102 S.W.2d 91 | Mo. | 1937
Lead Opinion
This is an action for $10,000 for the wrongful death of John William Wallace brought by his administrators. At the *457 trial plaintiffs took an involuntary nonsuit. Motion to set this nonsuit aside was overruled by the court and judgment of dismissal entered. From that judgment, plaintiffs have appealed.
Defendant has filed a motion to dismiss this appeal on the ground that the nonsuit was voluntary. At the close of plaintiffs' evidence, the court adjourned "until the hour of 9:30 o'clock A.M. of the following day, to-wit, Saturday, November 26, 1932." Evidently, although the bill of exceptions does not so state, defendant had asked the court to give a peremptory instruction. The bill of exceptions shows the following:
"Morning Session, Saturday, November 26th, 1932.
"And thereupon, the Circuit Court of Chariton County, State of Missouri, convened at the hour of 9:30 o'clock A.M. of this day, to-wit, Saturday, November 26th, 1932, pursuant to recess heretofore taken. Plaintiffs and defendant are present in person and by counsel, and the jury is present in the box.
"Thereupon, the trial of this cause is resumed, and the following proceedings had, to-wit:
"To which action of the court in giving said instructions, and each of which, the plaintiffs, by counsel, then and there duly excepted at the time, and still except.
The motion then and there filed, states:
"Come now the plaintiffs and move the court to set aside the involuntary nonsuit, which the plaintiffs were forced to take on account of the fact that the court gave instructions in the nature of a demurrer."
The clerk's minutes, set out in the record proper and in the certified copy of judgment on file here, recite the empaneling of the jury and then continue, as follows:
"At the conclusion of plaintiffs' evidence, the defendant tenders *458 an instruction in the nature of a demurrer to the evidence, whereupon the jury is excused and the cause is taken under advisement until tomorrow. Thereafter, on November 26, 1932, this cause again coming on, the court indicating his intention of sustaining defendant's demurrer, plaintiff takes an involuntary nonsuit with leave to move to set aside."
[1] The record proper further shows the filing of plaintiffs' motion to set aside the nonsuit and entry of the order overruling it, and shows the judgment of dismissal thereafter entered. That is what it should show if the proper procedure on involuntary nonsuit was followed. The judgment of dismissal, if entered after an involuntary nonsuit, is the only order or judgment in this case from which an appeal could lie. [See Stith v. Newberry Co.,
[3] This bill of exceptions contains no recital stating that plaintiffs ever announced the taking of a nonsuit. If they did make such an announcement before the court gave the peremptory instruction, then the nonsuit was voluntary, the case was ended, and no appeal lies. [McFarland v. O'Reilly,
[4] Plaintiffs' petition is based upon negligence under the humanitarian doctrine. Defendant does not contend that plaintiffs failed to make a case for the jury on that theory, and does not brief that question. Therefore, the only question to be considered on defendant's demurrer is whether plaintiffs have any right of recovery under Section 3262, Revised Statutes 1929, the penalty section of our wrongful death statutes. Plaintiffs do not claim that they could make a case for substantial damages under the compensatory sections of the death statutes, because they admit that deceased was a bachelor with "no one depending upon him," and that they could not show that anyone had suffered or would suffer any pecuniary loss by reason of his death. [See Smelser v. Railroad,
Deceased was killed when struck by defendant's truck, driven by defendant himself, on U.S. Highway No. 36 at an underpass under the Burlington Railroad near Laclede on the night of December 21, 1929. Defendant used his truck to carry goods for the public for hire. [See Drakesmith v. Ryan (Mo. App.), 57 S.W.2d 727.] The question for determination is whether Section 3262 creates a right of action, for the penalty provided therein, against an owner of a motor vehicle, in use as a public conveyance, for a death caused by the owner's negligence while driving such motor vehicle himself. As originally enacted, Section 3632 was put in one long sentence, "at some expense of rhetorical clearness and precision." [Schultz v. Pacific Railroad Co.,
"(1) Whenever any person, including any employee of thecorporation, individual or individuals hereinafter referred towhose death is caused by the negligence of a co-employee thereof (Laws 1905, p. 135), shall die from any injury,
"(2) resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car or train of cars, or any street electric or terminal car or trainof cars (Laws 1905, p. 135), or of any master, pilot, engineer, agent or employee whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stage coach, automobile, motor car (Laws 1905, p. 135) or other public conveyance whilst in charge of the same as a driver; [and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad,whether the same be steam, street, electric or terminalrailroad (Laws 1905, p. 135), or any part thereof, or in any locomotive, car, street car, electric car, or terminal car (Laws 1905, p. 135), or in any steam boat, or the machinery thereof, or in any stage coach, automobile, motor car (Laws 1905, p. 135), or other public conveyance],
"(3) the corporation, individual or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns, operates or conducts (Laws 1905, p. 135) any such railroad, locomotive, car, street car, electric car, terminalcar, automobile, motor car (Laws 1905, p. 135), stage coach, or other public conveyance at the time any injury is received resulting from or occasioned by any [defect or insufficiency]unskillfulness, negligence or criminal intent (Laws 1885, p. 153) above declared, or any such officer, agent, servant,employee, master, pilot, engineer or driver, whose negligence,unskillfulness, or criminal intent shall cause such injury (Laws 1911, p. 203),
