Rutter v. Missouri Pacific Ry. Co.
| Decision Date | 31 October 1883 |
| Citation | 81 Mo. 169 |
| Parties | RUTTER, Plaintiff in Error, v. THE MISSOURI PACIFIC RAILWAY COMPANY. |
| Court | Missouri Supreme Court |
Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.
REVERSED.
Theodore Winningham for plaintiff in error.
Plaintiff was the only minor child and only representative of the deceased at the time of her death. He labored under no disabilities whatever, but was at the death of his mother vested instanter with an indefeasible right of action, and nothing can defeat this right but the restriction imposed upon it by section 2125, to-wit, one year. Shepard v. Railroad Co., 3 Mo. App. 550; McNamara v. Slavens, 76 Mo. 331. This right to sue by statute having accrued, it is from that moment in the nature of property, property in action, a right that may be reduced to possession by the representative of the deceased, and no event can bar this right of action but the lapse of time restrictive of the right. Pittsburg, etc., R. R. Co. v. Hine, 10 Am. R'y Rep. 160.
E. A. Andrews for defendant in error.
The majority of the plaintiff abated his right to sue, especially when he had failed to elect to sue from April until the succeeding August. The right to sue under this statute is not a vested right, but simply a right or chose in action. 25 Ohio 629. Personal representatives have no interest in this right to sue, nor could not have sued in case of his death, nor can he sue after majority. There are two limitations upon this right to sue, the minority of the child and the one year limitation in section 2125.
On the 30th day of April, 1877, Rachael Ann Rutter was fatally injured by the cars of the defendant, and died from the injuries so received, on the 4th day of May following. At the date of her death she had no husband living, and had only one child, who is the plaintiff in this action. He became of age on the 2nd day of August, 1877, and on the 29th day of April, 1878, instituted the present action, under the statute, to recover damages for the death of his mother. The foregoing facts appear in the petition, and a demurrer thereto was sustained, on the ground that the plaintiff should have sued while he was a minor, and that he could not bring the present action after he had attained his majority. Final judgment having been entered for the defendant, on the demurrer, the plaintiff has brought the case to this court.
The statute under which this suit was brought, provides that the damages thereby allowed may “be sued for and recovered; first, by the husband or the wife of the deceased; or second, if there be no husband or wife, or if he or she fail to sue within six months after such death, then by the minor child or children of the deceased.” R. S. 1879, § 2121. It is also provided that every action,...
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Cummins v. K.C. Pub. Serv. Co.
...and that a child, if not of age when his father died, may commence suit therefor although no longer a minor. [Rutter v. Mo. Pac. Ry. Co., 81 Mo. 169; see, also, State ex rel. Mo. Pac. Ry. Co. v. Haid, 332 Mo. 616, 59 S.W. (2d) 690, subrogation of employer under the Workmen's Compensation Ac......
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Cummins v. Kansas City Public Service Co.
...273 S.W. 1043); and that a child, if not of age when his father died, may commence suit therefor although no longer a minor. [Rutter v. Mo. Pac. Ry. Co., 81 Mo. 169; see, State ex rel. Mo. Pac. Ry. Co. v. Haid, 332 Mo. 616, 59 S.W.2d 690, subrogation of employer under the Workmen's Compensa......
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Goldschmidt v. Pevely Dairy Co.
... ... Biddle, ... 231 S.W. 924; Vaughan v. St. L.-S. F. Ry. Co., 164 ... S.W. 148; Missouri, etc., Railroad Co. v. Wulf, 226 ... U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355; American Railroad ... et al. v. Kansas City Public Service Co., 334 Mo. 672, ... 66 S.W.2d 920, l. c. 931; Rutter v. Mo. Pac. Ry ... Co., 81 Mo. 169.] They did not sue within the year, ... hence any cause of ... ...
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Goldschmidt v. Pevely Dairy Co., 34964.
...death of deceased. [Cummins et al. v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W. (2d) 920, l.c. 931; Rutter v. Mo. Pac. Ry. Co., 81 Mo. 169.] They did not sue within the year, hence any cause of action in them was barred upon the lapse of the one [3] But it is contended that the f......