*1 are character procuring it. Contracts that undue influence of. they illegal. repugnant nor are policy, not present took cause under advise appears It that trial court August until April 13, 1933, did not render a decision ment on and suggested delay indicative of It was 28th thereafter. is this sugges support In on the merits. of this court’s serious doubts is Chambers, l. c. 127 S. W. tion, Chambers subject cited. case What was said in the Chambers arguendo here. persuasive Ferguson judgment so should affirmed and it is ordered. Hyde, CC., concur. adopt-
PER foregoing opinion Bradley, C., is CURIAM: —The judges ed as All opinion the court. concur. Mary T. of the Estate Administrators
Robert Wallace Baskin, Appellants, Wallace, William v. Clarence M. Woods. John 91. One, February 1937. Division *2 Roger Miller, Ragland appellant. Scott J. S. Miller and W. T. *3 Chapman Thomas P. c&Chapman respondent. Burns and *4 '456 *5 wrongful death $10,000 for the HYDE, is an C. This action theAt brought administrators. his Wallace
of John William this non- Motion to set involuntary nonsuit. took plaintiffs trial judgment of and dismissal by the aside was overruled suit court appealed. have judgment, plaintiffs From that entered. ground the appeal on dismiss filed a motion has Defendant evidence, plaintiffs’ voluntary. close of At the nonsuit was that the fol- the of m. 9:30 o’clock a. of adjourned the hour “until the court al- Evidently, 1932.” Saturday, November lowing to-wit, day, state, defendant had asked exceptions so of though the bill does not exceptions The of bill instruction. give peremptory the court following: shows the 26th, 1932. Session, Saturday, November
“Morning County, of Chariton State Court of thereupon, the Circuit “And to- day, =30 ’clock a. of this o hour of m. Missouri, at the convened heretofore pursuant to recess Saturday, 26th, November wit, by coun- present person and and defendant are taken. Plaintiffs sel, jury present the box. and the is following resumed, and the trial “Thereupon, of this cause had, proceedings to-wit: Given Instructions.
“Defendant’s argument counsel, at thereupon, court, after of “And objection exception request defendant, plain- and and over following tiffs, gives jury instructions, to-wit: to the “ 1.) (Instruction No. plaintiffs’
“Now at the evidence the court declares the close in this pleadings law to be that under and .the cause evidence finding plaintiffs are not entitled to recover and the verdict and (Instruction No. out the form must defendant. set defendant.) verdict.to find ‘‘ giving which instructions, To action of the court said each and which, plaintiffs, by counsel, duly excepted then and there time, except. and still Involuntary “Motion to Set Aside Nonsuit. afterwards, to-wit,
“And day, day on the same 26th No- vember, 1932, being during regular it November, 1932, term court, come the plaintiffs by counsel, file their motion set said involuntary aside nonsuit.”
