Cummins v. Kansas City Public Service Co.

City Wesley v. Kansas al., Appellants, Next Friend et Cummins, Brown. Claud Brown Charles Company, Public Service (2d) 920. Banc, December 1933. Court en Langsdale Roy for appellants. Rucker Clif L. Carr, Charles T. Prewitt M. and E. Ball E-. City Kansas public. Company. Service

Sy- Crouch <& D. Brown and and John Charles L. Crouch Wendorff Claud E. Brown.

HYDE, damage C. This is an action for death. Plaintiffs are C. Cummins, the three minor children Archie who belonging City was killed when street car Kansas defendant Company Public Service with a" bus. The deceased was collided passenger bus, on Brown, which was owned defendants co- carriage partners, operating, in the business of automobile busses of passengers for hire under name of Brown Bus Com- Brothers pany. alleged Plaintiffs’ petition amended was that.their father September 3, 1928; on deceased, killed that at that wife of time plaintiffs,, did, living upon September mother was death; a suit for for his but that she died on commence August 1, 1929, while suit was. but her said before the same pending therein; any had been reached order of for trial kind made thereafter, being suggested upon, ,by and that her death, the. defend- upon request, ants and their her suit was dismissed. This was August 31, 1929, after commenced the death-of plaintiffs’ Separate father. filed demurrers were .defendants ground upon the petition did not state facts sufficient to ground constitute cause of the further what- a. ever of action cause have out of the accrued said .death appropriated by by filing was widow suit as stated Cummins ground plaintiffs’ merely which first petition, a restatement of the ivas giving why plaintiffs but reasons state a cause of. action. did not sustained, plaintiffs These demurrers were plead further, refused to judgment judgment was entered for From this defendants. plaintiffs appealed. question presented upon appeal

The sole is whether the minor under,.our any right children of the..deceased father, mother, statutes to sue for the death of when their their deceased, living wife of of his at death and had time brought death,, within six months after his had died but before expiration one-year period, permitted were to sue in case she had not done so. wrongful statutes, 3262, We have death Stat Section two Revised railway, stage statute, 1929,

utes steamboat and coach and Sec general statute, covering tion death Revised Statutes by wrongful negligence act; Casey or default. v. St. Louis [See Mosman, Transit S. W. State rel. ex Iba sue, 474, 133 S. W. beneficiaries of- n governed case, either former sec by following is portion tion, “may provides wrongful death be sued1 that (cid:127) (cid:127) recovered,” for and as.follows: deceased; or, second, “First, the husband or there if wife of six wife, be no or months husband or he or she sue within fails such the deceased then minor child or after whether such minor the natural child- or children of the deceased be- , deceased; or, third, born or . . adopted child or children of the a, unmarried, deceased be minor and whether such deceased if unmarried minor be a natural child, . adopted or then born join may suit, shall mother, who and each father equal judgment; dead, have an interest them be if either-.of or, survivorj fourth, husband, wife, then if there be no children, adopted child or minor born or natural as hereinbefore indicated, if there the deceased be an unmarried minor' and be no mother, father then in such case suit be instituted and- re- covery or executor of the deceased the administrator according amount recovered shall be distributed to the laws original of 1855 in descent.” Act [Words italics.] required by every is Section Revised Statutes that wrongful “shall be commenced within one after action for death Saving provide accrue.” clauses that ab- of action shall cause running State the- of this of the defendant tolls sence limitation, time, action commenced in and also that an period of taken, a new action be commenced within one a nonsuit when year thereafter. question Missouri to be decided-here and

