Lyons v. St. Louis Southwestern Ry. Co.

• Decision Date: 06 December 1916
• Docket Number: No. 17630.,17630.
• Citation: 190 S.W. 859
• Parties: LYONS v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Supreme Court

190 S.W. 859

LYONS v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 17630.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Rehearing Denied December 30, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by William E. Lyons, administrator of the estate of George Franklin Brittain, deceased, against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed.

White, Hackney & Lyons, of Kansas City, for appellant. Walsh, Aylward & Lee, of Kansas City, for respondent.

WALKER, J.

This is an action brought by an administrator under section 5425, R. S. 1909, as amended (Laws Mo. 1911, p. 203), to recover damages for the death of George Franklin Brittain, killed while in defendant's employ as a switchman at Illmo, Mo., in October, 1910. The petition was filed in the circuit court of Jackson county in July, 1911, and the case tried in that court in December, 1912, resulting in a verdict for plaintiff in the sum of $10,000. From the judgment rendered therein defendant appeals.

The petition, otherwise in the usual form, avers that the deceased left no surviving wife or children, but did not aver that he left surviving any person capable of inheriting. The defendant contends on account of this omission that the pleading states no cause of action. This is not an open question in this jurisdiction. The latest expression of the court on the subject will be found in the opinion of Graves, J., in Johnson v. Dixie Mining Co. (187 S. W. 1), in which the contention here made by the defendant is sustained. This case affirms a like ruling in the same case in the Springfield Court of Appeals. 171 Mo. App. 134, 156 S. W. 33. An earlier expression of the court will be found in Kirk v. Railroad Co., 265 Mo. 341, 177 S. W. 592, in which Blair, J., speaking for the court, quotes with approval an opinion rendered by the St. Louis Court of Appeals (Troll v. Gaslight Co., 182 Mo. App. 600, 169 S. W. 337), in which it was held that a petition drawn upon section 5425, R. S. 1909, would not be held sufficient, in the absence of the averment here contended to be necessary. In consequence of these rulings the judgment of the trial court must be reversed; and it is so ordered. All concur.