Smith Ex Rel. Smith v. Allee

*86 BECKER, J. This is an action under the statute to recover damages for the death of one David Smith, deceased, alleged to have been occasioned by the negligence of the defendants as members of the De Soto Fair Association. Plaintiffs are the minor children of the said David Smith, deceased, and suit is brought on their behalf by Jennie Smith as next friend, who was the wife and widow of the said David Smith, deceased. David Smith was injured on September 12, 1918, and died two days later from the effects thereof. Plaintiffs filed their cause of action on the first day of August, 1919. The trial of the case resulted in a judgment for $5000 in favor of plaintiffs and against defendants. Defendants in due course appeal. The record discloses that the learned counsel for defendants objected to the introduction of any testimony on behalf of plaintiffs on the ground that plaintiffs’ petition did not state facts sufficient to constitute a cause of action. This same point was raised by request for an instruction in the nature of a demurrer at the close of plaintiff’s case and again at the close of the entire case. The point is set up in the defendants’ motion in arrest of judgment and is raised here on appeal. We take up -the question as to the sufficiency of the petition. It is contended that the petition is defective under section 4217, Revised Statutes of Missouri, 1919, upon which the action is based. The petition in the case was filed more than six months after the death of said Smith occurred but within one year, yet there is no averment in the petition either *87 that the deceased left no widow surviving him or that the deceased left a widow surviving him and that she had failed to sue within six months after the date of his death. Defendants contend that on account of this omission the petition states no cause of action. In light of the rulings of our Supreme Court in cases interpreting this statute we are of the opinion that the point is well taken. In this connection it may be noted that at the trial there was testimony to the effect that the deceased left a widow surviving him and that she was in fact the duly appointed next friend in the cause, but no evidence whatsoever was adduced as to whether or not she, as widow, had brought suit or failed to sue within the statutory period of six months. At common law damages were not recoverable for a tort to the person resulting in death, yet our statute on this subject, which is in derogation of the common law, both gives the right of action and provides the remedy for the death where none existed at common law and it has been repeatedly held that one seeking to maintain an action thereunder must both allege and prove such facts as will bring him directly within its provisions. [Chandler v. Ry. Co., 251 Mo. 592, 158 S. W. 35, and cases cited; Dudley v. Ry. Co., 167 Mo. App. 647, 150 S. W. 737; Barker v. Ry. Co., 91 Mo. 86, 14 S. W. 280; Sheets v. Ry. Co., 152 Mo. App. 376, 133 S. W. 124.] In Sheets v. Ry. Co., supra, which was an action by the widow to recover damages for the death of her husband under the death by wrongful act statute, the peti-i tion alleged that “within one year of the nonsuit which she suffered in her former action in this cause, plaintiff files this her petition for a new action.” It appeared there were minor children but the petition was silent as to whether the former action was brought within six months from the date of the death of plaintiff’s husband. The court there ruled that the petition was defective and was not cured by the evidence after verdict. . Our supreme court in the case of Barker v. Ry. Co., supra, in discussing the statute under consideration held: *88 “Ill conferring the right of action, and in providing such remedy, in designating when, and by whom, suits máy be brought, it was, as a matter of course, competent for the Legislature to provide and impose such conditions as it might deem proper, and the conditions thus imposed modify and qualify the right of recovery, or form, rather, we think, a part of the right itself, and upon which its exercise depends. . . . For example, the right of the parents to sue under the third subdivision is based upon the fact,whether the deceased was a minor, unmarried, which are, we think, conditions precedent to a recovery on the part of the parents. Suppose, for example, that, in an action by them, under the statute, it was neither averred in the petition nor proved on the trial, that the deceased was a minor, and unmarried, could a recovery be had? Again, suppose, for example, the minor child or children brought the action within six months from the death; or, suppose further, that such minor children instituted suit after the expiration of the six months, and it was neither alleged in the petition nor shown by the evidence, that there was no husband or wife, or that the husband or widow, as the case might be, had failed to sue in the six months. “'In none of these cases could a recovery, as we think, be properly had.” In the absence of the proper averment in the petition, whether or not there was a widow left surviving the deceased, and as to whether or not any suit had been brought by the widow, if any, and in the failure of the proof as to whether the widow had sued or “failed to sue,” we must, under the authorities, rule that the judgment should be reversed and the cause remanded. [As to remanding see State ex rel. St. Louis Basket & Box Co. v. Reynolds, 284 Mo. 372, l. c. 384, 224 S. W. 401; Colvin v. Ry. Co., — Mo. App. —, 200 S. W. 715, l. c. 718; O’Toole v. Lowenstein, 177 Mo. App. 558, 91 S. W. 75; Sheets v. Ry. Co., supra.] It is so ordered. Allen, P.J., and Danes, J., concur.