31 Mo. 574 (Mo. 1862), Coover v. Moore

Citation:31 Mo. 574
Opinion Judge:BATES, Judge.
Party Name:JULIA ANN COOVER, Respondent, v. MOORE & WALKER, Appellants.
Attorney:George P. Strong, for appellants. R. S. Hart, for respondent.
Court:Supreme Court of Missouri
 
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Page 574

31 Mo. 574 (Mo. 1862)

JULIA ANN COOVER, Respondent,

v.

MOORE & WALKER, Appellants.

Supreme Court of Missouri.

March Term, 1862

1. Under the " Act for the better security of life, property and character," (R. C. 1855, p. 647,) where the person killed left minor children, if the husband or wife of the deceased fail to sue within six months after the death, the right of action of the wife or husband is barred. If there be no minor children, the suit may be brought by the husband or wife within one year.

2. It appears that the sum to be forfeited is not intended as a penalty, but as compensatory damages liquidated by the statute.

Appeal from St. Louis Circuit Court.

This was an action brought upon the statute of damages. (R. C. 647, § 2.) The suit was commenced April 27, 1858, by petition in the circuit court of St. Louis county, the plaintiff alleging that her husband was killed by the negligence of the driver of defendant's stage, and that he died June 5, 1857. The suit was returnable to October term, 1858, and upon an allegation of non-residence, an order of publication was issued to appear at the October term, 1858. At the trial, judgment was rendered for the plaintiff. The deceased left minor children.

George P. Strong, for appellants.

I. The right of action of the plaintiff was barred at the time she commenced her suit, and the right to sue was vested in the minor children of George W. Coover.

II. The right the plaintiff is seeking to enforce is purely a statutory right. No action lies at common law for the negligent killing of another. Penal statutes must be strictly construed. There is no administering this law according to its intent and spirit; it must be administered according to its letter. No intendments will be made in favor or against either party. ( Alsop v. Ross, 24 Mo. 283.) In Cushing v. Dill, 3 Ill. 460, where penalty was imposed for wrongly cutting timber, it was held that the penalty could not be recovered of one whose agent had cut the trees. ( Wright v. Bennett, 4 Ill. 258; Jarrett v. Vaughan, 7 Ill. 132; Edwards v. Hill, 11 Ill. 22; Crosby v. Gipps, 16 Ill. 332 & 19 Ill. 309; Beadlestone v. Sprague, 6 J. R. 101; Commonwealth v. Churchill, 5 Mass. 174; ib. v. Chenay, 6 Mass. 347.) No action can lie upon such statutes in the name of any person unless named. (Fleming v. Bailey, 5 East, 313; State v. Fillyaw, 3 Ala. 736...

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