LAMM, J.
Plaintiff, widow of Albert Chandler, sued defendant railroad and Plolliday (a locomotive •engineer in its employ) in the Audrain Circuit Court on April 1, 1908, for the alleged negligent death of her husband on June 24, 1907, occasioned whilst operating a train of cars. The venue being changed to the Franklin Circuit Court, on a trial a jury gave her a verdict of $5000 against both defendants. From a judgment on that verdict, they, on apt steps and in ■due time, appealed here.
[598]*598Jurisdiction: constitutional Question. [597]*597I. There is well lodged in the record a constitutional question, to.-wit, whether the act to' amend section 2864, Revised 'Statutes 1899, concerning damages, approved April 13, 1905 (Laws 1905, p. 135 — now Sec. 5425, R. S. 1909 — amended, [598]*598Laws 1911, p. 203) is constitutional. True it is, the constitutional question, to-wit, the statutory plan permitting dis- ,. . , „ -, cretion m a jury to allow damages on a sliding scale from $2000 to $10,000, is now at rest (Young v. Railroad, 227 Mo. 307; Burge v. Railroad, 244 Mo. 76); but as the appeal was taken prior to the decision of the Young case and while the constitutional question was open, that fact vested jurisdiction in this court. Here it remains. So the precedents run. Thus: In Gabbert v. Railroad the constitutionality of a constitutional amendment permitting nine concurring jurors to render a verdict was first settled. [171 Mo. 84.] Appeals were pending here at the time the Gabbert case was decided in which our jurisdiction hinged solely on the question. We retained jurisdiction of them. Lee v. Jones, 181 Mo. 1. c. 297, is a sample. Following precedents, we retain jurisdiction of this appeal.
II. Two propositions advanced by appellants are that the petition states no cause of action and that demurrers to the evidence should have been given.
Petition: . No Cause of Action: Suit by Wife Nine Months After Husband’s Death. On the first day of April, 1908, plaintiff sued for the wrongful death of her husband occurring on the 24th day of the prior June, i. e., nine months gone. The statute by virtue of which plaintiff may álone sue provides that the individual or corporation guilty of certain negligent acts resulting in death, as here, shall forfeit and pay as a penalty the sum of not less than $2000 and not exceeding $10,000, which may be sued for and recovered, “first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased [599]*599be the natural born or adopted child or children of the deceased,” etc. The statute goes on to provide third and fourth contingencies in which a father and mother or the survivor of them or an administrator may sue, but they do not concern us.
Though the petition shows that the death of Mr. Chandler occurred nine months before suit brought, yet it is silent on the existence of minor children. However, plaintiff’s proof shows that Mr. Chandler was about thirty years of age and left plaintiff as his. widow and three children — the -latter necessarily minors. Neither does the petition make any averments that would toll the six month statute; for instance, that she had appropriated the cause of action by a timely suit, but had suffered a nonsuit and commenced a new action within one year, thereby cutting the minors out. [R. S. 1909, sec. 5429; Packard v. Railroad, 181 Mo. 1. c. 426 et seq., and cases cited and commented on; McQuade v. Railroad, 200 Mo. 1. c. 157 et seq. See averments in the petition in the McQuade case as to appropriation of the cause of action in time and a dismissal.]
Demurrers, offered below to plaintiff’s evidence, were overruled and on saved exceptions are now pressed. Moreover, appellants insist here that the petition states no cause of action.
As to those grounds, we are of opinion the judgment stands for reversal on either or both. Because:
(a) There are some aiding general rules pertinent to the questions in hand, viz:
jurisdictional Raised at any Time. (1) In the first place, a petition that states no cause of action at all presents a defect in the nature of a jurisdictional one. The fatality of such defect is due to be raised in any court or at any stage of the case. The following are samples from a long line of cases sustaining one, the other or both of those propositions: Childs v. Railroad, 117 Mo. 1. c. 427, and [600]*600cases cited: Lilly v. Menke, 126 Mo. 1. c. 212 et seq., .and cases cited; Hanson v. Neal, 215 Mo. 1. c. 278, and Hudson v. Cahoon, 193 Mo. 1. c. 557 et seq.
statutory Right; .Exclusive. (2) In the second place, when a statute creates .a new right and goes on to prescribe the means of acquiring it, the statutory plan is exclusive and parties are confined to the statutory remedy, “If there would be no general liability for . neglect of the duty imposed, unless by statute, then it (the corporation) could only be held for the statutory liability.” [Per Bliss, J., in Iba v. Railroad, 45 Mo. 1. c. 474.) “It is a general rule of law that where . . . the statute creates a new right and prescribes a remedy, the statutory remedy is exclusive.” [Per Black, J., in City of Clinton v. Henry County, 115 Mo. 1. c. 569.) “Where a right Is created by statute and a remedy for its violation is given by the same statute, that remedy is exclusive unless the statute says otherwise.” [Per Valliant, P. J., in Albers Commission Company v. Spencer, 205 Mo. 1. c. 119.] State ex rel. v. Trust Company, 209 Mo. 1. c. 493; Carlisle v. Railroad, 168 Mo. 1. c. 656; State ex rel. v. Snyder, 139 Mo. 1. c. 554, read likewise.
