211 Mo. 227 | Mo. | 1908
Lead Opinion
— This is an action by plaintiff, Magdalene Strottman, widow of Fred. W. Strottman, against the defendant company, to recover five thousand dollars damages for the death of her husband, who was injured in a collision on defendant’s railway on October 22, 1902, from which injuries he thereafter died.
The petition alleges as follows:
“Plaintiff for her amended petition states that on and prior to the 24th day of October, 1903, Fred. W. Strottman was her lawful husband, and that she is now his widow, and that defendant was at said time and long prior thereto a railroad corporation duly organized and existing under the laws of the State of Missouri, and having capacity to sue and be sued as such. Plaintiff says that at said time and long prior thereto defendant owned and operated a railroad extending from- the city of St. Louis, in the State of Missouri, to the city of Texarkana, in the State of Arkansas.
.“Plaintiff says that defendant on said date and
“Plaintiff says that on the 22d day of October, 1902, and long prior thereto, Fred. W. Strottman was in the employment of said defendant as locomotive engineer, and that on said 22d day of October, 1902, said Fred. W. Strottman took charge of a locomotive engine of defendant, as engineer, at defendant’s request, which said engine was pulling a train of cars for the purpose of running the same and the train of ears attached thereto; and was ordered by the defendant to run the same south on its main track from DeSoto, Missouri, through and beyond Blackwell Station. Plaintiff says that, in pursuance •of said orders of defendant, said Fred. W. Strottman, on the day aforesaid, was running said engine and said train of cars south over defendant’s road; and that at the same time defendant’s agents and servants, ■acting in the line of their duties, were conducting and running an engine and train from beyond Blackwell •Station to the north on its road, and that defendant’s train-dispatcher, acting in the line of his duties, transmitted an order to defendant’s telegraph operator and •agent at Blackwell Station, whose duty it was to receive the same and deliver it to defendant’s servants in •charge of the said north-bound train; that said order required said north-bound train to stop at Blackwell Station and there pass the aforesaid south-bound train; that the aforesaid agent of defendant at Blackwell Station negligently and carelessly failed to deliver said order to defendant’s servants in charge of said north-bound train and negligently allowed said train to pass Blackwell Station, -and in consequence thereof
The defenses were a general denial (except as to-the allegation that defendant was a railway corporation), and a plea of contributory negligence.
The trial before -the court and jury resulted in a verdict and judgment in favor of plaintiff for the sum of five thousand dollars. Having duly filed motions for new trial and in arrest, which were overruled,, defendant saved exceptions and appealed.
The facts disclosed by the record are but few,, and are substantially as follows-.
Fred. W. Strottman was at the time of the accident an engineer in the service of defendant, and, as-such engineer, in charge of an engine which was pulling out a train of cars at DeSoto, Missouri. He was-ordered by defendant to run said engine and train south, on defendant’s main track, from DeSoto through and beyond Blackwell Station, a station about nine-miles south of DeSoto and situated in St. Francois county, Missouri, and in pursuance of said order he was running said engine and train of ears south over defendant’s road. At the same time defendant’s agents and servants, acting in the line of their duties, were-conducting and running an engine and train from beyond Blackwell Station to the north on its road; and defendant’s train-dispatcher, acting in the line of his
At the close of the evidence the defendant asked the court to give an instruction to the jury in the nature of a demurrer to said evidence, which instruction the court refused to give, and the defendant excepted. Thereupon the court, at the instance of plaintiff, and over the objections and exceptions of defendant, gave to the jury the following instructions:
“The court instructs the jury as follows: If you believe from the evidence in the ease that on October 22, 1902, Fred. W. Strottman was employed by defendant as a locomotive engineer, and at the time aforesaid, while acting in the line of his duties and under the orders of defendant, he undertook to run an engine and train of cars from DeSoto south over defendant’s road to and beyond Blackwell Station, and that while said Fred. W. Strottman was so engaged and in the exercise of ordinary care, a north-bound engine and train of cars in charge of defendant’s servants and agents, acting in the line of their duties, was being run and. conducted north on defendant’s
“If you find the issues for the plaintiff, you will assess her damages at such sum as in your judgment will be a fair and just compensation to. plaintiff for ' the loss of her husband, not exceeding the sum of five thousand dollars.”
Defendant insists that plaintiff ought not to have or maintain this action, because:
First. The Act of 1897, entitled “Corporations, Railroads” (Laws 1897, p. 96), only creates a cause of action in favor of employees engaged in the operation of railroads, and creates no cause of action in favor of the widow or children of deceased, or other persons.
Second. That as the engineer and the telegraph ■operator were fellow-servants, as that term is defined by section 3 of said Act of 1897, there can be no recovery.
The act is as follows:
“Sec. 2. That all persons engaged in the service of any such railroad corporation doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are vice-principals of such corporation, and are not fellow-servants with such employees.
“Sec. 3. That all persons who are engaged in the common service of such railroad corporation, and who while so engaged are working together at the same time and place, to a common purpose of same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow employees, are fellow-servants with each other: Provided, that nothing herein contained shall be so construed as to make any agent or servant of such corporation in the service of such corporation a fellow-servant with any other agent or servant of such corporation engaged in any other department or service of such corporation.
“Sec. 4. No contract made between any railroad corporation and any of its agents or servants, based upon the contingency of the injury or death of any
The testimony shows that' the telegraph operator at Blackwell Station was also defendant’s agent at that place, and that his duties as such agent were of a character entirely different from that of his duties as operator; that in the discharge of his duties as agent he was under the control of defendant’s superintendent, while in the discharge of his duties as operator he was under the control and direction, and subject alone to the orders, of the train-dispatcher on duty at the time.
It was also shown by the evidence that the engineer, in managing, running and operating the train, was under the control and subject to the orders of the train-dispatcher on duty at the time, as was also the conductor of the train. The operator at Blackwell Station and the engineers of the respective trains were engaged in the common service of defendant. They were employed by a common master, and worked together in a common purpose of the same grade. Neither of them had any control or superintendence over the other; they were in the same department or service of the company, and were clearly fellow-servants within the meaning of section 3, supra.
Plaintiff, however, contends that the engineer and telegraph operator were not fellow-servants, and that even though they were, the defendant would still be liable in damages, under the provisions of section 1 of the act, for the death of engineer Strottman.
