14 S.W. 280 (Mo. 1886), Barker v. Hannibal & St. Joseph Railroad Co.

Citation:14 S.W. 280, 91 Mo. 86
Opinion Judge:Ray, J.
Party Name:Barker v. The Hannibal & St. Joseph Railroad Company, Appellant
Attorney:G. W. Easley for appellant. Spencer & Hall for respondent.
Judge Panel:Ray, J. Sherwood, J., absent.
Case Date:October 01, 1886
Court:Supreme Court of Missouri
 
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Page 280

14 S.W. 280 (Mo. 1886)

91 Mo. 86

Barker

v.

The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

October 1, 1886

Appeal from Buchanan Circuit Court. -- Hon. J. P. Grubb, Judge.

Reversed.

G. W. Easley for appellant.

The petition does not state facts sufficient to constitute a cause of action. The deceased was killed April 15, 1879, and the suit was begun April 9, 1880. The right of action under the statute (R. S., sec. 2121) only remains in the wife absolutely for six months and if she fails to sue within that time, then the suit is to be brought by the minor child or children of the deceased. Here she does not sue "within six months after such death," so that her right to sue after the expiration of six months after such death is conditional on the fact of whether there are minor children or not. If there are minor children, then her action is barred after six months; if not she may sue within the year. Coover v. Moore, 31 Mo. 574; Kennedy v. Burrier, 36 Mo. 128. Suppose that, after the expiration of six months, the widow had sued and prosecuted her suit to final judgment within a year after the death, and then within the year the minor children should sue, the widow's judgment would not bar the minor's recovery, because the widow had no right of action. Suppose that the minor should sue after six months, and failed to allege that there was no widow, or that she had failed to sue within six months; no cause of action would be stated. As the record nowhere shows that there are no minor children in this case, there is no right of action in the widow. The action is statutory, and the widow's right to sue after six months is conditional on the fact that there are no minor children. Wood on Lim., sec. 9; Railroad v. Hine, Adm'r, 25 Ohio St. 634.

Spencer & Hall for respondent.

(1) The point that the petition fails to state a cause of action, by reason of its failure to allege the non-existence of minor children, was not made at the trial, and is made for the first time in this court. (2) The cause of action in this case accrued to the plaintiff, the wife of the deceased, upon his death, and belonged to her absolutely without any qualification. Coover v. Moore, 31 Mo. 576; Kennedy v. Burrier, 36 Mo. 130. (3) The provisions of the statute, as to the time in which the wife shall bring her action, are in the nature of a limitation and nothing more; they affect the remedy only and limit the enforcement of the right. Coover v. Moore, 31 Mo. 576; Kennedy v. Burrier, 36 Mo. 130; Carberry v. Insurance Co., 51 Wis. 604; Wunderlin v. Cadogan, 50 Cal. 613; Hanna v. Railroad, 32 Ind. 114; Chiles v. Drake, 3 Met. (Ky.) 147. (4) In all cases except criminal causes the statute of limitations must be pleaded as a defence. Tramell v. Adam, 2 Mo. 156. The defence of the statute of limitations may be made by demurrer where the statement of the plaintiff shows an absolute bar without any exception. Condrey v. Gilliam, 60 Mo. 98; State v. Reed, 22 Mo. 473; Harper v. Terry, 70 Ind. 270; Hutchinson v. Hutchinson, 34 Ark. 164.

Ray, J. Sherwood, J., absent.

OPINION

[91 Mo. 88] Ray, J.

-- The petition on which this cause was tried is as follows: "Plaintiff states that upon the day of , she was lawfully married to Edward B. Barker, deceased, late of Buchanan county, and at the times hereinafter mentioned she was the wife and is now the widow of said deceased, Edward B. Barker.

"Plaintiff states that defendant now is, and at the...

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