Boyd v. St. Louis Brewing Ass'n

• Decision Date: 18 February 1928
• Docket Number: 26703
• Citation: 5 S.W.2d 46,318 Mo. 1206
• Parties: Evelyn Dausch Boyd, and Eleanor Dausch, by Bertha Dausch, Her Next Friend, Plaintiffs in Error, v. St. Louis Brewing Association
• Court: Missouri Supreme Court

5 S.W.2d 46

318 Mo. 1206

Evelyn Dausch Boyd, and Eleanor Dausch, by Bertha Dausch, Her Next Friend, Plaintiffs in Error, v. St. Louis Brewing Association

No. 26703

Supreme Court of Missouri

February 18, 1928

Modified Opinion April 9, 1928.

Motion for Rehearing Overruled April 9, 1928.

Error to Circuit Court of City of St. Louis; Hon. Eugene McQuillin, Judge.

Reversed and remanded.

Anne M. Evans for plaintiffs in error.

(1) The natural guardian is entitled to sue for infants. Secs. 371 391, 1165, R. S. 1919; Brandon v. Carter, 119 Mo 572, 583; Weber v. City of Hannibal, 267 S.W. 384; State ex rel. Mo. Pac. Ry. Co. v. Cox, 24 S.W. 1035. (2) It is the duty of the court to guard the rights of infant litigants. Corpus Juris, Infants, p. 1115; Mitchell v. Jones, 40 Mo. 438; Hanlin v. Meat Co., 174 Mo.App. 465; Padgett v. Smith, 206 Mo. 313. (3) Amendments allowed expressly to save cause from the Statute of Limitations. Secs. 1274, 1275, R. S. 1919; N. Y. Central v. Kinney, 260 U.S. 3; M. K. & T. Railroad Co. v. Wulf, 226 U.S. 570; Reardon v. Balaklava Copper Co., 220 F. 584; Drakopulos v. Biddle, 288 Mo. 433; Weber v. City of Hannibal, 83 Mo. 262; Cytron v. Transit Co., 205 Mo. 692; Buel v. Transfer Co., 45 Mo. 562; Walker v. Wabash Railroad Co., 193 Mo. 474. (4) Demurrer by defendant waives objection to plaintiff's amended petition. 31 Cyc. 270, 321, 337; Davis v. Fleming, 253 S.W. 798; Randolph v. Wheeler, 182 Mo. 145; State ex rel. Lunsford v. Landon, 304 Mo. 661; Beattie Mfg. Co. v. Girardi, 166 Mo. 142; Leese v. Meyer, 143 Mo. 556; Herbert v. Spurlock, 26 Miss. 180; The Reveille v. Case, 9 Mo. 502; Williams v. Gerber, 75 Mo.App. 18; Wood v. Wells, 270 S.W. 332.

Marion C. Early and Ivan Lodge for defendant in error.

(1) The cause of action stated in plaintiff's third amended petition clearly constituted a departure from that stated in the original petition and since barred by limitation the trial court properly sustained defendant's motion to strike it from the files. Russell v. Nelson, 295 S.W. 118; Mersevey v. Pratt-Thompson Const. Co., 291 S.W. 174; Meyer v. Oregon Int. Ry. Co., 271 S.W. 865; Courtney v. Sheely, 38 Mo.App. 290; Bick v. Caughn, 140 Mo.App. 595; Secs. 4217, 4218, 4219, 4221, R. S. 1919; Jacobs v. Ry. Co., 204 S.W. 954; Slaughter v. Davenport, 151 Mo. 26; McPherson v. Railroad, 97 Mo. 253, syl. 6; Arrowood v. Delaney's Estate, 295 S.W. 522. (2) For the purpose of determining whether there is a departure the third amended petition must be compared with the original, and not with the first or second amended petitions. Purdy v. Pfaff, 104 Mo.App. 331; Steele v. Brazier, 139 Mo.App. 319, syl. 9; Pruett v. Warren, 71 Mo.App. 84; Jacobs v. Railroad, 204 S.W. 954. (3) Plaintiffs having failed to incorporate the original petition in their bill of exceptions, it is not a part of the record, and the action of the trial court in striking from the files the third amended petition on the ground that it constituted a departure from the original cause of action cannot be reviewed by this court. Wood v. Wells, 270 S.W. 332; 31 Cyc. 618.

Higbee, C. Davis and Henwood, CC., concur.

OPINION

HIGBEE

Error to the Circuit Court of the City of St. Louis to review its action in striking out plaintiffs' third amended petition in an action wherein Eleanor Dausch, Evelyn Dausch, Bertha Dausch and William Dausch, by Bertha Dausch, their next friend, were plaintiffs, and St. Louis Brewing Association was defendant, and rendering judgment for the defendant. The statement by the defendant in error, hereafter called the defendant, will give us the viewpoint of its learned counsel. It reads:

"This is an action filed in the Circuit Court, City of St. Louis, March 11, 1912, by Bertha Dausch, in her own right, as widow of William Dausch, deceased, against the St. Louis Brewing Association (defendant in error here).