In Smith v. Railroad, 92 Mo. 359, it is held that a train-dispatcher of a railroad, who has the control of the movement of its trains, and to whose orders the conductors and engineers are subject, is the representative of the company, and is not a fellow-servant
A leading case upon this subject is Railroad v. Camp, 65 Fed. 952, in which it was held that a telegraph operator at a station on the line of a railroad, whose duty it is to receive telegraphic orders relative to the movement of trains from the train-dispatcher at' another place, and communicate them to the engineers and conductors of trains at his station, is not the superior, but the fellow-servant, of the engineer of a train on such railroad, both at common law. and under the statutes of Ohio. Tart, Circuit Judge, speaking for the court, said: “It is argued that the telegraph operator is not a fellow-servant of the conductor and engineer within the common-law rule. We think he is. He and the engineer and the conductor work together, at the same time and place, for a common employer, with an immediate common object, namely, the proper running of trains. It is essential, in the operating department of a railroad company, that there should be provision for communicating to those in charge of different trains the whereabouts of other trains, to avoid collision. This information is given by means of the general timetable and general rules for the running of trains with reference to each other, which the employees in charge of each train are obliged implicitly to obey. But it often happens that the general time-table must be varied from, and these variations must be communicated to those in charge of trains. This is effected usually by telegraphic orders from the superintendent or the train-dispatcher, who has supreme control of the running of trains. The information is also communicated by means' of flagmen, by means of torpedoes, by red lights and green lights upon trains, by the block-signal system, and in other ways. The subordinate employees, whose duty
In the case of Frost v. Railroad, 69 Fed. 936, Knowles, District Judge, refused to follow the Camp case, and held that, when an engineer on the defendant railway company’s road had been killed in a col
In Reiser v. Railroad, 152 Pa. St. 38, it is held that a fireman of a locomotive and a station agent who is also a telegraph operator are fellow-servants within the rule that an employer is not liable to an employee for an injury caused by the negligence of a fellow-servant.
So in the case of McKaig v. Railroad, 42 Fed. 288, it was held by Nelson, J., District Judge of Massachusetts, that a telegraph operator employed by a railroad company to give information in regard to the location of trains on the road, and to communicate to the operators on the trains instructions for running them, received by him from the train-dispatcher, is a fellow-servant of the fireman on such trains.
Upon the same subject, see Edge v. Railroad, supra, and authorities cited.
As. sustaining the position that the telegraph operator and the deceased engineer were not fellow-servants plaintiff relies chiefly upon the case of Railroad v. Furry, 114 Fed. 898, but that case is bottomed
Judge Elliott, in discussing the subject of Fellow-Servants, in his work on Railroads (2 Ed.), vol. 3, sec. 1328, says: “It is a matter of which judicial notice is taken that, in operating a railroad, the services of telegraph operators and signalmen are required, and, as it seems to us, judicial notice must also extend ta the fact that the class of employees named are ordinarily employed in matters of detail. The courts are by no means agreed upon the question whether telegraph operators are vice-principals or fellow-servants. Many cases affirm that they are vice-principals, while many others assert that they are not. It is, we know, somewhat bold to venture an opinion upon a question upon which the authorities fight so stubbornly, but, nevertheless, we briefly state our views upon the question. It seems to us that telegraph operators are employees engaged in performing duties connected with the detail work of operating a railroad, and are not entrusted with the duties devolved by law upon the master, and that they are engaged under a common master in a common employment, that of moving trains upon the road. As well say that persons in charge of telephones over which directions are given in a large manufacturing establishment are vice-principals as that telegraph operators are vice-principals. They cannot he Regarded as vice-principals without violating the settled rule that the master’s duty does not extend to the details of the work of the common employment, nor without violating the rule that he only is a vice-principal to whom a duty resting on the master is entrusted. There is no more reason for holding that the master’s duty is to see that every telegraphic • direction is correctly transmitted than there is for holding that the master must see that every verbal
While there is some conflict in the authorities, the decided weight is to the effect that telegraph operators, engineers, conductors, and all other employees of a railroad company engaged in performing duties connected with the detail work of operating a railroad, and working together at the same time to a common purpose of the same grade, as were the telegraph operator and engineer at the time of the accident in this case, are fellow-servants.
In view of the authorities alluded to, and the considerations stated, the telegraph operator, in our judgment, was at common law the fellow-servant of engineer Strottman. But were there even the shadow of a doubt upon this question, it is put to rest by section
With respect to the other proposition, it may be said that if section 1 of the act stood alone, it is clear that plaintiff could not maintain this action. Standing alone, this section would make a railroad company liable in damages for injury to any of its employees engaged in the operation of its road, in the absence of contributory negligence on their part; in fact, an insurer of all persons thus employed, regardless of the kind of service, against injury sustained by reason of the negligence of any other agent or servant of such railroad, and this, too, regardless of the fact that the agent or servant whose negligence causes the injury might, at the time, be engaged in some business entirely foreign to or different from the operation of the railroad. But section 1 of said act is not an independent statute, and must be read and construed with the other sections in pari materia. The second section of the act, defining vice-principals, would have no proper place in the act or statutes if it was intended by the first section to create an absolute liability upon the part of a railroad corporation for the negligence of any employee, regardless of his relations to the company or his co-employees. The persons described in said section 2 are those who act for the principals; they are vice-principals, and it is declared in the act that they are “not fellow-servants with such employees.”
It is apparent, from the reading of the act, that it was not the purpose of the' Legislature to make the
If the first section of the act be construed alone it is apparent that all distinctions between employees are destroyed; but that this was not the purpose of the Legislature is manifest from the fact that sections two and three make such distinctions, and define who are and who are not fellow-servants.
There is no more reason for ignoring section 3 of the act than there is for ignoring section 1, and they must be construed together, and effect given to all the provisions of the act if possible. [Riddick v. Walsh, 15 Mo. 519.] This is a cardinal rule in the .construction of statutes. Thus, in Macke v. Byrd, 131 Mo. l. c. 690, it is said: “All provisions of law on one topic should be considered in determining the meaning of any particular portion thereof, and such a construction should be given to the portion under consideration as will keep all the provisions of law on the same subject in harmony and give effect to all.” And again, in Litson v. Smith, 68 Mo. App. l. c. 403, “In construction of a statute all of its parts are to be construed together, and not one part only, by itself.” If possible, it should be so construed as to avoid a conflict between the different parts. [City of Westport ex rel. Tomb v. Jackson, 69 Mo. App. 148.] “Where
The title to the act is as follows: “An Act to define the liabilities of railroad corporations in relation to damages sustained by their employees, and to define who are fellow-servants and who are not fellow-servants, and to prohibit contracts limiting liability under this act.” It is indicated by this title that the purpose of the act was to create a new cause of action
Defendant also contends that as plaintiff’s husband and the telegraph operator were fellow-servants, the defendant is not liable at common law, and, further, that as section 1 of said act gives a right of action, for personal injuries, to the servant of the company only, and not to his widow, in case of his death from such injuries, as provided for by sections 2864 and 2865, Revised Statutes 1899, plaintiff cannot recover.
That plaintiff could not recover at common law is beyond any question, and she must look to the statutes of this State for authority to maintain an action against the company.