We are not dealing here with cumulative remedies as where the common law gave one and the statute supplemented that one, or where equity gave one and the statute stepped in and gave another at law, nor with that class of cases where the statute gives a new right and prescribes no remedy at all. Such cases have their own pertinent doctrines, not concerning us at this time.
statutory Must be Pleaded. (b) Attending to the propositions announced in paragraph “a,” they have been consistently and uniformly applied, so far as I am advised, to ruling the precise questions now up for considerafion — questions anything but new. A party suing under the statute referred to must bring himself in his pleading and [601]*601proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons -may sue as the statute permits and they alone can sue. They must sue, too, within the time prescribed by the statute. It must “be conceded that the section reserves to* itself the exclusive power of naming those who could maintain the action and of fixing the time in which each of the enumerated persons could sue.” [Aley v. Railroad, 211 Mo. 1. c. 478; Barker v. Railroad, 91 Mo. 1. c. 94; McNamara v. Slavens, 76 Mo. 329; Coover v. Moore, 31 Mo. 574; Oates v. Railroad, 104 Mo. 1. c. 518; Barron v. Lead and Zinc Co., 172 Mo. 228; Packard v. Railroad, 181 Mo. 421; Hennessy v. Brewing Co., 145 Mo. 1. c.
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LAMM, J.
Plaintiff, widow of Albert Chandler, sued defendant railroad and Plolliday (a locomotive •engineer in its employ) in the Audrain Circuit Court on April 1, 1908, for the alleged negligent death of her husband on June 24, 1907, occasioned whilst operating a train of cars. The venue being changed to the Franklin Circuit Court, on a trial a jury gave her a verdict of $5000 against both defendants. From a judgment on that verdict, they, on apt steps and in ■due time, appealed here.
[598]*598Jurisdiction: constitutional Question. [597]*597I. There is well lodged in the record a constitutional question, to.-wit, whether the act to' amend section 2864, Revised 'Statutes 1899, concerning damages, approved April 13, 1905 (Laws 1905, p. 135 — now Sec. 5425, R. S. 1909 — amended, [598]*598Laws 1911, p. 203) is constitutional. True it is, the constitutional question, to-wit, the statutory plan permitting dis- ,. . , „ -, cretion m a jury to allow damages on a sliding scale from $2000 to $10,000, is now at rest (Young v. Railroad, 227 Mo. 307; Burge v. Railroad, 244 Mo. 76); but as the appeal was taken prior to the decision of the Young case and while the constitutional question was open, that fact vested jurisdiction in this court. Here it remains. So the precedents run. Thus: In Gabbert v. Railroad the constitutionality of a constitutional amendment permitting nine concurring jurors to render a verdict was first settled. [171 Mo. 84.] Appeals were pending here at the time the Gabbert case was decided in which our jurisdiction hinged solely on the question. We retained jurisdiction of them. Lee v. Jones, 181 Mo. 1. c. 297, is a sample. Following precedents, we retain jurisdiction of this appeal.
II. Two propositions advanced by appellants are that the petition states no cause of action and that demurrers to the evidence should have been given.
Petition: . No Cause of Action: Suit by Wife Nine Months After Husband’s Death. On the first day of April, 1908, plaintiff sued for the wrongful death of her husband occurring on the 24th day of the prior June, i. e., nine months gone. The statute by virtue of which plaintiff may álone sue provides that the individual or corporation guilty of certain negligent acts resulting in death, as here, shall forfeit and pay as a penalty the sum of not less than $2000 and not exceeding $10,000, which may be sued for and recovered, “first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased [599]*599be the natural born or adopted child or children of the deceased,” etc. The statute goes on to provide third and fourth contingencies in which a father and mother or the survivor of them or an administrator may sue, but they do not concern us.