No case settled our death historical basis of stat in its consideration the. enlightening. personalis per moritur cum The maxim “actio utes law, common that it principle an established was such sona” injuries personal did not survive an action was well settled died with the in representative but personal to the however, person that a entitled thought, It was jured person. wife, parent husband case of (as another

services servant) recover for the could or master child theory loss of services. The common-law on person of such (1808), Campb. Baker v. Bolton contrary in settled rule death), Lord Ellen- Where for the wife’s (a husband’s being court, death of a human “in a civil borough held injury.” recovery He did allow of as an complained could injury the time of the period during the between of services for loss thereafter, before American even courts Some death. time tlie .passage wrongful by of recovery a father acts, death allowed for loss of.services for the James death of a minor son. [See Christy, Mo. 162; Yonge, Am. Shields Ga. Dec. Sullivan v. Union Pacific 3 Dill. Fed. Cas. No. 13599.] first, real person recover for death of .to .(not...on theory services) Camp by loss of Lord was created Act, bell’s 10 Vict., by English Parlia Chap. enacted St. ment in principal 1846. provisions were, Its as follows: ‘‘I.- person by That whensoever the death of shall be caused neglect, act, default, act, neglect, and the default ensued) such in- (if party as would death had not have entitled the jured damages thereof, to maintain an action respect and recover every and person case been liable such who would have then damages, not- not ensued shall liable to an action for death be withstanding although person injured, death of the the death law shall caused under circumstances as amount in such have'been felony. ‘‘II. every be shall be And enacted that such action for the it wife, husband, parent, benefit child person whose brought caused, death shall have been so and.shall .be name, person deceased; of the-executor or administrator of the every jury may give such action the such as resulting think proportioned injury from such death to the respectively parties for whom and for whose benefit such action shall brought; recovered, deducting after amount the costs so amongst not defendant, recovered from the shall be- be divided parties fore-mentioned in such jury shares as the their verdict (An shall find direct. amendment 1864 allowed a direct action brought, none had been when within six beneficiaries months - administrator). death, by after the an always, enacted, “III. Provided and be it -that not more than one in respect subject lie for and of .the same matter of com- shall every.such plaint; and that action shall be commenced within twelve ’’ calendar months after person. deceased the. interesting note that act was entitled: “An Act ’’ compensating for Families by Accidents; of Persons Killed provided joint it for an action only for benefit of certain members required family; jury and that to divide the amount these, according them into shares for allowed beneficiaries to their loss of each. It was therefore estimate intended to the. much broader, (rejected) scope in its than the old theory either of right to, recover of services loss the mere survival of the injuries. Although action for provided deceased’s cause creating an action an administrator, was construed the act a new ac cause of action and survival providing not as for a injured repre tion the party might had, the administrator have senting the estate the statu acting deceased but as1trustee tory 599, beneficiary. Q. D. [Leggott 1 B. Ry. Co., v. Great Northern Q. 45 Y. Ry. L. J. 557, S.) B. 35 L. L. & (N. 334; T. Bradshaw v. Co., 10 C. 189, P. 44 It was held (N. S.) J. C. 31 L. 148, T. L. 847.] be an quality, action “new in new in its species, its new its principle, in every way new, brought if there which can any person answering description widow, parent, of the child, who, pecuniary circumstances, under loss.” suffers also, Blake Cruz, see, The Vera App. 10 Cas. [Seward Q. Q. Co., 10 118 93, 233, 562, Midland B. 21 L. B. 16 Jur. Re J. print American generally accepted This is the most view under 35.] statutes, which were all our states within' a few enacted almost years it, adoption English patterned after the after of the act and although in a few provide states statutes instead for survival secs; 37-39; 8 1184-1188, cause of J. action of the deceased. C. [17 C. 724-727, Wrongful Act, R. L. 20-22; Tiffany, Death 'sec. secs. Employers’ Liability provides The Federal a new Act' both for 23.] cause of death for the loss to the beneficiaries occasioned (Title injured 45 51), person’s U. S. C. A. and for' survival of the own action, cause of so that administrator can recover for his conscious A; pain suffering. now, 45, U. C. Missouri has S. [Title 59.] leaning definitely way pointed out, after the other as hereinafter gives the view “a new and cause of that our -different taken beneficiary; “very action” . purpose to the because its and that law, was give a cause of action where at common none existed deceased, belonging did revive a not cause of action theretofore to the gave parties bearing'relatiou but it a new cause of action to named 314 Daues, 13,Mo. ship to the deceased.” rel. Thomas v. ex [State ] . R. S. 45 A. L. 1466 Vol. I, R. passed Our first were in 1855V acts [See (now original act' 1855, p. chap. Sections S. 51.] 1929), adopted principal R. Secs. several S. ,the English very closely wording, its act and followed features of which cause of action arises-and as to the as to the acts from $5,000-was damages, except that a maximum limit of set measure of mitigating au aggravating and circumstances and consideration of 1929) one-year R. (Sec. made the same Section thorized. brought. practically must be There has been when suit limitation as to saving except clauses change in these three sections that the ‘above 137) (see 190'5, p. Laws and absence in case nonsuits referred to 463) (see 1909, p. were added to the Laws limitation from the State section, maximum amount of which could and that How- p. recovered $10,000. was increased Laws [See. - ev.er, ap original .act, -second the. statute .section of the plicable case, a feature present added facts Stated the- $5,000, where English Namely, found in the penalty act: a fixed n ' any person'was by -negligence railroad operation killed train, conveyance, steamboat, stage public coach or other insufficiency in passenger any killed while reason of defect conveyance. public railroad, steamboat, stage coach or other conveyances were included public Street cars and'automobiles used as stage- 1905, p. While the Amendment of 1905. Laws 135] [See ' yet been protected, transport has not Coach travel is still air thus apply where specifically also made the act included. amendment This coemployee. of a employee’s negligence an death resulted from' the 203) negligent (see Laws 1911, A em made the later'amendment p. designation of the ployee prescribed. The penalty also liable'for the section beneficiaries who were entitled 'to sue either under section, provisions have been or the other were it. These stated hereinabove set out. changed under

