Smith v. Allee

• Citation: 245 S.W. 1117,211 Mo. App. 82
• Decision Date: 05 December 1922
• Docket Number: No. 17550.,17550.
• Parties: SMITH v. ALLEE et al.
• Court: Court of Appeal of Missouri (US)

245 S.W. 1117

211 Mo. App. 82

SMITH v. ALLEE et al.

No. 17550.

St. Louis Court of Appeals. Missouri.

December 5, 1922.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

Action by Amos Smith and others, by their next friend, Jennie Smith, against J. M. Allee, and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Clyde Williams, of Hillsboro, and E. C. Edgar, of De Soto, for appellants.

Burr S. Goodman, of St. Louis, and Samuel McKay, of De Soto, for respondents.

BECKER, J.

This is an action under the statute to recover damages for the death of one David Smith, deceased, alleged to have been occasioned by the negligence of the defendants as members of the De Soto Fair Association. Plaintiffs are the minor children of the said David Smith, deceased, and suit is brought on their behalf by Jennie Smith, as next friend, who was the wife and widow of the said David Smith, deceased.

David Smith was injured on September 12, 1918, and died two days later from the effects thereof. Plaintiffs filed their cause of action on the 1st day of August, 1919. The trial of the case resulted in a judgment for $5,000 in favor of plaintiffs and against defendants. Defendants in due course appeal.

The record discloses that the learned counsel for defendants objected to the introduction of any testimony on behalf of plaintiffs on the ground that plaintiffs' petition did not state facts sufficient to constitute a cause of action. This same point was raised by request for an instruction in the nature of a demurrer at the close of plaintiffs' case and again at the close of the entire case. The point is set up in the defendants' motion in arrest of judgment and is raised here on appeal.

We take up the question as to the sufficiency of the petition. It is contended that the petition is defective under section 4217, Revised Statutes of Missouri 1919, upon which the action is based.

The petition in the case was filed more than six months after the death of said Smith occurred, but within one year, yet there is no averment in the petition either that the deceased left no widow surviving him or that the deceased left a widow surviving him, and that she had failed to sue within six months after the date of his death. Defendants contend that on account of this omission the petition states no cause of action. In light of the rulings of our Supreme Court in cases interpreting this statute, we are of the opinion that the point is well taken.

In this connection it may be noted that at the trial there was testimony to the effect that the deceased left a widow surviving him, and that she was In fact the duly appointed next friend in the cause, but no evidence whatsoever was adduced as to whether or not she, as widow, had brought suit or failed to sue within the statutory period of six months.

At common law damages were not recoverable for a tort to the person resulting in death; yet our statute on this subject, which is in derogation of the common law, both gives the right of action and provides the remedy for the death where none existed at common law, and it has been repeatedly held that one seeking to maintain an action thereunder must both allege and prove such facts as will bring him directly within its provisions. Chandler v. Railway Co., 251 Mo. 592, 158 S. W. 35, and cases cited; Dudley v. Railway Co., 167 Mo. App. 647, 150 S. W. 737; Barker v. Railway Co., 91 Mo. 86, 14 S. W. 280; Sheets v. Railway Co., 152 Mo. App. 376, 133 S. W. 124.

In Sheets v. Railway Co., supra, which was an action by the widow to...