The appellants in this case are the minor children of James I. Packard, and Sarah Packard, his wife. The father, James I. Packard, on and prior to February 9, 1898, was in the employ of the Chicago, Rock Island and Pacific Railway Company, hereafter called the Rock Island Company, as a freight switchman and brakeman in Kansas City. His duties, in this employment, as alleged in the plaintiffs’ petition, were to work on the top of freight cars, setting brakes, coupling and cutting out cars, and generally to perform the duties of a switchman in handling the' local freight business of the Rock Island Company. This, the petition alleges, was the duty he owed to his-employer, the Rock Island Company, and from the petition it further appears by affirmative allegation that it was also his duty to his employer, from time to time,' to accompany Rock Island transfer trains, with other
While engaged in this work on February 9, 1898, James I. Packard received injuries which resulted in his death on February 12, 1898, in Kansas City, Missouri, leaving these appellants as his minor children, and Sarah Packard, their next friend in this action, as his widow.
On August 11, 1898, one day prior to the expiration of the first period of six months after his death, his widow, Sarah Packard, elected to accept the benefits given by Revised Statutes 1899, section 2864, and brought her action to recover the statutory penalty of $5,000 in the Jackson circuit court, against the Rock Island Company which action in due time was removed to the United States circuit court for the western division of the western district of Missouri, and was thereafter on December 12th, 1899, duly tried on the pleadings and evidence before a jury, and resulted in a verdict for the defendant, the Rock Island Company, at the direction of the court.
The answer filed by the Rock Island Company in that action raised several defenses and it is not apparent from the record now before the court upon which of the issues thus raised the learned federal court directed the verdict. But it is sufficient to say the record shows that the case was fully heard and tried upon the merits, resulting in a judicial finding against the plaintiff, Sarah Packard.
Upon February 9, 1899, within a day or two of the expiration of one year from the death of said James I. Packard, and during the pendency of the first mentioned action, brought by his widow, these plaintiffs, as his minor children, by the said Sarah Packard as next friend, filed the present action in the Jackson circuit
Under the admissions made by the plaintiffs’ petition and reply the trial court upon the motion made by .the defendant, the Hannibal Company, for a judgment on the pleadings, rendered the judgment prayed for, holding that inasmuch as the pleadings in the case showed as a matter of fact that the widow did sue before the six months had elapsed, she had under the statute appropriated the cause of action, and thereby deprived her children of the right to maintain an action in their own behalf; that her intention to appropriate the benefits of the statute was manifested in the most solemn manner possible by bringing her action against the Rock Island Company, and whether she was right or wrong in her selection of the defendant was not material. Her error, if such it was, was a mistake of law, and did not alter the fact that she had elected to appropriate the benefit of the statute and bring the action and had thereby deprived her children of that right.
I. The right of action given by section 2864, Revised Statutes 1899, for the death of the father of the plaintiffs, is a single, indivisible right to sue all the guilty parties. It rests in the widow or the minor
During the first six m.onths after the death of the husband and father, the right of action is absolute in the wife alone. If she failed to bring suit upon this single cause of action within six months it vests in the minor children and in them only. It is, however, the same cause of action. If she fails to sue within the six months, her right to it is gone and that of the children accrues. [Kennedy v. Burrier, supra; McNamara v. Slavens, supra.] The right is given to sue any and all persons whose negligence occasioned the death of the husband and father, and the penalty is one indivisible sum, to-wit, $5,000.
It is a cause of action created by the statute and no one can sue unless he or she brings himself or herself within its terms. This court, in Barker v. Railroad, 91 Mo. loc. cit. 92, said: “The right of the husband or wife to sue is absolute for and during the six months after the death.' Thereafter it i£ within the year, as we think, a conditional right.’’ [Hamilton v. Railroad, 39 Kan. 56.]
