Sheets v. Mississippi River & Bonne Terre Railway
| Decision Date | 03 January 1911 |
| Citation | 133 S.W. 124,152 Mo.App. 376 |
| Parties | MINERVA SHEETS, Respondent, v. MISSISSIPPI RIVER & BONNE TERRE RAILWAY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Charles A. Killian Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Edward A. Rozier for appellant.
(1) The petition in this cause is fatally defective for the reason that it does not show that plaintiff has any interest in the damages claimed in such petition. R. S. 1899, sec. 2864. (2) The right of action being purely statutory, plaintiff must allege and prove every essential fact showing that she is entitled to the benefits of the statute. Pier v Heinrichofen, 52 Mo. 333; State ex rel. v Matson, 38 Mo. 489; Cutshall v. McGowan, 98 Mo.App. 705; Casey v. Transit Co., 116 Mo.App. 232; Barron v. Lead & Zinc Co., 172 Mo. 228; McNamara v. Slavens, 76 Mo. 331; Dulaney v. Railroad, 21 Mo.App. 599; Barker v. Railroad, 91 Mo. 86; McIntosch v. Railroad, 103 Mo. 133; 3 Elliott on Railroads, sec. 1359; 8 Am. and Eng. Ency. Law (2 Ed.), 887; Wood's Railway Law, sec. 413; 2 Lewis' Southerland Statutory Construction, sec. 710. (3) The petition fails to state that plaintiff brought suit within six months from death of her husband. Oates v. Railroad, 104 Mo. 518; Packard v. Railroad, 181 Mo. 427. (4) Plaintiff having proven by the evidence that William Sheets left minor children surviving him and having made no proof that she ever appropriated the cause of action within six months from the death of her husband, has totally failed to state or prove a cause of action. Case v. Cordell, 103 Mo.App. 477; Coover v. Moore, 31 Mo. 574; Poor v. Watson, 92 Mo.App. 101; Jackson v. Lincoln M. Co., 106 Mo.App. 445; Clark v. Railroad, 219 Mo. 539; Hennesy v. Bavarian Br. Co., 145 Mo. 113; Buil v. Transit Co., 45 Mo. 562; Crocket v. Transit Co., 52 Mo. 467; Senn v. Railroad, 124 Mo. 621. (5) Plaintiff having totally failed to introduce any proof as to ever having previously brought a suit or appropriated the cause of action and it appearing from the record in this cause that the present suit was instituted October 12, 1906, more than one year after the death of her husband, has totally failed to prove any cause of action against defendant. Sparks v. Railroad, 31 Mo.App. 114; Barker v. Railroad, 91 Mo. 86.
G. O. Nations and Marbury & Hensley for respondent.
(1) Upon the whole record, as presented to this court, respondent's cause of action was instituted within the time prescribed by the statutes in such case made and provided. Having rightfully appropriated this cause of action and adopted the proper legal procedure, her position is unassailable, either in the trial court or in this court on appeal. R. S. 1899, sec. 2864; Laws of 1905, p. 137; R. S. 1909, sec. 5429; Clark v. Railroad, 219 Mo. 524; St. Louis v. Calhoun, 222 Mo. 52; Mason v. Railroad, 125 S.W. 1133; Gibson v. Railroad, 125 S.W. 455. (2) It is fundamental that courts will take judicial notice of their own records in the same cause; hence there was no necessity for averring or proving the filing of the original petition within six months after the death of the husband of respondent. The record in this cause shows that respondent filed her first petition in this cause of action within six months after the death of her husband; therefore, both the trial court and the appellate court will take judicial notice of this fact. R. S. 1899, sec. 631; R. S. 1909, sec. 1833; Barth v. Railroad, 142 Mo. 547; State v. Ulrich, 110 Mo. 355; State v. Jackson, 106 Mo. 177; Dawson v. Dawson, 29 Mo.App. 523; Pelz v. Bollinger, 180 Mo. 262; Bliss on Code Pleading (3 Ed.), secs. 177, 199; 31 Cyc. 47. (3) The petition presents sufficient facts to support the judgment given in this cause, especially when considered under the influence of our statute, which provides that no judgment shall be reversed "for the want of allegation or averment on account of which omission a demurrer could have been maintained" or "for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict." R. S. 1899, sec. 672; R. S. 1909, sec. 2119; State ex rel. v. Duncan, 130 Mo.App. 315; Reineman v. Larkin, 222 Mo. 172; Robinson v. Levy, 217 Mo. 518. (4) Respondent states in her petition that "within one year of the nonsuit which she suffered in her former action on this cause, plaintiff files this her petition for a new action;" this statement, unassailed by either a general or special demurrer, or by motion to make more definite and certain is sufficient after judgment, and even though it be held necessary that the petition should state when the suit upon which she suffered a voluntary non-suit was appropriated or filed. Nor does a general objection to the introduction of any testimony at the trial have any merit, either at the trial or on appeal. Reineman v. Larkin, 222 Mo. 173; Foster v. Railroad, 115 Mo. 165; Benham v. Taylor, 66 Mo.App. 311; Johnson v. Company, 143 Mo.App. 451; Dodge v. Company, 115 Mo.App. 507; Townsend v. Joplin, 139 Mo.App. 400; Ball v. Neosho, 109 Mo.App. 688. (5) A party cannot lie by and trying a case apparently on one theory, spring a vital point, and endeavor to introduce an entirely new line of defense, for the first time in the appellate court. Nicket v. Railroad, 135 Mo.App. 671; Mitchell v. Railroads, 125 Mo.App. 11; Gordon v. Park, 202 Mo. 248; Riggs v. Railroad, 216 Mo. 318; Perry v. Ford, 17 Mo.App. 212.
