Marshall v. Consolidated Jack Mines Co.

| Mo. Ct. App. | Mar 2, 1908

BROADDUS, P. J.

This action is to recover damages for the death of plaintiff’s son, alleged to have been the result of defendant’s negligence. The petition among othér allegations states that the plaintiff is the father and surviving parent of the deceased; and that deceased was a minor sixteen years of age, unmarried and without issue at the time of his death. There was no evidence that the deceased was unmarried and childless at the time of his death, but it was shown that he was sixteen years and four months old at that time. Under this state of the evidence the court was asked to instruct the jury to return a verdict for the defendant Avhich the court refused.

In Sparks v. Railway, 31 Mo. App. l. c. 114, there Avas no allegation that plaintiff’s son was unmarried at the time of his death. The court held: “As this action is statutory, and plaintiff’s right to sue depends on the fact that the deceased left neither Avidow nor surviving children, the omission to aver and prove such fact is fatal to plaintiff’s recovery.” It was held, that a petition alleging that deceased was the minor son of plaintiff, past sixteen years of age, but not stating that he Avas unmarried, no canse of action Avas stated. [Dulaney v. Railway, 21 Mo. App. 597" court="Mo. Ct. App." date_filed="1886-04-19" href="https://app.midpage.ai/document/dulaney-v-missouri-pacific-railway-co-6615098?utm_source=webapp" opinion_id="6615098">21 Mo. App. 597.] It Avas held in a later case, when the petition did not state that deceased was unmarried, but was six years of age at the time of his death, that the allegation was sufficient, in view of the statute requiring a liberal construction of pleadings. In Bellamy v. Whitsell, 123 Mo. App. 610" court="Mo. Ct. App." date_filed="1907-03-04" href="https://app.midpage.ai/document/bellamy-v-whitsell-6622382?utm_source=webapp" opinion_id="6622382">123 Mo. App. 610, the petition alleged that the deceased was thirteen years of age. We held that the presumption was, that he Avas single and unmarried, not having arrived at the age of consent and incapable of marriage. At common law the age of consent in males is fourteen years.

It is to be gathered from Avhat has been said by the courts of this State that, the petition must allege the deceased minor was unmarried, and the allegation must be supported by satisfactory proof, or that the allegations and proof must be of such a character as to raise the presumption that such was the fact. [Baird v. Railway, 146 Mo. 265" court="Mo." date_filed="1898-11-21" href="https://app.midpage.ai/document/baird-v-citizens-railway-co-8012974?utm_source=webapp" opinion_id="8012974">146 Mo. 265; Bellamy v. Whitsell, supra.]

But no such presumption can be indulged in this case, as the evidence shoAvs that the deceased minor was of the age of consent and there is nothing to show that he was unmarried. Reversed and remanded.

All concur,