Plaintiff does not contend that section 1, supra, makes the action for death survive to the widow, within the meaning of the word “survive” as used in some jurisdictions, where the action for suffering and pain suffered by the deceased can be maintained by the representatives of the decehsed; but contends that the intention of the Legislature in enacting said •section was to make railroads liable for all damages sustained‘by fellow-servants engaged in the work of operating the railroad; that is to say, in case the servant sustained personal injury, he could bring a common law action for damages; and in case of the death of the servant, the railroad would be liable for damages as provided by sections 2864, 2865 and 2866, Re
Section 2865, Revised Statutes 1899', is as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
We are unable to agree that this section has the effect of transmitting a right of action created by section one of the Act of 1897, as it has been ruled by this court that that section does not include a claim for damages for injuries occasioned by the negligence of a fellow-servant. [Proctor v. Railroad, 64 Mo. 112; Miller v. Railroad, 109 Mo. 350; Sherrin v. Railroad, 103 Mo. 378.] At the time of, and prior to, the passage of the Act of 1897, supra, Strottman would have had no cause of action because his injury was caused by the negligence of a fellow-servant, and it cannot be seriously contended that section 2865 has the effect of transmitting- a cause of action originating under
For did section 2861, Eevised Statutes 1899, have the effect of creating a cause of action when the death of a servant or employee is occasioned by the negligence of a fellow-servant or employee, and clearly it was not intended by the lawmakers to transmit a cause of action to the representatives of the deceased where the injury for which damages are claimed was caused by the negligence of a fellow-servant. [Proctor v. Railroad, supra.]
It will be presumed that the Legislature, at the time of the passage of the Act of 1897, was familiar with the decisions of the Supreme Court, which hold that, under section 2865, supra, the master cannot be held for injuries received by one servant through the negligence and unskillfulness of his fellow-servant. Had the Legislature desired to transmit a right of action to the representative of the deceased employee, it could have done so by proper and necessary legislation.
In Sutherland on Stat. Const., sec. 333, it is said: “It is presumed that the Legislature is acquainted with the law; that it has a knowledge of the state of it upon the subjects upon which it legislates; that it is informed of previous legislation and the construction it has received. ... A judicial construction of a statute of long standing has force as a precedent from the presumption that the Legislature is aware of it, and its silence is a tacit admission that such
“Where a statute creates a new right or imposes a new duty or liability unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive. If no remedy is prescribed, the right or liability may be enforced by the appropriate remedy already provided.” [2 Lewis’ Suth. Stat. Const., sec. 720; Railroad v. Wells, 104 Tenn. 706.] By the first section of the Act of 1897 a remedy is given to the injured fellow-servant, and such remedy is, therefore, exclusive. It is not contended that said section does not provide a remedy for the injured party; and the mere fact that it does not confer such right on the wife or children is conclusive that no such right was intended.
Nothing is better settled in this State than that prior to the passage of the Act of 1897 there was no statute in force in this State which imposed a liability upon a railroad company in favor of the widow for the death, of her husband, who was at the time of his death an employee of such company, and was killed by reason of the negligence of a fellow-servant; nor does that act, in our opinion, confer such right. Said act says not a word about a right of action in case of the death of the employee, but by the first section of the act a right of action is created in favor of the
Powell v. Sherwood, 162 Mo. 612, was an action by the widow of Powell against Sherwood, receiver of the railroad company, for damages, under the Act of 1897, for the death of her husband which was occasioned by the negligence of a fellow-servant while in the service of the railroad company. But the question as to the right of the widow to maintain the action under the Act of 1897 was neither raised nor passed upon in that case, nor has it ever been passed upon by this court. And while, as has been said, “where a statute creates a new right or imposes a new duty or liability unknown to the common law, . . . if no remedy
The Act of 1897 is complete within itself, and not amendatory of any other act or statute. It confers authority only upon the servant injured to maintain the action, and not even by implication does it confer such right upon the widow of such servant, in which respect it differs from a statute which creates a right of action but designates no particular person who may avail himself of such right.
The statutes in question, being in derogation of the common law, must be strictly construed, and when this is done, there is no escaping the conclusion that they do not confer upon the plaintiff the right to maintain this action.
Our conclusion is that the judgment should be reversed. It is so ordered.
Concurrence Opinion
— This case was first argued and submitted in Division No. 2, and it was by that court transferred to Court In Bane, where it was again argued and submitted, prior to. the time the writer became a member of this court. The cause fell to the lot of Burgess, J., and he wrote an opinion therein, in which Fox and Graves, JJ., concur; but Gantt, C. J., and Yalliant and Lamm, JJ., dissented therefrom. This equal division of the judges necessitated my taking an interest in the case. The case was argued In Banc at this January call of the docket.
There has been so much said and written about this case that there remains but little, if anything, to be said upon the subject. All I can hope to do is to touch upon the salient points in the case, and briefly express my views thereof, without attempting to cover the entire ground, which has been so ably and exhaustively considered by the two opinions written herein; nor will I attempt to restate the facts of the case, because that has been admirably done by Burgess, J., in his opinion, which all concede to be a full and fair statement of the facts.
I. The defendant insists the plaintiff is not entitled to recover in this action, for the reasons:
First. Because Strottman, the deceased engineer, and the telegraph operator at Blackwell were fellow-servants, and that at common law the master was not liable for the injuries received by a servant in consequence of the negligence of a fellow-servant.
Second. Because the Act of 1897 (Laws 1897, p. 96), entitled, “Corporations, Railroads,” creates a cause of action only in favor of the injured employee, and does not transmit that cause of action to his widow or children in case of death.
“Section 1. That every railroad corporation owning or operating a railroad in this State shall he liable for all damages sustained by any agent or servant ' thereof while engaged in the wort of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may he shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.
“Sec. 2. That all persons engaged in the service of any sxxch railroad corporation doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in .the employ or service of such corporation, or with the authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are vice-principals of such corporation, and are not fellow-servants with such employees.
‘ * Sec. 3. That all persons who are engaged in the common service of such railroad corporation, and who while so engaged are working together at the same time and place, to a common purpose of same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow-employees, are fellow-servants with each other: Provided, that nothing herein contained shall he so construed as to make any agent or servant of such corporation in the service of such corporation a fellow-servant with any other agent or servant of such corporation engaged in any other department or service of such corporation.”
The first duty devolved upon us is to determine
This question has been so ably and exhaustively considered by Burgess and Lamm, JJ., in their respective opinions herein that there is but little remaining for me to say upon the subject-. I will, however, add a few observations to what has been said by them. I will first consider the proposition from a common law standpoint, and then view it in the light of the Act of 1897.
