Kennedy v. Burrier

• Citation: 36 Mo. 128
• Parties: MARY ANN KENNEDY, Plaintiff in Error, v. ANDREW BURRIER, Defendant in Error.
• Decision Date: 31 August 1865
• Court: United States State Supreme Court of Missouri

36 Mo. 128

MARY ANN KENNEDY, Plaintiff in Error,

v.ANDREW BURRIER, Defendant in Error.

Supreme Court of Missouri.

August Term, 1865.

Error to Buchanan Court of Common Pleas.

Parker, Strong & Chandler, for plaintiff in error.

H. M. & A. H. Vories, for defendant in error.LOVELACE, Judge, delivered the opinion of the court.

This is an action brought by the plaintiff to recover damages under “An act for the better security of life, property and character,” for the alleged wrongful killing of her father. The petition shows that the killing took place more than one year before the institution of the suit; and that the deceased left a widow, the mother of the plaintiff. The defendant demurred upon the ground that the suit was not brought within one year after the cause of action accrued, which was sustained by the court below and judgment entered up for defendant, to reverse which the case is brought here by writ of error. The second section of the statute under which these proceedings were instituted (R. C. 1855, p. 648, § 2), after declaring in what kind of cases an action may be brought for the wrongful killing of another, provides that the suit shall be brought, “1. By the husband or wife of the deceased; or, 2. If there be no husband or wife, or he or she fail to sue within six months after such death, then by the minor child or children of the deceased,” &c. And the sixth section of the same act provides, that “every action instituted by virtue of the preceding sections of this act shall be commenced within one year after the cause of action shall accrue.” The plaintiff contends that for the first six months after the killing of Kennedy, there being a widow, no cause of action accrued to the plaintiff, and that she has one year after her cause of action accrued, and cites Coover v. Moore, (31 Mo. 576,) in support of this position.

In Coover v. Moore, the suit was brought by the widow to recover damages for the killing of her husband. It appeared that the deceased had minor children, and the widow commenced her action more than six months after the death of her husband. The court in that case held that when there were minor children, the right of the widow to sue would be barred after six months, and that after six months the cause of action “accrues to the minor children.” The question as to when the minor children would be barred was not before the court, nor did they express an opinion upon it.

The sixth section of the act provides that suit must be...