Jackson v. Lincoln Min. Co.

• Decision Date: 07 March 1904
• Citation: 80 S.W. 727,106 Mo. App. 441
• Parties: JACKSON et al. v. LINCOLN MIN. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

80 S.W. 727

106 Mo. App. 441

JACKSON et al. v. LINCOLN MIN. CO.^*

Kansas City Court of Appeals. Missouri.

March 7, 1904.

WRONGFUL DEATH — MASTER AND SERVANT — NEGLIGENCE — FELLOW SERVANT — PETITION — SUFFICIENCY — STATUTE — APPEAL AND ERROR.

1. Under Rev. St. 1899, § 602, providing that, if objection is not taken to a petition either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting the objection that the petition does not state facts sufficient to constitute a cause of action, defendant has the right to question the sufficiency of the petition as to facts for the first time in the appellate court.

2. Rev. St. 1899, § 2864, provides that an action for wrongful death may be maintained, first, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after the death, then by the minor child or children of the deceased; or, third, if the deceased be a minor and unmarried, then by the father and mother. Held, that a petition by the father and mother for the wrongful death of their son, alleging that he was under the age of 21 years, and a single, unmarried man, was sufficient, without an allegation that he left no minor children surviving him.

3. At the time plaintiffs' son received the injury resulting in his death he was working in defendant's mine, and his duties were to take a tub from a cable, which was lowered into the shaft, and run it on cars to the face of a drift several feet away, there load it with dirt, and return it, hook it onto the cable, have it hoisted five or six feet, steady it, and then immediately load an empty tub onto the cars and return

to the face of the drift. The man handling the tub at the mouth of the shaft and decedent were both "tub hustlers," but under different foremen, both foremen being in the employment of the defendant. Both "tub hustlers" were co-operating together in the transportation of dirt from the face of the drift to the mill. Held, that the "tub hustlers" were fellow servants.

4. While in the performance of his duties at the bottom of the shaft, decedent was struck on the head by a wheel falling off a car at the top of the shaft, and killed. The pin fastening the wheel on the car had been left out by the person in charge of the car. Plenty of pins for the purpose of fastening the wheel on the car were provided by defendant and at the disposal of the employé operating the car. Held, that the death of decedent was due to the negligence of a fellow servant.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Mary Jackson and another against the Lincoln Mining Company. From a judgment for plaintiffs, defendant appeals. Reversed.

W. R. Robertson, for appellant. McAntire & Scott, for respondents.

SMITH, P. J.

Plaintiffs, the mother and father of Carl J. Jackson, brought this action under sections 2864-2866, Rev. St. 1899, to recover damages for his death, which was occasioned by the alleged negligence of defendant. The petition, in addition to the facts constituting the negligence, alleged that the said Carl J. Jackson was the plaintiffs' son, on whom they were dependent for support, and "who was under the age of twenty-one years, and a single and unmarried man." The judgment, which was for plaintiffs in the court below, is here assailed by defendant on the ground that the petition does not allege that the plaintiffs' deceased son left no child surviving him. The defendant filed in the court below a motion in arrest, based on the ground that the petition did not state facts sufficient to constitute a cause of action, which was overruled; but whether or not such motion was filed in and overruled by that court is unimportant, since the defendant has the right for the first time here to question the fundamental sufficiency of the petition. Rev. St. 1899, § 602; Epperson v. Postal Tel. Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Ball v. City of Neosho (decided by us at present term) 83 S. W. 777. The statute already referred to provides that the damages may be sued for, first, by the husband or wife of the deceased; or, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, or, if either of them be dead, then by the survivor. In Barker v. Ry. Co., 91 Mo. 86, 14 S. W. 280, the petition alleged that plaintiff "was the widow of the deceased, Barker." In the course of the opinion in the case it was said: "So in the case now before us, where the action is brought by the widow after the expiration of the six months, her right to maintain the same is conditional, and depends on the nonexistence of the minor children; a material and necessary fact, as we think, and which was not alleged or proved. * * * As, in our judgment, the fact, if such it is, that there was no minor child, was one material and necessary to be shown to entitle the plaintiff to recover in this action, which was begun after the six months had expired, and as there was no evidence offered in that behalf, the instruction in the nature of a demurrer to the evidence, asked by the defendant at the close of the evidence, should have been given. And in the absence of the proper averment in the petition, and in the failure of the proof as to whether there were such minor children, we feel constrained to reverse the judgment and remand the cause." McIntosh v. Ry. Co., 103 Mo. 131, 15 S. W. 80, was a suit by the husband and...