Though the petition shows that the death of Mr. Chandler occurred nine months before suit brought, yet it is silent on the existence of minor children. However, plaintiff’s proof shows that Mr. Chandler was about thirty years of age and left plaintiff as his. widow and three children — the -latter necessarily minors. Neither does the petition make any averments that would toll the six month statute; for instance, that she had appropriated the cause of action by a timely suit, but had suffered a nonsuit and commenced a new action within one year, thereby cutting the minors out. [R. S. 1909, sec. 5429; Packard v. Railroad, 181 Mo. 1. c. 426 et seq., and cases cited and commented on; McQuade v. Railroad, 200 Mo. 1. c. 157 et seq. See averments in the petition in the McQuade case as to appropriation of the cause of action in time and a dismissal.]
Demurrers, offered below to plaintiff’s evidence, were overruled and on saved exceptions are now pressed. Moreover, appellants insist here that the petition states no cause of action.
As to those grounds, we are of opinion the judgment stands for reversal on either or both. Because:
(a) There are some aiding general rules pertinent to the questions in hand, viz:
jurisdictional Raised at any Time. (1) In the first place, a petition that states no cause of action at all presents a defect in the nature of a jurisdictional one. The fatality of such defect is due to be raised in any court or at any stage of the case. The following are samples from a long line of cases sustaining one, the other or both of those propositions: Childs v. Railroad, 117 Mo. 1. c. 427, and [600]*600cases cited: Lilly v. Menke, 126 Mo. 1. c. 212 et seq., .and cases cited; Hanson v. Neal, 215 Mo. 1. c. 278, and Hudson v. Cahoon, 193 Mo. 1. c. 557 et seq.
statutory Right; .Exclusive. (2) In the second place, when a statute creates .a new right and goes on to prescribe the means of acquiring it, the statutory plan is exclusive and parties are confined to the statutory remedy, “If there would be no general liability for . neglect of the duty imposed, unless by statute, then it (the corporation) could only be held for the statutory liability.” [Per Bliss, J., in Iba v. Railroad, 45 Mo. 1. c. 474.) “It is a general rule of law that where . . . the statute creates a new right and prescribes a remedy, the statutory remedy is exclusive.” [Per Black, J., in City of Clinton v. Henry County, 115 Mo. 1. c. 569.) “Where a right Is created by statute and a remedy for its violation is given by the same statute, that remedy is exclusive unless the statute says otherwise.” [Per Valliant, P. J., in Albers Commission Company v. Spencer, 205 Mo. 1. c. 119.] State ex rel. v. Trust Company, 209 Mo. 1. c. 493; Carlisle v. Railroad, 168 Mo. 1. c. 656; State ex rel. v. Snyder, 139 Mo. 1. c. 554, read likewise.
We are not dealing here with cumulative remedies as where the common law gave one and the statute supplemented that one, or where equity gave one and the statute stepped in and gave another at law, nor with that class of cases where the statute gives a new right and prescribes no remedy at all. Such cases have their own pertinent doctrines, not concerning us at this time.
statutory Must be Pleaded. (b) Attending to the propositions announced in paragraph “a,” they have been consistently and uniformly applied, so far as I am advised, to ruling the precise questions now up for considerafion — questions anything but new. A party suing under the statute referred to must bring himself in his pleading and [601]*601proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons -may sue as the statute permits and they alone can sue. They must sue, too, within the time prescribed by the statute. It must “be conceded that the section reserves to* itself the exclusive power of naming those who could maintain the action and of fixing the time in which each of the enumerated persons could sue.” [Aley v. Railroad, 211 Mo. 1. c. 478; Barker v. Railroad, 91 Mo. 1. c. 94; McNamara v. Slavens, 76 Mo. 329; Coover v. Moore, 31 Mo. 574; Oates v. Railroad, 104 Mo. 1. c. 518; Barron v. Lead and Zinc Co., 172 Mo. 228; Packard v. Railroad, 181 Mo. 421; Hennessy v. Brewing Co., 145 Mo. 1. c. 113; Clark v. Railroad, 219 Mo. 1. c. 538 et seq.; McIntosh v. Railroad, 103 Mo. 131; Mathieson v. Railroad, 219 Mo. 1. c. 548 et seq.; Marshall v. Mines Co., 129 Mo. App. 649.]
In the Barker case, supra, the acceptable doctrine was put in this way: “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.” The reasoning and pronouncements of the whole body of eases cited are aptly epitomized in the above excerpt from the Barker case.
It may be said, then, as the sum of the matter that outside of that statute plaintiff had no right to sue, therefore she must bring herself inside the statute in order to sue. This she has not done and for that reason the judgment must, at least, be reversed. Whether the cause shall be remanded presents a question we will next examine.
