Packard v. Hannibal & St. J. R. Co.
Decision Date | 10 May 1904 |
Court | Missouri Supreme Court |
Parties | PACKARD et al. v. HANNIBAL & ST. J. R. CO. |
Appeal from Circuit Court, Jackson County; J. W. Slover, Judge.
Action by Arthur J. Packard and others, minors, by Sarah Packard, their next friend, against the Hannibal & St. Joseph Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.
I. J. Ringolsky and J. A. Harzfeld, for appellants. O. M. Spencer, Warner, Dean, McLeod & Holden, and Geo. S. Grover, for respondent.
The appellants in this case are the minor children of James I. Packard and Sarah Packard, his wife. The father, James I. Packard, on and prior to February 9, 1898, was in the employ of the Chicago, Rock Island & Pacific Railway Company, hereafter called the Rock Island Company, as a freight switchman and brakeman in Kansas City. His duties in this employment, as alleged in the plaintiffs' petition, were to work on the top of freight cars, setting brakes, coupling and cutting out cars, and generally to perform the duties of a switchman in handling the local freight business of the Rock Island Company. This, the petition alleges, was the duty he owed to his employer, the Rock Island Company; and from the petition it further appears by affirmative allegation that it was also his duty to his employer, from time to time, to accompany Rock Island transfer trains, with other Rock Island employés and Rock Island switch engines, to the yards of the defendant, the Hannibal & St. Joseph Railroad Company, herein called the Hannibal Company, in said city, and there deliver the cars upon the tracks of the Hannibal Company.
The right of action given by section 2864, Rev. St. Mo. 1899, for the death of the father of the plaintiffs, is a single, indivisible right to sue all the guilty parties. It rests in the widow or the minor children, under the limitations fixed by the statute, and cannot and does not exist concurrently in the widow and the children. Coover v. Moore, 31 Mo. 574; Kennedy v. Burrier, 36 Mo. 128; McNamara v. Slavens, 76 Mo. 330; Barker v. R. R. Co., 91 Mo. 86, 14 S. W. 280. During the first six months after the death of the husband and father, the right of action is absolute in the wife alone. If she failed to bring suit upon this single cause of action within six months, it vests in the minor children, and in them only. It is, however, the same cause of action. If she fails to sue within the six months, her right to it is gone, and that of the children accrues. Kennedy v. Burrier, supra; McNamara v. Slavens, supra. The right...
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...of action. [See, also, Chandler v. C. & A. Railroad Co., 251 Mo. 592, 158 S.W. 35.] In Packard v. Hannibal & St. Joseph Railroad Co., 181 Mo. 421, 80 S.W. 951, the father of plaintiffs, employed by the Rock Island Railroad, was killed. His widow brought suit within six months against that c......
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