Sheets v. Mississippi River & Bonne Terre Railway

GRAY, J. This is an action by Minerva Sheets, to recover five thousand dollars damages, under section 2864, Revised Statutes 1899, on account of the death of her husband, William Sheets, while an employee of the defendant company in the capacity of a fireman. The accident causing the death of William Sheets is alleged to have occurred on June 6,1905. - The petition — 381 — in this .case was filed October 12, 1906, and to escape the bar of the Statute of Limitations, the petition alleges: “Within one year of the non-suit which she suffered in her former action on this cause, plaintiff files this, her petition for a new action J’ There is no other reference to any former action in the petition. The evidence is also silent as to whether the former action was commenced within six months from June 6, 1905: It appears that at the date of the death of plaintiff’s husband, there were six minor children born of the marriage between him arid plaintiff. At the conclusion of the plaintiff’s case, the defendant offered a demurrer to the evidence, and the same was by the court overruled. The defendant offered no testimony, and the jury, under instructions given by the court at the request of plaintiff and defendant, returned a verdict in favor of the plaintiff in the sum of five thousand dollars. We have gone through the record and are of the opinion that the judgment should be affirmed, unless it must be reversed on account of the petition and evidence failing to show that the prior suit was commenced within six months from the date of the death of plaintiff’s husband. The instructions also ignore this question. It was held in Barker v. Railroad Co., 91 Mo. 86, 14 S. W. 280, that a wife suing under the statute for the death of her husband, and who brings her suit within a year, but after the expiration of six months from the death of the husband, must show there was no minor child surviving the marriage, or she cannot recover. In the opinion the court used the following language: “In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in his petition; otherwise it shows no cause of action. ’ ’ — 382 — The plaintiff in this ease did not bring the present suit within six months from the date of the death of her husband. And if the' petition had .been entirely silent regarding the former suit, then under the decision of the -Supreme Court just quoted, it would have failed to state a cause of action. In order to show that plaintiff had not lost her cause of action by failing to commence it within a certain time, she alleged in her petition: “Within one year of the non-suit which she suffered in .her former action on this cause, plaintiff files this her petition for a new action. ’ ’ There is no allegation that the former suit was commenced within the time allowed by law. If she did not bring her action within six months from the date of the death of her husband, then inasmuch as the deceased left minor children, her cause of action was gone, and none existed in her favor thereafter. The evidence is silent as to when the former action was commenced, or as to its nature. All there appears in the evidence relating to the former action, is, on cross-examination of certain witnesses, they were asked if they testified to certain facts at the formetrial in August, 1906. In Packard v. Railroad, 181 Mo. 421, 80 S. W. 951, it is held, where a widow has brought suit for the death of her husband within six months after his death, she can, if she has suffered non-suit, or dismissed the suit, renew the suit within one year against the same party. It is only when the former suit was instituted within six months that a subsequent one may be instituted within one year after a non-suit has been suffered in the former suit. If the plaintiff had shown by evidence that her former suit was commenced within six months, then we might not reverse the judgment on account of the failure of the petition to plainly allege the facts. But in this case, as we have heretofore stated, there is no — 383 — evidence as to when the former suit was commenced. The respondent contends that inasmuch as the former suit was instituted in the same court, that it was not necessary to make the formal proof, as the court would, take judicial notice of the former proceedings. The rule for our guidance in this matter has been marked out by the Supreme Court in Fitzmaurice v. Turney, 214 Mo. 610, 114 S. W. 504, wherein it is held that the court cannot take judicial notice of the proceedings in a former suit. In passing upon the question, the court said: “Though the former suit had been in the same court, yet it was not a part of the record in that case, and could be brought to the notice of the court only by being introduced in evidence.” It is also held in the case just cited, that the proceedings in the former suit must be included in the bill of exceptions and approved by the trial court, in order to be considered bv the appellate court. It is the claim of the respondent that inasmuch as the attention of