Powell v. Sherwood

63 S.W. 485, 162 Mo. 605, 1901 Mo. LEXIS 187

• Court: Supreme Court of Missouri
• Decided: May 21, 1901
• Status: Published

Opinion

PER CURIAM:

The following opinion by Valliant,

J., in Division One, is adopted as the opinion of the Court in Banc. Burgess, O. J., Robinson, Brace and Gantt, JJ. concur; Marshall, J., concurs in all except paragraph 1; Sherwood, J., has the privilege of filing a separate opinion here-. after.

YALLIANT, J.

Suit for damages for the alleged negligent killing of plaintiff’s husband by defendant’s servants..

Petition is to the effect that defendant is the receiver, appointed by United States Circuit Court, in charge of and operating the St. Louis, Kansas City and Colorado railroad; that on July 31, 1897, plaintiff’s husband was in the service of defendant in the capacity of brakeman on a freight train of that railroad, and was thrown off the train and killed by reason of the negligence of defendant’s “agents, officers and servants,” in charge and control of the train, in suddenly and without- warning, starting the train with a jerk, etc., specifying with particularity the alleged negligent act.

The answer admitted the capacity in which the defendant was sued, and denied all other allegations of the petition. Then it pleaded three affirmative defenses, viz.: first, that the accident was incident to and one of the known hazards of the employment; second, that plaintiff’s husband neglected to take proper precaution to guard against the consequences of the jerk which might have been expected; third, if plaintiff’s husband was thrown from the train as alleged by the negligence of any one in charge of it, it was that of his fellow servant.

The reply was a general denial.

The record proper shows that the cause came to trial at the September term, 1897, of the circuit court of St. Louis county, when there was a verdict and judgment for plaintiff for $5,000, which were followed by motions for a new trial and in arrest of judgment, which were overruled, an affidavit for appeal filed by defendant, appeal granted and sixty days given defendant within which to file his bill of exceptions, all of which orders were made on October 2, 1897, and during that term. The cause is here on that appeal.

There appears in the transcript filed in this court, what purports to be an order of the judge of that court in vacation, made on March 8, 1898, granting defendant leave to file his bill of exceptions on or before March 15, 1898, and, as if in pursuance of that order, there is what purports to be a bill of exceptions filed March 10, 1898. The time granted defendant by the court in which to file his bill of exceptions expired December 3, 1897.

I. It has been so often decided by this court that, when the period beyond the trial term granted by the court in which to file a bill of exceptions has expired,, neither the court nor judge in vacation can extend it, and what purports to be a bill of exceptions filed in pursuance of such-a void order will not be considered by this court, that we now deem it unnecessary to further discuss that subject. [State v. Apperson, 115 Mo. 470; Burdoin v. Trenton, 116 Mo. 358; State v. Mosley, 116 Mo. 545; Dorman v. Coon, 119 Mo. 68; Danforth v. Railroad, 123 Mo. 196; State v. Chain, 128 Mo. 361; State v. Schuchmann, 133 Mo. 111.]

We have nothing, therefore, to consider except what appears on the face of the record proper.

II. In the brief for appellant there are some objections made to the petition, as that it does not show that the dangers incident to the running of the train were known to defendant, and unknown to plaintiff’s husband, nor that the injury was not within the ordinary risk of the employment, nor that he was exercising ordinary care. If those were matters that should have been stated in the petition and were not, they were fully supplied by the answer, which pleaded them as1 defenses, and issue thereon was joined in the reply.

The petition pleads with sufficient certainty that the plaintiff’s husband was thrown off and killed by the negligence of defendant’s servants in charge of and handling the train; whether or not it shows, as appellant contends, that the negligence complained of was that of fellow servants is perhaps doubtful, but for the purpose of appellant’s contention it may be so conceded.

III. It is contended in behalf of appellant that the record proper in this case shows that the accident which resulted in the death of the plaintiff’s husband was caused by the negligence of a fellow servant, and that therefore the defendant is not liable because, first, the act entitled “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,” approved February 9, 1897, does not apply to a receiver in charge of a railroad, and, second, that the act is unconstitutional.