This precise question came before Division No. 2 of this court in the case of Edge v. Railroad, 206 Mo. 471. The facts in that case were as follows:
On August 17, 1903, the defendant was operating a single-track railway between Carthage, in this State, and Galena, in the State of Kansas, a distance of thirty or thirty-five miles. Carterville, Webb City and Joplin are on the road, and between Carthage and Galena. There were some eight or ten cars operated over said road, and 'the service was one about every thirty minutes. The company maintained a general office at Webb City, in which it employed two car-dispatchers, one named T. A. Harbaugh, and the other Lawrence Havens. The former served from sometime in the forenoon to three o’clock p. m., when he was relieved by the latter, who performed the duties of the position for the balance of the day. The company had some twelve or fifteen switches, or side tracks, between Carthage and Joplin, on which the cars going in opposite directions passed each other. At most, if not all, of those switches there was a telephone maintained and used by the defendant as its telephone system. These telephones were connected with the office -of the car-dispatcher at Webb City. The cars were numbered, and the mode of operating them was as prescribed by a rule of the-company, which is as follows: “(10). Cars must be run as closely to schedule time as pos
The plaintiff’s chief contention in that case was, that the car-dispatcher was a vice-principal of defendant company, and, as such, had full charge and control of the cars and the employees in charge thereof, as well as their movements; while upon the other hand, the defendant contended the dispatcher was a fellow-servant of plaintiff and was only delivering orders to the employees in charge of the cars, where to pass each other. In the discussion of that question the unanimous' court, speaking through Btjrgess, J., on page 490, said: “The undisputed facts are, the .ear-dispatcher, whose office was at Webb City, had not only control of the plaintiff, but he had control of all the conductors, and motormen, of all the cars and their operation.” Upon those facts the court held, and, in my
There is not a scintilla of evidence to be found in this record which tends to show that the telegraph operator at Blackwell had any authority or control whatever over the movement of defendant’s trains, or over any of its employees in charge thereof. Under this state of facts, according to the law as stated in the Edge case, supra, and the authorities before cited, the telegraph operator and Strottman were fellow-servants according to the common law rule. [Koerner v. St. Louis Car Co., 209 Mo. 141.]
We will next consider whether or not that relation between them was changed by the Act of 1897.
The interpretation we have placed upon section two of said act is strengthened and made clearer by reading in connection with it section three of the act. The latter section declares “all persons who are engaged in the common service of such railroad corporations, and who while so engaged are working together at the same time and place, to a common purpose of same grade,” and not entrusted with any of the powers or duties stated in section two, to be fellow-servants. The evidence in this case is undisputed and conclusively shows that the telegraph (operator at Blackwell, and the engineer, Strottman, were, at the time the negligence complained of occurred, engaged in a common service — the movement and operation of defendant’s trains, and that they were worMng to
n. Having determined in paragraph one of this opinion that the telegraph operator and Strottman were fellow-servants, it next becomes our duty to decide whether or not the cause of action given by the Act of 1897 to Strottman against the defendant survived to his widow after his death. The defendant contends that the cause of action was personal to Strottman and that it abated at his death. It is conceded by all parties that the Act of 1897 does not transmit the cause of action to the wife and children .where death ensues; but plaintiff insists that the cause of action created by that act, in favor of her husband, was transmitted to her by virtue of sections 2864 and 2865, Revised Statutes 1899'.
At common law the master was not liable to his servant for injuries received by him in consequence of the negligence of a fellow-servant; nor was that law changed by sections 2864 and 2865, Revised Statutes 1899. Neither he, if he had survived the injury, nor his widow or children, in case of his death, could recover damages for such injuries. By the latter section it was only intended to transmit a cause of action to the widow and children which existed in favor of the •deceased at the time of his death; but since the servant never at any time had- a cause of action against the master for injuries received through the negligence of a fellow-servant, this court has many times held that where death of the servant ensued there was no cause >of action to be transmitted to his widow and children,
Counsel for- plaintiff does not dispute the law to he as above stated; but contends most earnestly that when the Act of 1897, now section 2873, Revised Statutes 1899, was enacted, a cause of action in favor of the servant against the master for injuries received in consequence of the negligence of a fellow-servant, was created, and that where death ensued, that cause of action was transmitted to the widow and children by virtue of section 2865. In support of that proposition, counsel for plaintiff cite and rely upon that class of cases which hold that the cause of action created by statute or ordinance in favor of third persons against the master for injuries received through the negligent acts. of his servant survive and are transmitted by section 2865 to their widows and minor children. Among the cases cited are the following: Kenney v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; McQuade v. Railroad, 200 Mo. 157; Higgins v. Railroad, 197 Mo. 300; Jackson v. Railroad, 157 Mo. 621; Riska v. Railroad, 180 Mo. 168; Wendler v. House Fur. Co., 165 Mo. 541; Yale v. Gillham, 187 Mo. 393; Lore v. Mfg. Co., 160 Mo. 608.
It seems to me that that is a clear misconception of those eases. In my judgment they have no- application whatever to the case at bar. This error, evidently, grows out of an erroneous assumption that negligence constitutes a cause of action. Clearly, that is not true, because the cause of action is the violation of plaintiff’s rights which result in his injury, and the negligent acts are but the means by which those rights are infringed upon. And it is equally true that before negligent acts are actionable, there must be a legal duty resting upon one person in favor of another; and it is the negligent disregard of those legal
This section is universal in its operation and embraces within its terms all persons whomsoever excepting fellow-servants. But it has been the universal ruling of this court ever since the decision in the case ■of Proctor v. Railroad, supra, was handed down, that section 2865 has no application to and did not transmit a cause of action from a servant who was killed by-the negligent acts of a fellow-servant to his wife and ■children, for the obvious reason that he had no cause of action against the master to be transmitted.
The mere fact that the Legislature in 1897 created a cause of action in favor of the servant, against the master, for injuries received in consequence of the negligence of a fellow-servant, is no warrant or justification for this court to write into that section of the statute a survival of that cause of action and a transmission of it to the widow upon the death of the husband when the Legislature has failed to do so.
If, at the time of the enactment of section 2865,
Clearly, these are the views entertained by the Legislature upon this question, because by an Act of April 13, 1905, it recognized the incompleteness of the Act of 1897, and it expressly provided that the cause of action thereby created in favor of the fellow-servant should survive and be transmitted to his widow and minor children in case of his death.
As neither the Act of. 1897 nor section 2865 transfers such a cause of action to the widow and children, I feel constrained to hold that the cause of action created by the Act of 1897 in favor of a fellow-servant did not survive his death, nor was it transmitted’ to his widow and children after his death.
