*1 APRIL TERM, Railway Bonnarens v. Lead Belt Co. pointed the error

On account of heretofore out, the Higbee¡ cause is reversed and remanded. G., concurs. opinion foregoing PER CURIAM: The of Railey, opinion adopted as the of the court. All 0., of the judges concur. by B.

LOUIS BONNARENS, BONNARENS, ANNIE Next BELT Friend, v. LEAD RAILWAY COM Appellant. PANY, Two,

Division June 1925. by Allegation NEGLIGENCE: 1. Suit Child: No of Wife’s Failure by penalty prescribed Sue. In a suit a minor child to recover the by negligent killing deceased, for the of left a wife who allege -surviving, petition a which does not the widow damages failed to sue within six after his death on months child, any right account of his death does not show action and fails to a cause action. state facts sufficient to constitute -: of Father: Action Survives to Posthumous Child. Death 1919) providing (Sec. 4217, R. that whenever Under the statute S. employee by negligence, carelessness death of an “is caused railroad, exceeding thousand ten criminal intent” of sum not or may recovered, by deceased, his or the wife of the dollars be after six if she fails to sue within months child children minor or posthumous death,-a child of survives to a cause of action his death, father, wife where the months after born three deceased timely bring is for all ventre sa mere A child en suit. does time of purposes in esse at the be considered to succession to its father’s death. specific Specific Pleading Proof. Acts: Failure of Where -: proving places pleaded negligence burden of the law are acts of proves he upon plaintiff, them specific unless he acts alleged specifid damages. were Where recover cannot riding an a foot-board switchman while the worn, foot-board, rot- holding hand-rail, on account said to a way, and bent hand- condition, the loose unsafe ten slipping, turning fall from caused to he rail tending prove proof is no evidence if there a failure of there gave way. unsafe was rotten the foot-board Sup. &09Mo. —5. COURT OF MISSOURI. SUPREME Lead Belt

Bonnareus Conjunctive having -: -: Pleaded as Causes. The riding alleged foot-hoard that while the switchman loose, “gave way, engine, bent condi- said and the slipping, was caused fall the hand-rail tion of *2 conjunctively foot-board,” pleaded and as alternate from said by proving right causes, plaintiff a recover not establish to does physical turned, and facts hand-rail was bent where the that nothing way give did not and that the foot-board demonstrate accident, alleged is not that with the do to caused him fall. hand-rail to Submitted, —* nnnn : Theory Negligence. -: General Where 5. negligence alleges alleges specific petition them con- injury, junctively cannot be submitted as the cause of the the case jury theory general negligence. to n. pp. 1231, 625, Corpus 52; 959, n. n. 60. 144, p. 1289, 23, n. Juris-Cyc. 69, ^[24] Negligence, 960, New; n. n. References: 646, 72; 1209, p. ^[29] n. Master 57, 5|8, Cyc. 989, pp. Death, n. 587, Servant, 29; Trial, ^[17] n. 1276, p. 1070, C. 57; 5tS8, ^[38] J., 39 O. Cyc. Sections n. X, p. 67; n. Sections 1533, (32, p. 62; 597, n. 31. 1412, n. 1216, 1185, 42; p. Appeal St. Francois Circuit Court.—IIon. Peter II. Judge.

Such, remanded. Reversed and appellant.

Jerry Parkhurst B. Burks and S'leeth for wholly (1) Tlie to state or failed show a allegation plaintiff. of action in There cause was no plaintiff, ap- mother of deceased, the widow failed propriate the of action cause within the allotted six jurisdictional Absent averment, months. cause of 4217, was stated. Sec. R.'S. v. 1919;; Allee, action Smith Railway, 1118; 86; 245 W. Barker v. 91 S. Mo. McNamara Railway, 76 Clark 219 Mo. Slocum, 329; v. Mo. v. Railway, Mo. v. 251 Sheets v. 538; 592; Chandler Rail- App. Railway, way, Packard 380; 421; Mo. v. 181 Mo. 152 App. Casey v. Transit 116 Elliott v. Co., 235'; Mo. Water Light Mo. 570; & Tr. W. v. Pac. Co., 245 S. McGrew Ry. being posthumous (2) Mo. 496. Co., Plaintiff, 230 right never had of action. The cause of action child, right of death of Bonnareus, at date accrued 300 67 TERM, v. Bead Belt only surviving of action vested in those at that time. being only survivor to sue,