the trial court was not directly called to the error now complained of, the same should not be considered by this court. We are in sympathy with the claim made by the respondent in this regard. And if we were not controlled by the decisions of the Supreme Court on the point, we would be inclined to adopt respondent’s view. The trial court should have the right and privilege to pass upon all questions involved in the case before they are presented to the appellate court. The parties should point out to the trial court the specific errors or defects complained of, and give that court an opportunity to correct the same before appealing to the higher tribunal. We have searched through this record and find that the trial court’s attention was never called to the defect in the petition, or the failure of the proof now complained of. We.are satisfied if the question had been presented to the trial court, it — 384 — would have directed the plaintiff to amend her petition, and the proof would have been forthcoming to show that plaintiff’s cause was first instituted within six months.' But under the Constitution of this state when this court is of the opinion that the Supreme Court has decided a question, it is our duty to accept that decision as the law of the state. In Barker v. Railroad, 91 Mo. 86, 14 S. W. 280, the trial court’s attention was not called to the fact that the petition did not allege that the deceased left no minor children surviving him. But in the motion for new trial and in arrest of judgment, it was assigned that the petition did not state facts sufficient to constitute a cause of action. It is shown from the briefs printed in the opinion that the point was raised for the first time in the Supreme Court. The court reversed and remanded the cause, thereby holding that the point had been properly saved. In the present case, the appellant filed a demurrer challenging the sufficiency of the'petition on the ground that it did not state facts sufficient to constitute a cause of action. Also at the opening of the case, the defendant raised the same point, and at the close of the plaintiff’s case, and by motion for new trial and in arrest of judgment, the sufficiency of the petition to state a cause of action, and of the evidence to sustain the verdict, were challenged. The opinion in the Barker case to the effect that (the petition must allege, and the proof must show the suit was instituted within the time limited by the statute, has been followed in many cases. [Casey v. Transit Co., 116 Mo. App. 235, 91 S. W. 419; Sparks v. Railroad, 31 Mo. App. 111; McIntosh v. Railroad, 103 Mo. 131, 15 S. W. 80; Dulaney v. Railroad, 21 Mo. App. 597; Jackson v. Lincoln Mng. Co., 106 Mo. App. 441, 80 S. W. 727; Packard v. Railroad, 181 Mo. 421, 80 S. W. 951; Case v. Cordell Zinc & Lead Co., 103 Mo. App. — 385 — 477, 78 S. W. 62; Cutshall v. McGowan, 98 Mo. App. 702, 73 S. W. 933.] The respondent has filed in this court an alleged additional abstract of the record, from which it appears that the plaintiff’s suit was commenced, within six months. And respondent has offered to amend the petition in this court so as to allege such fact. It has ever been the practice in this state, that amendments of this character must be made in the trial court; also that evidence not offered before the trial court cannot be considered by the appellate court. The practice has always been that the bill of exceptions must contain the evidence introduced in the trial court, and that evidence not preserved in the bill of exceptions cannot be considered on appeal. [Sidwell v. Jett, 213 Mo. 601, 112 S. W. 56; Danforth v. Railway Co., 123 Mo. 196, 27 S. W. 715; State v. Eaton, 191 Mo. 151, 89 S. W. 949.] If authorities could be found authorizing us to affirm the judgment in this case, we would gladly do so. The evidence shows the plaintiff’s husband was in the employ of the defendant as a fireman, and that he lost his life while so employed. The evidence further shows that for several days previous to the date of the accident, a rail on the defendant’s road was cracked to such an extent that persons not even connected with the road noticed it. The deceased, while riding on an engine in the line of his duty and over the road at the point of the broken rail, lost his life by the engine leaving the track on account of the defective condition thereof. If this evidence is true, plaintiff’s husband lost his life through the carelessness and negligence of the defendant, and she is entitled to recover the statutory penalty. The evidence for our consideration must be preserved in the bill of exceptions. And on account of the failure of the petition in this case to state that the — 386 — former suit was commenced within six months from the date of the death of William Sheets, and on account of the total failure of the evidence preserved in the bill of exceptions to show such to be the fact, we must reverse the judgment and remand the cause, granting to the plaintiff the right to amend her petition if she desires to' do so. All concur.