169 Mo. App. 468 | Mo. Ct. App. | 1913
Plaintiff is the curator of two children, aged three and sis years. Their father and mother had been divorced for some time when the father was killed in a wreck of one of defendant’s trains in Platte county, in this State. Charging the wreck to the negligence of defendant, this action was brought under the statute, to recover damages for the children. Plaintiff prevailed in the trial court.
But the objection that the children have no estate in this State is properly raised and we have given it due consideration. At the outset plaintiff claims that the probate court, ■ in regard to the appointment of curators, is a court of general jurisdiction and that the same presumptions and intendments follow its action as those of any other court of general jurisdiction. That therefore questions of fact necessary to the court’s action in appointing a curator, must be conclusively presumed, in a collateral proceeding, to have
But there is this qualification to such statement of the law: If the face of the record shows facts which leave the court without authority to act, no presumption can arise and jurisdiction must fail. [Robbins v. Boulware, 190 Mo. l. c. 52, 53; Desloge v. Tucker, 196 Mo. 587, 601.] The defect “should be found on the face of the record, or, at any rate, in the files or returns.” [Desloge v. Tucker, supra.]
In this case a fact does appear upon the face of the proceedings in the probate court which defendant claims left it without power to appoint plaintiff curator. This was a statement of record that all the children had in Jackson county, or indeed in the entire State, .was the right of action now in suit. We must therefore consider whether such right is an “estate” in the sense used in the statute referred to above. Defendant, in denying such claim is an estate, likens it to the right given an administrator in sections 105 and 106, Revised Statutes 1909, to sue “for all wrongs done to property, rights or interests of another.” A property right, as used in that statute, is held by our Supreme Court not to include an action by the administrator for damages for the death of his intestate. [Gilkeson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493.]
But that was in reference to the claim of the injured party which his administrator sought to enforce. It was a claim for an injury to the person, as distinguished from an injury to his property, — it was held to'be an injury to personal rights as distinguished from property rights. The claim in this case is not for an injury to the person of the claimants; but is
In so far as concerns the proper designation to be given to the right of these children, we think James v. Christy, 18 Mo. 162, is applicable. There, a son was killed by the negligence of a common carrier. The father sued and died while the action was pending. It was held that the father’s loss was to his property in that he lost the service of his son, in which hé had a property right, and that his administrator could continue the prosecution of the action.
The statute we are considering uses the word * ‘ estate” instead of “property,” but that would not lessen the force of what we have said; for “estate” has equally as broad, if not a broader, meaning than “property.” It has been said in some connections ‘ ‘ to signify everything of which riches or fortune may consist.” [Bouvier’s Dictionary.]
But in order to give jurisdiction to the probate court to appoint plaintiff curator, it was necessary under the provisions of the statute that the estate of
Defendant insists errors were committed in the trial in the refusal of evidence tending to show the life of deceased was of no value to the children.
The statute (Sec. 5425, R. S. 1909) under which this action was brought, reads in part as follows: Wherever .anyone’s death shall be “occasioned by any defect or insufficiency, unskillfulness, negligence or criminal intent above declared (the carrier), shall forfeit and pay as a penalty for every such .... passenger so dying the sum of not less than two thousand dollars ($2000) and not exceeding ten thousand dollars ($10,000), in the discretion of the jury.” That statute has a double object, — one to protect the public by enforcing watchfulness and care on the part of the railway, and the other to secure compensation to those who have suffered damage by the wrongful act. It is therefore said to be partly penal and partly compensatory. [Gilkeson v. Railway Co., 222 Mo. l. c. 203; Boyd v. Railroad, 236 Mo. l. c. 82-87; Murphy v. Railroad, 228 Mo. 56.]
