*1 Wе find prejudicial no or trial error, either the record proceedings. ILigbee 00., Davis, is affirmed. concur.
PER foregoing opinion Henwood, C., CURIAM: The adopted opinion judges All of of the court. concur. Evelyn and Eleanor Boyd, Brewing Friend, Her Error, Next Plaintiffs in v. St. Louis (2d)
Association. 5 W. 46. Two, February 18,
Division 1928.
Anne M. Evans error. Lodge error. Early Marion G. and Ivan *3 HIGBEE, City of St. Louis C. Error to the Circuit Court of plaintiffs’ striking petition to in review its action amendfed Evelyn Dausch, in an Dausch, action wherein Bertha Eleanor plain- Dausch, by Dausch, friend, William their next were Berthа rendering tiffs, Brewing defendant, and St. Louis Association was by in for the defendant. statement error, defendant, give viewpoint of called us the hereafter will learned counsel. It reads: Louis, Court, City an action in of St.
“This is filed the Circuit March widow of Dausch, right, in her own аs Bertha Dausch, Brewing William deceased, against the St. Louis Association (defendant here). in error alleged plaintiff
“The that William was widow of deceased; prior his that death said William Dausch employed employed was hostler, the defendаnt as and while so belonging defendant, inflicting injuries kicked a vicious mule resulting in death; his that defendant' knew that said mule failing warn said Dausch of negligent vicious and was in William mule; working with further danger his in said around stated: “ children she, children, with minor ‘Plaintiff states her dependent were on the said William of the William said William death of the said support and that Dausch for their Dauseh, aforesaid, as damaged slie lias been thou- sum of ten tlie dollars, deprived sand she support, as well as of companionship society. “ рrays ‘Plaintiff a judgment therefore against the defend- ant in the of ten together sum thousand dollars, with the costs of this ’ suit. grounds:
“The First, defendant demurred to this does not facts state sufficient to constitute a cause of action; allegations second, affirmаtively show plaintiff right has no action; third, appears on the face of the plaintiff’s alleged of action limi- is barred tation. ‘‘ day This was, May, demurrer on the 20th sustained.
“On 1912, upon October granted notice of plaintiff, leave was her court to file аn substituting plain- tiffs her four children, ap- minor and said Bertha Dauseh then pointed next friend for said four minor children. The amended orig- caption was then which the filed, differed inal Dauseh, Evelyn that Eleanor Dauseh, Bertha Dauseh friend, Dauseh, and William Dauseh, their nеxt plaintiff's. named as The amended ‘Plaintiff, stated: obtained, this, leave petition, making her amended new parties plaintiff them) (naming infants, Dauseh, four for whom Bertha mother, appointed bring has been next friend to this suit.’ The al- legations injuries substantially as to the and death were the same allegations as in but the as to stated damaged the four minor children had been in the sum of ten thou- *4 dollars, ‘they having deprived sand of support as well as of companionship society.’ and “A demurrer to this amended wаs sustained mo- after a tion to strike it had been overruled. A second amended files from petition was peti- then filed which differed from the first amended that, prior in filing petition, tion it stated to the of this ‘Bertha they Dauseh, sue, was, duly appointed whom now рrosecute their next friend to this institute suit.’ upon “This second amended was stricken from the files mo- grounds departure of on tion defendant a constituted . original petition. . from . petition containing
“Plaintiff filed a then third amended substan- tially allegations preceding the same as the pleading
“Defendant filed a to strike this motion from the files grounds on a ac- that it constituted the cause of attempted guise in tion stated that it under the a brought by of action an amendment substitute cause brought by originally an children of deceased for
minor right. widow in her own upon which, motion of defend-
“This motion sustained after was ag’ainst plaintiffs, 6, June 1913.” ant, final was entered italics.) (Our appears by Bertha
I. be conceded that it was claimed employed as a husband, Dаusch that her Williams while 12, March on defendant, laborer killed a vicious mule 1911, Bertha surviving widow, him his and that left he plain- children, above named and four minor recor¿[ anci ^hat shows that March began against defendant the widow the action above mentiоned statute, 4-217, Stat- recover now Section Revised under the deceased 3919, in that said and that it was averred utes .the appears Jt surviving minor children. left him his said widow and shows, that demurrer statement, and the record defendant’s 1912, 5, an October sustained, to sаid and that on children, in said minor amendted was filed which to strike friend, Defendant filed motion next in amend- pleaded is not action therein “because the is a stated in the the cause of action and different substitutes another therefrom in in exclusively by the minors cause of action claimed and sued for ac- deceased, the cause of right of the their own as the children the said therein sued tion averred in the de- right widow of as the her own exclusive 25, 1912, on November This was overruled ceasеd.” motion preserving an thereupon term bill of dtefendant filed its overruling to strike its motion exception court to the action of the out said amended said amended 1912, filed a demurrer to 29,
On November filed A -was second amended which was sustained. stricken out. which, on ivas February 1, 3913, in said cause filed leave of a third amended petition On March strike said amended a motion to petition avers the same (3) The third because: herein, petitions filed up preceding which is set petition here- second amended copy only and is substance (2) cause; it is not an amend- in this from the files stricken tofore *5 original but is alleged in the action of the cause of action the minors (3) a cause of therefrom; it states a departure of the сause of of an amendment right and not own their right. This motion Dausch, in her own original plaintiff, sustained, May on 9, 1913, whereupon, on June judgment reciting': entered appearing “It a from the that record demurrer to ivas sustained the court and thereafter threе petitions successive of plain- the minors named as tiffs herein adjudged insufficient and were stricken from the files; it is pe- therefore ordered adjudged and the court that the tition herein be and against dismissed that treble lie costs taxed said Bertha Mаy Dausch and that execution issue therefor.” On 23, 1913, plaintiffs filed incorporating bill of exceptions, term the motion to strike said third saving excep- amended tions to the judgment. order and application
The for the writ error of shows that "William Dausch and Bertha Dausch parties were not petitioner made the reason any rights they may have had have barred bv become limitation. 1487, R.
