McIntosh v. Missouri Pacific Railway Co.

103 Mo. 131 | Mo. | 1890

Barclay, J.

The plaintiffs are the parents of John .McIntosh and have brought this action as such under section 2121 (R. S. 1879), to recover damages for his death occasioned, as they allege, by the negligence of the defendant. It took place October 16, 1883. The petition herein was filed, April 12, 1884, within six months thereafter. Besides the facts of the negligence charged, it states his parentage and that he ‘ ‘ was a minor under the age of twenty-one years ” at the time he died ; but it does not state that he was unmarried.

At the opening of the trial, which resulted in a verdict for plaintiffs, defendant objected to any evidence on the ground that the petition'did not state a cause of action ; but the point was overruled and exception duly saved.

Later plaintiff offered evidence to prove that deceased was unmarried to which defendant objected, “ as incompetent and immaterial under the pleadings,” but the court admitted the testimony and defendant excepted at the time.

After verdict defendant made the same points (among others) in the motions for new trial and in arrest, which being overruled were followed by the present appeal.

It was expressly held in Barker v. Railroad (1886), 91 Mo. 86, that any person claiming statutory' damages for the death of another, under section 2121 (R. S. 1879), must, both by pleading and proofs, bring himself within its terms. Here the action was brought within the time (six months) during which the widow of deceased (had he left one) would have had the exclusive right to sue. Yet, the petition does not even show that he was unmarried when he died.

The right of the parents to maintain the action depends in part on the facts that he left neither widow nor minor children surviving him, and those facts should be alleged and proved if denied. If it appeared from the petition that the deceased was of such tender years as to justify the inference that he was unmarried and childless at his death it might suffice in view of the code rules requiring a liberal construction of pleadings ( R. S. 1889, sec! 2074), and directing courts to consider substance rather than form (R. S. 1889, sec. 2117), but. this petition permits no such inference. Its allegations indicate that he was employed as a switchman and brakeman in defendant’s railway yards at Kansas City and was coupling cars when fatally injured. From these statements it cannot fairly be inferred that he was too young to be married. In the absence of some showing, direct or inferential, that he was unmarried, this petition is fatally defective.

Had evidence to that point been received at the trial, without objection, other principles might apply than those which must govern the case as made by the present record. But defendant entered a proper specific objection and saved exception to the admission of the evidence that deceased was unmarried, as being unwarranted by the pleadings, and the trial court should have sustained that objection.

The principles declared in Barker v. Railroad are decisive of this appeal, and from them it follows that the judgment must be reversed and the cause remanded.

All the judges of this division concur.