Coover v. Moore & Walker

31 Mo. 574

• Court: Supreme Court of Missouri
• Decided: March 15, 1862
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

This was an action brought under the “ Act for the better security of life, property and character.” (R. C., p. 647.) The defendants were owners of a stage coach, and the husband of plaintiff, being a passenger in the coach, was killed through the negligence of the driver. The plaintiff brought this suit more than six months after the death of her husband, who left minor children. At the trial, in the St. Louis circuit court, instructions prayed by the defendants, that the lapse of time (six months) was a bar to the plaintiff’s action, were refused. The second section o£ the act provides that a suit may be maintained — 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. The sixth section provides that every action instituted by virtue of the preceding sections of the act shall be commenced within one year after the cause of action shall accrue.

From the fact that under this act only certain persons, presumed to be interested in the life of the deceased, may institute an action under it, and that there are large classes of persons whose lives are in no manner protected by the provisions of the act, it appears that the sum which may be recovered is not intended as a penalty, but as compensatory damages liquidated by the statute. There being thus no general right of recovery open to all persons representing the estate of the deceased or interested in his life, only such persons can recover in such time and in such manner as is set forth in the statute.

The general limitation of time is “ one year after the cause of action shall accrue.” The cause of action of minor children accrues, in case there be a husband or wife, six months after the death ; in other cases it accrues at the death. The right of a wife accrues at the death of the husband, and generally she has one year within which to bring suit; if there be, however, minor children, their right of action accrues six months after the death, if the wife have then failed to sue; and the question is, has the wife then a right to sue concurrent with that of the minors ? We think not; for only the one sum can be recovered, and, therefore, only one suit prosecuted ; and the minors having undoubtedly the right, no such right can remain to the wife.

Judgment reversed.

Judges Bay and Dryden concur.