Scamell v. St. Louis Transit Co.

103 Mo. App. 504 | Mo. Ct. App. | 1903

REYBURN, J.

(after stating the facts as above).— 1. The imperative instruction asked by defendant at the close of the testimony was not justified on either ground urged, and was properly rejected. The evidence was in conflict, but the testimony offered by plaintiff, if given credence by the jury, warranted and supported the conclusion that, without fault on his part, defendant had been remiss in its duty, as a common carrier of passengers, towards the plaintiff, and the casualty thereby occasioned; the proof introduced in defense of the action tended to establish the charge of the defendant in its answer, that plaintiff’s son himself had been guilty of contributory negligence in jumping from the car while in motion, after it had left the usual point for passengers to alight, and in so getting off such southbound car without looking or listening for the approaching north-bound car, when by so looking and listening, he might have seen and heard such car and avoided collision therewith. In the state of the opposing testimony thus exhibited, where the facts in evidence admitted of different construction and inference, the question, whether negligence was imputable to the injured party or to the defendant, was correctly committed to the jury.

2. The general rule of law dominant in this State,, is that, prima facie, the services of the minor children belong to the father during his lifetime, and upon his; decease to the mother, if she be surviving, upon whom the burden of their maintenance during minority is imposed. The widow, upon the death of her husband, succeeds to his obligation and duty towards their minor children; she becomes in his place and as his successor,, the head of the family, and upon her devolves the-shelter, clothing and education of the minor children,, and in turn she acquires the reciprocal right to their services and becomes entitled to their earnings till they attain majority, qualified, however, and subject to the-condition, that such right to their earnings exists and endures if, and so long as, such minor children make their home with and are supported by her. Matthews v. Railway, 26 Mo. App. 75; Mauerman v. Railway, 41 Mo. App. 348; Wood, Master and Servant (2 Ed.), sec. 21; Guion v. Guion, 16 Mo. 48; Dooley v. Railway, 45 Mo. App. 309; Hennesey v. Brewing Co., 63 Mo. App. Ill. The plaintiff, as surviving parent, was entitled to the earnings of her minor son until he arrived at full age, while he lived with her and made her residence his home, and if deprived of his earnings, or upon the diminution of them by the unlawful act of the defendant, she was entitled to redress against the latter, regardless and irrespective of the fact that the injury to her son, by which his earnings were lost to her, or became reduced, occurred pending a contractual relationship existing between her son and defendant, or by breach of a contract entered into between them to which she was a stranger and nowise in privity.

3. The right of the father, or in the event of his decease, abandonment or desertion, the successive right of the mother to the earnings of the minor children during their minority, and during the period he or she performs the parental duties dictated by nature, and imposed by law, originates, not by virtue of the relationship of parent and child, but is based on the relationship of master and servant. The parental tie of parent and child may exist, but the custody and support may have been abandoned by the parent in various ways, and the situation of master and servant therefore not be pre*sented, and the right to earnings of the minor child have ceased or been suspended. The obligation of the parent to support the minor children primarily incumbent upon the father, and in the contingencies mentioned secondarily devolved upon the mother, and the right of either to the earnings of such children, are correlative and interdependent, the right springing from the duty, and both exist, continue and cease together. It there-* fore becomes an essential averment in an action by a parent to recover fox loss of earnings of a minor child, that the child injured was the servant of the parent, who has been deprived of its services. The rule of the com* mon law in all actions by a father, per quod servitium amisit, was that an averment of loss of services was requisite, and the modern code, while extinguishing fictions and technical forms of action, has not dispensed with constitutive averments essential to a cause of action. Dunn v. Railway, 21 Mo. App. 188; Matthews v. Railway, 26 Mo. App. 75; Mauerman v. Railway, 41 Mo. App. 348; Schmitz v. Railway, 46 Mo. App. 380. This rule is as applicable to one as to the other parent, and in an action by the mother to recover for the services of a minor child, the statement of the cause of action must also negative the original right of the father-by declaring that he is dead, or has abandoned the child and forfeited the right on his part, as well as alleging that the minor is supported by her and has a home with her, so that it. appears that she is performing the parental duties. Wood’s Law of Master and Servant (2; Ed.), sec. 23.