widow entitled she would year posthumous to sue, have one which and a child right. penal cut off cannot Section 4217 is stat- strictly Rys. ute, construed. Buel Co., v. 248 Mo. Railway, dissenting opin- 126; Grier v. 523,; See Ry., (a) v. K. ion Betz C. So. W. 1094. S. More- derogation over, Sections are in Railway, common law. Barken v. 91 Mo. 91; v. Bates Sylvester, Light 205 Mo. 493; Co., Troll Laclede Gas App. (b) prop- 182 Mo. sue not a erty Hopkins right. Eogler, Syl- 60 Me. 266; Bates v. (3) vester, 205 Mo. 493. The demurrer to the evidence sustained, should have been for the reason that the testi- mony the, failed show death of Bonnarens was specified negligence jury due to of defendant. The simply guessed Railway, it. 589; at Grant v. 190'S. W. *3 Milling 242 S. Co., Weber v. Hartman v. Rail- 988;W. way, Byerly 261 279; Mo. v. Tr. Mo. 97; McGrath Co., 197 Light App. & v. Power 130 Mo. 600 Co., ; Kane v. Mo. Ry., plaintiff spe- having alleged Pac. 251 Mo. 13. And negligence, cific acts of was incumbent on to show precise pleaded injury that the caused and death. Co., Painter 260 Mo. 104; case, v. Construction McGrath Mo. 197 & el, Mudd,, Foist Bezel BabemcM and T. James respondent.

Blair for (1) posthumous A child has a action under applicable the section the statutes in this case. Reps.

George L. 3 Richard, 24 T. Ad. & Eccl. 717, 46'6; Nelson v. Galveston Railroad 78 Tex. Co., 621; Chicago 256; Herndon v. Co., Railroad 37 Okla. Alton & Logue, App. Railroad v. 47 HI. Quinlan Co. v. 295; Welch, Supp. Tiffany by Wrongful 23 N. Y. 963;, on Death Act (2 Negl. Ed.) p. 202; sec. 1 84, Shearman & Redfield (5 Ed.) Damages (4 Ed.) sec. 133; sec. 5 Sutherland on pp. ; 44 1267, 4894, 4895; Bender, Mo. 569 v. Aubuchon

68 COURT OF SUPREME MISSOURI. v. Lead Belt Harper Ancher, Marshall, 4 & Am. 99, v. 43 Smedes Dec. Copper note; Co. v. Industrial 474; Com., 57 473, (2) judgment If the Utah, for reversed errors assigned the cause should be remanded for a new trial. Company, (Mó.) Light 241 v.' S. W. 909; Stewart Gas Ry. Rutledge 123 140,; v. Mo. Pac. Mo. Schmitt v. Co., Finnegan Distilling Co., ; Railroad, v. Mo. Riggs Rys. (3) Co., 220 W. 697. 60S; S. remedy liberally attain

must be construed to intend- R, Ry. S/1919; Co., Betz v. 7048, 1089; ed. Sec. S. W. Ry. Co, 286 Mo. 523. Grier ITIGB'EE, G.- -Thisaction was commenced December Company appellant against Federal Lead damages plaintiff’s account of death to recover petition amended Ben Bonnarens. filed father, September An the conclusion At evidence for plaintiff as to F'ederal the action was dismissed Lead Company standing on a the defendant demurrer to and, nine of the evidence, submitted, the cause was plaintiff, jurors assessing his dam- returned a verdict judgment ages from a thereon the de- at $10,000, appeals. fendant employed the defendant as

