Opinion
November 18, 1935.
1. JURISDICTION: Heirs. In an action for wrongful death, where the petition by administratrix alleged that deceased at the time of her death was unmarried, not a minor, and left no widower, or minor child either natural born or adopted, and did not allege that she left surviving heirs capable of inheriting, it failed to state a cause of action.
An attack on a petition after verdict is not available unless the petition wholly fails to state a cause of action.
2. APPEAL AND ERROR: Pleading. Where a petition in an action for a wrongful death failed to state that the deceased left surviving heirs capable of inheriting and no demurrer was filed to the petition, and plaintiff's evidence tending to show there was an heir capable of inheriting was admitted over the objection of defendant, on reversal of a judgment for plaintiff, the cause should be remanded with leave to plaintiff to amend her petition.
Appeal from Circuit Court of the City of St. Louis. — Hon. James F. Green, Judge.
REVERSED AND REMANDED.
T.E. Francis, B.G. Carpenter and W.B. Dearing for appellant.
(1) The court erred in submitting the case to the jury and in rendering judgment against the defendant for the reason that the petition failed to state a cause of action, in that it contains no averment that the decedent left heirs capable of inheriting under the laws of descent and distribution. Sec. 3262, R.S. 1929; Lyons v. Ry. Co., 190 S.W. 859; Kirk v. Ry. Co., 265 Mo. 344; Johnson v. Dixie Mining Development Co., 187 S.W. 1. (2) The fatal defect which exists in the petition was not cured by the introduction of any competent evidence. The trial court erred in permitting the plaintiff to testify, over the defendant's objection, that she was a sister of the decedent. The petition does not charge that the decedent left an heir capable of taking, under the laws of descent and distribution. Testimony tending to establish that a sister survived was incompetent and immaterial under the issues raised by the pleadings. McIntosh v. Ry. Co., 103 Mo. 134. (3) The trial court erred in giving and reading to the jury Instruction 1, offered by the plaintiff, because the instruction did not require a finding that the decedent left heirs surviving who were capable of taking under the laws of descent and distribution. Lyons v. Ry. Co., 190 S.W. 859; Kirk v. Ry. Co., 265 Mo. 344; Johnson v. Dixie Mining Development Co., 187 S.W. 1.
Patrick A. Lavin and William Kohn for respondent.
(1) It is a presumption of law that a decedent left heirs. There is no presumption that a decedent left no heirs. The presumption is that every deceased person leaves heirs or next of kin capable of inheriting. Therefore, in the case at bar, Anna Morris, the deceased, absent evidence to the contrary, will be presumed to have left heirs capable of taking under the laws of descent. 18 C.J. 873, sec. 127; 9 R.C.L. 18, sec. 10; 1 Jones' Commentaries on Evidence (2 Ed.), p. 431, sec. 263; In re Garthwaite's Estate, 21 P.2d 467; Columbus, etc., Ry. Co. v. Bradford, 86 Ala. 574; 3 Woerner's American Law of Administration (3 Ed.), p. 1916, sec. 562. (a) It is unnecessary to plead or prove what the law presumes. Our statute specifically provides that presumptions of law need not be pleaded. Hence, it was not necessary to allege or prove that Anna Morris left heirs capable of taking under the laws of descent. Sec. 803, R.S. 1929; 21 R.C.L. 445, sec. 8; Baird v. Citizens Ry. Co., 146 Mo. 280; Czezewzka v. Ry. Co., 121 Mo. 212; Bellamy v. Whitsell, 123 Mo. App. 617. (b) Under our statute of descent and distribution (Sec. 306, R.S. 1929), the term "heirs" is so comprehensive that it is nearly impossible for anyone to die without being survived by collateral kindred, who would be his heirs at law. (2) The case was tried upon the theory that the deceased left surviving next of kin capable of inheriting under the laws of descent. The