III. It is finally insisted by plaintiff that even though it be conceded that Strottman and the telegraph operator were fellow-servants, and the cause of action ' given him by the Act of 1897 did not survive him, yet it is earnestly contended that she is entitled to recover in this case because her husband was not provided with a reasonably safe place in which to perform his duties to his master, and that in consequence thereof he was injured and killed.
If that contention was borne out by the record, then, unquestionably, the deceased, had he lived, would have had a good cause of action against the company, because it is the duty of the master to furnish the servant a reasonably safe place in which to work, and if it failed to discharge that duty and the result thereof was an injury to the servant, then he would have had
In answer to that contention, it is sufficient to say, in the first place, that there is no such question presented by the record in the case: Not a word bordering upon that question is to be found in the petition, evidence or instructions to the jury; and, second, because there is no evidence in the case which remotely tends to prove that there was any inherent danger connected with the place where plaintiff was required to work beyond the ordinary dangers incident to such employment; but, upon the contrary, all the evidence conclusively shows that Strottman lost his life through the negligence of his co-employee in not delivering to him the order to side-track his train at Blackwell so as to permit the north-bound train to pass his at that point..
For the additional reasons herein stated,
Dissenting Opinion
DISSENTING OPINION.
— Strottman was a locomotive engineer-in defendant’s employ in charge of a locomotive engine pulling a freight train on defendant’s track and' going south from DeSoto, on the 22d day of October,. 1902. Plaintiff, his widow, sued for damages as for his wrongful death and recovered below. Prom that judgment, defendant appealed here. The cause, assigned to Division Two, was argued and submitted there — subsequently coming into Banc, was reargued and resubmitted. The conclusion reached by Brother Burgess, to whom the case fell, is that the judgment should be> reversed without remanding. This result is so at variance with my views of the law and justice of the case-that I am constrained (as one under bonds to give a
I. At a rock ent on a crooked track, by a railroad bridge spanning Big Biver, Strottman’s engine, southbound in the night time, going thirty miles an hour on a down grade, collided “head on” with an engine pulling one of defendant’s north-bound freight trains a few miles south of De Soto. By this collision he was so scalded and otherwise hurt that, after a little while, he died. He confessedly pulled out of De Soto under orders from his master entitling him to a clear track at the point of collision, unless his running orders were countermanded or subsequently varied before reaching that point. These orders were not countermanded or varied by the master, and the case may proceed on the assumption that Strottman was abbíit his master’s business, in the line of duty, doing what the master told him to do and in the way he was told to do it, without negligence on his part, and resting with confidence on the implied promise of the master to use reasonable •care to keep him safe from harm by giving him a clear track, i. e., a reasonably safe field of operations. Similarly the north-bound freight was running under orders from the same master entitling it to a clear track at the point of collision, unless its running orders were subsequently varied, and varied in time to be effective in taking its right to a clear track from it.
If there was nothing more to the case than that the master, under the foregoing hypothesis, set two trains in motion from opposite points of the compass on a single track, headed towards each other, and allowed the one to hurl itself against the other, the master creating the condition, knowing the result to be inevitable and the trainmen being kept in ignorance of the snare spread for their feet in the condition so created, then no one would contend that such a master would not be liable to his servants for injuries
That the train-dispatcher and trainmen are not fellow-servants, that the voice and the act of the train-dispatcher under the foregoing hypothesis are the voice and act of the master is the settled law of this State. [Smith v. Railroad, 92 Mo. 359.] That ease
II. But the case at bar goes beyond the foregoing hypothesis. The master in this case, distinguishing between a train-dispatcher and a telegraph operator, claims it came up to high-water mark in exercising due care when it telegraphed an order to its servant, the telegraph operator at Blackwell Station, to stop the north-bound train and require it to take the siding at Blackwell — no matter whether that order was delivered or not. The contention of defendant is that the full duty of the master was performed when an order was conceived in the mind of the train-dispatcher at De Soto requiring the north-bound train to lay out at a certain station, Blackwell, to await Strottman’s train, thereby providing a clear track to pass, and when that order was put in concrete form as a dispatch by defendant’s train-dispatcher, was handed or communicated to the operator in the dispatcher’s office and by him transmitted to the operator at Blackwell Station by telegraph in time for the master’s servant at Blackwell (said operator, who was also station agent there), to set his signal board or semaphore to stop the north-bound freight and in time, when stopped, to deliver to the conductor of that train the master’s order to take siding there and clear the track.
It is further argued by defendant’s learned counsel that the telegraph operator at Blackwell and Strottman were fellow-servants. Assuming, as they do, that this contention will be allowed as sound, the next step in the evolution of their argument is that under the Fellow-Servant Act of 1897 (R. S. 1899, secs. 2873-2876) the right to recover damages for injuries received at the hands óf a fellow-servant is, ex vi termini, restricted to the injured party alone; and that
Were Strottman and the operator at Blackwell fellow-servants? If so, is there substance in the foregoing contentions? If there is, the case is at an end; if not, the judgment should be affirmed.
III. What light is thrown on the case by the Damage Act of 1905 (Laws 1905, p. 135) ? If that act related to and covered only one subject, to-wit, the keeping alive (after the death of the injured party) of a cause of action arising in favor of such party against the master for injuries caused by the negligence of a fellow-servant, then there would be great force to the insistence that in the legislative mind such cause of action, up to that time, did not survive, and that the new Act of 1905 created the right of .survival. But when it appears, as it does, that the Act of 1905 makes drastic changes in the old Damage Act in many vital particulars and that other reasons for the passage of the act are writ large on its face, the force of such insistence is somewhat spent elsewhere. When we consider, further, that acts of the Legislature not infrequently overlap each other and are not infrequently passed as declarative of existing laws or as supplemental to such laws, as cumulative or auxiliary, or to clear up supposed obscurities or remove supposed incongruities or to parry the supposed impending danger of some certain feared judicial construction, the force of the insistence in hand is still further spent elsewhere. When we consider that this court in the Rinard case, infra, and the Powell case, infra, itself assumed that the right of action created under the Act of 1897, was transmitted, it is sensible to conclude that the Legislature assumed the same thing, and the force
Bnt if it be conceded ont and ont, arguendo, that the Act of 190'5 will bear only the construction that, in the legislative mind, such cause of action did not survive under then existing laws, yet that concession ought not to be held as determinative of the point; and this for the very good reason that the construction of laws under our scheme of government is with the courts — not with the Legislature; and courts are not bound by a legislative construction, if erroneous, any more than by a legislative act, if invalid. The ideal harmony that should lie and play about the triune-head of the executive, the legislative and the judicial departments of the government, as a halo or nimbus, is not to be rudely or lightly blown away, disturbed or dissipated. Therefore, courts lend a willing ear to legislative construction of existing law — this out of decent and due regard for the high dignity of legislative power in a self-governing people. But, when all is said and the last word spoken, courts may not ignore, discard or surrender their duty to construe the law, because the Legislature has construed it — they may be instructed but not bound by that construction.
