Koenig v. Union Depot Railway Co.

GANTT J. This is the second appeal of this cause. The first is reported in 173 Mo. 698. The evidence is fully stated in the opinion of Judge Burgess on the former appeal, and it is unnecessary to reproduce it in full. The plaintiffs are respectively father and mother of Amelia Koenig, their infant daughter, who was struck and killed on the 8th day of May, 1899; by one of defendant’s street railway cars at the intersection of Arsenal street and Compton avenue, in the city of St. Louis. Amelia was about six years old at the time she was killed. The defendant is a corporation organized under the laws of this State, and operating a street railway with double tracks on Arsenal street. Its cars are propelled by electricity. On the 8th day of — 569 — May, 1899, between two and three o’clock in the afternoon of that day, one of the defendant’s ears proceeding westward on Arsenal street, struck Amelia, at or near the crossing of the west line of Compton avenue, with such force that she died a.n hour or two thereáfter. The testimony tended to show that from Michigan avenue, the first street ea.st of Compton, down to Compton there was a steep descending grade in defendant’s railway track. The negligence alleged was that the defendant recklessly and negligently ran its car with great speed in excess of the ordinance of the city of St. Louis regulating the speed and operation of street railway cars, and in violation of said ordinance and with such rapidity that the motorman lost control thereof so that he could not stop the same at the crossing on Compton avenue; that while running down said grade to Compton avenue, the motorman neglected and failed to sound the gong or bell on said ear, or to give any other warning of its approach, and failed and neglected to keep a proper lookout for persons crossing said Arsenal street at Compton avenue, and neglected to lower the fender and apply the brake until after said Amelia had been struck. The answer was a general denial. A change of venue was granted to the St. Louis County Circuit Court. After the reversal of the judgment on the first trial by this court, the cause was retried at the May term, 1903, of said court, and resulted in a verdict for the plaintiff in the sum of five thousand dollars. Motions for new trial and in arrest were filed in due time and overruled, and an appeal granted to this court. Various errors are assigned on this appeal which will be considered in the order of their presentation in the brief of counsel for the defendant. I. In the course of the examination of Mrs. Lizzie Koenig, the mother of Amelia Koenig, she was asked: “Where is your husband, Charles Koenig?” and she — 570 — answered, “He is out of Ms mind and is at the poorhouse. On the 29th of August he will have been there two years.” On cross-examination she was asked if any jury was éver impaneled to find out whether he was insane, and she answered that there had not been. At this point in the trial, counsel for the defendant objected to proceeding further with the case on the ground that the parties would not be hound by any judgment rendered; that plaintiff being insane, plaintiff’s counsel had no authority to appear for him; that he ought to have a guardian to represent him. The court overruled this objection, and the defendant excepted. Afterwards on the same day, the defendant’s counsel made the following suggestion: “I desire to state to the court at this stage of the case — I desire to have the record show —that after the jury was impaneled and sworn, and while the first witness was on the stand testifying for the plaintiff, for the first time it came to the knowledge of the defendant and its agent that the plaintiff, Charles A. Koenig, was insane, and the defendant now makes the suggestion to the court that the plaintiff Charles A. Koenig is insane and suggests to the court such insanity, and asks that the trial of the case he suspended until such time as a guardian of the insane person can he appointed to represent him in court, and we object to proceeding any further with the trial of the case. ’ ’ The court refused to suspend the trial of the case and ordered the trial to proceed, 'whereupon the defendant excepted. After the plaintiffs had introduced their evidence in chief, the defendant put Dr. Erbon on the stand and offered to prove by him that Charles A. Koenig, one of the plaintiffs, was hopelessly and mcurably insane, and had been for two years. To this evidence the defendant objected as not pertinent to any issue in the case and the circuit court sustained the objection and defendant excepted. In its motion for new trial, the defendant assigned this action of the court as ground for a new trial, and it was overruled. — 571 — It is conceded that no inquest into the mental condition of Charles A. Koenig had ever been held and that he has not been adjudged insane by any court,of competent jurisdiction. The question now is, did the circuit court err in proceeding with the trial after the suggestion of insanity was made as above stated? At common law it is stated by Lord Coke in Beverly’s case, 4 Coke 125 a.: “ An idiot in an action brought against him shall appear in proper person, and he who pleads best for him shall be admitted as appears in 33 H. 6. 