"The petition alleged that plaintiff was the widow of William Dausch, deceased; that prior to his death said William Dausch was employed by the defendant as hostler, and while so employed was kicked by a vicious mule belonging to defendant, inflicting injuries resulting in his death; that defendant knew that said mule was vicious and was negligent in failing to warn said William Dausch of his danger in working around or with said mule; the petition further stated:

"'Plaintiff states that she, with her minor children, the children of the said William Dausch, were dependent on the said William Dausch for their support and that by the death of the said William Dausch, as aforesaid, she has been damaged in the sum of ten thousand dollars, in that she is deprived of his support, as well as of his companionship and society.

"'Plaintiff therefore prays for a judgment against the defendant in the sum of ten thousand dollars, together with the costs of this suit.'

"The defendant demurred to this petition on the grounds: First, the petition does not state facts sufficient to constitute a cause of action; second, the allegations of the petition affirmatively show that the plaintiff has no right of action; third, it appears on the face of the petition that the plaintiff's alleged cause of action is barred by limitation.

"This demurrer was, on the 20th day of May, 1912, sustained.

"On October 5, 1912, upon notice of plaintiff, leave was granted her by the court to file an amended petition substituting as plaintiffs her four minor children, and said Bertha Dausch was then appointed next friend for said four minor children. The amended petition was then filed, in which the caption differed from the original petition in that Eleanor Dausch, Evelyn Dausch, Bertha Dausch and William Dausch, by Bertha Dausch, their next friend, were named as plaintiffs. The amended petition stated: 'Plaintiff, by leave obtained, filed this, her amended petition, making new parties plaintiff (naming them) four infants, for whom Bertha Dausch, their mother, has been appointed next friend to bring this suit.' The allegations as to the injuries and death were substantially the same as in the original petition, but the allegations as to damages stated the four minor children had been damaged in the sum of ten thousand dollars, 'they having been deprived of his support as well as of his companionship and society.'

"A demurrer to this amended petition was sustained after a motion to strike it from the files had been overruled. A second amended petition was then filed which differed from the first amended petition in that it stated that, prior to the filing of this petition, 'Bertha Dausch, by whom they now sue, was, by the court duly appointed their next friend to institute and prosecute this suit.'

"This second amended petition was stricken from the files upon motion of defendant on the grounds that it constituted a departure from the original petition. . . .

"Plaintiff then filed a third amended petition containing substantially the same allegations as the preceding amended petition.

"Defendant filed a motion to strike this pleading from the files on the grounds that it constituted a departure from the cause of action stated in the original petition, that it attempted under the guise of an amendment to substitute a cause of action brought by the minor children of deceased for an action originally brought by the widow in her own right.

"This motion was sustained after which, upon motion of defendant, final judgment was entered against plaintiffs, June 6, 1913." (Our italics.)

I. It appears to be conceded that it was claimed by Bertha Dausch that her husband, Williams Dausch, while employed as a laborer by the defendant, was killed by a vicious mule on March 12, 1911, and that he left surviving him his widow, Bertha Dausch, and four minor children, the above named plaintiffs, and that the record shows that on March 11, 1912, the widow began the action above mentioned against defendant to recover damages under the statute, now Section 4217, Revised Statutes 1919, and that it was averred in the petition that said deceased left surviving him his said widow and minor children. It appears by the defendant's statement, and the record shows, that a demurrer to said petition was sustained, and that on October 5, 1912, an amended petition was filed in which said minor children, by their next friend, were plaintiffs. Defendant filed a motion to strike this amended petition "because the action therein pleaded is not in amendment of the cause of action stated in the original petition, but is a departure therefrom in that it substitutes another and different cause of action claimed and sued for exclusively by the minors in their own right as the children of the deceased, for the cause of action averred in the original petition and therein sued for by the said Bertha Dausch in her own exclusive right as the widow of the deceased." This motion was overruled on November 25, 1912, and thereupon defendant filed its term bill of exceptions preserving an exception to the action of the court in overruling its motion to strike out said amended petition.

On November 29, 1912, defendant filed a demurrer to said amended petition which was sustained. A second amended petition was filed February 1, 1913, in said cause which, on motion, was stricken out. On March 29, 1913, a third amended petition was filed by leave of court and the defendant filed a motion to strike said amended petition because: (1) The third amended petition avers the same cause of action which is set up in the preceding amended petitions filed herein, and is in substance a copy only of the second amended petition heretofore stricken from the files in this cause; (2) it is not an amendment of the cause of action alleged in the original petition, but is a departure therefrom; (3) it states a...