*1 300 whether,the former question depends

ceased? The on answer to this have time to peril saw or position could have seen deceased in a down, per- have (only slowing slowed would slight of the train step of than a escaped mitted deceased to have as he lacked less engi- that the being clear.) in the But there is no substantial evidence length neer of the could have so seen deceased. There is no evidence engineer’s engine boiler, or, extent it obstructed what deceased engineer seen view. The had about 120 feet which have As- train. position peril in a to have slowed thereafter suming position peril that he saw deceased as latter entered a enough have did the train he thereafter have sufficient time to slow permitted escaped? have There evidence on deceased to is no going subject. There as to whether the down is no evidence train up speaks cars., If train or hill. Plaintiff between the slack going probably hill If train down there was no slack. Avas twenty-five twenty may there per from miles hour to haA'ebeen slowed long We slack. are not advised how the brakes to slow down no tak.es forty-car train, being given. the conditions not We are of the opinion that the demurrers to the evidence should have been sustained. giving plaintiff’s that the court erred in insisted instruction

It.is assignment 1, developed as this is not it will not be No. but considered. Wilks, 288 S. W. v. [Mason 936.] is reversed and the cause remanded. All concur. Carlton R.

Estate Donelson, of Claribel Benton, Pub Logan Administrator, lic v. Gorman, E. Hazel E. Gorman, O. (2d) Petitioners. 192 W. 29. S. Ater, Gorman and Wilma City Appeals. January 7, Kansas Court of 1946. *2 $ Baymond ap- Cope, Cope Hadsell and Walter A. Homer A. pellant. Meyer respondents.

Everett B.

SPERRY, Benton, C. Carlton R. appellant, public administrator County, appointed' of Jackson was administrator of the estate of Donelson, Gorman, Claribel deceased. O. E. Hazel Gorman, Logan Ater, E. Gorman and Wilma respondents, are the father, mother, Donelson, and sister of Claribel deceased, brother and her and sole only July 9, 1943, at law. On heirs Claribel Donelson, whom we shall refer to as- died injuries hereafter from by received her by operated a street ear owned and by when struck City the Kansas Company, Public Service whom we shall refer to Company. as the On July -12, 1943, appellant appointed as administrator of the es- Thereafter, respondents deceased. tate of filed probate motion in seeking appellant of removal as court administrator, which motion Appellant appealed sustained.- to the circuit court where, on a novo, the motion was de sustained and appellant trial was ordered prose- judgment appeal this removed as that administrator. From cuted. dispute.

The relevant facts are in Deceased was and material not being her re- widow, a resident of sole heirs County, Jackson The fun- spondents -were, and non-residents of this state. are, who July 12, Respondents was held 1943. were in Kansas City, eral days thereafter, the funeral, attended and remained here for several any Appel- by by not or one him. appellant but were contacted for knowledge appointed without the lant was administrator estate the sole respondents. appointment set that application of for out action purpose prosecute to caúse of for the administrator was property wrongful against Company. Deceased owned no death the Appellant employed a county in this state and owed no or debts. approval attorneys contracted, firm as law his said estate and with attorneys moneys all probate court, pay to recovered said 50% attorneys damages wrongful as death. Said deceased’s .took steps preserve and collect and evidence in prompt efficient to and of a at cost them support damages, claim for substantial nego- appellant. damages, filed at whiteh time Appellant' suit tiations, damages, looking toward settlement a claim for were being Company. Respond- respondents conducted between by legal being represented counsel and were capable ents were then wholly appellant’s or with the matter. unaware of status connection by appellant suit filed Company When the was summoned negotiations discontinued for settlement.' grounds

Respondents seek affirmance of on the that appoint power appellant. ap had no He was probate court capacity public pointed in his official administrator. ex [State *4 (2d) validity Mueller, 48, 60 W. l. c. The rel Russell v. S. of 49.] fact in appointment power and must be measured with that mind. his question is new in this state. presented The 13, 1, Chapter 1939, provides, Revised Missouri

Article Statutes for election, powers, duties and prescribes appellant. and the of the Sec the 299 and describes conditions and under tion enumerates situations may eligible be to in public a administrator act his official which justified as ap the are such would have the capacity. Unless facts in provisions statute, enumerated the the under one of the pointment legal authority judgment, made and the was without appointment Landgraf’s 268, 269, re Estate 168 S. W. l. c. be affirmed. should [In 270.] unambiguous. clear language the statute is and Under no The of may public therein a enumerated administrator exercise condition respect persons, in to deceased either on his his office the functions of appointment by by prior prbate of a made motion or reason own bar, except may there an estate of which he in the at be judge,' as cáse says and read charge. is what statute we cannot into That take 304 scope something ought

it broader its that is not there. If it be v. Legislature. is a matter for the attention of the [Demattei 504, l. c. (2d)W. Missouri, Kansas, Co., Texas R. S. 139 S. 505.] of the cause Appellant left no estate unless concedes that deceased by her wrongful action an asset was left death constitutes which been defined part and her “Estate” has which became a of estate. any other sub any one in lands or in as: interest which has of ject wrongful not, part property, damages death, of and is App. Mo. Q. Co., & R. R. decedent’s v. C. B. estate. [Williams 468, l. 472, c. 473.] in the case wrongful death, A such as exists cause of action for is “Such a cause of action bar, at did not exist at common law. It is R., v. R. purely a creature of statute.” supra.] [Demattei by 1939, particularly created 3652 Revised Missouri Section Statutes the fourth condition thereof. R., supra, 506,

In Demattei v. R. l. c. the court said: may action be maintained fourth condition under which an “The no'husband, wife, child or minor ‘If there be minor is follows: may re- . . then in such case suit be instituted children . .and and the covery by the or executor of the deceased had administrator according the laws of amount recovered shall be distributed ’ descent. . . . however, that action of everywhere, “. It is held a cause of . . is not assets of the estate of der the class here under consideration subject creditors and ceased, not claims of is persons designated as the exclusive benefit of the beneficiaries is for ’’ right. gives the under the law which long support list of authorities of the declara- There follows K. Public (See Company, made. v. C. Service tion there Cummins thorough (2d) 920 for a discussion of back- 66 W. S. historical question to be no but ground the statute. There seems that this directly challenge appellant' We, does not this fact. the law and is appellant appointment improvidently therefore, hold that authority law. made without nevertheless, that contends, appointment not

Appellant only; appellant that entitled to have his and but voidable fees void urges that allowed; and he we reverse the expenses directions that evidence with be heard and the cause reason- remand items. made for the above allowance able appointment held that was made have without au- we Since that the order it follows was void. thority law, *5 Boyer, C., be affirmed. should concurs. judgment The foregoing opinion of Sperry, C., is adopted PER CURIAM:—The the court. affirmed. All opinion concur.