uncontradicted evidence shows that a sister survived her. Defendant's counsel, on cross-examination, referred to the "family" of deceased and "members of her family" and at the trial assumed that such existed. Neither before nor during the trial did the defendant question, nor does it now question, the fact that deceased was survived by next of kin. Under these circumstances the petition should be considered as amended to conform to the evidence. Tebeau v. Ridge, 261 Mo. 559; Sawyer v. Wabash, 156 Mo. 476; Treece State Bank v. Wade, 283 S.W. 714, State Highway Comm v. Cooper's Const. Co., 286 S.W. 736; Ford v. Ry. Co., 318 Mo. 733. (a) The term "family" (which survived the decedent, as defendant, by its conduct at the trial, admitted) means those who descend from a common progenitor. It means the genealogical stock from which a man and those related to him by blood have sprung. It includes such relatives as are descendants of a common ancestor. It has been judicially construed as meaning heir apparent, relatives, next of kin, and as equivalent to "heirs." Albright v. Albright, 116 Ohio St. 668, 157 N.E. 764; Marsh v. Supreme Council, 149 Mass. 512, 21 N.E. 1072; Williams v. Williams, 1 Sim. (N.S.) 371; Taylor v. Watson, 35 Md. 527; Brown v. Anderson, 88 Ky. 577, 11 S.W. 607; In re McCrum's Estate, 97 Cal.App. 576, 275 P. 972. (b) After verdict the petition will be given the benefit of every favorable construction in support of the verdict. The petition alleges that "by reason of said careless and negligent acts and conduct on the part of the defendant, . . . which caused and resulted in the death of Anna Morris, a cause of action for $10,000 has accrued to plaintiff and against defendant as a penalty for such wrongful death." While the allegation is a legal conclusion, the defect cannot be reached by an attack after verdict, and is sufficient to imply that the deceased left heirs. If such fact is an integral part of plaintiff's cause of action, it can be implied from the foregoing allegation, for otherwise "a cause of action for $10,000 as a penalty" would not have accrued to plaintiff as administratrix. Clark v. Crandall, 319 Mo. 94; Kern v. Ry. Co., 214 Mo. App. 239; State ex inf. Major v. Arkansas Lumber Co., 260 Mo. 282; Tebeau v. Ridge, 261 Mo. 560; Baird v. Ry. Co., 146 Mo. 280; Winn v. Railroad Co., 245 Mo. 412; Machinery Co. v. Bottling Co., 273 Mo. 149. (c) Given a liberal construction, and considering substance rather than form, we submit that the fact that deceased left heirs is inferable from the express allegations in the petition. Czezewzka v. Ry. Co., 121 Mo. 212; Baird v. Ry. Co., 141 Mo. 280; Secs. 801, 821, R.S. 1929; Sec. 1099, R.S. 1929, subdivisions 5, 8, 9; Weber v. Railroad Co., 20 S.W.2d 603. (4) It is not necessary to require the jury to find a conceded fact, an uncontroverted fact, or a fact presumed by law. Since a decedent is presumed to have left heirs, and defendant did not question that fact, but, by its counsel's questions on cross-examination, indicated that it conceded that the deceased was survived by a family, it was not necessary to include such a finding in the instructions to the jury. Czezewzka v. Ry. Co., 121 Mo. 212; Baird v. Ry. Co., 146 Mo. 280; Miller v. Collins, 328 Mo. 323; Hill v. St. L. Pub. Serv. Co., 64 S.W.2d 637; Keyes v. Railroad Co., 326 Mo. 266; Bowers v. Collins, 328 Mo. 779; Davidson v. Transit Co., 211 Mo. 357.
This is an action by plaintiff as administratrix of the estate of Anna Morris, deceased, to recover for the alleged wrongful death of decedent, whose death resulted from being run over by one of defendant's street cars. The action is under the penalty section of what is sometimes called the death statute. [Sec. 3262, R.S. 1929, Mo. Stat. Ann., sec. 3262, p. 3353.] The jury returned a verdict for the full penalty of $10,000. Motion for a new trial was overruled and defendant appealed.
