Tobin v. Bell Telephone Co. of Missouri

• Decision Date: 05 January 1918
• Docket Number: No. 18803.,18803.
• Parties: TOBIN et al. v. BELL TELEPHONE CO. OF MISSOURI.
• Court: Missouri Supreme Court

199 S.W. 952

TOBIN et al. v. BELL TELEPHONE CO. OF MISSOURI.

No. 18803.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Catherine E. Tobin and others against the Bell Telephone Company of Missouri. Judgment for defendant, and plaintiffs appeal. Affirmed.

Plaintiff Catherine E. Tobin, on the 18th day of November, 1911, brought an action for damages against defendant for the alleged negligent killing of her husband, one William J. Tobin. Her petition disclosed upon its face that the casualty by which plaintiff's decedent came to his death occurred on the 9th day of March, 1911, more than six months before plaintiff filed her petition. Defendant thereupon demurred to plaintiff's petition on the ground that the petition did not state facts sufficient to constitute any cause of action against the defendant. This allegation of insufficiency of averment is specifically bottomed upon the omission of the petition to state that deceased left no minor children surviving him. This demurrer was sustained by the court. Thereafter, and on the 14th day of January, 1914, plaintiff filed her motion setting up the fact that deceased left surviving him four minor children, whose names she set out, and moved the court that these infant children be substituted as plaintiffs in the original action by her filed as the widow of deceased; and that she might be permitted to continue to maintain and prosecute the action for the substituted infant plaintiffs, as their next friend. At the same time plaintiff Catherine E. Tobin presented an application for her appointment as next friend for the infant plaintiffs, to the end that she might continue in this substituted capacity to prosecute the action originally filed by her as the widow of deceased. The trial court overruled plaintiff's motion for the substitution of plaintiffs, as well as her application to be appointed next friend. Whereupon plaintiff Catherine E. Tobin, for and on behalf of the infants proposed to be substituted as plaintiffs, excepted, and filed for these infants a term bill of exceptions. Thereafter plaintiff Catherine E. Tobin filed an amended petition, wherein she set out the fact that deceased left surviving him four minor children, but continued to bottom her right to recover upon the fact that she was the widow of deceased, and entitled as such to have damages assessed in her own favor. This amended petition differs from the original petition only in that the latter was silent touching the existence of minor children, while the amended petition sets out their names and ages, and avers that the negligent killing of deceased by defendant has cast upon plaintiff Catherine E. Tobin the burden of the maintenance and support of such children, but still claims the cause of action in her individual capacity, and prays judgment accordingly. To this amended petition defendant likewise interposed a demurrer, which the court sustained, and plaintiff refusing to plead further, final judgment was rendered, from which plaintiff in her personal capacity, and as alleged next friend of the minor children of said deceased, appealed.

H. M. Walsh, of St. Louis, for appellants. Holland, Rutledge & Lashly, of St. Louis, for res...