The 1905 the-amount to be recovered Amendment of $5,000' cases, jury that, in all the p'enalty this section so instead of a of fix given discretionary powers penalty at less than the were - $2,000 exceeding $10,000. Concerning that amendment this and not 286 Joseph Ry. Co., St. Mo. court, Clay County v. K. C. & in Grier 454, 523, l. 538, W. said: c. S. amendment, who as construed before the those

“Under the statute required penalty. The sue were to sue for the exact were entitled to case, less, every and no recoverable in precise penalty, no more was unskillfulness, caused mere regardless whether was of regardless negligence, intent, person of whether the criminal and vagabond, family; con- a curse to his was man who was ‘a killed a children,’ he earnings or whether was suming the of wife by-his industry “earning spending thousands to them comfort ’ out‘$5,000’and striking sub- By . . for their liberally benefit. exceeding $2,000, and not stituting in lieu thereof' ‘not than less ’ jury, the lawmakers intended that $10,000, in discretion the take consideration both jury fixing forfeiture should into wrongful act, with at- Constituting negligence or the facts circumstances, mitigating aggravating and those show- tending, But, making the inflicted. ing pecuniary loss extent of the sum, Legislature was careful instead of a fixed forfeiture variable change in its character was intended. point out that no recovery should that the entire lawmakers intended had theretofore respect that it in the same -continue to be been.” beneficiaries was added 1905, class of

By Amendment a new of (designated alternative) by provision under the fourth that suit brought by could be an for the benefit of next of administrator kin, husband, “if there be.no wife or minor children.”. The other, original affecting amendment in the act the beneficiaries was including 1885, adopted p. Laws children. [See 153.] features, of new distinguishing original One Missouri .the act English act many require American statutes was that the permitted restricting.the ment be minors and sue parents sue to the was death of minor children. Another directly, persons vested action was entitled to the preferential rights spouse amount recovered with providing than for a all sus them, rather for the benefit too, taining loss, by Then, the administrator of deceased. persons statutes, while to sue same under both our entitled are the recovery upon, entirely prin the amount their different is base'd ciples. 1929, primarily 3264, provides Section Revised Statutes jury damages pecuniary “may loss such as deem fair resulting just, injury necessary from such with reference to ’’ - surviving parties who may to the- be entitled to sue. [For measure (2d) 109, 63 W. damages eases, Steger v. Meehan, see S. (2d) Nafziger Baking Co., Marlow v. S. Mo. W. 333) depends largely upon In a minor loss the case of phild v. majority. prior what he would received .to his have [McPherson Ry. & 10 W. L., Co., I. M. S. S. Smith St. L.-S. F. 83; Stookey Mederacke, W. St. Under Revised App. 249 S. Section 141.]- but for 1929, however, the Statutes cause of not a, In minors under penalty accruing under the statute. loss in no pecuniary said: “Plaintiff’s section this court . . his award could recovery; While . measure of