Deeming legislative construction (even if one may be fairly deduced), as an incident to judicial construction but not a controlling or determinative one, it may be put aside and, in the logical evolution of the case, we reach the question whether the Fellow-Servant Act of 1897 and section 2865 of the old Damage Act must be construed together, the new act as supplemental to the old, each pertaining to the same subject-matter and tlxe new creating a situation and liability upon which the old act, as a general rule of law, 'is operative. That question will receive consideration in the next paragraph of this opinion. And to avoid misunderstanding, it will do to say that its determination in
IV. Section 2865 of the old Damage Act is a general law, engrafting into our system a new principle, and reads: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
Section 2873 (Act of 1897) is as follows: “That every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.”
If these two sections had been passed as parts of one act and had become simultaneously operative as law, it would be put beyond all question that the cause of action sued on in this case survived; because section 2865 says if a party be injured and death ensues, the cause of action survives, provided the injured party himself had a cause of action, and section 2873, seizing the matter at that point, and going on with it, declares that a fellow-servant has a cause of action against a master for injuries received at the hands of a negligent fellow-servant; ergo, if the injured party, a fellow servant, had a right of action
But such hypothesis, it is argued, does not fit the facts of the case because the two sections were not passed as parts of the same law — the one being an elder and the other a younger legislative utterance; and the controlling question in the case, then, may be stated this way: Are these two legislative utterances to be construed, under recognized canons of construction, as cognate parts of the same body of law, in pari materia, the one passed in view of the existence' of the other, the one piecing out the other by supplementary enactment, and the intendment of the one illuminated by the intendment of the other when placed side by side? Or are they independent statutes, bearing no relation to each other, each solitary, each moving in its own orbit, having no consociation and each to be construed as if the other did not exist? Is the eye of the law blind to the one when the other crosses the field of its vision?
The general principles of law bearing upon and controlling the foregoing questions, it is apprehended, are not new or in doubt. They have been crystallized into the form of precepts, and if we are to be quickened by those precepts, they should be diligently kept in mind as expounded and laid down. For example, in State v. Pitts, 51 Mo. l. c. 135, it was said: “As illustrative of the intention of the lawmaking power, light may be thrown on the subject by reference to analogous legislation.”
In Railroad v. Shacklett, 30 Mo. l. c. 557, it was said: “But when it is doubtful whether the property proposed to be taxed falls within the terms of description used by the law, it is altogether consistent with the rules of construction to resort to other statutes, more specifically appropriate to the subject, for the purpose
In Dowdy v. Wamble, 110 Mo. l. c. 283, it was said : “There are few guides to construction more useful than that which directs attention to the prior condition of the law to aid in determining the full legislative meaning of any statutory change thereof.”
In Gabriel v. Mullen, 111 Mo. l. c. 123, it was said: “In construing any statute it is proper and often useful to consider the state of the law existing at its enactment as casting light on the intended scope of the change made by it.”
In Macke v. Byrd, 131 Mo. l. c. 690, it was said: “All provisions of law on one topic should be considered in determining the meaning of any particular portion thereof, . . . and such a construction should be given to the latter as will keep all the provisions of law on the same subject in harmony, and give effect to all, when possible.”
In State v. Summers, 142 Mo. l. c. 596, it was said: “Besides,' the statute under review is in jpari materia with the statute relating to dramshops and to druggists, .... and they are to be construed together as though they constituted but one act. This must be done since the litigated statute forms with the others a whole system of which it forms a part. Even cognate statutes, though not- strictly in pari materia, may be invoked and referred to in order to elucidate the legislative intent. [Sutherland, Stat. Const., secs. 283, 284; Ex parte Marmaduke, 91 Mo. l. c. 257.] ”
At one time in the history of this State, the prosecution of crimes by information was strange to our system of criminal procedure. With the statutory law in this fix, a code of criminal procedure was moulded by an aggregation of legislative enactments passed at different times. At a certain period the right to proceed by information in the prosecution of a crime
The foregoing general propositions, stated . in
In the application of the foregoing propositions to the construction of section 2865 and section 2873, Revised Statutes 1899, let us look to the history of the. law, to the benefit to be advanced, to the mischief to be struck down, to the existing state of judicial construction of the old Damage Act at the date of the new •act, and thereby determine the legislative purpose.
Under the old Damage Act it was held, in 1865, that fellow-servants were within its scope, and that the master was liable for the negligence of co-employees inter sese. [Schultz v. Railroad, 36 Mo. 13; Connor v. Railroad, 59 Mo. 285.] This construction of the ■statute remained the law of this State for eleven years and until 1876 (Proctor v. Railroad, 64 Mo. 112), when the doctrine was exploded; and since the Proctor ease it has been the accepted doctrine that the old Damage Act created no right of action against the master in favor of a servant injured by a fellow-servant, and did mot create a right of action at all; it simply transmitted one that already existed at common law. [Strode v. Railroad, 197 Mo. l. c. 625, et seq., and cases cited.] It may not be amiss to recur to the reason underlying the assault on the doctrine of the Schultz case: The true grounds for that assault were first stated by Nap-ton, J., in a dissenting opinion in the Connor case. It was there pointed out that the purpose of the old
If, then, it be conceded as established (which we assume) that the life and purpose of the old Damage Act were to cut up root and branch the common law doctrine that a cause of action for personal injuries died with the death of the party injured, how comes it that we are confronted with the ghost of that dead and buried doctrine in the present case? Having held that the doctrine was legislated out of life, how comes
Is the foregoing not a reasonable view? To my mind it is. Look at the result of a contrary view. The new act provides that the party injured has a right of action. Is it a thinkable proposition that a legislature taking such a legislative step as that would permit a servant to sue the master for personal injuries received through the negligence of a fellow-servant and with one and the same breath would intentionally deny or fail to give that right to his widow, or orphan children? Is it justice to the legislative branch of the government to suppose that it did not tenderly hold in mind the widow and the fatherless? The Supreme Court of Iowa, in reasoning out the same proposition, in the same kind of case, in Philo v. Railroad, 33 Iowa l. c. 51, said: “It cannot be presumed that the lawmakers would secure to employees of railroads a remedy for injuries, not resulting in death, but for the greater injuries whereby life is destroyed, they would
Again: The Damage Act of 1897 put no limitation of time whatever on the right to sue. Is that act, therefore, to be so construed as that an injured party is under no restriction of time, or that we must go to the common law to find the period of limitation? Clearly not. It seems clear that the whole body of the existing statutes should be searched, and when the general statutory rule of limitations governing that class of cases was found, it would control. Again: Let us make a not insupposable case by way of hypothesis. Suppose there was a general statute that all property of whatever description should be assessed for taxable purposes. Suppose thereafter the Legislature passed a law that cats and dogs and the franchises of public service corporations should be deemed and taken as property to all intents and purposes. After the passage of such a law could it be contended that cats and dogs and franchises were not taxable property, when by reading the two statutes together it clearly appears that by the new act they became property and thereby passed under the yoke of all burdens incident to property as property?