"(4) shall forfeit and pay as a penalty (Laws 1905, p. 135), for every such (Laws 1905, p. 135) person, employee (Laws 1905, p. 135) [or passenger] so dying, the sum of not less thantwo thousand dollars, and not exceeding ten thousand dollars, inthe discretion of the jury (Laws 1905, p. 135)." (Words not in the original enactment of this section are set out in italics, after which appear in parenthesis the citation of the amendments adding them thereto.) [The words set off in brackets refer to injuries to passengers due to a defect or insufficiency in the carrier's equipment, and are not in any way pertinent to the question to be decided herein.] *462
The Amendment of 1911 added also an entire new sentence at the end of the section which reads, as follows:
"Every person who shall have cause of action for any death through the negligence, unskillfulness, or criminal intent of any servant, under the provisions of this section, may at his option, bring suit thereon jointly against the master and servant, or severally against either master or servant."
"The primary rule of construction of statutes is to ascertain the lawmakers' intent, from the words used if possible; and to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning, and to promote its object, and `the manifest purpose of the statute, considered historically,' is properly given consideration. . . . [2 Lewis Sutherland on Stat. Const. (2 Ed.), sec. 363; Endlich on Interpretation of Statutes, sec. 329; and Maxwell on Statutes (5 Ed.) 425.]" [Cummins v. Kansas City Public Service Co.,
It is no doubt true that as originally enacted Section 3262 created no cause of action for a penalty for wrongful death against the owner of an instrumentality of public transportation for his own negligence, except for a defect or insufficiency therein causing a passenger's death; and that (as defendant contends) it created a cause of action for the death of a person caused by the negligent operation of such instrumentalities only when it resulted from the negligence of an agent or employee in the owner's employ. The only original right to recover from an individual owner of such instrumentalities, for a death due to his own negligence in the operation thereof was under the compensatory sections, now Sections 3263 and 3264; but it should be remembered that this was an adequate remedy for the persons originally entitled to sue, because the only persons who were entitled to sue prior to the Amendment of 1905 could show actual damages. [Cummins v. Kansas City Public Service Co.,
The two, and only two, grounds of liability provided by the original act were, as follows:
First: "Whenever any person shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee (operating railroad trains or cars), or of any master, pilot, engineer, agent or employee (operating a steamboat), or of any driver of a stage coach or other public conveyance (operating such public conveyance), . . . the corporation, individual or individuals inwhose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed . . . shall forfeit and pay (the specified penalty)."
Second: "When any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any steam boat, or the machinery thereof, or in any stage coach or other public conveyance, the corporation, individual or individuals . . . who owns any such railroad, locomotive, car, stage coach, or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay (the specified penalty)."
The liability for negligent operation was limited to the acts of employees not so much by the description of the operators as by the provision that "the corporation, individual or individuals, in whose employ" such operators were at the time, should be liable. This clearly made one ground of liability, for a wrongful death penalty, of persons or corporations engaged in transportation with any of the instrumentalities named, the negligence of persons employed by them. The only other ground stated created a cause of action in favor of a passenger for a defect or insufficiency in the transportation equipment they owned. There was no connection between the two, and each was intended to be read separate from the other. [See Schultz v. Pacific Railroad Co.,
[5] What is the effect of the amendments upon the portion originally stating the second ground of liability under which the owner of the instrumentality used was only liable for a defect or insufficiency therein? It is to be noted that by the Amendment of 1885 there was added to this part after the words "defect or insufficiency" the words "unskillfulness, negligence or criminal intent." Then for the first time this clause was connected with the first ground of liability, from which as shown it was originally entirely separate. Was the purpose of this to make the person or corporation who owned the instrumentality liable for the negligence of one operating it whether such owner employed him or not? For example, for negligence of employees of some other person or corporation using its equipment. It would be most unusual to make one liable for the negligence of someone he did not employ and did not control [See Mangan v. Foley,
Connecting this clause, concerning the second ground of liability with the first part and reading it so as to apply only to an individual owner, this change made this part of the section read, as follows:
"Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee (operating railroad trains or cars), or of any master, pilot, engineer, agent or employee (operating a steamboat), or of any driver of a stage coach or other public conveyance (operating such public conveyance) . . . the . . . individual . . . who owns any such railroad, locomotive, car, stage coach, or other public conveyance at the time any injury is received resulting from or occasioned by any . . . unskillfulness, negligence, or criminal intent above declared, shall forfeit and pay (the specified penalty)."
