Missouri, K. & T. Ry. Co. v. Wulf

192 F. 919, 113 C.C.A. 665, 1911 U.S. App. LEXIS 4905

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 11, 1911
• Docket: No. 2,207
• Status: Published

Opinion

PER CURIAM.

[1] Under the Kansas law, as well as under the federal employer’s liability act, Mrs. Sallie C. Wulf was the sole beneficiary, and entitled to all damages resulting from the negligent killing of her son, Fred S. Wulf. Therefore, in the absence of objections made in limine, it was immaterial whether the suit to recover the said damages was prosecuted by Sallie C. Wulf individually, or by Sallie C. Wulf as administratrix of the estate of Ered S. Wulf, or in both capacities.

[2] The cause of action originally sued on was to recover damages fox the negligent killing of Fred S. Wulf, and this cause of action was not subsequently' abandoned or changed by any amendment in the pleadings, nor by the permission of the trial court that the said Sallie C. Wulf might prosecute the suit individually and as administratrix of Fred S. Wulf; and as the suit was brought within two years from the death of said Fred S. Wulf, the statutory bar under the Kansas law or under the federal employer’s liability act was not well pleaded.

On the whole case, we find no prejudicial error warranting a reversal. The judgment of the Circuit Court is affirmed.