Ben Bonnarens appel- operated by handling assist brakeman to cars transporting the lead material to lant over its tracks in plants. company’s The amended al- shafts and duty leges defendant’s loco- Bonnarens’ to ride employees the convenience of motives, that for provided end of at the rear defendant for them to on when of its locomotives stand the tender *4 point riding another; hand-rail, called also a from one to grab-iron, the ten- by attached to witnesses, of some consisting footboard, above three four extending der feet of the tender and across the end rod metal for em- tender, each corner of the at attached to brackets ployees riding on foot-board. That to hold to while reasonably provide duty to safe defendant’s it was employees place appliances work and for its to with and 309'Mo.] APRIL TERM, Belt v. Lead

Bonnarens upon and use that the foot-hoard and to reasonable care reasonably were safe and suitable handrail disregard- purposes they that, for which intended; were negligently ing carelessly al- its defendant and duties, worn, in a lowed said foot-board and hand-rail become rotten, which condition, bent and unsafe weakened, loose, by agents, or its and was known to defendant, servants ordinary have been known to care could exercise on Bonnarens. That it, and was unknown said Ben plaintiff’s Bonnarens, 7, 1921, March while said Ben discharge employee, in the father, as defendant’s was duty riding footboard brakeman, his as said holding duties, his hand-rail, with said line worn, rotten and un- on account of its said way, bent condition loose, condition, safe slipping, Ben Bon- the said the hand-rail in de- fall from said foot-board narens was caused to and was locomotive fendant’s track front its producing engine, instant run over death; said tender and proximate death cause of his that the direct and negligence defendant, and carelessness of agents permitting foot-board to said servants and condition weakened and unsafe worn, rotten, become in a bent. loose and and said hand-rail to become weighed hun- stature, two feet in was six twenty-six years age pounds, time at the dred and was surviving Addie, but wife, his of his death. He left 1921, born June child or children. Plaintiff days death. his father’s after three months and nineteen qualified duly appointed as Plaintiff’s mother next friend. defend- worked for the testified: I had John Watts years machinist-foreman, hut not ant sixteen seven capacity about saw Bonnarens time; all m., a. charge of which I March at roundhouse or brakeman at was switchman time. Bonnarens twelve -in service had been number 2 and locomo- years. My duty to the reference with thirteen repairs. general tives was to after see *5 SUPREME COURT OP MISSOURI. y. Railway Bonnarens Lead Belt Co. pine

ais long, board 2 x about six feet there keep a toe board 2 x slipping’ to6, the foot from over foot-board. The foot-board is to the tender attached bolts and is about twelve inches above the rails. There my knowledge. was no break toit Por convenience of employees riding grab- on the foot-board there was a top iron on the of the end to which was was pipe fastened. long; It is a one-inch about six feet bent quarter some in the about middle, an a inch and an inch and a half. It tak- was loose in the brackets. In ing hold of the hand-rail it turn. would I have ridcftm locomotive; have been on this foot-board; don’t got engine know moving. on it that.I when the I' say paid particular wouldn’t that I attention to this engine. Never saw the foot-board after the accident. I say couldn’t ordinary. this foot-board was out of worn engine Saw the about two or three hours after the acci- dent; it had a new foot-board didn’t then; see foot-board that was taken off. The hand-rail was loose yet in the brackets; it fit close, would in these revolve brackets.