If the defendant is liable at all, the least amount of that liability is two thousand dollars. If the deceased. be absolutely worthless in a pecuniary sense, that sum would still be properly assessed, since though it could not be compensation, it would, be the penalty allowed. There is no way to know just what part of a given verdict is penalty and what is compensation. But since the jury considers both kinds of liability, it should have some basis fixed by the evidence upon which to estimate just compensation for the loss which
It was to get such information before the jury that defendant made offers of the evidence it now complains was refused by the trial court. The offer came about in this way: Plaintiff, to'show the right of the children to proeecute the action, proved that deceased’s wife had been divorced from him in an Illinois court. In making this proof, he introduced the divorce petition and decree rendered thereon. The petition was lengthy and contained many charges against deceased. The decree allowed the wife fifty dollars per month. Some of the charges were applicable to the question of his support and care for the children, while others were foreign to it. - After this proof was thus made, defendant asked the divorced wife, who was a witness in the case, if the charges contained in the petition were true. On plaintiff’s objection, the court ruled the question improper. The ruling was right; for it sought to put to the jury, en masse, both proper and improper evidence. Defendant then asked the witness if deceased had paid the monthly allowance and an answer was refused. MA cannot say that such evidence of an isolated' instance in the circumstances, unless connected in some proper way, bore on the question of his future support of the
Defendant finally insists that no case was made by plaintiff on the facts. Preliminary to a decision of that point, we will determine a dispute as to the character of the negligence charged in the petition. There are three statements of negligence; first, that defendant permitted its roadbed and track to become unsafe and dangerous; second, that it permitted its locomotive and tender and cars to become defective and unsafe; and third, that its servants negligently, carelessly and unskillfully ran, conducted and managed its locomotive and train. The second and third were withdrawn by instructions and the case was presented on the first, as 'to the roadbed and track. Defendant claims that the charge is of specific negligence and therefore the rule res ipsa loquitur, which presumes negligence from the mere fact of the wreck, does not apply. [Roscoe v. Railroad, 202 Mo. 576, 588; Hamilton v. Railroad, 123 Mo. App. 619.] Plaintiff claims that the charge is general negligence, and cites Price v. Metropolitan St. Ry. Co., 220 Mo. 435; Logan v. Metropolitan St. Ry. Co., 183 Mo. 582; and Mefford v. Railroad, 121 Mo. App. 647, — and that therefore that rule does apply and that he is entitled to recover on the strength of that presumption. The significance of this controversy is that defendant claims the cause of the wreck was in one of more of the cars “climbing the rail” and getting over onto the ties where the track was in perfect condition, and some distance before reaching the place of the wreck, where the track was in bad condition; and that therefore the defective 'track pleaded was not the proximate cause of the wreck.
"Whether the negligence pleaded should be called
Coming to the insistence of a failure of evidence, it was shown that the train was running south at a speed of thirty-five miles an hour and was made up of an engine, a mail, a baggage, a smoking, a chair, a dining and a sleeping car. Deceased was in the smoker. There was evidence, such as indentation of the. ties and jolting of cars noticed by passengers, which tended to prove (defendant insists conclusively proved) that one or more of the cars left the rail near 450 feet before reaching the place of the wreck. That the train nevertheless ran safely on for that distance and then, after passing over a switch, began to break and tear up rotten and defective ties for the space of 150 feet, causing the wreck. The engine, sleeping car and chair car remained on the track upright. The smoking car, in which deceased was-, was thrown so that one end was in a ditch and the other on the roadbed. The other two cars were turned over.
Upon these considerations defendant claims that the proximate cause of the wreck was- the leaving the rail 450 feet away from the scene of the wreck, for which it was not chargeable, — and not the defective track and roadbed charged in the petition; and therefore, plaintiff not having charged the cause, cannot recover. In this position defendant assumes it was not chargeable for the car leaving the track before reaching the place of the wreck and assumes that the only place
There is another view which supports plaintiff’s case, even conceding defendant not to be chargeable with negligence in the car leaving the track before reaching the point of the wreck. If the act alleged as the ground of the action (defective track at place of wreck) is the cause, it need not be the sole cause. If there is another cause in addition to the negligence alleged, the latter “would be held a concurrent proximate cause.” [1 White’s’ Pers. Inj. on Railroads, sec. 26.] The fact that one of the cars “climbed the rail” before reaching the defective ties where the wreck occurred was not the sole cause of the injury; for the injury would not have occurred but for the concurring cause of decayed and rotten ties. The latter js therefore a proximate cause, for which defend
After a thorough examination of the record, we have found no ground which would justify our interference, and hence we affirm the judgment.