Bastine v. Atchison, Topeka & Santa Fe Railway Co.

80 P. 1133, 71 Kan. 854, 1905 Kan. LEXIS 260

• Court: Supreme Court of Kansas
• Decided: May 6, 1905
• Docket: No. 13,949
• Status: Published

Opinion

Per Curiam:

Under the provisions of paragraphs 422 and 422a of the civil code (Gen. Stat. 1901, secs. 4871, 4872), on the trial of an action for damages by a woman who has alleged in her petition that she is the widow of a deceased whose death was caused by the wrongful act or omission of the defendant, that the only other surviving heir of the deceased is a minor daughter, and that no executor, administrator or other personal representative of said deceased has ever been appointed, it is incumbent upon the plaintiff, the defendant having denied these allegations, to prove each one of these essential facts. (City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113.)

In this case the plaintiff offered quite voluminous evidence as to the cause and circumstances of the death of the deceased but no evidence whatever of any of the foregoing essential facts, and rested her case. The defendant filed a demurrer to the evidence of plaintiff and after argument the court sustained such demurrer. No application to reopen the case being made, judgment was rendered against plaintiff for costs.

The judgment is affirmed.