Huss v. Bohrer
| Citation | 295 S.W. 95 |
| Decision Date | 24 May 1927 |
| Docket Number | No. 25849.,25849. |
| Parties | HUSS v. BOHRER. |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Circuit Court; Franklin Miller, Judge.
Action by Bertha Huss against Harry G. Bohrer. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Hugh K. Wagner and Edwin A. Smith, both of St. Louis, for appellant.
W. E. Moser and John S. Marsalek, both of St. Louis, for respondent.
Action for death negligently caused. The petition was filed August 23, 1923. It alleges that Jacob William Huss died on the 16th day of December, 1922, leaving surviving him a widow and three minor children, that plaintiff is his widow, and that said Huss' death resulted from injuries received on December 8, 1922, when he was struck and knocked down by an automobile negligently driven and operated by defendant. It prays an award of damages in the sum of $10,000.
In connection with the statement of facts alleged to constitute a cause of action, the petition contains the following:
"Plaintiff further states that on January 6, 1923, she first filed suit against the defendant herein on and for the same right of action set forth in the petition in this cause, which said suit was returnable to the February, 1923, term of the St. Louis circuit court; * * * and that thereafter, to wit, on August 23, 1923, she dismissed tie said suit without prejudice, and on the same day refiled her suit on the said right of action by this present suit."
The trial court sustained a demurrer to the petition on the ground "that the suit was not filed within six months after the death of plaintiff's husband as required by the statute." Plaintiff declining to further plead, final judgment was entered upon the demurrer. From that judgment this appeal is prosecuted.
According to the allegations of the petition: Plaintiff is the widow of the deceased; she sued within six months after his death; she subsequently dismissed the suit; and thereafter, after the expiration of the period of six months but within the year, she commenced the present action. Was it necessary that this second suit be brought within six months after the death of her husband, as held by the trial court? The answer must be derived from the relevant portions of sections 4217, 4219, and 4221, R. S. 1919.
According to section 4217, the penalty therein provided for "may be sued for and recovered, 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 the deceased. * * *" By section 4219 the damages accruing under section 4218 for death wrongfully or negligently caused (the section under which plaintiff's actions were brought) may be "sued for and recovered by the same parties and in the same manner as...
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