Crockett v. St. Louis Transfer Co.

Adams, Judge, delivered the opinion of the court. This was an action brought under the Damage Act, (1 W. S., § 2, p. 519,) by the father and mother to recover the sum of five thousand dollars as a forfeiture for the death of their infant child, occasioned by the alleged carelessness of .defendant’s agent in driving one of their transfer wagons. The suit was instituted by the mother alone, near the close of the statute year for bringing the suit, she being unable to obtain the father’s consent to join as co-plaintiff; a demurrer for non-joinder of the father as plaintiff was sustained June the 19th, 1867. The accident which caused the death, happened March 22d, 1866. And on motion, the father who had been made a party defendant was stricken out as defendant, and made plaintiff so as to meet the ground on which the demurrer was sustained. This amendment to the petition was made October Term 1867. The plaintiff’s Enth Buell and Samuel F. Buell, had been divorced, as appears from the record. The defendant’s answer was a general denial of all the allegations of the petition, and also set up the statutory bar of one year as having elapsed after the suit was as originally brought by Euth Buell, and before Samuel F. Buell was made a plain [460] tiff by amended petition. This part of the answer was stricken out on plaintiff’s motion, and defendant excepted. At tbe close of tlie evidence on both sides, the defendant asked an instruction demurring to the plaintiff’s evidence, which was refused by the court, and it was then suggested that Ruth Buell had intermarried with John Crockett, whose name was entered as a plaintiff in the case, to which the defendant excepted. The jury found a verdict for the plaintiffs for the amount claimed, five thousand dollars. The usual motions in arrest and for a new trial were made and overruled, and judgment rendered for plaintiffs, from which the defendant appealed to general term where the judgment of special term was affirmed and he has appealed to this court. The evidence strongly tended to prove the plaintiffs case. The instructions were unobjectionable so far as I can see— and the case seems to have been fairly presented on both sides. It may be remarked that this case was before this court at the March Term, 1870, (Buell, et al. vs. The St. Louis Transfer Co., 45 Mo., 562,) when the judgment of the Circuit Court was reversed because of an erroneous instruction. The error in this instruction was corrected, and there seems now to be no substantial ground of error left for us to pass upon. The point raised in regard to the expiration of the year before the father was made a plaintiff was passed on by this court and we see no reason to change the ruling then made. So also the question of divorce of Mr. and Mrs. Buell and its bearings on the case were settled by that opinion. The only remaining point is, that John Crockett the second husband of Ruth Buell was made a party plaintiff after the close of the evidence. There is no force in this objection. It was not only right that he should have been made a party, but the omission might have been an error of fact that might have resulted in setting aside the judgment. Section three (2 Wagner’s, 1034,) allows this sort of amend [461] ment at any time before final judgment. Judgment affirmed. The other Judges concur.