Ryan v. Ortgier

• Decision Date: 04 February 1919
• Docket Number: No. 15287.,15287.
• Citation: 201 Mo. App. 1,208 S.W. 856
• Parties: RYAN et al. v. ORTGIER.
• Court: Missouri Court of Appeals

208 S.W. 856

201 Mo. App. 1

RYAN et al. v. ORTGIER.

No. 15287.

St. Louis Court of Appeals. Missouri.

Submitted January 9, 1919.

Resubmitted January 29, 1919.

Opinion Filed February 4, 1919.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Thomas Ryan and another against Mary Crtgier, revived on her death against Albert Crtgier, her administrator. Judgment for plaintiffs, and defendant appeals. Reversed.

Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellant.

Holland, Rutledge & Lashly, of St. Louis, for respondents.

REYNOLDS, P. J.

Action by the parents of Leo Glennon Ryan for damages for the death of their infant son Leo. It is averred that one Mary Crtgier was the owner of certain premises located in the city of St. Louis, which she had rented to Mrs. Kate Ryan, the mother of Mrs. Margaret Ryan, one of the plaintiffs. Visiting her mother, in company with her infant son Leo, then about 18 months of age, the boy while playing with other children was going down the outside steps leading down from his grandmother's apartment to the granitoid pavement. When about three steps from the bottom, he stepped from that on to the second step and owing to some defect in the construction of that step, as it is charged, the little boy fell to the granitoid pavement, fractured his skull and was killed, dying the second day thereafter. The father and mother of the infant brought this action against Mrs. Ortgier, the landlord, to recover damages for this killing and death. After the institution of the action and before it was tried, Mary Ortgiei died and her death being suggested to the circuit court, on petition of plaintiffs, that Albert Ortgier had been appointed administrator of her estate, and should be made a party defendant, au order was entered, requiring the administrator to show cause why the action should not be revived against him as such. The order to show cause appears to have been duly served and the cause revived against the administrator. No objection appears to have been made to this revivor by the administrator of Mrs. Ortgier. The defendant filed a demurrer to the petition; on what grounds does not appear. Thereafter the defendant, as administrator of Mrs. Ortgier, filed an answer generally denying the allegations of the petition and pleading the contributory negligence of plaintiffs in failing to watch and care for their infant son. Over the objection of defendant, the petition was amended at the trial by inserting the words, "and thereafter, during said tenancy and before said July 29, 1914" (the date of the accident).

A reply being filed, the cause went to trial and resulted in a verdict in favor of plaintiffs in the sum of $1950. Motions for a new trial and in arrest were filed and overruled and judgment entered on the verdict, defendant, as administrator, duly appealing.

At the close of the testimony in the case it appears that the defendant requested an instruction to the effect that plaintiffs could not recover. This was refused, defendant excepting.

When the cause was first submitted to tie.; on the brief of the appellant, respondents then not having filed any brief, but having leave to do so, no point whatever was made in the assignment of errors or brief as to the legality of the action of the court in reviving the cause of action against the administrator of the deceased defendant. Our court, however, considering that ..the question of the right of revival against the deceased landlord was necessarily involved, although not raised by counsel, set aside the submission and ordered the cause set down for reargument on that question, no such question having been suggested at the trial, or in the motions for a new trial, or in arrest, and in no manner briefed or argued before us. Learned counsel for respondents has filed with us a paper, in which he very frankly confesses that on examination of the authorities which had been handed to him and opposing counsel by our court, he has found them conclusive against the right of reviver, and that he would not occupy the time of the court in attempting to show cause to the contrary. Counsel for appellant has since filed a brief on the question presented.

We are satisfied, on an examination of our statutes, and of the decisions of our courts, that this action cannot be maintained against the administrator of the deceased landlord. It is an action for damages "resulting in death." It certainly did not survive to the administrator under the precis' ms of sections 105 and 103, Rev. St. 1909, as our Supreme Court has held in decisions hereafter cited.

Section 105 provides:

"For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, an!, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract."

Section 106 provides:

"The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executo...