Edwin Hood: I have worked there as switchman years. twelve I saw Bonnarens at the roundhouse about morning; engine 7:15 2. The worked on number next time I saw hiim he out there in the track about ten after roundhouse; minutes saw at he was I legs dead; broken; were two was about body. feet There a bend in the hundred hand-rail close to the much middle; don’t know how a bend; it was is safer if the had exist- loose the brackets. It tight rod is conditions brackets. These yet fairly snug ed over a sockets, month. It these fit way getting customary on foot- it would turn. grab engine approaches foot, board as the raise one is to step the rod end of with one on from the hand ties. you got had hold

“Q. If on that foot-board reasonably grip would be that rail there with firm TERM, v. Lead Belt losing your danger would there? that rail, hold on happened me. know. It never don’t A. IWell, you of it while was Well, did have hold ££Q. *6 being sir. used? A. Yes, any give you trouble at time? And it didn’t Q. “ my experience. any. gave never me That was No,

A. ‘£ you upon grab engine get hold and the Q. When happen?. yourself, A. what to hold would of that iron you, turn of course.” to with Well, it is liable Henry for Com- worked the Federal Lead Pelot had engineer pany deceased; was as locomotive knew engine 2; number saw familiar with on the foot-board paid any but atten- foot-board, never the hand-rail for or seven months tion; the hand-rail had observed six middle; it in the bent hurt; before Bonnarens was was say in had much; brackets; loose the couldn’t how was grab-irons engines years; thirteen the worked on other they be stat- should them; on safe were not loose ionary. employed Flannery: Lead Belt the I

J. H. was Railway engine in March, as foreman year up my and a half had worked with for a crew engine or two a minute time He of accident. was got forty fifty feet from a down to set switch he engine. he him time saw the rear The next I' end the engine passed laying over had was him. on the track after considerably. .It I have on that foot-board rode very it examine I not could not have a old did been one. ’ ££ ’ thirty rip track particularly until was on the after it up pushed forty It was after he was hurt. minués right-hand not tank; side of the the bottom on the right I noticed but the end. center, more towards quite hand-rail; being bend in the often there little a get you of it. hold turn a little bit if would would engine Armstrong: 2; Bon- number John H. I ran when we cab narens switchman. He was only morning. hadWe started out about seven gone ways got switch. out to throw short until he right got the foot- He the end on the on side; he SUPREME COURT OP MISSOURI.

Bonnarens v. Lead Belt and) give sign board me a -withMs left band I went on; that was the last I time saw alive. He was then on foot-board. I don’t know what had hold of got after hei but he on, taken hold of the hand-rail with stepped hand when he on end of the board gave sign up. me a lying to back next I saw him passed the track after I had over him. moved I the en- gine sign after he eight between hundred one running thousand feet. I was much slow, not faster you than working engine could walk. He been had couple day I months. had seen the foot-board that good before the accident. I know. I It was in condition far as morning walked around the twice that pit, before left looking we and while I for a broken naturally if been broke I would looking have things repair. it, seen because I was my day No knowledge. break in it before to Well, the *7 got had off started and he switch, to throw the along but another man came it. throwed The hand- piece, pipe gas rail ais of and runs from sill on the end up top the tank clear to the of the tank. This other crossways rail that extends of tender we the call the grab-iron always grabs gets a man because it when he on the foot-board. saw the .a I few minutes after accident; the it broken; it wasn’t broken clear just splintered bulged up in two; like had had a pry it; in two; hard wasn’t broken board is about ten inches the rails. above objection,

Over it was shown that defendant’s the widow of the within after deceased did six months not, bring damages the on ac- Bonnarens, death of action for (1) Appellant assigns error, of death. the count refusal of the his giving (2) the the evidence, demurrer to (3) plaintiff’s the them, of each instructions and of B. refusal of Instruction defendant’s assignment it is contended first I. Under the the aver that not does the amended because months within six to sue failed widow of deceased the TERM, Lead Bonnarens v. Belt damages the on account

after death her husband right it does not show of action death, plaintiff. Revised' on which 1919’, Section Statutes provides every penalty based, “for this action is such person, employee dying, passenger or sum of so not exceeding less than two ten dollars, thousand jury1, dollars, thousand discretion of the which by may First, be for and the husband or recovered; sued there be or, second, wife of the if no husband deceased; within six wife, or or she fails sue months after such then the minor child or children death, minor or children deceased, whether such child adopted natural born child or children of the de ceased.”