Deceased was on the forward car of a two-car train. The rear car was called a trailer. Deceased was a passenger and was alighting at the rear of the car. Before she had completely alighted the cars were started forward and she was thrown in such manner that the trailer ran over her. Three separate assignments are made, but all go to the point that the petition wholly fails to state a cause of action. The petition, among other things, alleges that deceased, at the time of her death, "was single and unmarried and was not a minor, and left no widower, minor child or children, either natural born or adopted," but did not allege that she left, surviving, heirs capable of inheriting under the laws of descent and distribution. [2] The petition at the trial was not attacked, and defendant answered by a general denial. Because of the absent allegation, defendant contends that the petition wholly fails to state a cause of action. It was shown at the trial, over objection and exception, however, that plaintiff administratrix, was a sister of deceased. Since this evidence went in over objection and exception, the rule that the petition will be considered as amended to conform to the evidence when no objection is made, cannot be invoked. But if the evidence that plaintiff administratrix was a sister of deceased had gone in without objection, still the rule referred to could not be invoked in the present case. That deceased left, surviving, heirs capable of inheriting under the statute of descent and distribution was an essential fact necessary to be found in order for plaintiff to recover, and plaintiff's instructions authorized a verdict without a finding as to that fact. [Titus v. Delano (Mo.), 210 S.W. 44.] An attack on a petition after verdict is unavailable unless the petition wholly fails to state a cause of action. [Sec. 774, R.S. 1929, Mo. Stat. Ann., sec. 774, p. 1010; Brock v. Mobile O. Railroad Co., 330 Mo. 918, 51 S.W.2d 100; Colvin v. Gideon N.I. Railroad Co. (Mo. App.), 200 S.W. 715.] The question, therefore, is: Does the petition wholly fail to state a cause of action, because of the absent allegation above mentioned? The answer is that it so fails. It was so held in Kirk v. Wabash Ry. Co., 265 Mo. 341, 177 S.W. 592; Johnson v. Dixie Mining Development Co. (Mo.), 187 S.W. 1; Troll, Admr., v. Laclede Gas Light Company, 182 Mo. App. 600, 169 S.W. 337; Garbee, Admr., v. St. Louis-S.F. Ry. Co., 220 Mo. App. 1245, 290 S.W. 655; Colvin v. Gideon N.I. Railroad Co., supra.
In Colvin v. Gideon N.I. Railroad Company, and Titus v. Delano, supra, where the question we now have was ruled, the judgment was not reversed outright, but reversed and the cause remanded, and it is stated in the Colvin case that "the petition may yet be amended," following O'Toole v. Lowenstein, 177 Mo. App. 662, l.c. 665, 160 S.W. 1016. The O'Toole case was in trover as for conversion and the petition failed to allege that the plaintiff was in possession or entitled to possession of the property at the time of the alleged conversion. No demurrer was filed, and it was contended that the defect in the petition was waived where not attacked until after verdict. It was pointed out by NORTONI, J., who wrote the opinion in that case that what is now Section 774, Revised Statutes 1929 (Mo. Stat. Ann., sec. 774, p. 1010), "pointedly provides the objection that the petition does not state facts sufficient to constitute a cause of action shall not be regarded as waived by the omission to demur thereto." The judgment was reversed and the cause remanded with leave to amend the petition. In the Titus case the judgment was reversed and the cause remanded, but nothing was said about amending petition. However, the right to amend must have been implied, because if not, the remanding would have been useless.
It is our conclusion in the present case that the judgment should be reversed and the cause remanded with leave to plaintiff to amend if desired, and it is so ordered. Ferguson and Hyde, CC., concur.
The foregoing opinion by BARDLEY, C., is adopted as the opinion of the court. All the judges concur.