The motion then filed, and there states: “Come plaintiffs now the the court in- to set aside the move voluntary nonsuit, which plaintiffs take were forced on account of the fact gave that the court instructions in the de- nature ’’ murrer. minutes, clerk’s out proper record and in the certified set copy judgment here, file recite the empaneling jury then continue, as follows:
“At-the plaintiffs’ evidence, conclusion the defendant tenders
458 evidence, demurrer nature of a where- in the
an instruction advisement taken under cause is jury is excused upon the again cause 26, 1932, this November Thereafter, on tomorrow. until sustaining defend- indicating intention of his coming on, the court involuntary leave nonsuit with an takes demurrer, plaintiff ant’s aside.” move to set mo filing plaintiffs’ shows the proper further The record overruling it, entry of the order the nonsuit and aside tion to set That thereafter entered. judgment dismissal and shows involuntary nonsuit proper procedure if the should show what it in if after an entered judgment dismissal, followed. The' judgment in this case nonsuit, only order or voluntary is the 467, 336 Mo. Newberry Co., v. could lie. Stith appeal which an Co., 335 Mo. Dry Boyd Logan Jones Goods (2d) 447; v. 79 S. W. 236 S. Kettelhake, U. 598; Co. v. American Car 947, (2d) 74 W. S. judgment of final Sup. 59 L. Ed. 311, 355, 35 Ct. 594.] record nonsuit, part is a dismissal, set aside a after a motion to otherwise), giving (peremptory or of instructions proper; but the taking nonsuit, aof thereto, announcement of the exceptions verbal motion nonsuit, court’s action on such the motion set aside and the l. 486, 234 Mo. exception. Moseley, v. all matters of are [Smith cited; 130, 1735, 4 Missouri 495, W. 971; 137 C. cases c. S. J. sec. 809; Cheney 1917D, Leahy (Conn.), 132, 98 L. R. A. Austin Atl. v. Electrolytic 1916F, 1130; 91 R. (Me.), Atl. L. A. 1005, v. Baker (2d) 41 782, 328 S. W. Co. v. & Tiernan Mo. Chlorine Wallace 1049; 196, 337 85 Ruehling Pickwick-Greyhound Lines, Mo. S. v. (2d) 55 S. (2d) 602; Spotts 917, Mo. W. Spotts, W. v. 331 977.] through They only the bill of ex part can become of the record ceptions. bill ex Therefore, them, stated about what is anything else, integrity ceptions, is conclusive over because “the matters, proper, depend upon of all must part a of the record coming duly through exceptions. into the record allowed bill of exception
. practice, Under our matters of can become excep part being incorporated of that a bill of record first presented to, tions by, part allowed made a of the record and ordered County, the trial court.” 338 Mo. News v. Ozark [Bakersfield 519, 92 521, l. c. S. W. and cases cited.]. exceptions stating
This bill plain contains recital no taking they tiffs ever announced the If of a nonsuit. did make instruction, gave peremptory announcement before the court appeal then the voluntary, nonsuit was ended, the case was and no Hogan- lies. 692; v. 308 272 O’Reilly, Mo. S. W. [McFarland Heating Bradley (2d) 255; Sunkel (Mo.), Co. v. McDon S. W. County nell Dry 759; v. Peck (Mo.), Goods Co. Greene S. W. Bank Gray, v. Campbell, 447; McClure judg done, been final if that had 49 W. But S. immediately entered and there have been dismissal should ment of go case ahead, after the the court to no reason for have been would give shows) (as exceptions- positively bill of ended, had in written form -verdict and a peremptory written instruction *7 thereto; a struction; except plaintiffs to file plaintiffs to motion; nonsuit; for the court to rule on this a motion set aside final overruling motion, court, enter after then and part not judgment nonsuit. minutes of the clerk- are These They judgment none was then entered. record order because they excep bill not, might been, part as have made a of the were tions. show what was said and done the These minutes do not may only have been judge, but state a conclusion. clerk’s idea “given” judge by marking by reading that them instructions sustaining jury “indicating to the was intention his defendant’s (To really demurrer.” technical the clerk’s statement could not give be true because defendant in- peremptory asked court to than struction rather to sustain a demurrer Hardin Illinois v. [see 334 1169, (2d) Central Railroad 70 S. Since Mo. W. 1075].) they part these minutes were not bill exceptions, made of the cannot be positive showing considered to overcome the bill actually of exceptions peremptory that a written instruction was given. It to be presumed not that the thing, court did a useless .is fact, things. several exceptions useless The bill of is defective showing not when made, the announcement of no nonsuit was but disputes one the fact that an there was announcement of nonsuit made day. Therefore, sometime that since there was no verdict returned directed peremptory something instruction must have prevent occurred to jury following from' direction. What could have done so except the announcement of a nonsuit very that time? The recital aside, motion to set on the filed day, plaintiffs’' same shows correctly that counsel understood the procedure involuntary nonsuit. exceptions Since the bill of does show that these given excepted to, instructions were and and does not show that an announcement taking of the of a nonsuit made was they before given, were and since both the record and the bill show judgment that no of nonsuit after entered until the motion to aside set nonsuit was filed overruled, we will hold that trial court plaintiffs considered to- have made an announcement a nonsuit gave after the court them. plaintiffs’ This makes nonsuit involun tary nonsuit. Boonville Bank National v. Thompson, [See 1049, (2d) 93, overruling Washington Fidelity Owens National (Mo. Ins. Co. App.), W. S. and Kane v. Kaysing Iron Works (Mo. App.), S. (2d) 532; see, also, Arp W. v. Rogers, 99 S. (2d) W. do We not think that this appeal omitting a defect of the technical because should be dismissed made, after nonsuit an announcement fact that of the statement proceedings all the instruction, when giving peremptory necessary unless proper have been would not thereafter shown that before and not time occurred at had that
such an announcement
overruled.