In Clark 118 S. W. Railroad, 534, 538, Mo. exposition of it has said: “In our the statute J., Lamm, right steadily no of action that, been held as there was wrongful and, law at as the all, for a death at common right deroga transmitting action is in with rea law, it must be construed tion the common right of action Furthermore, as sonable strictness. Legislature statutory origin, only remedy, preclusive creating* prescribe nom toit they terms on which inate those entitled to sue and the In Railroad, has so. Barker v. could sue and done statutory sort, actions of l. c. it was said: ‘In strictly bring suing within the party; himself must right, necessary statutory requirements confer the appear petition; otherwise, it shows and this must announced bot cause of action.’ The doctrine so *8 reasoning 76 Slavens, in Mo. McNamara v. tomed on the latter case Moore, 31 Mo. 574—the and in Coover v. 329, general right holding being that: ‘There thus persons, representing recovery, open -of the estate to all persons only life, such in or interested his deceased, as is set manner, ba time, can in such recover ” Railroad, in the statute.’ also Chandler v. See forth Allee, and Smith v. 598, 35, 251 Mo. W. 158 S. 592, S. W. 1117, SUPREME COURT OF MISSOURI.

Bonnarens Lea'ct Belt Lacking' this essential fails averment, to state facts sufficient to action. constitute cause of

II. It insisted that cause of accrued at is action right the time of the death and the of ac- only tion vested in those who survived at that Posthumous plaintift, being posthumous time; hence Child. does not within the terms of the child, come prosecute this action. There statute and is not entitled in this contention. is no merit Judge Bliss Bender, In Aubuchon v. 44 560, 569, principle broadly clearly “The is

said: stated Paige, Chancellor in v. Thalhimer, Marcellis Walworth ‘ says: day a 40. The court there It is at this well 39, successions, to most rule of law relative to settled other cases in relation to that a child ventre infants, en every purpose where it for tlie benefit as -to mere, sa is thq £It was child, is be considered esse.’ a con such a child some time doubted whether tingent could take question before birth. remainder its Long. finally citing is now set Reeve v. settled,’ ‘It etc., England after con the infant, tled both in and here that purpose ception'but for the esse, before birth, taking interest estate or which the remainder or other ” infant.’ is for the benefit of the 78 Tex. Co., In R. Nelson Galveston giving “After L. R. it is said: A. causing injuries damages

sue for actual on account (Art. person, Revised our death of .2903 Statutes) provides: the sole shall be for “The action surviving . . . children and exclusive benefit of the person been so have . . . death shall of the whose question, the term whether then, caused,’ etc.' The posthumous includes a statute, used in the ‘children,’ person been so have shall child of ‘the whose death ” English reviewing decisions etc. After caused,’ construing Campbell’s concludes: court Act, Lord although plaintiff case, in this also, that the think, “We being death, was unborn at the time of father’s *9 75 309 TEEM, Railway v. Lead Belt Co. Bonnarens surviving children.” See also Phair v. and one of his (Neb.) Rail 639; Herndon v. 156 N. W. Dumond, 256; Okla. 17 C. J. road,

Appellant 126, 154 248 Mo. Railroad, on Bu el relies (N. S.) 625, and other like cases. L. R. A. 71,W. S. quoting syllabus 2, that “at held, In case it was the Buel injured but mere, while ventre sa law a child en common subsequently' main alive, have the did not born injuries received, and so an action for the tain lived, had it maintain such action itself not by child could to its made to survive the statute the action is not parents upon Railway, Lipps also death.” See (Wis.) 334. The cases L. R. A. B, 159 N. W. representatives can nor its the child hold that neither upon injuries That is prenatal it. inflicted recover for case. not this negligence; charges specific

