Aley v. Missouri Pac. Ry. Co.

• Decision Date: 01 April 1908
• Citation: 211 Mo. 460,111 S.W. 102
• Parties: ALEY et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

111 S.W. 102

211 Mo. 460

ALEY et al. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

April 1, 1908.

1. INFANTS—ACTIONS—GUARDIAN AD LITEM— ELIGIBILITY.

A nonresident may be appointed as next friend for nonresident minors prosecuting an action; the statute being silent on the question of the residence of a next friend.

2. SAME—BOND BY NEXT FRIEND—STATUTES.

Rev. St. 1899, § 554 (Ann. St. 1906, p. 588), providing that, before one shall be appointed next friend for an infant, he shall, "if required by the court," execute a bond in double the amount claimed in the suit, etc., contemplates the giving of a bond by the next friend on the court demanding it, and, on the court failing to demand a bond, the next friend may legally prosecute the action without giving bond.

3. SAME.

The general doctrine is that a next friend is not entitled to receive the money recovered in an action prosecuted by him.

4. DEATH—ACTIONS FOR PENALTY—STATUTES.

Under Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), providing that actions for death may be brought by the husband or wife of decedent, or where there is no husband or wife, or where he or she fails to sue within six months after death, the minor children may sue, an action by minor children for the negligent death of their parents in a railroad wreck is not prematurely brought, though it is brought within six months after such death; the death of the parents being simultaneous.

5. SAME—SURVIVORSHIP—PRESUMPTIONS.

There is no presumption of survivorship as to persons who perish in a common disaster, and the party asserting survivorship has the burden of proving it.

6. PLEADING—OBJECTIONS—WAIVER—ACTIONS FOR DEATH—JOINDER OF CAUSES.

Where, in an action by minor children for the penalty imposed by Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), for the simultaneous death of their parents, the petition in one count demanded the penalty of $5,000 for each parent, and defendant answered to the merits without raising the objection that the petition set forth two causes of action in one count, it was not reversible error to allow a judgment for $10,000 for the death of the parents.

7. SAME.

The defect in a petition, due to the fact that it improperly commingles two causes of action, may be waived by answer.

Appeal from Circuit Court, Johnson County; N. M. Bradley, Judge.

Action by Benjamin F. Aley and others, minors, by J. W. Aley, their next friend, against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

M. L. Clardy and R. T. Railey, for appellant. Jackson & Noble and Charles E. Morrow, for respondents.

LAMM, J.

On December 20, 1904, suit was brought in the Johnson circuit court for the death of Tilghman H. and Alice Aley, the father and mother of the minor plaintiffs, Benjamin F., Ruby, Howard, and Mary Aley. The petition was in three counts: The first, for $5,000 damages bottomed on the wrongful death of the father through the negligence of defendant, its agents, servants, and employés; the second (mutatis mutandis) for like amount for the wrongful death of the mother at the same time and place; and the third (mutatis mutandis) for $10,000 damages for the death of both parents at the same time and in the same accident. Under the circumstances hereinafter set forth, plaintiffs dismissed as to the first and second counts, and, at a trial without a jury, judgment went in their favor on the third for $10,000. From this judgment, on due steps, defendant appeals.

