Philpott v. Missouri Pacific Railroad , 85 Mo. 164 ( 1884 )

Black, J.

The plaintiffs, husband and wife, recovered j udgment against the defendant for the sum of $5,000, because of the death of their minor son, between nineteen and twenty years of age, occasioned by the collision of two trains of cars on the defendant’s road, at Washington, in this state. The son was, on the night of the thirtieth, of May, 1881, traveling in the caboose car of a stock train, in charge of stock, when this car collided with the caboose car of another trajn. From the effect of the injuries thus received he died in some ten or twelve days.. The collision was occasioned by the negligence of defendant’s servants, as found by the jury. The defendant, among other things, answered that the plaintiffs and their son were residents and citizens of the state of' Texas ; and, further* that they had emancipated their son from all paternal control and interference. These defences were, on motion of plaintiffs, stricken out. Of this ruling error is assigned.

• 1. The cause of action accrued in this state. The plaintiffs assert their rights under the provisions of our damage act. There is nothing in the act which, in the least, indicates a legislative intent to limit the rights thereby conferred to residents or to persons domiciled in this state. Its provisions are for the benefit of the traveling public—alike for the resident and non-resident.

. 2. There was no evidence as to what the age of majority is in the laws of the state of Texas. Proof of this, it is contended, was an essential element of the plaintiffs’ casé. We must be guided by our own law in this respect. As to acts done and rights acquired here, the laws of this state, and not those of Texas, must determine whether the son was or was not a minor. 4Kent’s Com. (12 Ed.) 233, n. c. ; Gilberth v. Bunce, 55 Mo. 349. Besides, in the absence of any evidence as to what the age of majority is in that state, we must presume it to be the same as fixed by the common law of this state, which, doubtless, would be twenty-one years.

3. • A father may emancipate his son, and when he has done so, the son will be entitled to his own earnings until the father sees fit to resume his authority. Ream v. Watkins, 27 Mo. 519. This being the law, it is insisted that the statute is compensatory, and because of the emancipation the parents are not damaged. This suit is based upon section 2121, Revised Statutes, 1879, which provides, so far as applicable to this case, that whenever any person shall die from any injury, occasioned by the negligence of any servant or employe while managing any car or train of cars, the corporation in whose employ such servant or employe shall be at the time such injury is committed, shall “forfeit and pay for every person so dying, the sum of five thousand dollars,” which may be sued for and recovered, when the deceased is a minor and unmarried, by the father and mother, and each shall have an equal interest in the judgment.. The statute is remedial and is designed to be compensatory in part. But it is .more than this. The case at bar demonstrates the fact that it cannot be wholly compensatory, for the amount of the recovery, being fixed, as it is, is altogether out of proportion to the value of the services of the son for the remainder of the period of his minority. The law is also designed to guard and protect persons and the traveling public against the wrongful acts thereby prohibited. Whether the amount awarded is denominated damages, compensatory damages, liquidated, as was said in Coover v. Moore, et al., 31 Mo. 574, or a penalty, is not material. The law, as well as being compensatory, is of a penal and police nature, and can, without objections, subserve both purposes at one and the same time. The right to recover is, therefore, not made to depend upon services which the deceased could have rendered to the persons suing. The emancipation of the son by the parent, if alleged and proved, constitutes no defence.'

4. Other questions were raised on the trial and are preserved in the bill of exceptions, but as they are not pressed here, will not be considered.

Judgment affirmed.

The other judges concur.