Mueller v. Winston Bros. Co.

— The first question presented fop our determination is whether the amended complaint states a cause of action ex contractu or ex delicto. The appellants contend that the action is one to recover damages for the breach of an oral contract, and consequently the statute (Rem. Comp. Stat., § 183), which confers a right of action for wrongful death, does not apply. On the other hand, the respondent maintains, and the trial court so held, that the action is one sounding in tort. The cause was tried on that theory, and the respondent was awarded damages for the wrongful death of her husband, Albert…