248 Mo. 78 | Mo. | 1913
This is a suit by the plaintiff, a minor child of Charles M. Hamilton, to recover the penalty prescribed by section 2864 of the Revised Statutes of Missouri 1899, as amended in 1905 and incorporated with the amendment in section 5425, Revised- Statutes 1909, for the death of her father, occasioned by the negligence of the employees of defendant while running and managing its railway cars. The answer -pleads with all necessary detail that within less than one month after Mr. Hamilton’s death the defendant paid to Mrs. Jennie Hamilton, his lawful wife, twenty-five hundred dollars in lawful money of the United States in full payment, satisfaction and discharge of all claims and rights of action growing out of his death, and that she executed and delivered to defendant, in consideration thereof, a full release, acquittance and discharge of all causes of action,
After the overruling of a motion to strike out the plea, to which exceptions were properly saved, the plaintiff declined to plead further, upon which the court g’ave judgment for defendant from which this appeal is taken. The only question raised is upon the sufficiency of defendant’s plea. If it is good in bar of the action the judgment should be affirmed, if not it will have to be reversed and remanded for trial upon the merits.
The plaintiff develops this theory apparently from a remark of this court in McNamara v. Slavens, 76 Mo. 331, where it said: “The statute gives the surviving husband or wife six months within which. to elect to appropriate the cause of action, the election to be made by the institution of a suit. If the surviving husband or wife sue within-six months, that is an exercise of the option given by the statute. He or-she then has as absolute control of the cause of action as of any common law right of action he or she may have, and may compromise, release or otherwise settle the matter in controversy with the defendant.” We do not think this statement will bear the construction that the widow has no cause of action until she shall elect to have one by bringing suit. The election there referred to is simply the election that one makes who has a cause of action and determines to avail himself of it by the suit. Nor do we think the use of the word “then” in the succeeding sentence indicates that, in the opinion of the court, she may not compromise, release or otherwise settle the matter in controversy before bringing suit. The court was simply speaking in terms of the case before it.
We think the statute is plain. The authority to bring suit necessarily implies an existing cause of action upon which it may be brought. Even were this not so the cause of action is expressly created by the words “shall forfeit and pay.” The time limited in
It follows, that the judgment of the circuit court must be and it is affirmed.
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.