sense the com equaled amount that would’ have or exceeded reasonably the just reasonably have loss, it could pensate pecuniary him for his assessing the jury penalty . . . The fixed at a lesser sum. been . . consideration properly . take into against the defendant injury such . But upon plaintiff. injury inflicted pecuniary the be importance to others, and-the fact considered with one to be is but penalty the should determining amount of given as a the it factor jury.” [Treadway v. discretion left to the unfettered (also 282 S. W. 253 W. Railways Mo. Co., 300 United 92, 277 S. Co., 311 see, also, 441); Ward v. Pac. pur principal the many cases that intimated in While is perils from the life preserve was to wrongful death act

pose of our Railroad, Pacific age (see Schultz mechanical our modern killing a human negligently penalty for 13) by a providing statutes, being, penalty nevertheless, compensatory under both dependent upon purpose providing compensation those for purposes persons primary killed acts is at least amount, whether act. fact that the This is evidenced was pay required was wrongdoer penalty damages, or which the compensate given measure, them to, in to the bereaved relatives some fifty years (1855- loss; that for for their the further fact 1905) death of only granted of action relatives a an unmarried minor person, except father and mother of by analogy (no doubt both husband of a married woman- dependent, theory), services were those most loss of person, after an unmarried and minor children. The death of wife reaching surviving parent or of majority, no minor with gave legal of action age, no widower, or children of widow with pointed- it more put To anyone, no matter what the circumstances. negligently killing ly, legal accountability whatever there criminal punishable act under person, unless the was one Statute, R. S. Mining sec. still [See, also, law. our Legislature felt dependents.] Perhaps limited to enumerated, surviving relatives death, which in a loss resulted penalty of a consequence justify assessment was of sufficient social damages. or > question To solve to be decided this case, we must determine rights given the nature of the to the widow and respectively by our statute. peculiar Because statutes, features of our own the decisions of other states will not solve it. The authorities situations, arising similar states, are collated annotations in 13 American Law Reports, 225 and American Law Reports, 760. They widely differ important as to whether the thing is providing for damages, or providing it; the distribution of as to punitive whether such statutes are remedial; as to whether strictly should be liberally construed. said that the ac- tion, created statutes, usually death has the three following distinguishing features:

“(1) That maintained whenever caused wrongful act, neglect, or default, would, such as if death had not en- sued, party have injured entitled action; (2) to maintain an it is for the benefit designated exclusive of certain members of the family deceased; (3) recoverable are ’ ’ such as result to the beneficiaries from the death.

It is also said:

“In matters which distinguishing are not features of the action Campbell’s act, created Lord greatly these statutes differ act, that and from each other. These mainly differences' are in re- (1) particular spect members of the family for whose benefit

683 may brought; (2) may be persons in be whose names it .the brought; (3) the time may brought; (4) be which= manner of distribution; (5) and respect in practice. differ They materially also in provisions concerning (6) their measure damages; fixing some amount, another, some and some at none all, as the limit of recovery; providing and recovery, a few for the also, exemplary punitive or damages, containing peculiar provisions.” Wrongful [Tiffany, Death The Act, secs. 22-24.] principal provisions every of the statutes of state be found there.