[See. S. 1919.] To recapitulate?: (1) is contended the defendant third departure a constituted from the (2) petition; that for determining of whether there compared the third amended must be with the original petition and not with the first or second amended Purdy (citing Pfaff, 824), App. 331, (3) Mo. W. plaintiffs having incorporate original petition failed to in their bill of exceptions, striking the аction of trial court in files third ground that it constituted of cause action cannot be reviewed this court. On the hand, plaintiffs other it is contended the demurrer objection plaintiffs’ waived first amended ground departure; of appeared to said amend- ’ ed in striking that the court erred out. rendering judgment dismissing and in their ac-
tion. plaintiff
“A predicate upon in a suit cannot state one facts, inject thereafter an. .to his amendment therein a different action, substitute a different cause action for for, original petition, one stated in that would be objection must tidal other be raised before Co., wise it will Mineral be held to Land waived.” [Ross S. having original petition and the second amended not exceptions, in the bill of are aban incorporated been called for or any not pleadings, doned and are before court for though case stands here the first purpose, and the aB(j only were the ones petitions third- (Mo.), 270 W. the ease. v. Wells [Wood
1212 ground
The
motion to
the
strike
the first amendеd
original
it stated a
pleaded
different
the
cause of
than that
proper procedure
question
the
to raise the
(Beattie Mfg.
1035), but
v.
Gerardi,
Co.
166
142 (1),
Mo.
it was
purpose
overruled.
to stand
The defendant
its
indicated
incorporat
guns by filing
its
term bill of
ing
petition,
orig
the
the
motion to strike
said
judg
incorporated
inal
therein. The
was not called for or
how
overruling
matter
erroneous
said
no
may
adjudication
the
irregular
been,
or
it
solemn
iden
pleaded
it
the
amended
was not a
but that
orig
рleaded in
pleaded
attempted
the
tical cause of action
to be
or
Gibson,
petition,
inal
and was a
amendment.
[Chouteau
38;
34
C. J. 746.]
filing
amended
permitting
II.
order of
court
The
the
the
5, 1912, recites,
alia,
names and
inter
the
made Octobеr
deceased,
Dausch,
ages of the minor children of William
Dausch,
amendment, to-wit: Eleanor
at the time of the
Dausch,
Evelyn
and William
Dausch, Bertha Dausch
nine,
years,
aged respectively
fourteen
three,
eleven
appointment
mother, Bertha
and the
of their
suit, and
purpose
prosecuting
the
as their next friend for the
having
com-
filing
petition.
action not
of-the amended
The
of William
within
after
death
menced
six months
vested
right of
for his death ivas
action to recover
may
be
4217, R.
infаnts
minor children.
S.
Suits
1919.]
[See.
prosecuted
first,
guardian or curator
either:
commenced
infant,
him in
second, by
appointed
of such
next friend
being dead, the
The father
mother
suit.
S.R.
[Sec.
A
guardian
371, R.
curator.
was their natural
[Sec.
may
prosecuted by
his natural
commenced
suit
a minor
be
legal guardian.
rel.
Cox
guardian
ex
where lie has no
[State
stated,
(6).]
it is
For reasons hereinafter
(Mo.),
S. W.
overruling
necessary
go
order
into
merits of the court’s
not
petition.
strike the amended
the motion to
third amendеd
III.
In
motion to strike the
defendant’s
up in
which is set
it is said that
cause of action
it “avers the same
words,
In
the sole
petition other
preceding amended
herein.”
respect
from
is that it is
contention
petition is a de-
petition.
third
It is not claimed thаt the
trial
found and
parture
the first amended
from
identical cause of
adjudged
petition pleaded things
equal
which are
original petition.
Since
up
set
thing
equal
to the same
are
other,
each
that the
follows
a departure
not
More
over, if
for the
question
of this
conceded that
be
a departure
was a matter which the defendant could waive. After its motion to
*7
strike the first
as a
was overruled, the
defendant, as has been said,
exceptions
filed its
bill of
term
and saved
its
to
ruling.
might
judgment
go
allowed
have
to
upon the
appealed
and then
to this
ruling'
and had the
of the trial court reviewed. The defendant had
its election to follow
indicated,
the course
or to treat
the amended
petition as having
properly
filed, but could not do
In
both.
contingency defendant’s learned counsel elected to abandon its con
overruling'
tention of error in
its
strike and
motion to
to
demurred
the amended
reason that
it failed
state facts suffi
cient to constitute
cause of
action. This was waiver of its form
er contention
solemn
admission
the amended
properly
(Davis
798;
Cyc. 337)
v.
31
Fleming,
W.
allegation
for the
every
of the demurrer admitted
in the
[Randolph
182
81
Wheeler, Mo.
S. W.
It was
v.
appearance
an
pleaded
to the
pe
the amended
fully
tition
if
as
as
pleaded
defendant had
to the merits.
[State
ex rel. v.
Landon,
265 S. W.
The defendant must
election;
abide
cold;
appear
it cannot blow hot
it cannot
might
the amended
disappear
be
when
convenient to do
Therefore,
so.
if it were conceded that the amended
was a
having voluntarily appeared
and demurred
it,
it was error to
strike
the third amended
theory
that it
being
was a
pleads
conceded that it
the identical cause of action
declared
in the
original petition
first amended
In
case
functus
and the third amended
must be tested
reference to the
officio
petition (Walker Railroad,
472-3,
PER CURIAM: The Opinion opinion judges All concur. modi- of the court. fied; rehearing overruled. motion