is, therefore,
appeal
motion
dismiss
time. The
hu
upon
under
Plaintiffs’
is based
petition
plaintiffs
that
contend
doctrine. Defendant does
manitarian
not brief
theory,
does
jury
on that
make a case for the
failed to
on de
question
be considered
question. Therefore,
that
recovery
any right
plaintiffs
have
fendant’s demurrer whether
section of
Statutes
under
Revised
Section
they could
claim that
wrongful
statutes. Plaintiffs do not
our
damages
compensatory sections
make a case for substantial
under
they
was a bachelor
that
statutes,
of the death
because
admit
deceased
they
show
depending upon him,”
that
could not
with “no one
anyone
reason
loss
pecuniary
suffered would suffer
had
1124;
170 S.
W.
of his death.
Smelser v.
Railroad,
*8
Cummings
966;
City
259, 186 W.
Bagley
Louis,
of St.
288 Mo.
S.
v.
920;
City
(2d)
672,
v.
334
66 S. W.
Co.,
Public Service
Mo.
Kansas
Krenning
107;
(Mo.
(2d)
2
v. Ozark
App.),
Polk v.
W.
Smith
S.
McCullough v.
573;
238
Co.,
129,
215 Mo.
S. W.
App.
Water Mills
803; Stookey
15,
205
216
Co.,
App.
Powell Lumber
Mo.
W.
S.
426;
Railway,
Dixie
App. 33,
48,
209 Mo.
236 S.
Johnson v.
l. c.
W.
Mining Co.,
App. 134,
“(3) corporation, individual or individuals employ whose officer, such agent, servant, master, engineer employee, pilot, shall injury owns, driver be at the time committed, or who operates (Laws conducts p. 135) any railroad, locomo tive, car, car, car, car, street electric automobile, terminal motor car (Laws 1905, p. 135), stage eoach, conveyance other at the any injury time resulting is received by any or occasioned unshillfulness, negligence or insufficiency] *9 or [defect criminal intent (Laws 1885, 153) p. any above declared, or such officer, agent, servant, employee, master, pilot, engineer driver, 'negligence, whose ún , or criminal' intent injury shall cause (Laws such 1911, skillfulness p. 203), “(4) shall forfeit and pay penalty (Laws as a p. 1905, 135), for every (Laws 135) p. person, employee (Laws 135) 1905, p. dying, so the passenger] sum not of less than [or two thousand dol- lars, not exceeding ¡thousand and ten dollars, in the discretion the of jury (Laws 135).” 1905, p. (Words not in original the enactment of this section are set out in italics, after appear which in parenthesis the citation of the adding amendments thereto.) them words [The set off in injuries brackets refer to passengers to due to á defect insufficiency in the carrier’s equipment, and are not way pertinent question to the to be decided herein.]. new at an sentence of 1911 added also entire Amendment
The reads, follows: which as the section end of the through cause action for death person shall have “Every who un- any servant, criminal intent of unskillfulness, or negligence, the bring' section, may option, his suit thereon of this provisions der the severally against either servant, and jointly against the master servant.” master or statutes is to ascertain primary
“The rule construction put upon possible; if and to intent, from the words used lawmakers’ plain and and language Legislature, honestly faithfully, its object, pur ‘the meaning, promote its manifest rational and to and historically,’ given properly con pose statute, of the considered (2 Ed.), Stat. sideration. ... Sutherland on Const. Lewis [2 329; Max 363; see. Endlich and Interpretation Statutes, sec. Ed.) City (5 well on Statutes v. Kansas Public 425.]” [Cummins Co., (2d) Service l. c. must de We 925.] question upon termine the now have involved statute we rather upon original than enactment. Words used must be read light made, might meaning amendments broader as take a application of the statute broadened. decide the was We can.best