Meservey v. Pratt-Thompson Const. Co.

• Decision Date: 14 February 1927
• Docket Number: No. 15728.,15728.
• Citation: 291 S.W. 174
• Parties: MESERVEY v. PRATT-THOMPSON CONST. CO.
• Court: Missouri Court of Appeals

291 S.W. 174

MESERVEY v. PRATT-THOMPSON CONST. CO.

No. 15728.

Kansas City Court of Appeals. Missouri.

February 14, 1927.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by Edwin C. Meservey, administrator of the estate of Odie Comas, deceased, against the Pratt-Thompson Construction Company. From a judgment sustaining a motion to strike a second amended petition from the files, plaintiff appeals. Affirmed.

Clif Langsdale, of Kansas City, for appellant.

Marley & Reed, of Kansas City, for respondent.

ARNOLD, Z.

This is an appeal from a ruling of the trial court in sustaining a motion to strike from the files a second amended petition. Plaintiff refused to plead further and has brought the case here by appeal from such ruling.

It appears of record that on September 3, 1921, Odie Comas, while in the employ of the Pratt-Thompson Construction Company, of Kansas City, Mo., fell and received injuries, from the effects of which he died two days later. Henry C. Page, then public administrator of Jackson county, Mo., instituted a suit for damages for the death of Comas against said construction company in the circuit court of Jackson county. The petition alleged:

"Plaintiff states that he is the duly, legally appointed and acting administrator of the estate of Odie Comas, deceased, and files this suit for and on behalf Of the heirs at law of Odie Comas, deceased; * * * that at the time of his death the said Odie Comas was an adult over the age of 21 years; that he was single and unmarried; that he left no wife or child, either natural born or adopted, but that he did leave surviving him the following heirs at law, to wit, his father, Amos Comas, and a sister, Josie Williams; that he rendered financial assistance to each of the aforesaid heirs; that by his death they have been deprived of said financial assistance and have been deprived of the support and society of said Odie Comas; and that each and all of said heirs have a pecuniary interest in the expectancy and the life of the said Odie Comas."

The negligence charge in the petition is:

"That while in the pursuit of his said employment in and about said viaduct and bridge on the 3d day of September, 1921, he was working on a scaffold maintained by the defendant in and about said work and said viaduct and bridge; that while so thereon said scaffold and the parts thereof fell, by and through the carelessness and negligence of the defendant, its agents and vice principals, and permitted the said Odie Comas to fall and be injured in such a way as to cause his death within two days thereafter."

Damages were asked in the sum of $10,000.

The answer, in part, is as follows:

"And for further answer this defendant alleges and declares that the said Odie Comas, mentioned and described in plaintiff's petition, died leaving one minor child, to wit, Victoria Comas, of the age of about 12 years, and that the said Odie Comas was married, and that his wife, Clora Comas, now living, was the mother of the aforesaid child, Victoria Comas."

Thereafter and on March 6, 1923, the court entered an order of record susbtituting Floyd E. Jacobs for Henry C. Page, deceased, as administrator. On April 14, 1923, on motion, the court set aside such substitution of Floyd E. Jacobs, administrator, as party plaintiff, substituting therefor Edwin C. Meservey, as administrator of the estate of Odie Comas. Thereafter and on April 26, 1923, by leave of court, plaintiff filed a first amended petition, with Edwin C. Meservey, administrator of the estate of Odie Comas, deceased, and Victoria Comas, by her next friend, Clora Comas, as parties plaintiff. "

The first amended petition alleges that Clora Comas is the mother of Victoria Comas, an infant under the age of 14 years, to wit, of the age of nine years, and that said infant resides with petitioner at the parish of Tangipahoa, state of Louisiana; that petitioner desires, to prosecute and be made a party plaintiff in a suit against the Pratt-Thompson Construction Company in the sum of $10,000 for damages for the death of the father of said infant, whose death was caused by the carelessness and negligence of defendant on September 3, 1921; and prays that petitioner may be appointed next friend for said infant for the purposes of said suit. Such appointment was accordingly made.