Since we have nothing but the pleadings and the judgment and orders of the court to look to, it is at least questionable if the record justifies a consideration of those points, that is, whether or not the plaintiff’s judgment depends on the validity of the statute mentioned, and if so, whether or not its validity was questioned in the trial court. Defendant in his answer does not plead the invalidity of the act, and if in his motions or instructions he drew it in question, they are not before us. The answer pleads affirmatively that the negligence complained of was that of a fellow servant of plaintiff’s husband, and the reply denies that averment. What the evidence was on that point, we do not know, but the verdict on the whole case was for the plaintiff. But conceding that those questions are in this record, they have both been authoritatively answered.

1. For his first proposition appellant relies mainly on two decisions of the Supreme Oourt of Texas. In the first of those decisions (Turner v. Cross, 83 Texas 218), the statute of that State under consideration authorized an action for damages “when the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, or hirer of any railroad, steamboat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents.” The court held that the receiver of a railroad was not liable under that statute, because he was not included in the lexicographical definition of owner, charterer or hirer. But the learned chief justice delivering the opinion approved a decision in an Ohio case (Meara v. Holbrook, 20 Ohio St. 137) which held a receiver liable under a statute which gave such a right of action against “any person or corporation through whose wrongful act, negligence,” etc., death resulted, indicating that a receiver in such case possessed an individuality, within which he was liable, and which was not entirely merged in his artificial character as an arm of the court.

In the second case relied on, the Texas court, construing a statute of that State defining fellow servants, held that a brakeman in the service of the receiver of a railroad company was not “in the service of a railway corporation,” within the meaning of the statute. [Campbell v. Cook, 86 Tex. 630.] But after reading those decisions and giving them the careful and respectful consideration that they deserve, we are not persuaded that they afford the correct interpretation of our statute. Indeed, if we should hold that our statute applies to servants engaged in operating railway trains in the control of railway corporations, but that it does not apply to servants engaged in operating trains of a railway corporation in the control of a receiver, we should thereby give to the statute that character of inequality before the law, and invidious classification which appellant contends renders it repugnant to the Constitution of this State, and that of the United States.

It is one of the canons of construction, that if the statute is susceptible of two constructions, the one rendering it in harmony and the. other in discord with the Constitution, we must give it that construction which will preserve its validity.

Section 2666, Revised Statutes 1889 is: “The term ‘railroad corporation’ contained in this chapter shall be deemed and-taken to mean all corporations, companies or individuals owning or operating, or which may hereafter own or operate any railroad in this State.” Appellant argues that that statute does not apply here, because it purports to define the term railroad corporation as contained in that chapter only; but the two statutes are pari materia, and as that just quoted was in the Revised Statutes when the Act- of 1897 was enacted, they should be construed together.

In a case in which the receiver of a railroad company was sued for damages resulting from the negligence of servants in control of a train while the corporation was in the hands of another person as receiver, whom the defendant.succeeded in the receivership, the Supreme Court of the United States used this language: “We agree with the Supreme Court of Illinois, that it' was not intended by the word ‘his’ to limit the right to sue to cases where the cause of action arose from the conduct of the receiver himself or his agents; but that with respect to the question of liability he stands in place of the corporation. His position is somewhat analogous to that of a corporation sole, with respect to which it is held by the authorities that actions will lie by and against the actual incumbents of such corporations for causes of action accruing under their predecessors in office.... Actions against the receiver are in law actions against the receivership, or the funds in the hands of the receiver, and his contracts, misfeasances, negligences and liabilities aré official and not personal, and judgments against him as receiver are payable only from the funds in his hands.” [McNulta v. Lochridge, 141 U. S. 327, l. c. 331-2.]

In Peirce v. Van Dusen, 47 U. S. App. 339, it was held that the Ohio fellow servant law which in terms like ours uses only the designation “railroad corporation” applied also to a receiver of such corporation. The Texas cases referred to by appellant were there cited and relied on by the receiver, and also a Georgia decision to the same effect (Henderson v. Walker, 55 Ga. 481); but the court, per Mr. Justice Harlan, said: “If the reasoning of the Georgia and Texas courts be-applied to the Ohio statute it can not- be held to embrace the employees acting under the receiver of a railroad corporation; but in our judgment the statute is applicable to actions against receivers of railroad corporations. To hold otherwise would be to subordinate the reason of the law altogether to its letter.”

To the same effect also are Hornsby v. Eddy, 12 U. S. App. 404, and Central Trust Co. v. Wabash R. R., 27 Fed. Rep. 14.