meaning present by considering steps of this section the various change taken from to it it was what at first to what it is now. It originally is no true that Section 3262 created doubt enacted wrongful against no cause of action for a the owner instrumentality an public transportation negligence, for his own except insufficiency for a causing defect or therein passenger’s death; contends) (as and that defendant it created a of action cause for the person déath of a negligent caused operation of such only instrumentalities negligence when it from resulted of an agent employee right in the employ. only original owner’s The to recover an owner of instrumentalities, individual death due operation his own thereof was under compensatory sections, now 3264; Sections it should but be remembered adequate remedy persons was originally sue, entitled persons because the who were entitled to sue prior to the Amendment damages. could show actual City v. Kansas Public Service [Cummins 66 S. W. history purpose wrongful death statutes reviewed the Cummins case it pointed and was there out that these statutes were intended both provide compensation for those who suffered a penalize loss and to those whose acts or omissions wrongful caused a death. The covering section injuries deaths from due transportation public, however, recovery allowed without *10 proof of damages, by and sought, penalty means upon the imposed persons corporations or engaged in the business public transporta-
463 agencies travel modem perils safeguard people from the tion, to by them. used original liability by the only two, grounds provided two, and The were, follows: act as resulting from.any injury any person shall die “Whenever First: or intent criminal by negligence, unskillfulness or occasioned or railroad trains employee (operating any officer, servant or agent, employee (operating engineer, agent or any master, pilot, cars), or stage public con- any driver coach or other steamboat), or of of a conveyance), corporation, veyance (operating public ... such agent, officer, employ any vn whose such individual or individuals engineer at the master, or driver shall he servant, employee, pilot, (the . . injury pay time is . shall forfeit and such committed specified penalty).” resulting any any injury “When passenger
Second:
shall die
by
insufficiency
any
any
from or
defect
railroad or
occasioned
or
any part
any
machinery thereof,
thereof,
boat,
or
steam
or the
any stage
public conveyance,
corporation,
coach or other
individ-
locomotive,
ual
.
.
any
railroad,
or individuals
.
who owns
ear,
coach,
conveyance
stage
injury
or other
at the time
resulting
insufficiency
received
from occasioned
defect or
declared,
(the
above
shall
penalty).”
forfeit and pay
specified
liability
negligent
The
for
operation was
the acts of
limited to
employees
not so much
description
operators
as
provision that “the corporation,
individuals,
individual or
in whose
employ”
operators
time,
were at the
This
should be liable.
ground
clearly made
liability,
wrongful
one
penalty,
persons
corporations engaged
in transportation
any of the
with
named,
instrumentalities
employed by
of persons
them.
ground
other
stated created
cause of action in
favor
passenger for a
insufficiency
defect or
transportation equip
they
ment
owned. There was no connection
two,
between
each was intended to be
separate
read
from the other.
Schultz
v. Pacific
Co.,
13;
36
Railroad
Mo.
Brownell
Co.,
v. Pacific Railroad
239;
47 Mo.
Proctor H.v. & St. J.
Co.,
112; Crump
Railroad
Mo.
ley v. H. & St. J.
Co.,
Railroad
98 Mo.
244;
S. W.
McKenna
v. Missouri Pacific
Co.,
App. 161;
Railroad
Mo.
Crohn v. Kansas
City Home
Co.,
Tel.