18 b. Ctherwise it is of him who becomes non compos mentis, for he shall appear by guardian if he is within age, and by attorney if he is of full age. ’ ’ In Rock v. Slade, 7 Bowling’s Practice Cases, 22, an action was brought in the name of the plaintiff who was a lunatic, by his wife, to recover money. The defendant’s attorney asked for a rule on the plaintiff’s attorney to show by what authority the action was brought. Coleridge, judge on the circuit, was of opinion that under the circumstances the plaintiff’s wife had an implied authority to bring the action, and he ordered that the amount of the debt should be paid into court, and proceedings stayed until further order. On motion for a rule to show cause why the money paid into court should not be paid to .the wife of the plaintiff, it was contended by the attorney for the defendant that the appointment of an attorney presumes mental power upon the part of the individual making it, which a lunatic is incapable of exercising, and that if the rule should be absolute, the defendant would have no protection" against future action at the suit of the plaintiff. Lord Abinger said: “ It is everyday practice to sue in the name of a lunatic, and I never heard any question as to the propriety of such action where no committee was appointed. If we were to compel a party to go into equity for the appointment of á committee, there are many instances in which a lunatic might starve before he could recover his money. If the defendant wants the protection of this court, he should — 572 — let the plaintiff obtain judgment. ’ ’ Chitty in his Pleading, vol. 1, 577, adopts the statement of Lord Coke above noted. In Allen v. Ransom, 44 Mo. 263, in an action of ejectment, Judge Bliss, in the course of the opinion, said: “The claim of the plaintiff seems to have been sharply contested, and various questions were sprung upon him. First, as the case was called for trial, the defendant filed a paper suggesting to the court ‘that the plaintiff was insane, ’ to which suggestion the court paid but little attention, and directed the trial to proceed, and defendant excepted. I do not see precisely the object of the suggestion, nor does the record intimate it. Even if the suggestion was true, which does not appear, the suit must proceed in the name of the plaintiff, and he might all the more require for his support the possession of his property,” citing 2 Saunders Pl. and Ev., 318; Reed v. Wilson, 13 Mo. 28. In Reed v. Wilson, it was held that a suit on behalf of a lunatic must be instituted in the name of the lunatic and not in the name of the guardian, and that was an action of replevin for slaves and other personal property. Since the admission of Missouri into the Union as a State, there has always been a statute making it the duty of every guardian of an insane person to prosecute and defend all actions instituted in behalf of or against his ward, and where there has been an inquest and a party adjudged insane, and a guardian has been appointed and qualified as such, there can he no doubt it is his duty to prosecute and defend all actions instituted in behalf of or against his ward. But it is obvious that this statute, now section 3667, Revised Statutes 1899, makes no provision for a case like the one before us, where no inquest has been held and there has been no adjudication of insanity. Inasmuch as at common law an insane person could appeal by attorney and as there had been no inquest found in the case of the plaintiff Charles A. Koenig, we think the circuit court properly declined to stop the trial upon the suggestion of the defendant. — 573 — Such was the ruling in Allen v. Ransom, supra, and we have no doubt whatever that the judgment in tbe case will be ample protection to the defendant from another action for the same cause. In this State a deed of conveyance of real estate by an insane person before inquest is not void but voidable only. [McAnaw v. Tiffin, 143 Mo. 678; Jamison v. Culligan, 151 Mo. 416; McKenzie v. Donnell, 151 Mo. 454; Blount v. Spratt, 113 Mo. 55.] If the solemn conveyances and contracts of an insane person, not in ward, are not void but voidable only, upon equitable terms, we see no reason why a. contract' of employment of an attorney to bring an action should be held void. Clearly if not void, it does not lie in the mouth of the defendant to make any objection to the retainer of counsel by the plaintiff Charles A. Koenig, especially as he employed the counsel who appeared for him when he was sane and when he obtained the first judgment in this cause in the circuit court. The circuit court, as indicated by Lord Abinger, by proper orders can protect the defendant in seeing that whatever fund is recovered is paid over to a lawfully appointed and qualified guardian. II. It is next insisted that the plaintiffs’ verdict rest-s upon such indefinite and such uncertain testimony, and the evidence on behalf of the defendant is so clear and overwhelming to the contrary that the circuit court should have taken the case from the jury at the close of the whole case. "When this case was before this court before on practically tbe same testimony, it was said: “It is clear from the evidence that defendant’s motorman did not become aware of the danger of the child until the time of, or after she had been run over by the cars.” [Koenig v. Railroad, 173 Mo. l. c. 724.] The testimony