Let us take another fairly supposable case. Suppose when section 2865 was enacted an amendment had been offered to th¿ effect that its general words
Construing these laws as dovetailing into and piecing out each other and becoming a harmonious part of one harmonious and interdependent system, and applying the rules of construction hereinbefore developed, it seems we ought not to try to escape from the conclusion that when Strottman was given a cause of action under the new act, that cause of action survived under then existing law, even on the view that the question of fellow-servants is in the case.
While the exact point made by defendant and herein considered relating to the Fellow-Servant Act has not hitherto been made, pressed or decided in this court, yet it is not without significance that in at least two cases since the Act of 1897 was passed (Powell v. Sherwood, 162 Mo. 605; Rinard v. Railroad, 164 Mo. 270) it has been held, in effect, that it makes no differ
For example, take section 1102, Revised Statutes 1899 — the bell-and-whistle statute. It is there provided that “said corporation shall be liable for all •damages which any person may thereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required by this section.” The ■statute stops with the creation of the liability. No persons are named who are entitled to the remedy and. neither does the statute provide that a right of action for the negligent death of a’ person would survive, and yet this court has gone to the old Damage Act. and reading the two together, has always held the widow, the husband or the minor children, as the case may be, may sue. [See, for example, Kenney v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 98 Mo. 34.] Precisely the same condition of things obtains in regard to section 1103. That section makes a railroad corporation liable for damages from its neglect to construct •a road-crossing or erect sign-boards of a character pointed out. It says the damages may be “recovered in the name of the parties injured. ’ ’ There is not a word in the section relating to a survival of the cause of action if the negligence results in death; and yet this
It therefore follows that the right of action created in favor of Strottman by the Fellow-Servant Act (had he lived) survived to his widow by the Damage Act.
Y. In the foregoing paragraph this case has not only been considered from the narrow standpoint that the telegraph operator at Blackwell was a fellow-servant of Strottman, the engineer; but it has been considered as if there was no such a thing known to our jurisprudence as the “departmental theory” — a designation used for want of a better — as if there was no duty resting upon the master to provide a reasonably safe field of operations for his servant and entitling that servant to a right of action for the violation of that duty. We come now to view the case with these broader propositions lodged in it; and, it is submitted, that as the widow had a right of action for the death of her husband under the' narrow hypothesis considered in paragraph four, so, too, she has a right of action. under the broader propositions now to be considered.
Speaking of the departmental doctrine, it must be by no means considered as a “departed” doctrine. It may not grow or thrive in unfriendly ground, where there is no Paul to plant or Apollos to water, as is abundantly indicated by excerpts from the opinions of eminent judges, quoted by Brother Burgess in his opinion. But it will do to say that the theory underlying the departmental doctrine, under one name or another, has become a component part of the jurisprudence of this State. For instance, Lanning was a member of a dock crew whose duty it was to unload coal from the cars on a railroad dock and to move the cars back and forward for the purpose of cleaning up the dock. While engaged in this duty and pinching forward a car on the dock, an engineer, whose duty it
To the cases cited by Brother Gantt in the Lanning case, as sustaining the departmental doctrine, we may add Moore v. Railroad, 85 Mo. 588, where it was held that a car-repairer and the crew of the engine that ran into the car the repairer was working on were not fellow-servants; also Smith v. Railroad, 92 Mo. 359, holding (as said) that a train-dispatcher and the trainmen were not fellow-servants; Dixon v. Railroad, 109 Mo. 413, holding that a laborer whose duty it was to couple small cars in use to haul rock up. an incline across the track, the rock to be crushed and used as ballast for the road, was. not a fellow-servant with the engineer of a passenger train; and Tabler v. Railroad, 93 Mo. 79; holding that a master mechanic and wrecking-master was not a fellow-servant of a bridge carpenter. In Relyea v. Railroad, 112 Mo. 86, the defendant was held liable under the departmental theory, and that theory was formulated as follows: “They are co-servants who are so related and associated in their work that they can observe and have an influence over each other’s conduct and report delinquencies to a common correcting power; and they are not co-servants who are engaged in different and distinct departments of work.” In Schlereth v. Railroad,
In the light of our repeated adjudications, it must be held that the departmental theory must not be put to one side. Unquestionably the Legislature so understood the law, as declared by this court; because in the Act of 1897, whereby fellow-servants were defined, the departmental theory received legislative recognition in the proviso made a part of section 2875, as follows: “Provided, that nothing herein contained shall be so construed as to make any agent or servant of such corporation in the service of such corporation a fellow-servant with any other agent or servant of such corporation engaged in any other department or service of such corporation.” Under the Act of 1897 and the new Damage Act of 1905 the question we are considering cannot long continue a live one in railroad litigation, and we may close its consideration (for the purposes of this case) by referring to the remarks of Gantt, J., in Parker v. Railroad, 109 Mo. l. c. 379, viz.: “The main and only difficulty has been to satisfactorily determine , at all times whether the employment was a common service, and the employees fellow-servants within the meaning of the rule. And after due consideration we are of the opinion that, unsatisfactory as it may seem, the rule itself must remain general, its application specific, as the cases arise. This rule, to exempt the master, requires the servants shall be employed by a common master and the servants must be employed in the same common employment.”
While it is true, in a loose sense, that a telegraph
Finally: The departmental theory has received exposition in connection with the principle of law that the duty devolves upon a master to use due care to provide for his servant a reasonably safe field of operation. It has been held that this is a duty the master cannot delegate; and that, to whomsoever it is entrusted, that person becomes the alter ego of the master in the eye of the law. This view of the law, entertained in many cases, has been elaborated in two very late ones: Jones v. Railroad, 178 Mo. 528, decided In Banc; and Smith v. Fordyce, 190 Mo. 1, decided in Division.
In the Jones case, through the negligence of servants, whose duty it was to set the brakes on cars not in immediate use and left by them standing on a side track, these cars (in a not unusual windstorm) escaped from the side track, and ran upon the main track, and Jones, an engineer of a regular ■ train on the main track, was killed in a collision with the escaped cars. In that case this court, per Valliant, J., with whom Brack, Gantt and Fox, JJ., concurred, said: “The proposition that the burden is on the plaintiff to prove
“It was the duty of the master in this case to use reasonable care to prevent those cars escaping, and, therefore, when they were found running loose, so as to imperil the life of the servant who was in the due performance of his duty, the presumption is that the master did not use reasonable care to hold his cars on the side track, and the burden is on him to prove that he performed his duty in this respect; it devolves on him to explain the occurrence. ’ ’
In the Smith ease there was a spur track from the main line of the Kansas City, Pittsburg & Gulf Railroad to a lead and zinc mine, known as the Bankers Mine, said railroad then being operated by F'orydee &
Now, apply the doctrine of those cases to the case at bar. The master was under the bounden duty to
The judgment should be affirmed.