The only question presented on this record is, has the widow asserted her rights under the statute! Has she appropriated the right which the statute gives her! If she has, then it is obvious that under the admissions made by the plaintiffs in their petition and reply, defendant’s motion for judgment on the pleadings was properly sustained.' That Mrs. Packard brought her suit against the Rock Island Railroad within the six months is conceded, but the contention of plaintiffs is that while it is true she sued the Rock Island, she did not sue the Hannibal & St. Joseph Company, the wrongdoer; that she failed to recover because she sued the wrong party, and therefore she did not appropriate the
Considerable stress is laid by counsel for the minors, upon their statement that the Hannibal Company was. the wrongdoer, and being such the statute points with unerring aim at that company as the only one liable for the penalty, and therefore there could have been no. appropriation of the remedy until that remedy or suit was brought against the wrongdoer, or Hannibal Company. This claim is largely predicated upon the admitted fact that the widow was unsuccessful in her action against the Rock Island. It is not questioned that she sued, but the claim is advanced that as she did not. sue the right party, she in law did not sue, and hence the right devolved upon the children.
This court, in McNamara v. Slavens, 76 Mo. 331, answered this contention in these words: “It is a cause of action created by the statute, that no one can sue unless he can bring-himself within its terms. It is not a joint right of action in the husband or wife and the children. The statute gives the surviving husband or wife six months within which to elect to appropriate the cause of action, the election to made by the institution of a suit. He or she then has an 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. By dismissing her suit the widow did not lose her right of action, nor did such dismissal operate to transfer it to the children, but at any time within the six months she might have instituted another suit. Nothing in the foregoing sections warrants any other construction. By the commencement of the suit by the mother, within six months after the death of the father, the right of the children was forever taken away.. Section 2121 (now 2864) does not authorize the children to sue if the father or mother fail to sue and recover. It declares that the forfeiture may be sued for and re
In Shepard v. Railroad, 3 Mo. App. 550, which was approved by this court in McNamara’s case, the Court of Appeals says: “If the widow does pursue the remedy, though ineffectually, her right vests and she has the full statutory time. She has not failed ‘to sue within six months after such death.’ She has not abandoned the right to the minor child.”
Mrs. Packard having brought her suit within the six months, the entire cause of action became hers absolutely and remained in her in her own right and not as next friend of her children. She had made the election required by the statute by the institution of her suit. If ■she had been nonsuited in her action brought against the Rock Island within the six months, we think there can be no doubt that at any time within the year after her husband’s death she could have renewed the suit by a new action against the Rock Island or the Hannibal Company ■or both at her option. Having appropriated the right, she had absolute control of it. Her right of action was against all whose negligence caused the death of her husband. Having plenary control of the action she was
Let us test this claim by another example. Suppose Mrs. Packard in her suit against the Rock Island had been forced to a nonsuit during the first six months after the death of her husband and then neglected to bring another suit within six months, and thereby, according to plaintiffs’ contention, her right to sue was forfeited, and the right of action passed to the children, and they being advised that the United States circuit court was in error, had brought a suit against the Rock Island within the year in a different court. If to that action the Rock Island should plead that the widow had already appropriated the cause of action and the. children could not sue, and the Children should reply, “True, but she failed to recover, hence did not sue in law, ” is it not plain that the reply would be stricken out on motion, because this court had already announced that it was not necessary to show the husband or wife had recovered in their suits?
We think that by bringing her suit within six months Mrs. Packard clearly evinced her intention to appropriate the cause of action, whether successful or unsuccessful, and thereby cut off the right of the children to sue.
This precise question as to the effect of sning the wrong defendant as evidence of the widow’s intention to appropriate the action was presented in Hayes v. Williams, 17 Colo. 465, 30 Pac. 352. The statute of Colo
So say we in this case: the widow having appropriated the one single indivisible cause of action given by the statute within six months after her husband’s death, her election forever cut off the plaintiffs, the children, from availing themselves of that right. The judgment was right and is affirmed.