III. The holding riding on the foot-board while is, that worn, account of its foot-board, hand-rail, said to the way7, gave loose, and the condition, unsafe rotten slipping, hand-rail bent condition of fall said foot- from caused to Bonnarens Ben said tending a word of evidence not There etc. board, it or that or unsafe prove was rotten the foot-board way. evidence gave inference The clear foot-board, body, passing Bonnarens’ over rails, above inches or twelve was ten which “bulged pry splintered a hard up had like it had grab- hand-rail that the evidence is there Nor it.” pur reasonably for the condition safe not in iron slightly7 designed it was pose because for which was brakeman, brackets. in the turn and would bent steady himself riding could on the while very backing engine was holding the hand-rail. is no There walk. slowly7, man could faster than a rough. been had complaint Bonnarens track was that the for two using hand-rail riding this as switch- there worked Hood, Edwin who months. SUPREME COURT OF MISSOURI. v. Lead Belt years, man for thirteen testified there was a bend tight brackets; “It is if the hand-rail; safer rod is fairly snug, yet fit it would turn. It never me *10 my experience.” allega any trouble. That was The Bonnarens was caused to fall because tion is that the gave way, of its rotten condition, account slipping” “turning hand-rail because of its the hypothesis nega was-clearly bent condition. first The purely conjectural. tived; the second is There was no eye fall to the accident. caused the witness What does may appear may from not the evidence. It have turning grab-iron. the another been caused of the On plaintiff may get fog trial able to the case out of the speculation. plaintiff pleads specific of the Where places proving negligence, the the burden law plaintiff, specific negligence the can recover negligence pleaded.' only upon proof v. [McGrath of the The facts Co., 97, 105, 872,] Transit S. W. wholly in Gas case are unlike those Stewart (Mo.) case is Co., 909, 912, 241 S. W. the McGrath where approvingly. cited court have sustained the The should demurrer to the evidence. defendant’s allegation fall was IV. The that Bonnarens’ way “the the foot-board caused because rotten slipping.” turning causes, These are the hand-rail They pleaded conjunctively, fall. that ’occasioned his alternatively; pleaded one or the is, are not physical dem- producing facts cause. other was the way; give noth- did not onstrate that ing not averred with accident. It is do plaintiff fall; of the hand-rail caused hence pe- of the averments recover, on the not entitled tition. plaintiff’s giving In- erred V. The court also theory case on number which submitted

struction refusing In- general negligence; defendant’s also 300 Mo.] TERM,

State v. Hart. B, the foot- stxuction that tliexe was evidence that boaxd was defective ox unsafe. judgment is xevexsed and the cause xemanded.

Railey, C., concurs. foregoing opinion PER. CURIAM: The Higbee, adopted hereby opinion All

C., as the the court. concur. Appellant.

THE STATE HART, CHARLES Two, Division June prosecution Confusing: INSTRUCTION: Abstract Law. In a you telling jury can find an instruction that “before murder you guilty evidence defendant crime must find *11 misleading that killed” is neither the defendant shot and deceased clearly proposition law, confusing, states an but nor abstract of guilty specific can of one fact which must be found before verdict

be returned. declaring that Definition. MANSLAUGHTER: instruction An killing “manslaughter, trial, purposes of wilful is the of this being afore- and without malice without deliberation human unobjectionable thought,” no claim is in a trial which there is

or evidence self-defense. -: Heat Passion. Since amendment of the defining manslaughter, abolishing degrees by pro- act, being by every killing manslaughter human of a another, negligence culpable to be not declared curement necessary justifiable homicide, is not or excusable or murder passion.” define “heat the instruction Presump- Weapon: Deadly Intending Death: Use INSTRUCTION: cannot is committed which a homicide tion. intent with jury, ob- by who proved the witnesses direct evidence. only judge act, is in the mind of the what can the criminal serve necessarily prompts perpetrator The intent act itself. Every presumed presumed. in- one must be act and conscious probable consequences intentional of his own the natural tend wilfully, telling jury Hence, “he who an instruction act. part upon intentionally, vital at some another uses gunpowder, pistol lead and weapon, loaded with deadly aas