App. 313,
1068;
S. W.
Higgins v.
L.
St. & S.
Co.,
Railroad
presented origin portion upon the amendments effect of the isW.hat of liability which the owner of under ground stating the second ally insufficiency only defect or liable instrumentality used was was by there Amendment that noted is to be It therein? insufficiency” the words or “defect the words part after this to added “unsbillfulness, first intent.” Then for the criminal negligence or liability, ground from with the first* connected was clause this time entirely separate. purpose originally Was the it was shown which as corporation who owned the instrumen person or to make this negligence operating it whether such owner one tality for the liable negligence employees of example, For or not? him employed using equipment. It would its corporation or person other some did negligence he of someone make one liable most unusual Mangan App. Foley, v. not control employ and did C., R. (see I. & P. Railroad Shaffer statute Under another S. Ct. Sup. U. 354 W. affirmed Co., 300 S. 507), railroad is for acts its the lessor of a liable 68 L. Ed. considering railroads. is not limited we are lessee but the section liability upon imposed persons corporations been or has ever No such agencies. then engaged transportation that, other If not what stating liable for purpose in thus that the owner should be was its operator negligence equipment well of an of his for defects was, originally enacted, undér therein. The owner the section as already negligence operators employed by liable for him. it intended then to if was Could have been make owner liable he operator? concerning Connecting ground liability clause, this the second part reading apply with the it first so as to individual owner, chang'e part this read, made this of the section as follows: any any person injury resulting “Whenever shall die from negligence, or occasioned unskillfulness or criminal intent of any officer, agent, employee (operating servant or Or railroad trains any master, engineer, agent cars), pilot, employee (operating any driver steamboat), stage of a coach or other con- veyance (operating public conveyance) . . . . . .in- . . . any dividual who railroad, owns locomotive, car, stage coach, public conveyance or other any injury time is received resulting froto or occasioned . . . negligence, unskillfulness, or criminal intent above declared, (the shall forfeit pay speci- penalty).” fied negligent “above declared” was operation. This may changed not have the situation as to railroads, but it no by- operated were railroads State now that this then as true doubt amend years adopted before Constitution, ten corporations. Our operation and concerning the provisions several ment, contained transportation apply other did not regulation railroads that owning railroads, individuals Certainly the chance companies. might con been thereon not have operate cars any, if trains would *12 question upon the involved not, however, decide We should sidered. original legislative purpose Whatever the 1885 alone. the amendment they the terms they steamboats used may been, when came to have Perhaps “agent employee.” engineer” or as well as “master, pilot, steamboats, perhaps own and an owner masters own their some did stage engineer. When might pilot in instances act his own or some agent employee not mentioned, were the terms or were used coaches only all, at driver. The term “driver” is not instead, but the word Certainly only or word. driver is who an unusual technical a one stage may authority A his drives. coach driver have had unusual trips (see Drolshagen Union Depot Co., v. Railroad Mo. good 344), why
S. W. but we know no reason the word driver commonly reasonably interpreted be person would not and to be the actually doing driving, employed by the whether was the he one driving. drive he was owner to or whether the owner If terms such expressed subsequent amendments, purpose there was no reason change merely being to them applicable because the statute was made beyond original to scope. judicially situations its We now cannot know stage the situation as how to often owners drove their own many However, coaches how were driven hired do drivers. we know, Legislature and we are that knew, sure when and after they later inserted words car” in this “motor and ‘‘automobile” statute many that owners of public motor vehicles used for trans portation freight of both passengers did drive in them service. It that, seems reasonable to believe in all the amendments broadening scope act, there purpose using was some in continuing to use different terms respect with to railroads and other public instrumentalities transportation. In 1905 there reaching were amendments, several far changed which plan