The petition herein is assailed as destitute of any allegations of facts from which the relationship of master and servant can be inferred, and lacking any express, allegation of its existence, and therefore failed to state facts constituting a cause of action, and the motion in arrest filed and overruled assigns and directs attention to such imperfection as fatal to recovery. In Dunn v. Railway, 21 Mo. App. 188, the first case relied on hy defendant, there was no allegation in the petition that the injured boy was the servant of his father, the plaintiff, or that by reason of the injury, the plaintiff had been, or in the future would he, deprived of his services, hut the averment was made in these words, ‘ ‘ and said son has been permanently disabled from labor, and plaintiff has hy said injuries to his son been damaged in the sum of $5,000 for which sum he prays judgment.” This presentment of plaintiff’s right of action was held insufficient, as not equivalent to- an averment that plaintiff had lost his son’s services. In Matthews v. Railway, 26 Mo. App. 75, an action hy the widowed mother, the rule of the decision above was adhered to hy a majority of the court, but the writer of the opinion dissented, distinguishing the case from the Dunn case, and on his own behalf stating that the inferential allegations of the petition were sufficient to apprise defendant that plaintiff claimed as part of her recovery, damages for loss of services. The weight and force of these decisions by this court have been impaired hy subsequent cases reviewed and decided in the Kansas City division. In Buck v. Railway, 46 Mo. App. 555, the petition contained the narrow recital “by reason whereof plaintiff has laid out and expended large sums of money, to-wit, $1,000, for nursing, drugs, and medical attendance for his said son; and has and will be deprived of the services of his son of the value of $4,000.” The objection that the petition did not state facts sufficient to constitute a cause of action, appears to have been first presented to the appellate court, and it was held not seasonably made, and the failure to urge it in the court below, where it could have been met by an amendment, was held to operate as a waiver of the objection. Tlie language of the court being: “The rule is now well established by the adjudications in this State that, if a material matter is not expressly averred in the pleading, but is necessarily implied from what is stated therein, the defect is cured by verdict in favor of the party pleading. If the defendant in such case pleads to the merits he thereby waives the objection to the mere formal defects, and will not be heard at the trial, or on appeal, to object that the petition does not state a cause of action. Such an objection can only be interposed when the petition fails to state any cause of action, not where one is defectively stated. Grove v. City of Kansas, 75 Mo. 672; Bavie v. Kansas City, 51 Mo. 454; Elpart v. Seiler, 54 Mo. 134; Spurlock v. Railroad, 93 Mo. 538; Berthold v. Ins. Co., 2 Mo. App. 311; State v. County Court, 51 Mo. 522. The worst that can be said of plaintiff’s petition is, that it defectively stated the plaintiff’s title to the right of action, not that it whollyi failed to state a title at all, and, therefore, it is not subject to the objection that it did not state a cause of action.” In Hennesey v. Brewing Co., 63 Mo. App. 111, an action by the mother, the question arose in the form whether, from the bare allegation that plaintiff was the sole surviving parent, the inference could fairly be deduced that the deceased minor sra was the servant of the plaintiff at time of his death and the same learned judge who announced the opinion of the court in the Buck case, referred to it, but further held that the petition was insufficient, as it did not allege a loss of services, directly or inferentially. The petition herein, in clear terms, alleges that plaintiff is the mother of the injured boy, his minority and that his father was dead at the time of the accident, and the concluding paragraph expressly sets forth that by the injuries to her son, plaintiff has lost and will lose his services and the earnings of his labor, until he shall arrive at the age of twenty-one years, and has incurred and will incur large expenses for medicines, medicinal and surgical attention; nursing, and earing for her son, to her injury and damage in the sum named for which judgment is prayed.- The loss of services is distinctly averred, and the allegations made are abundant, from which to deduce by fair inference the relationship of master and servant and the legal right of plaintiff, as surviving parent, to the services of her minor son, until his arrival at his majority. That the petition is cured and perfected by and after the verdict, under the liberal statute in force in this State, appears beyond reasonable dispute. At most, there was here presented a petition based on good cause of action, if susceptible of legal proof, but defectively stated and certainly it is good after judgment. Salmon Falls Bank v. Leyser, 116 Mo. 51; People’s Bank v. Scalzo, 127 Mo. 164; Leckinger v. Mfg. Co., 129 Mo. 590; R. S. 1899, sec. 672.

4. The imputation that the amount of the verdict of the jury is excessive, is devoid of merit. The proof demonstrates that the son was nineteen years and three months old at time of the occurrence, and was earning a salary of eleven dollars per week. The jury was entitled to weigh the probability of the value of his services increasing with experience and age; there was also evidence of substantial expenses, incurred or expended, for medicine, medical and surgical aid, and at time of trial his recovery was incomplete, and under the testimony, the assessment of damages by the'jury at the sum of $1,500 was justifiable and will not be disturbed.

The judgment is affirmed.

Bland, P. J., and Goode, J., concur.