Rehearing
ON MOTION FOE EEHEAEING-.
— A timely motion for rehearing was filed in this cause, and in addition to suggestions by counsel in this proceeding learned counsel in the case of Broadwater v. Eailroad, decided by Gantt, J., in Division No. 2 at its sitting on March 17, 1908 (212 Mo. 437), the same questions being involved, has, with
It is insisted by counsel filing this brief that the Fellow-Servant statute did not create a new cause of action, but, he says, simply placed the employee of the' railway corporation on the same footing that it placed any other person. Then follows the strong and rather remarkable statement that, “To hold- otherwise would be to nullify .the plain meaning of the statute and strip it of its usefulness. To contend that the Legislature intended such a result, would be to brand them as ‘monsters of injustice,’ as such a construction would give a right of action for the trifling injury to the employee, but deny any recovery if his wound were mortal.”
It is sufficient to say of this statement that, if there was any warrant or justification in making it, then counsel has failed to discharge his full duty by not also adding that the common law itself and the great commonwealth of Missouri are entitled to the same brand as the Legislature, “monsters of injustice,” for the reason that the common law was so inhuman as not to recognize the right of one fellow-servant to recover against a corporation for the negligence of another fellow-servant, and this commonwealth, with her boasted intelligence and fairness in dealing with her citizens, allowed over three-quarters of a century of her existence to elapse before she recognized the propriety of the rule for a recovery by one fellow-servant for the negligence of another.
The common law, which was regarded as the perfection of wisdom and fair dealing with the citizen, did not recognize the rule of survivorship of actions 'in causes even where persons were injured and killed, who were not engaged in the service of the corporation. As to those persons there was no right of survival
It is but common, in fact it is in accord with the proper instincts- of humanity, to sympathize with those who have received injury or with those who have lost members of the family by the infliction of injuries, yet that does not justify the brushing aside of plain legal principles when confronted with a legal proposition and we are unwilling to follow the views of learned counsel to the extent of saying that the common law itself, as well as this great State, should be branded as “a monster of injustice” in failing to recognize the rule suggested in this cause.
The proposition that the operator and agent and the engineer, Mr. Strottman, were fellow-servants, was fully discussed in the original opinion in this cause; in fact, learned counsel in their oral arguments, as well as in their briefs, give that subject very little attention. If there was any doubt upon that proposition it is clearly set at rest by applying the tests as to when persons are to be held as fellow-servants, pointed out by Gantt, C. J., in the case of Koerner v. St. Louis Car Co., 209 Mo. 141, and in his discussion of the proposition in the recent case of Tabor v. Railroad, 210 Mo. 385.
The recovery in this action is not sought upon the •ground that the defendant was guilty of negligence in selecting an incompetent servant. That would present an entirely different proposition. In the absence of any showing to the contrary, it would be presumed that the operator or agent was a competent servant, notwithstanding he was guilty of negligence in this particular case. Hence, this action is predicated upon the negligence of the operator or agent, who was the fellow-servant of Mr. Strottman. When the master had transmitted his directions to the fellow-servant of the engineer, he had performed his full duty in that
We are unable to give our assent to tbe contention-that tbe Fellow-Servant Act did not create a new cause-of action. Tbe proposition is self-evident that until tbe enactment of tbe Fellow-Servant statute in 1897, in this State a servant who was injured through the-negligence of a fellow-servant never bad any right of' action; hence-, it must logically follow that that statute for tbe first time giving him a right of action created a new cause of action wbicb did not exist prior to-that time, that is, in favor of tbe servant. To say that it did not create a new cause of action, but simply-placed tbe employee of the railroad corporation on tbe same footing that it placed any other person, falls, far short of a correct solution of that proposition. We have bad statutes enacted in this State defining the-rights of husband and wife. Some of them have made-provisions for tbe assertion and protection of tbe rights of the wife by an action by tbe husband; subsequently those statutes have been changed by providing that tbe wife might maintain a cause of action in tbe assertion and protection of her own rights. Will it be seriously contended that, when sucb statutes are changed,, they do not then create a new cause of action as-
The fundamental error of the contention of learned counsel is in assuming that, because a cause o'f action has existed for years in favor of a particular class, when a statute is enacted embracing another class which had hitherto been excluded, it is to be treated as the same old cause, of action applicable to both classes. This contention in our opinion is unsound and illogical, and in our judgment there can be but one conclusion, that is, as to that class to whom the statute was applicable for a number of years, it might be termed an old cause of action, but where the statute for the first time provides that another class shall have a cause of action, as applicable to that class, there can be no question but what the statute has created in their behalf a new cause of action. It was clearly not an old one and was manifestly a new one, for they never had it before.
Upon the proposition that this action survived to-the plaintiff, our attention is directed to the numerous cases against street railways for injuries resulting from the failure to observe certain ordinances enacted by the city concerning the running of cars. The argument predicated upon these cases is that the causes of action were held to survive to others; yet there was no statute providing for their survival. The correct response to that argument is that the negligence by street railways in violating duties imposed by city ordinance, was not a new cause of action. The imposition of cer
It is further suggested in the brief filed by counsel ■amicus curiae that our statute was borrowed from the statutes of Minnesota and Texas, and that prior to the time our statute was enacted the Minnesota statute had received several constructions in several different ■cases by the Supreme Court of that State, and that we upon adopting the statute adopted it with the construction that had been placed thereon. That this is a rule •of statutory construction is not to be controverted, but we have carefully examined each and every case from the State of Minnesota, as well as from the State of Texas, and find that the question involved in this case was not in issue in either of those cases, and that in respect to the question now before this court there was
But aside from all this, as applicable to the Act of 1897, the lawmaking power of this State has given its own interpretation to that statute by subsequently providing for the survival of the action based upon the provisions of the fellow-servant law. It is clearly pointed out by Judge Gantt in Broadwater v. Railroad, supra,' that the question involved in this proceeding has never been in judgment before this court. The Act of 1905 was manifestly a legislative recognition that the right of survival of a cause of action based upon the Fellow-Servant Act was not conferred or in any way provided for by such act, and that' one of the leading purposes of the Act of 1905 was to cure the omission respecting the survival of actions in the Act of 1897.
The motion for new trial should be overruled, and it is so ordered.
