Barker v. Hannibal & St. J. R. Co.
Citation | 14 S.W. 280,91 Mo. 86 |
Parties | BARKER v. HANNIBAL & ST. J. R. CO.<SMALL><SUP>1</SUP></SMALL> |
Decision Date | 01 October 1886 |
Court | United States State Supreme Court of Missouri |
Appeal from circuit court, Buchanan county; J. P. GRUBB, Judge.
G. W. Easley, for appellant. Spencer & Hall, for respondent.
The petition on which this cause was tried is as follows: The answer of the defendant was as follows: The reply of plaintiff was a general denial of the new matter contained in the answer. The trial resulted in a verdict in plaintiff's favor for the sum of $5,000. The defendant filed in due time its motion for a new trial and in arrest, assigning in the latter, among others, the ground that the petition did not state facts sufficient to constitute a cause of action. Both of said motions were overruled, judgment was entered upon the verdict, and the case appealed to this court.
The plaintiff and her deceased husband resided near defendant's track, about two or three miles from St. Joseph, and about 8 or 9 o'clock, in the morning of April 15, 1879, the plaintiff's husband, while walking along the track in the direction of St. Joseph, and about 100 yards from his residence, was run over and killed by one of defendant's passenger trains coming from the east, and going to St. Joseph. This action was begun in the circuit court of Buchanan county, April 9, 1880, or a year, lacking a few days, thereafter. The object of the action was to recover damages for the husband's death, occasioned, as alleged, through defendant's negligence in running said train. In the view we take in a controlling question presented by the record, we deem the foregoing a sufficient statement of the case. It will be observed that the suit was instituted more than six months after the death occurred, but within the year, and there is no averment in the petition that there were no minor children, and we may further add that there is nothing in the evidence or record that discloses whether or not there were such minor children. The statute provides that such damages as are here sought to be recovered may be sued for — "First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor, and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor." Rev. St. 1879, § 2121. Section 2125, Id., provides that every action instituted by virtue of the preceding sections of the chapter shall be commenced within one year after the cause of such action shall accrue. It is contended for the appellant that the right of action is vested, and only remains in the wife, absolutely, for the said period of six months, and that her right to sue after the...
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