Mitchell v. St. Louis, Iron Mountain & Southern Railway Co. ( 1907 )

BROADDUS, P. J.

The plaintiff, Martha V. Mitchell, is the widow of W. H. Mitchell, who died intestate on the 1st day of November, 1904. Ada Hatton, George Mitchell and Cora A. Benson are the only children and heirs at law of the deceased and had obtained their majority at the time of the institution of this suit.

W. H. Mitchell died seized in fee of lot numbered 159 in the city of Carthage. During his lifetime, defendant in the construction of its roadbed obstructed what is claimed to have been an alley giving access to said lot. The answer admits that W. H. Mitchell was the owner of the lot and the obstruction of what plaintiffs claim to have been an alley, but alleges that it had been discontinued by the city by ordinance for more than thirty years and that the same had grown up1 in bushes and was not used as an alley. The answer further alleges that the deceased Mitchell occupied the lot and the house thereon as a homestead, and that the same is now used and occupied as a homestead by the plaintiff, Martha V., as such, and that the only interest her codefendants have in jsaid lot is that of remaindermen. This allegation of the answer is not denied. The plaintiffs recovered and defendant appealed.

The first objection raised to plaintiffs’ right to recover is that as the canse of action occurred during the lifetime of the deceased, under section 96, Revised' Statutes 1899, the same descended to the administrator and not to the heirs at law, therefore plaintiffs cannot recover. The Supreme Court expressly decided that under the said statute, in a similar case, the cause of action survived to the administrator. [Music v. The Kansas City & Memphis Ry. Co., 114 Mo. 809.] As the alleged injury was suffered during the lifetime of the deceased, the right of action was in his administrator. The defendant’s demurrer to plaintiffs’ showing should have been sustained.

In view of the fact that plaintiffs are not entitled to recover because they have no cause of action, it is useless to discuss other questions raised on the appeal. Reversed.

All concur.