It has been said that our strictly death statutes be con mtist strued derogation because are in of the common law. [Jackson L., v. I. Ry. Co., St. M. & S. 422, 460; Rep. Mo. Strott Am. v. L., Ry. man St. I. M. Co., 227, & S. 67; Mo. 109 W. Clark S. 524, C., v. L. & Co., K. St. C. 118 W. S. Troll Light Co., 600, Laclede Gas App. Mo. 169 S. W. The 337.] further reason has pointed railroad, also been out that because our stage steamboat penalty statute, coach is a be must Eng. Enc. strictly Am. Law, construed. Then also it is [8 & ‘‘ penal (cid:127)well said: That part part statutes in in be remedial penalty and that statutes provide party recoverable aggrieved in many eases penal are construed remedial as well as dealing are and hence in with such statutes the courts called ex principles to application to make of two adverse some proper tent; requiring penalty, on that strict construction account requiring prevent liberal mischief construction sought remedy thereby given in favor be deterred and advance the Transit Mo. party aggrieved.” [Casey St. Louis 721, App. by Supreme 235, 419, approvéd 91 S. W. Court case the Grier referred principle 103 S. This was W. 1146.] giv provisions “The 454), 228 W. follows: (286 l. c. con strictly liability ing penalty, creating should is, liberally con remedy relating should strued, while those ’’ strued. part first of Section as does Section merely states the circumstances from which a liability defendant’s will arise, and provides penalty former 3264) (by latter Sec. damages pay. he must In both cases it provided damages might be penalty sued for and parties recovered designated in part the latter which, Section until Amend- dependent upon ment of were those or entitled to the statutory services the deceased. It would seem to rule violate no strictly liability, penalty damage construction to construe the liberally part designating provisions persons construe wrong- defendant, by in case the entitled to the imposing be- provisions liability, violation of ful conduct 684 pay

come damages. liable to such penalty be purpose or Whether the primarily punish to him for violation, compensate such to those actually who thereby, loss pur- sustained a seem either would that pose -by would best requiring guilty person pay served when persons those existed. obligation Should he freed pay a dependents- for his when act and, survived deceased, -by here, suffered a loss his. ,? brought Unquestion- statutory period suit within limitations ably,. regard its for the welfare of- widows and' it-was because-of advantage orphans society provisions pre- and the that be made to becoming charges public charity Legis- vent them from away negligent acts which took liability them imposed lature from .them a husband father. “ We should also remember that ‘strict construction’ is not precise but expression; relative degree varies of strictness according to the character of law under construction.” [Grier C., v. K. C., C., Ry. & St. Co., supra.] J. -“It is not the exact con- verso of liberal construction, for it does not giving consist words meaning susceptible.’-’ [Meyering are narrowest Miller, v. 885, (2d) primary 51 W. S. rule of con 65.] intent, struction of statutes is to ascertain the lawmakers’ from the possible; language put upon Legis words used and to of the -honestly faithfully,-its meaning lature and rational plain promote statute, object, purpose its and “the manifest given historically,” consideration. Grier properly considered [See (2 2 Meyering cases; Ed.), Lewis-Sutherland on Stat. Const. sec. 329 363; Interpretation Statutes, ; Endlich on sec. and Maxwell Ed.) (5 on Statutes 425.] There was much confusion (until Missouri decisions settled the court en banc in State ex Daues, Thomas v. supra) rel. proposition as to whether the cause of action beneficiaries’

awas -new cause of action for injury, their own or whether it was the cause injuries deceased for his own which sur vived to them changed because the statute the common-law rule of personalis persona.” “action moritur cum The latter view was first taken. Joseph Hannibal & Co., 112, St. Railroad 64 [Proctor Mo. however, see, dissenting to effect was true of com opinion that.this section; pensatory see, C., section but of penalty also, Connor v. Co., R. I. & 59 Railroad Mo. would seem P. 98-99,

change by- common-law rule is made Sections Revised wrongful' (see R. 1919, Statutes enacted before thé death statute S. 35) 1929, Revised Statutes p. 48, 1835 secs. and Section 252). 1907, p. effect, As (see Laws to their thereafter enacted acts, Gilkeson v. Missouri see connection with City Longan 121 v. Kansas S. W. Ry. Mo. Co., Pacific App. Mo. Ortgier, 201 Rys. Co., 758; Ryan S. W. 1, 208 S. W. 856.