In T. & P. R. R. v. Cox, 145 U. S., l. c. 601, the United States Supreme Court said: “In respect of liability, such as is set up here, the receiver stands in the place of the corporation.”

In other words, the receivership is pro haec vice the corporation itself under the management of one man instead of that of a board of directors. To hold, therefore, that the statute applies to corporations of a certain kind under one management, and not. to corporations of the same kind under another management, would be to create the inequality before the law to which we have above referred.

Since the argument of this cause, the Supreme Court of the United States has rendered a decision which the learned counsel for appellant has brought to our attention, in which it is held that a. receiver operating a railroad is not liable to be prosecuted under the act of Congress entitled, “An Act to prevent cruelty to animals while in transit by railroad or other means of transportation within the United States,” approved March 3, 1873. [United States v. Harris, 177 U. S. 305.] Rut that decision was distinctly put on the ground that it was a penal statute under which the prosecution was instituted, and, therefore, to be strictly construed. In the decision in that case the following language, from an early decision by the same court (United States v. Wiltberger, 5 Wheat. 76), was quoted as the principle on which it was founded: “The rule that-penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the right of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department. It is the Legislature, not the court, that is to define a crime and ordain its punishment.” There is nothing in that decision that militates against the other Federal decisions above quoted.

This court, in Fullerton v. Fordyce, 121 Mo. l. c. 8 and 9, per Macfaelane, J., said: “Receivers who have exclusive charge and control of the property. belonging to a railroad company, and of the management of its business, are bound to, the same degree of care as the corporation itself would have been under the management of its board of directors, and are in like manner liable, in their official character, for injuries resulting from the negligence of themselves or their agents and employees. ‘Being actually engaged in business, justice to those with whom-they deal demands that they should be held to the same accountability, whether their liabilities arise in contract or in tort.’ ” [Beach on Receivers, sec. 717; Little v. Dusenberry, 46 N. J. Law, 641; High on Receivers, sec. 395; 2 Rorer on Railways, p. 898.]

In the case at bar, tbe individual holding tbe office of receiver is not tbe defendant, but tbe party really in interest is tbe corporation represented by tbe receiver. True, tbe word receiver is not contained in the Act of 1897, but we are warned by tbe maxim, Qui haeret in litera, haeret m cortice, that we must not always adhere to tbe letter. To do so in this case would violate tbe spirit of tbe statute and render it obnoxious to tbe Constitution of this State. We bold, therefore, that tbe Act of 1897 applies not only to railroad corporations, but also to receivers of such.

2. Tbe next insistence is that the Act of 1897 violates sections 4, 10 and 30 of article 2, and section 53 of article 4 of tbe Constitution of this State, and tbe fifth and fourteenth amendments to tbe Constitution of tbe United States.

Tbe objections to tbe act, in tbe light of oiir State Constitution, are of tbe same character as those urged against it in view of tbe Federal Constitution, except that it is claimed also to be a special law prohibited by section 53, article 4 of tbe State Constitution, and tbe reasons given for calling it a special law are the same that are given for calling it an infringement of tbe Federal Constitution, that it is class legislation, creating inequality before the law, so that tbe objection that .the act singles out railroad companies and imposes on them a burden not imposed on other employers is tbe sum of all tbe objections.

This court has gone over this ground often in considering objections like these to similar statutes, and has always arrived at the same conclusion. In Humes v. Mo. Pac. Ry. Co., 82 Mo. 221, tbe constitutionality of section 42, chapter 36, of Wagner’s Statutes, page 310, which imposed on railroad corporations liability for double damages for killing or injuring horses, cattle, etc., was challenged on tbe ground, among others, that it was in violation of section 53, article 4 of tbe Oonstitution. In that case the court, per Phillips., C., said: “It is further alleged against this statute that it is partial qnd special because it ‘is directed against railroads alone, while no other common carriers are brought within its operations.’ Had the Legislature deemed it essential to the protection of human life and private property, they would doubtless have extended the statute to carriers by coach and water. But as the class of property and human life, protected by this provision of the statute, is not exposed to a like peril incident to coach and water travel, the occasion and necessity for so extending the statute does not exist. Class legislation is not necessarily obnoxious to the Constitution. It is a settled construction of similar constitutional provisions that a legislative act which applies to and embraces all persons ‘who are or who may come into like situations and circumstances’ is not partial.” This principle was iterated in Phillips v. Mo. Pac. Ry., 86 Mo. 540, in reference to the same and another statute, and reiterated in other cases. [State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Marion County Court, 128 Mo. 427.]