the entire penalty change this section. One a was to maxi set mum penalty and minimum and to insert the penalty” words “as a to make clear recovery that the whole provided for was penalty. Grier v. K. C., & C. C. [See St. J. Railroad change Another was the addition new class of beneficiaries, who were necessarily not damaged way, and who (if they prove could damages) actual could damages not recover under compensatory sections. It should be kept up mind that to this time beneficiary, who could recover under penalty section, could recover under compensatory sections because all damages. actual could show who were those beneficiaries original right recover under beneficiaries new
Necessarily by giving these they not sustain actual if did that, even intended section, it was when penalty right of action for this have a they should damage, killed fault dependents, was without them, and related to one be- public transportation, engaged corporations individuals Also section. the other under they not recover could cause added after “operates conducts” were time, the words same liable, designating be act, who should part of the in the “owns” word insufficiency only liability for a defect originally applied which change intended to ex- was not held that this equipment. It was operating employee an liability personal tend liability employee of an thereafter instrumentality, and such C., I. Co. R. & P. Amendment of 1911. Railroad created Stepp, 151 Fed. 908.] whole section as it reading exists, now it in two Considering the applicable to an individual parts, which could separate each conveyance, car as a personally operating motor owner liability could leaving parts out the relate *13 liability solely relate for defect or employee or that insuffi- of an following: ciency, we have any person an injury “Whenever . . . shall
First: die any . operates . . individual . . . . . who . . . such . conveyance public any injury car or other at the time motor ... by any resulting . unskillfulness, is received from or occasioned . . (“of any negligence, or criminal intent . above declared . . driver charge any conveyance . . . motor car or in public other whilst driver”) (the forfeit pay specified of the same as a shall penal- 1905.) (After ty).” the Amendment of any any person . . . injury “Whenever shall die from Second: by resulting negligence, or occasioned unskillfulness or criminal any . any . . . . driver of . intent motor car other public charge conveyance whilst of the as a any same driver . . . such driver, . . negligence, unskillfulness, . whose or criminal intent injury, pay (the shall cause such shall forfeit and specified penalty).” 1911.) (After the Amendment of by If either of had been separate these made, amendment, a section wrongful statutes, death would not its reasonable construction that an instrumentality owner of such an transportation had thereby made for penalty
been liable the death of person resulting injury from an due to his operating while such instrumentality ? himself Legislature When the amended this section clearly place personal liability for penalty upon an employed driver, who negligently injured any person operating while an instrumentality of
46T they any doubt that considered transportation, can there be public injured liability upon an who placed this owner they had also that instrumentality. himself, an person was, operating while he if penalty a man liable they have to make for this intended Could another, instrumentality negligent operating he was while We negligent operating it for if he was while himself? but liable contrary construc- construction is a reasonable do not think that requires stands; now but that it tion of this section as it believe result, reach such a and that strained construction of clauses to its narrowly meaning, single do so the words used must be limited to ordinarily reasonably interpreted everything they than to mean rather section, originally written, mean. as has are understood to This been unsatisfactory attempted they to the lawmakers of'this State and have improve amending it application and broaden its While it. their accomplished purpose by repealing could no doubt have been better re-enacting terms, the whole section and we a new clearer one give changes purpose must effect to evident disclosed made. We hold that the it reasonable construction of the as section now stands that an individual liable for if imposed, is is. 'operates he transportation motor vehicle with such un- skillfulness, negligence criminal per- intent some injury son results from an thereby, occasioned whether he owned instrumentality he was operating or whether the owner thereof or user employed had operate him to it. judgment is reversed and the Ferguson cause remanded.
Bradley, CG., concur. PER foregoing opinion C., adopted CURIAM:—The Hyde, opinion judges of the court. All the concur. *14 Boyle G. General Bar Clark, Committees of the Chairman Bar, Informants, State v. Edwin S. Austin. al., et Boyle G. General Bar Chairman of the Committees of the Clark, Bar, Informants, State al., et v. P. H. Coon. Boyle G. General Chairman of the Bar Clark, Committees Bar, Informants, State v. J. Hull. 101 al., et Fred
977. Banc, February
Court en 1937.