A recent decision court, of this Betz v. K. C. Southern W. 455, part construed the effect of that adding of 1905 provision Amendment a fourth alternative to the designating the beneficiaries who sue and recover for by death. This a strongly upon case is relied defendants. There crossing husband was were in collision. The :wife wife killed instantly, hours, there lulled the for a-few and. husband survived of the deceased wife were no minor children. The administrator brought given right, .for theory was to sue. her on the that he the recovered by the amount the Amendment of and distribute death being according descent,, there .no kin the laws of her of next sue,-,for begun, suit was to- the children, when this minor husband or reviewing the the court, authorities The after- wife’s death. fourth the alternative statute, held that wrongful death history of our sue for administrator could meant that the amendment added only of descent if laws no entitled under -those the benefit of ad deceased child survived minor husband, wife or did survive. husband case because not sue ministrator could The court said: husband) (the question,

“Under the death he statute right given class fell the first of beneficiaries who are right A sprang of action sue and maintain an action thereunder. statute, immediately him, vested, in under and virtue of the up, or given by thus upon his wife. of action the death of The his dependent solely upon is for his wife’s death to the husband com- commencement, or time of surviving wife, upon not course, be a minor there (unless, him mencement, a suit months after sue within six husband must children, when child or by reason of death sue, whether death). His the wife’s failure personal in the action revest otherwise, not does wife’s ’’ (Note in this action. plaintiff who is representative, —failure minor right of does vest sue spouse'to children.) argument made plaintiff was that “if main-

The he cannot action, go negligent unpunished then defendant must for tain this its object acts, although purpose punish the act is to primary although that, causing by negligence.” court said is Legislature -could correct it. argument true, only concerning class: case, beneficiaries of this said Grier recovery by provided for a the statute originally “As enacted through pecuniary injury only sustained presumptively those who only liability not death, while as amended creates the tortious well where as loss, cases those presumed where there is a but ’’ there ordinarily at loss all. capable no one Since there was liability, there was where no. bene sustaining-an and since loss, actual amendment before the an suffer designated hardly ever could ficiaries the amendent entitled to loss, especially when- dependent actual those Legislature exist, reasonable that the services of the deceased it seems sustaining the actual provide them, did not those intend to bring entitled to loss survived. An administrator not designated do beneficiaries kin if benefit of the next of therefore, are, time, within a definite do so when there are do so hold that he is not unreasonable to loss, actual sur did suffer designated beneficiaries, who none of construction, as to similar The same viving the time'of the death. at Lia Employers’ Federal beneficiaries, put upon been has since Q.& [C., B. States. the United Supreme bility byAct Court Sup. Ct. Co., 275 U. S. Wells-Dickey Trust Railroad Co. given the never court has A. L. This 216, 59 R. 73, 72 L. Ed. construc possible the strictest dependent beneficiaries provision for father his death of child born after the a minor It held that tion. has Ry. Co., 309 Mo. Lead Belt (Bonnarens v. may sue therefor died, father age when child, his if not 1043); and that a S. W. longer a minor. although no [Rutter therefor commence suit Ry. Pac. rel. Mo. also, ex 169; see, State v. Pac. Mo. subrogation employer (2d) 616, 59 W. Haid, Co. v. Compensation Act.] Workmen’s under the case, however, In Betz this court noted the line the of decisions holding that the cause of action of the husband did not his death and noted also that the survive case of State ex rel. Thomas recently decided, Daues, supra, rejected had theory, v.. then the stated reaching result, namely: as one reason for that all of these eases action, death was a transmitted That the action that had, definitely is which the deceased and had a survival the action contrary was a new cause of action. The held to the that it court did upon previous decisions, decision these not decide the effect of that question raised the follows: but as “Quaere, since case .of ex .the. rel. Thomas v. State Daues al., et

supra, was ruled court-, this personal would the representative of Charles Baker have succeeded to Charles right Baker’s of action for death of his wife, personal had such representative brought an action within period of one after Jennie Baker’s question ? That we do not rule in death case .this because does confront us.” point

