Marshall v. Consolidated Jack Mines Co.
| Decision Date | 02 March 1908 |
| Citation | 108 S.W. 573,129 Mo.App. 649 |
| Parties | LOUIS MARSHALL, Respondent, v. CONSOLIDATED JACK MINES COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
C. C Spencer and A. E. Spencer for appellant.
In this statutory action the person suing must bring himself within the statutory requirements necessary to confer the right of action, and this must appear in the petition, otherwise it will show no cause of action. Barker v. Railroad, 91 Mo. 86; Dulaney v. Railway, 21 Mo.App. 597; Sparks v. Railway, 31 Mo.App. 111; McIntosh v Railway, 103 Mo. 131.
McAntire & Scott for respondent.
(1) Under our statute marriage is a civil contract to which the consent of the parties capable in law of contracting is essential. R. S. 1899, sec. 4311. (2) Under the statute a license is required and any male under the age of twenty-one years cannot marry without the consent of his father. R. S 1899, sec. 4321; State v. Carpenter, 164 Mo. 588. (3) And a minor at the age of the deceased was not capable of making a legal contract. Chapline v. Stone, 77 Mo.App. 529. (4) The evidence in this case inferentially shows that the deceased was unmarried. Jackson v. Mining Co., 106 Mo.App. 447. (5) In a case where there was no allegation that the deceased was unmarried, where the circumstances were such that the person could not have been married, the action may be maintained. Czezewzka v. Railway, 121 Mo. 212; McIntosh v. Railroad, 103 Mo. 131; Baird v. Railway, 146 Mo. 280. (6) Every reasonable intendment or inference of fact which the evidence will bear should be made to support the verdict of the jury. Sappington v. Railway, 95 Mo.App. 387; Smolo v. Carson, 95 Mo.App. 426. (7) From the evidence to the effect that the boy was sixteen years and four months old, that he lived with his father, who boarded and clothed him, that he had only been away from home on a visit for a short time: It is conclusively presumed that the jury drew that inference which would support their findings. Baird v. Railway, 146 Mo. 265; Kauleman v. Fire Assn. of Phila., 79 Mo.App. 447; Smith v. Telegraph Co., 57 Mo.App. 266; Bank v. Simpson, 152 Mo. 638; Young v. Webb City, 150 Mo. 333; Keown v. Railroad, 141 Mo. 187; Roe v. Annan, 80 Mo.App. 198.
--This action is to recover damages for the death of plaintiff's son, alleged to have been the result of defendant's negligence. The petition among other allegations states that the plaintiff is the father and surviving parent of the deceased; and that deceased was a minor sixteen years of age, unmarried and without issue at the time of his death. There was no evidence that the deceased was unmarried and childless at the time of his death, but it was shown that he was sixteen years and four months old at that time. Under this state of the evidence the court was asked to instruct the jury to return a verdict for the defendant which the court refused.
In Sparks v. Railway, 31 Mo.App. 111, there was no allegation that plaintiff's son was unmarried at the time of his death. The court held: "As this action is statutory, and plaintiff's right to sue depends on the fact that the deceased left neither widow nor surviving children, the omission to aver and prove such fact is fatal to plaintiff's recovery." It was held, that a petition alleging that deceased was the minor son of plaintiff, past sixteen years of age, but not stating that he was unmarried, no cause of action was stated. [Dulaney v Railway, 21 Mo.App. 597.] It was held in a later case, when the petition did not state that deceased was unmarried, but was six years of age at the time of his death, that the allegation was sufficient, in view of the statute requiring a liberal construction of pleadings. In Bellamy v. Whitsell, 123 Mo.App....
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