Case v. Cordell Zinc & Lead Min. Co.

• Decision Date: 15 December 1903
• Citation: 103 Mo. App. 477,78 S.W. 62
• Parties: CASE v. CORDELL ZINC & LEAD MIN. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

78 S.W. 62

103 Mo. App. 477

CASE v. CORDELL ZINC & LEAD MIN. CO.^*

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

WRONGFUL DEATH—ACTION—STATUTES—PARTY PLAINTIFF—MINOR CHILDREN— EVIDENCE—SUFFICIENCY.

1. Under Rev. St. 1899, § 2864, providing that actions for wrongful death may be brought, first, by the husband or wife of the deceased, or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of deceased, a suit commenced by the widow more than six months after the death of her husband cannot be maintained where the deceased left a minor child or children.

2. In an action for wrongful death under Rev. St. 1899, § 2865, designating actions that survive, it was alleged by the widow of deceased that he left no minor child or children surviving him. The only evidence to support the allegation was her testimony that she had been married before she married the husband for whose death the action was brought, and that she had living a minor child, but to which of her husbands the child was to be credited was not distinctly stated. In referring to her last husband, she said, "He provided well for me and my child." Held insufficient to show that the husband for whose death plaintiff sued left no minor child.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Mrs. Donie Case against the Cordell Zinc & Lead Mining Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Allen & Rathbun and Clark & Buckley, for appellant. Robertson & Mann, for respondent.

BLAND, P. J.

Plaintiff sued to recover damages on account of the death of her husband, occasioned, as alleged, by the negligence of the defendant in furnishing deceased, while in its employ, with an unsafe and dangerous tamping bar to be used by deceased in tamping dynamite in drilling holes in defendant's mine. Plaintiff's husband was killed in defendant's mine on October 2, 1900, by the premature explosion of a dynamite charge in a drill hole. The suit was commenced on April 24, 1901. After all the evidence was heard, plaintiff was forced to take a nonsuit by the ruling of the circuit court on the evidence. After an unsuccessful motion to set aside the involuntary nonsuit, plaintiff appealed.

It is alleged in the petition that the deceased left no minor child or children surviving him, but there is not to be found in the record a syllable of evidence proving this allegation. The suit was commenced more than six months after the death of plaintiff's husband. The action is founded on section 2865, Rev. St. 1899. The persons upon whom the right to sue is conferred by this section, and the limitations as to time in which suit may be...