Supreme Court of the United States, the opinion being delivered June 1, 1921, reported in advance sheets for 1920 and 1921, 65 Law Ed., page 647. In that case the question of the liability of the Director General of Railroads for violation of the State penalty statute during federal control was extensively discussed in an opinion by Mr. Justice BRANDEIS, which received the unanimous sanction of that high court. In that case it was held that there could be no recovery against the Director General for a penalty in violating a State penalty statute.

In the recent case of Grier v. Kansas City, C.C. St. J. Ry. Co., 228 S.W. 454, the Supreme Court in Banc in an exhaustive opinion by Ragland, Commissioner, held that a recovery under the second section of the damage act, which is section 4217, Revised Statutes of Missouri, 1919, is entirely one of penalty, and that such recovery is in no sense or manner compensatory. In that opinion two members of the court in Banc concur, two concur in result, two dissent, one member of the court not sitting.

Later, the Supreme Court, Division Two, in the case of Lackey v. United Railways Co., 231 S.W. 956, l.c. 962, approved the holding in the Grier case, (228 S.W. 454), all of the Judges of that Division concurring in the opinion on that point.

The question was again touched on by the Supreme Court of Missouri in a case tried in Banc which was the Midwest National Bank Trust Co. v. Davis, Director General of Railroads,233 S.W. 406, wherein, on page 412, the court, in speaking of section 4217, Revised Statutes of 1919, held as follows: "This statute is purely penal and is in no sense or degree compensatory, as was held in Grier v. Railway Co., 228 S.W. 454." This opinion was concurred in by all members of the court except GRAVES, J., who dissented, criticising the holding in the Grier case. WALKER, J., dissented on a question foreign to what was said concerning the Grier case. It will be *12 noted, however, that he was one of the members of the court who concurred in the Grier case. We take it, therefore, that the last holding of the Supreme Court of this State place a recovery under section 4217, Revised Statutes of 1919, as wholly penal. This being true, the Ault case (Adv. Sheets 1920 and 1921, 65 Law Ed. 647), decided by the Supreme Court of the United States, and the case of Norfolk-Southern Railroad Co. v. Owens, handed down on June 1, 1921, and found in the Supreme Court Advance Opinions 1920 and 1921, 65 Law Ed. Ed. 652, which latter case held that the Director General could not be held for penalty imposed by State statute for delay shipment, would clearly bar a recovery of the plaintiff in this cause.

Since, therefore, a recovery under section 4217, Revised Statutes of Mo. 1919, is purely and only penal, we must hold that the trial court erred in not directing a judgment for the defendant. We realize that there are probably a great number of cases still pending in the courts of Missouri based upon the same section of law that this suit was based on, and that it is a matter of much public concern that the question upon which we hold this case must go out of court should be finally settled by the Supreme Court of this State. There are doubtless a number of cases which have been affirmed by the appellate courts in this State wherein recovery was had under section 4217, Revised Statutes of 1919 against the Director General of Railroads for wrongful acts of his servants during the federal control and were upheld. While the question raised and passed on here had not apparently been directly passed on in any opinion, it not having been raised, however, the result of our holding in this case is necessarily in conflict with those cases.

For the purpose of certifying this case to the Supreme Court, we have found one of these cases above referred to is that of Williams v. Walker D. Hines, Director General of Railroads, et al., 229 S.W. 414, wherein the Kansas City Court of Appeals upheld a judgment against the Director General, based upon section 4217, *13 Revised Statutes of 1919, and the result of that opinion is necessarily in conflict with the result of the opinion in this case. The judgment is reversed and the cause is certified to the Supreme Court as being in conflict with the last named case.

Cox, P.J., and Bradley, J., concur.