The negligence "above declared" was negligent operation. This may not have changed the situation as to railroads, but it was no *465
doubt true then as now that railroads in this State were operated by corporations. Our Constitution, adopted ten years before this amendment, contained several provisions concerning the operation and regulation of railroads that did not apply to any other transportation companies. Certainly the chance that individuals owning railroads, if any, would operate trains or cars thereon might not have been considered. We should not, however, decide the question involved upon the 1885 amendment alone. Whatever the original legislative purpose may have been, when they came to steamboats they used the terms "master, pilot, engineer" as well as "agent or employee." Perhaps some masters did own their own steamboats, and perhaps an owner might in some instances act as his own pilot or engineer. When stage coaches were mentioned, the terms agent or employee were not used at all, but instead, only the word driver. The term "driver" is not an unusual or technical word. Certainly a driver is only one who drives. A stage coach driver may have had unusual authority on his trips (see Drolshagen v. Union Depot Railroad Co.,
In 1905 there were several far reaching amendments, which changed the entire plan of this penalty section. One change was to set a maximum and a minimum penalty and to insert the words "as a penalty" to make clear that the whole recovery provided for was a penalty. [See Grier v. K.C., C.C. St. J. Railroad Co.,
Considering the whole section as it now exists, reading it in two separate parts, each of which could be applicable to an individual owner personally operating a motor car as a public conveyance, and leaving out the parts that could relate only to liability for negligence of an employee or that relate solely to liability for a defect or insufficiency, we have the following:
First: "Whenever any person . . . shall die from an injury . . . the . . . individual who . . . operates . . . any such motor car . . . or other public conveyance at the time any injury is received resulting from or occasioned by any . . . unskillfulness, negligence, or criminal intent above declared ("of . . . any driver of any . . . motor car or other public conveyance whilst in charge of the same as a driver") shall forfeit and pay (the specified penalty)." (After the Amendment of 1905.)
Second: "Whenever any person . . . shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of . . . any driver of any . . . motor car or other public conveyance whilst in charge of the same as a driver . . . any such . . . driver, whose negligence, unskillfulness, or criminal intent shall cause such injury, shall forfeit and pay (the specified penalty)." (After the Amendment of 1911.)
If either of these had been made, by amendment, a separate section of the wrongful death statutes, would not its reasonable construction be that an owner of such an instrumentality of transportation had been made liable thereby for the penalty for the death of any person resulting from an injury due to his negligence while operating such instrumentality himself?
When the Legislature amended this section in 1911 to clearly place personal liability for the penalty upon an employed driver, who negligently injured any person while operating an instrumentality of *467 public transportation, can there be any doubt that they considered that they had also placed this liability upon an owner who injured any person while he was, himself, operating such an instrumentality. Could they have intended to make a man liable for this penalty if he was negligent while operating such an instrumentality for another, but not liable if he was negligent while operating it for himself? We do not think that the contrary construction is a reasonable construction of this section as it now stands; but believe that it requires a strained construction of its clauses to reach such a result, and that to do so the words used must be narrowly limited to a single meaning, rather than reasonably interpreted to mean everything they ordinarily are understood to mean. This section, as originally written, has been unsatisfactory to the lawmakers of this State and they have attempted to improve it and broaden its application by amending it. While their purpose could no doubt have been accomplished better by repealing the whole section and re-enacting a new one in clearer terms, we must give effect to the evident purpose disclosed by the changes made. We hold that the reasonable construction of the section as it now stands is that an individual is liable for the penalty imposed, if he operates a motor vehicle in public transportation with such unskillfulness, negligence or criminal intent that the death of some person results from an injury occasioned thereby, whether he owned the instrumentality he was operating or whether the owner or user thereof had employed him to operate it.
The judgment is reversed and the cause remanded. Ferguson andBradley, CC., concur.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.