[602]*602Petition: Amendment in Appellate Court. III. Recognizing that the situation is ticklish, learned counsel tender an amendment in this court to the effect that the widow appropriated the cause of action within six months of her husband’s death and that thereafter having suffered a nonsuit she instituted a new suit within the year prescribed by section 5129, Revised Statutes 1909. They point to a statute permitting amendments in “the court into which such judgment shall be removed by writ of error or by appeal.” [R. S. 1909, sec. 2120.] They argue, also, that the section preceding the one just referred to is in point; that neither party has been prejudiced; that the merits of the action have not been materially affected. But we are unable to agree with counsel. If a material allegation is absent from the petition, as here, and the proof thereon is absent, as here, it would be a startling innovation for us to allow an amendment and to proceed to judgment, in the absence of proof sent here in the ancient way, to-wit, in an abstract of the record. I think no precedent can be found for that course and the absence of precedent is due, doubtless, to the lack of meritorious substance in such a dangerous novelty.
It is further argued that if the judgment is reversed it should be reversed only on the one point, and not generally, and that the cause should be sent down for a rebearing on an amended petition'on that sole issue. In equity where the issues rest with the chancellor, and a jury fills no office of substance, that course is sensible where occasion demands. It is within precedent. We cite one case out of many. [Leeper v. Taylor, 111 Mo. 1. c. 326.] But in a case at law triable to a jury, to send the case below on one question of fact to be tried out before another jury, leaving other issues of fact foreclosed by a former verdict, is contrary to our statutory scheme for jury trials. It would result in awkward situations and complications not [603]*603conducive to the orderly administration of justice. If learned counsel are of a mind that such course would be a reform in jurisprudence, they must appeal to legislative power for the remedy.
But on the suggestions of learned counsel, made •obviously in good faith, brought to our attention in briefs and in a so-called supplemental abstract (which, by the by, is not an abstract of the record at all but a compendium of matter dehors the record in this case), we are not willing to reverse the judgment without remanding the cause. "We have a discretion in that particular and a wise exercise of it runs with remanding this cause for the amendment of the petition (if counsel so elect) and a' new trial. That we are within the beaten way, and therefore the safe way, in taking that course there can be no doubt. Witness: Bowen v. Railroad, 95 Mo. 268; Tickell v. Railroad, 90 Mo. 296; Sampson v. Mitchell, 125 Mo. 1. c. 232-3; Haseltine v. Smith, 154 Mo. 404. So, the reasoning of the per curiam in the Finnegan case (244 Mo. 1. c. 662 et seq.) Is in line with the above conclusion.
TV. Many questions are raised on this record which may disappear from a new trial or assume another form, hence, as the case has broken, we shall say nothing about them at this time. But the record and briefs are in such form as to deserve two general observations serving a useful office on a new trial. Thus:
Lia9b!i9ityCof Engineer. (a) Defendant Holliday is not liable on the record now before us, hence, if on another trial there is no new evidence tending to fasten liability on him, a demurrer on his part should be sustained. -^-e was a11 employee of his corporate co-defendant, the engineer of a switch engine making up a train in the yards at Francis, Missouri, in the darkness of night. Decedent was a brakeman, an employee of a different rail[604]*604road corporation, the C. B. & Q. Holliday was under the immediate supervision of. a switch foreman, obeying his and other switchmen’s orders and not otherwise. The accident happened in “kicking” or pushing-down some loaded freight cars in those yards to make up a train for St. Louis. Holliday was many car-lengths from where decedent was killed, while, it is supposed, he was coupling the air hose next to the caboose of the train being made up. Holliday moved his engine backward, forward, stopped the same and controlled its speed solely by lantern signals given by the foreman and switchmen on the ground or cars. There is no testimony he knew anything of the presence of decedent or his exposed situation at the time. There is no testimony he did not in all things obey the signals given him by those commanding his movements. Contra, the testimony all indicates that he did. We perceive, at this time, no liability on his part.
Master and servant. (b) The relation between decedent and the corporate defendant was not that of master and servant, as inadvertently argued by counsel. It seems defendant railroad company was making up the train in a railroad yard used jointly with ^g for which latter, as said, decedent was working — the intention being that when the train was so made up the C. B. & Q. would hitch on its own engine and pull it over its own line to St. Louis. Decedent was no trespasser but an invitee at least, and defendant railroad company owed him the duty of exercising ordinary care towards him subject, to his own duty to use prdinary care for his own safety. Within the lines of those simple correlative duties must liability be worked out, if at all. On this record we withhold our judgment on the merits until, if ever, the case comes here fully developed on a sufficient petition. [Higgins v. Higgins, 243 Mo. 1. c. 173-4; Groves v. Terry, 219 Mo. 1. c. 599.]
[605]*605Let the judgment be reversed and the cause remanded for further proceedings conformable to this opinion. It is so ordered.
Woodson, P. J., and Bond, J., concur; Graves, J., concurs in separate opinion filed.
SEPARATE OPINION.