McNamara v. Slavens

• Decision Date: 31 October 1882
• Citation: 76 Mo. 329
• Parties: MCNAMARA et al., Plaintiffs in Error, v. SLAVENS.
• Court: Missouri Supreme Court

76 Mo. 329

MCNAMARA et al., Plaintiffs in Error,

v.SLAVENS.

Supreme Court of Missouri.

October Term, 1882.

Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Amos H. Kagy for plaintiffs in error.

By dismissing her action, the widow and all others were placed in the same condition that they would have been had no action been brought. Shepard v. St. Louis, Iron Mountain & Southern R'y Co., 3 Mo. App. 550, is not an authority in this case. There the case was dismissed because the plaintiff failed to appear and prosecute. She went out of court involuntarily, while in the case at bar the plaintiff went out of court of her own motion. There the wife saw fit to pursue her remedy to its final termination, while here she saw fit to abandon it to her children.

L. C. Slavens for defendant in error, cited Shepard v. St. Louis, Iron Mountain & Southern R'y Co., 3 Mo. App. 550.

HENRY, J.

This is a suit by which plaintiffs seek to recover $5,000 under sections 2121, 2122 and 2123 of the Revised Statutes, for the death of their father, occasioned, it is alleged, by the negligence of the defendant, of whom he was an employe.

Within six months after their father's death, their mother, his widow, instituted her suit in the special law and equity court of Jackson county, based upon said sections, upon the same cause of action, and on a trial thereof, after the evidence was closed on both sides, she dismissed said suit, and has since commenced no other suit to recover on said cause of action. In the case at bar, at the close of plaintiffs' testimony, defendant asked an instruction in the nature of a demurrer to the evidence, which was given by the court, and from the judgment thereon this appeal was taken.

Section 2121 provides, after giving the right of action for the death of a passenger on a train of cars, or steamboat, etc., that: “The corporation, individual or individuals, shall forfeit and pay for every person or passenger so dying, the sum of $5,000, which may be sued and recovered. 1st, By the husband or wife of the deceased; or, 2nd, 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.” Section 2122 provides that: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured.” Section 2123 provides that: “All damages accruing under the last preceding section shall be sued for and recovered by the same parties, and in the same manner and as provided in section 2121, except that the jury may award as damages a less amount than $5,000.”

Neither the husband, nor wife, nor children, had at common law, an...