on behalf of plaintiffs was to the effect that at the time defendant’s car struck the little girl, the motorman in charge was looking off toward the witness Dashman, and did not see her in the street. The testi — 574 — mony further shows that up to the time he struck the child, he made no effort whatever to stop the car or slacken its speed; he did not drop- the fender, he used no brake prior to hitting the child, but struck her while going at a good speed; no gong or other signal or warning was given by the defendant’s servants to indicate that his car was approaching, and after striking the little girl the car ran 125 feet before it stopped. There was evidence that it did not stop until it came to the first house beyond Compton avenue, and that that house was 150 feet from the avenue crossing. The weight of this testimony was for the jury, that saw the witnesses and heard them testify, to determine. Two juries have credited the plaintiffs ’ evidence and it is too well settled in this State to require a citation of authorities, that under such circumstances this court will hot interfere with the verdict of the jury, although there may be contradictory evidence. III. It is conceded by counsel in their brief and argument that the little girl Amelia was of such tender years that she was incapable of. contributory negligence and therefore no such defense as that is interposed in this case, but it is insisted that it was an inevitable accident, for which the defendant should not be held liable. The motorman testified that when the little girl made the start from the sidewalk to cross the tracks, his car was fifty feet away from her, and his car was moving at a rate of only eight to ten miles an hour, and it was impossible for him to stop his car in less than 60 feet. On the other hand, Harvey O. Montgomery testified that he had had experience as a motorman in operating a street car for the Suburban Railroad, and was ■familiar with the size and construction of the defendant’s street cars on Arsenal street, and that one of those cars running at the rate of 10 or 12 miles an hour on a grade descending from three to three and a half feet, for a distance of three blocks, on a dry track, on a clear day, — 575 — could reasonably be stopped with the brakes within 60 feet, but that in an emergency by using the reverse power such car as described, in the same conditions, could be stopped in forty feet, and such a car going only 8 miles an hour, in the same conditions, could be stopped by using the reverse power in 25 feet, and that he had often made stops of that sort when running at only 8 miles an hour. If Montgomery’s testimony was true, and it was for the jury to say whether or not they believed him, it is plain that if the motorman in charge of defendant’s car which struck the little girl had been keeping a vigilant lookout, he could have seen the child starting directly in front of his car 50' feet away, and if he had applied the power at his command as directed by the ordinance, he could have averted the injury to the little girl after he saw the danger she was in. IV. Defendant complains of the refusal to give the 14th instruction asked by the defendant. It is obvious that there was no error in the refusal of this instruction for the reason that the court limited the plaintiffs ’ right to recovery to the two specifications of negligence in the petition, which charged that the servants in charge of the said car failed to sound the bell or give other warning of the approach thereof, and failed to keep a proper lookout for persons crossing Arsenal street at Compton avenue on the occasion of the injury, and only held the defendant liable for failure to observe ordinary care, and then gave the 5th instruction in words as follows: ‘ ‘ If you believe and find from the evidence that the said Amelia Kgenig was at the north sidewalk of Arsenal street when defendant’s car was crossing Compton avenue, and she then suddenly started from her position at the sidewalk to cross Arsenal street and without regard to her own safety, or without looking for or seeing the car, ran into the same and that such conduct on her part was the sole cause of her injury and death without any negligence or want of ordinary care on the part — 576 — of the motorman in charge of the car cansing or contributing to such injury and death, then you should find for the defendant. ” And in the 7th instruction directed the jury: “If you believe and find from the evidence that the injury and death of the said Amelia Koenig were the result of mere accident or misadventure without the fault or negligence of anyone, then you should find for the defendant.” The court also defined “ordinary care” as has often been approved by this court. This court has often criticised the giving of numerous instructions and has admonished the trial courts that a few plain instructions covering all the issues in a case are all that should be given and it is plain that taking the instructions together they fully cover every proposition raised by the respective parties which were necessary to direct the jury in arriving at their verdict. The cause was tried in accordance with the views expressed by this court on the former appeal, and we find no reversible error in the record. The judgment is affirmed. Burgess, P. J., and Fox, J., concur.