There is nothing that can be said against the Act of 1891, which could not have been said, or was not said, against the double-damage statute above mentioned, and which is not fully answered in the cases above referred to. We see nothing in the Act of 1891 in conflict with the Constitution of this State.

As to the contention that the act is in violation of the Constitution of the United States, we will only refer to decisions of the Supreme Court of the United States on that subject. The case of Humes v. Mo. Pac. Ry., above quoted, was taken on writ of error to that court, and it was there held that the statute was not obnoxious to the Federal Constitution. The grounds upon which its invalidity was urged by the railroad company are the grounds upon which the invalidity of the statute in question is urged in the case at bar. That court said: “And there can be no rational ground for contending that the statute deprives it (the railroad company) of property without due process of law.” And in discussing the second ground, the court said: “The objection that the statute of Missouri violates the clause of the fourteenth amendment which prohibits a State to deny to any person within its jurisdiction the equal protection of the laws, is as untenable as that which we have considered. The statute makes no discrimination against any railroad company in its requirements......There is no evasion of the rule of equality where all companies are subject to the same duties and liabilities under similar circumstances.” [Mo. Pac. Ry. Co. v. Humes, 115 U. S. 512.]

In 1874, Kansas enacted a railroad fellow servant law almost identical with the first section of our Act of 1897. The validity of that act came in question before the Supreme Court of Kansas, when it was attacked on the same grounds that are urged in this case, but that court held the law valid. [Mo. Pac. Ry. Co. v. Mackey, 33 Kas. 298.] That case, like the Humes case above, was carried by writ of error to the Supreme Court of the Hnited States, and it was there decided in the same way. The court said: “The only question for an examination, as the law of 1874 is presented to us in this case, is whether it is in conflict with clauses of the fourteenth amendment. The supposed hardship and injustice consist in imputing liability to the company, where no personal wrong or negligence is chargeable to it or its directors. But the same hardship and injustice, if there be any, exists when the company, without any wrong or negligence on its part, is charged for injuries to passengers. Whatever care or precaution may be taken in conducting its business, or in selecting its servants, if injury happen to the passengers from the negligence or incompenteney of the servants, responsibility therefor at once attaches to it. The utmost care on its part will not relieve it from liability, if the passenger injured be himself free from contributory negligence. The law of 1874 extends this doctrine and fixes a like liability upon railroad companies, where injuries are subsequently suffered by employees though it may be by the negligence or incompetency of a fellow servant in the same general employment and acting, under the same immediate direction. That its passage was within the competency of the legislature, we have no doubt. The objection that the law of 1874 deprives the railroad companies of the equal protection of the laws, is even less tenable than the one considered. It seems to rest upon the theory that legislation which is special in its character is necessarily within the constitutional inhibition; but nothing can be further from the fact. The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application.” [Mo. Pac. Ry. Co. v. Mackey, 128 U. S. 205, l. c. 208-9.] And at the same term the court sustained the validity of a like statute of Iowa, attacked on the same grounds. [M., etc., Ry. v. Herrick, 127 U. S. 210.]

The fourth section of the Act of 1897, declares that no contract made between the railroad company and its employee limiting the liability of the corporation for damages under that act shall be valid, but that all such agreements shall be null and void. There was no attempt at a contract of that kind in this case, and, therefore, we need not discuss that section, but as it is said in the brief of appellant that that section renders the whole act unconstitutional, we will call attention to the fact that a similar provision is contained in the Iowa statute, which the United States Supreme Court, in the case last cited, holds to be a valid law. Lest the allusion here made to section 4 of this act be construed as casting a doubt on the validity of tbat section, we will add tbat no such purpose is intended.

The validity of a similar statute in Ohio was sustained in Peirce v. Van Dusen, supra, and that statute contained also a section to the effect that it should be unlawful for.the railroad company to make any contract with its employee in contravention of its purpose.

And the Supreme Court of the United States, as late as December 11, 1899, sustained the validity of a statute of Indiana of like effect. [Tullis v. Railroad, 20 S. C. Rep. 136.]

We hold, therefore, that the Act of 1897 is not in violation of any of the provisions of the Constitution of the United States.

There is no error on the face of the record, and, therefore, the judgment of the circuit court is affirmed.

All concur.