The first amended petition alleges the appointment of Henry C. Page as administrator of the estate of Odie Comas; that he continued to act as such administrator until his death; that Edwin C. Meservey was duly appointed his successor and qualified as such; that the death of Henry C. Page had been duly suggested to the court; and that Clora Comas has been appointed next friend of Victoria Comas, infant, for the purpose of commencing and prosecuting this suit against defendant, and charges:

"That at all of said times Odie Comas, father of the plaintiff, Victoria Comas, was in the employ of the defendant in and about said work as a laborer; that in the pursuit of his said employment in and about said viaduct and bridge, on or about the 3d day of September, 1921, he was ordered and directed by the defendant, its agents, and vice principals to work on a scaffold maintained by the defendant in and about said work and said viaduct and said bridge; that while so thereon, said scaffold and parts thereof fell by and through the carelessness of the defendant, its agent and vice principals, and permitted the said Odie Comas to fall and be injured in such a way as to cause his death in about two days thereafter."

The negligence charge is that:

"The defendant negligently failed to construct and maintain said scaffold well and safely supported and so secured as to insure the safety of plaintiff while working thereon, as aforesaid, as required by section 6802 of the Revised Statutes of Missouri for 1919. Plaintiff states that the said negligence of the defendant caused the said injuries to the said Odie Comas, which caused his death as herein alleged."

Plaintiff states that said Victoria Comas was the only child of said Odie Comas, and that he never had any other children; that the mother, Clora Comas, was the wife of said Odie Comas, and that she had not brought suit for the collection of damages for said death; that more than six months have elapsed since said death; that at the time of filing suit herein by Henry C. Page, administrator, it was the information and belief of said administrator that said Odie Comas was single and unmarried and had left no children, natural born or adopted. Plaintiff Edwin C. Meservey states that it is his information that plaintiff Victoria Comas is the natural-born child of Odie Comas, deceased, in lawful wedlock, and that Clora Comas is the mother of said child. Damages are asked in the sum of $10,000.

A timely motion was filed by defendant to strike from the first amended petition the name of Victoria Comas, by her next friend, Clora Comas, as plaintiff herein, and to strike therefrom the following allegations, to wit:

"(a) Plaintiff, Victoria Comas, states that she is a minor under the age of 14 years, to wit, of the age of 9 years, and that Clora Comas, her mother, was on the ____ day of April, 1923, duly appointed next friend for her for the purpose of commencing and prosecuting this suit, and that she is duly qualified as such next friend.

"(b) Plaintiff states that because of the premises and the laws of the state of Missouri, a cause of action has accrued to the plaintiff, Victoria Comas, by reason of the death of her father, Odie Comas, and that she has been damaged in the sum of $10,000."

As grounds for said motion defendant assigned the following:

"(1) That this action was instituted on the 12th day of September, 1921, by an administrator of the estate of Odie Comas, on the ground that Odie Comas died single and unmarried and that he left no wife or child, either natural born or adopted.

"(2) It is an attempt on the part of Victoria Comas, whose cause of action has been barred by the statute of limitation of Missouri, to graft her barred cause of action upon the purported cause of action brought by an administrator of the estate of Odie Comas on the 12th day of September, 1921.

"(3) That the said cause of action of Victoria Comas, now barred by the statute of limitation of Missouri, is an entirely different cause of action instituted by the administrator aforesaid."

On November 15, 1924, defendant filed a demurrer to the first amended petition, and as grounds for same charged (1) a misjoinder of parties; (2) the said petition fails to state a cause of action in favor of Edwin C. Meservey, administrator of the estate of Odie Comas, and against the defendant. On December 10, 1924, said demurrer was sustained, and on the same day plaintiff filed a motion to set aside the order of the court sustaining said demurrer, upon the grounds that when the demurrer was argued orally plaintiff's counsel asked the court for time to file a brief, to which the court agreed, and which agreement the court overlooked. The motion to set aside the order sustaining defendant's demurrer was sustained, and thereafter, to wit, on December 18, 1924, the said demurrer was sustained.

A second amended petition was filed December 13, 1924, entitled:

"Victoria Comas, by Her Next Friend, Clora Comas, Plaintiff, v. Pratt-Thompson Construction Company, Defendant."

This petition is essentially the same as the first amended petition, excepting as to the party plaintiff, and alleges that Odie Comas was a strong and able-bodied man, earning and capable of earning $150 per month, and seeks damages in the sum of $7,500.

December 22, 1924, defendant filed a motion to strike out the said second amended petition, upon grounds stated as follows:

"(1) It appears upon the face of the record that Edwin C. Meservey, as administrator of the estate of Odie Comas, deceased, had no cause of action at any time against this defendant.

"(2) That...