Pertinent to questions made, it will be well to set forth the third count of the petition; the constitutive elements of the abandoned counts needing no attention. Said third count follows: "For another and further cause of action, plaintiff states: That Benjamin F. Aley is a minor of the age of 20 years. That Ruby Aley is a minor of the age of 17 years. That Howard Aley is a minor of the age of 15 years. That Mary Aley is a minor of the age of 12 years. That they are the children of Tilghman H. Aley and Alice Aley, who were at all the times hereinafter mentioned husband and wife, and are the only minor children and heirs of said Tilghman H. Aley, who was their father, and Alice Aley, who was their mother, and that they reside in Cowley county, Kan., and have no legally appointed guardian or curator in the state of Missouri. That J. W. Aley has been duly appointed and has consented to act as their next friend in this suit, and that the petition for said appointment, the written consent of said J. W. Aley to be said next friend, and the said order of appointment have been duly filed in the office of the clerk of said court. That the defendant now is and at all the times hereinafter mentioned was a corporation duly organized and acting under the laws of the state of Missouri, and was the owner of and engaged in operating a line of railway into and through the counties of Cowley and Chautauqua and other counties in the state of Kansas to and beyond the eastern line of said state of Kansas and into and through the county of Johnson and other counties in the state of Missouri to the city of St. Louis, Mo., and is and was at all said dates a common carrier of passengers and freight. That on the ____ day of October, 1904, the said Tilghman H. Aley and the said Alice Aley, the father and mother of the minors aforesaid, purchased from the duly and legally authorized agent of the defendant at Cedarvale, Kan., tickets which entitled each of them to ride on the defendant's train of cars as passengers from said station of Cedarvale to the city of St. Louis, Mo. That they each paid to said defendant's agent at the said station of Cedarvale, who was duly authorized by the defendant to sell tickets to persons desiring to take passage and travel upon defendant's trains from said station of Cedarvale to other points upon its railroad in Kansas and Missouri, including the city of St. Louis, the usual and customary price charged and collected by defendant for carrying passengers upon its trains from said station of Cedarvale to the city of St. Louis, upon which said Tilghman H. Aley and Alice Aley intended to and did take passage on said date. That after purchasing said tickets from said agent of defendant and paying him therefor, the said Tilghman H. Aley and Alice Aley boarded and took passage upon one of defendant's trains at its station of Cedarvale, Kan., for the purpose of being carried to the city of St. Louis as passengers thereon, and upon which train they each became and were passengers, and the defendant undertook to carry them safely from said station of Cedarvale to the city of St. Louis as passengers. That said defendant did not carry said Tilghman H. Aley and Alice Aley safely, as it was its duty to do, but while they were passengers upon its said train, on the 10th day of October, 1904, when it reached a point about a mile and a half east of the city of Warrensburg, Mo., the train on which said Tilghman H. Aley and Alice Aley were riding and being carried, by the carelessness, negligence, and wrongful acts and conduct of defendant, its agents, servants, and employés, was, without fault or negligence or want of care on the part of the said Tilghman H. Aley or Alice Aley, struck by another train and engine on defendant's road, and the two trains were then and there and thereby, without fault or negligence on their part, but by reason of the carelessness, negligence, and want of proper care on the part of defendant, its agents, servants, and employés, collided, and another train of defendant's being run, managed, and operated by the defendant, its agents, servants, and employés, and going westward on the same track that the train upon which the said Tilghman H. Aley and Alice Aley were riding was going eastward, and while both of said trains were running at a high rate of speed, ran into each other, causing what is usually known as a head-end collision, which caused a sudden and severe jar to said train, and the car in which said Tilghman H. Aley and Alice Aley were riding was wrecked and demolished, thereby killing the said Tilghman H. Aley and Alice Aley. That said defendant, its agents, servants, and employés, were negligent and careless in the operation and management of said trains of cars as aforesaid, and on account thereof said collision occurred, by reason of which the said Tilghman H. Aley and Alice Aley were killed. And that the death of the said Tilghman H. Aley and Alice Aley were caused solely by the said negligence and carelessness of the defendant, its agents, servants, and employés, aforesaid, to the damage of said minors in the sum of $10,000. Wherefore he prays judgment against the defendant for the said sum of $10,000, with costs of this suit."

The amended answer follows: "Now comes said defendant, and for amended answer herein denies each and every allegation contained in the first count of plaintiff's petition. Wherefore it prays to be discharged with its costs. (a) Said defendant, for further defense, states that J. W. Aley, who is alleged in petition to be the next friend in the prosecution of this suit for the alleged minor plaintiffs, is now and ever since the 1st day of January, 1904, has been a resident of the state of Kansas; that by reason thereof he is disqualified to act as next friend in this action, and neither the court nor clerk has any authority to appoint him to act in any such capacity; that by reason of the premises neither said minors nor said J. W. Aley have any legal authority to prosecute this suit. Wherefore defendant prays that the same may be dismissed, together with its costs herein. (b) Said defendant, for further defense, states that not only has said J. W. Aley been a nonresident of the state of Missouri since the 1st day of January, 1904, and by reason thereof has no legal capacity to maintain this action, but it is also true that said J. W. Aley, in attempting to act as next friend herein, has...