Rutter v. Missouri Pacific Railway Co. , 81 Mo. 169 ( 1883 )

Houen, C. J.

On the 30th day of April, 1877, Rachael Ann Rutter was fatally injured by the cars of the defendant, and died from the injuries so received, on the 4th day of May following. At the date of her death she had no husband living, and had only one child, who is the plaintiff in this action. He became of age on the 2nd day of August, 1877, and on the 29th day of April, 1878, instituted the present action, under the statute, to recover damages for the death of his mother. The foregoing facts appear in the petition, and a demurrer thereto was sustained, on the ground that the plaintiff should have sued while he was a minor, and that he could not bring the present action after he had attained his majority. Final judgment having been entered for the defendant, on the demurrer, the plaintiff has brought the case to this court.

The statute under which this suit was brought, provides that the damages thereby allowed may “be sued for and recovered; first, by the husband or the wife of the deceased ; or second, if there be no husband or wife, or if he or she fail to sue within six months after such death, then by the minor child or children of the deceased.” R. S. 1879, § 2121. It is also provided that every action, instituted by virtue of this statute, “ shall be commenced within one year after the cause of such action shall accrue.” § 2125. It is contended on behalf of the defendant, that two limitations are imposed by the statute on the right of a child to sue; one is that the suit shall be instituted within one year, and the other is, that such child shall be a minor at the time of the institution of the suit; and unless both concur, no action can be maintained. This question has never been passed upon by this court, and we know of no case, in any of the states, where statutes similar to ours have been enacted, in which this precise question has been determined, or discussed. The language of the statute, when epitomized so as to he applicable only to cases like the present, is, that the damages allowed, may be sued for and recovered by the minor child or children of the deceased.

The defendant contends, that as the damages are, by the terms of the statute, to be sued for by the minor, no suit can be brought by a child who has attained his majority.

That this argument is based upon too narrow a construction of the statute, will be rendered apparent, when we consider that the statute not only provides that the damages may be sued for, but also recovered by the minor; and the rule of interpretation contended for by the defendant, would restrict a right of recovery to one who had not attained his majority at the time judgment was rendered in his favor. To make a suit, which had been seasonably brought, abate, by reason of the plaintiff having attained his majority before judgment, would, indeed, be sticking in the bark. No such case has been found in the reports of this state, and our attention has not been called to any such elsewhere. All the judges are of opinion, that the true construction of the statute is, that the suit is to be brought in the name of the child or children, who are minors at the time the cause of action accrues to them. "When the right of action once accrues to the child, it is a vested right which is not determined by the attainment of majority, but may bo asserted by such child at any time within one year from the death of the parent.

The judgment will be reversed and the cause remanded.