This is an action by Minerva Sheets, to recover five thousand dollars damages, under section 2864, Revised Statutes 1899, on account of the death of her husband, William Sheets, while an employee of the defendant company in the capacity of a fireman. The accident causing the death of William Sheets is alleged to have occurred on June 6, 1905. The petition in this case was filed October 12, 1906, and to escape the bar of the Statute of Limitations, the petition alleges: "Within one year of the non-suit which she suffered in her former action on this cause, plaintiff files this, her petition for a new action." There is no other reference to any former action in the petition. The evidence is also silent as to whether the former action was commenced within six months from June 6, 1905. It appears that at the date of the death of plaintiff's husband, there were six minor children born of the marriage between him and plaintiff.
At the conclusion of the plaintiff's case, the defendant offered a demurrer to the evidence, and the same was by the court overruled. The defendant offered no testimony, and the jury, under instructions given by the court at the request of plaintiff and defendant, returned a verdict in favor of the plaintiff in the sum of five thousand dollars.
We have gone through the record and are of the opinion that the judgment should be affirmed, unless it must be reversed on account of the petition and evidence failing to show that the prior suit was commenced within six months from the date of the death of plaintiff's husband. The instructions also ignore this question.
It was held in Barker v. Railroad Co., 91 Mo. 86, 14 S.W. 280, that a wife suing under the statute for the death of her husband, and who brings her suit within a year, but after the expiration of six months from the death of the husband, must show there was no minor child surviving the marriage, or she cannot recover. In the opinion the court used the following language: "In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in his petition; otherwise it shows no cause of action."
The plaintiff in this case did not bring the present suit within six months from the date of the death of her husband. And if the petition had been entirely silent regarding the former suit, then under the decision of the Supreme Court just quoted, it would have failed to state a cause of action. In order to show that plaintiff had not lost her cause of action by failing to commence it within a certain time, she alleged in her petition: "Within one year of the non-suit which she suffered in her former action on this cause, plaintiff files this her petition for a new action." There is no allegation that the former suit was commenced within the time allowed by law. If she did not bring her action within six months from the date of the death of her husband, then inasmuch as the deceased left minor children, her cause of action was gone, and none existed in her favor thereafter.
The evidence is silent as to when the former action was commenced, or as to its nature. All there appears in the evidence relating to the former action, is, on cross-examination of certain witnesses, they were asked if they testified to certain facts at the former trial in August, 1906.
In Packard v. Railroad, 181 Mo. 421, 80 S.W. 951, it is held, where a widow has brought suit for the death of her husband within six months after his death, she can, if she has suffered non-suit, or dismissed the suit, renew the suit within one year against the same party. It is only when the former suit was instituted within six months that a subsequent one may be instituted within one year after a non-suit has been suffered in the former suit.
If the plaintiff had shown by evidence that her former suit was commenced within six months, then we might not reverse the judgment on account of the failure of the petition to plainly allege the facts. But in this case, as we have heretofore stated, there is no evidence as to when the former suit was commenced.
The respondent contends that inasmuch as the former suit was instituted in the same court, that it was...
To continue reading
Request your trial