Defendants to this say plaintiffs that cannot maintain this suit because, anyone if could maintain a suit for the death of plaintiffs’ father, of-plain- representative would personal be the tiffs’ In -question mother. view of and. the importance of this resulting hardship children, dependents,. to minor who are actual right their remaining parent, sue lost when is death'of the they could statutory year, still sue within we will period re-examine light changed ruling authorities of the court of-the en banc in Daues, State ex rel. supra, Thomas' v. the nature of action which they have. M,o. first held in City Hannibal, óf case of G-ibbsv. sue,-the beneficiary the death entitled ^personal died also did not representative survive to the beneficiary designated a man his by the statute. In that case driving through children, bridge,, wife and two a fell across brought, all it and were killed. Suit was administrator wife, theory time, on short to 're she survived' others a This cover for the death of minor children. her husband and two general properly court to -the held that demurrer was sustained beneficiary’s petition and under the' administrator standing personal “no “It in court.” The court said: beneficiary personal representa does not survive to n up court, however-, tives.” The its conclusion part, least based ait Ry. Co., Mo. language Hannibal, Joseph on of Proctor St. no new 112, l. c. -the statute ‘‘creates where the court said’ that transmits, sue, right to of action but simply cause continues-or had, he have party occasioned whose would .had the n action;having thought words, In survived lived.” the court (from injured beneficiary) could-not survive person once administrator). (from beneficiary to his second time 430, 85 S. Later, Company, St. Louis Transit Behen court, case, held that without of. the Gibbs mention designated bene given of action the statute survived cause in of his administrator. ficiary’s revived the name death and could be by-the designated bene already .been commenced case, In that had This ficiary his which was not true Gibbs before in case.. from reviewing English and court, authorities cases there, after ruling, stated, that a for its Jersey, reason York New New and separate and- of action distinct gave new cause a ip. injury his life for his would have had which the' deceased action 493, 205 Mo. where the. defendant Sylvester, v. in Bates time. Then against Ms estate. not survive action-did that the died, held it-was v. St. Louis say that Behen holding took occasion In the court so a holding created the statute wrong Company was Transit contrary an doctrine been and said that cause of new 559; Gray McDonald, 552, v. l. Maxcy, 64 c. Mo. White v. nounced Brewing 398; Hennessy Bavarian S. 16 W. 303, 311, c. 104 l. Mo. '688

Co., 145 Mo. 104, 112, l. 966, S. c. W. L. R. A. and Strode v. St. Co., Louis Transit 616, 626, l. c. W. 851. Ac cording to Daues, State ex rel. r. supra, Thomas the Strode ease does not hold; so but "that “trying there this to’dodge court was and . . . dodging succeeded in very question;” and “that this case has ’’ wrongly been cited both in and out of this State. Other cases which might Q., Ry. be added to the above list are Harrell v. O. & K. C. Co. (Mo.), 186 S. W. and Millar v. St. Co., Louis Transit 99, 115 S. W. 521. The Miller Sylvester, supra, ease followed Bates v. saying "that a néw action statute, created was hot and held that', brought "Where widow had death and re judgment covered granted but died after new defendant, trial was the action ended her with could in her arid not revived ad- iriinistrator.

"Thereafter, Gilkeson Mo. Pac. 121 S. S.) (N. L. R. A. 17 Ann. Cas. the matter was elaborately presented Very fully briefed and and reviewed and conclusion, to, iri case, reached the Gibbs was adhered that the cause beneficiary Of action of the did survive his administrator. In 'father, that case the mother arid two minor children were killed in days railroad "One collision. son survived until about four after administrator, aéeident. his his Suit commenced de joined. ceased brother’s noted administrator court the dis cases, crepancy, proposition Behan Bates between the of action trans whether or not the statute created new cause cases, already approved mitted one court the former existence. The holding one, which that- the action Was a transmitted- survived the de think, beneficiary, gave and, statutory ceased his another we "but decision, saying fundamental error in better reason its that the did, “ignores ease, reaching was that it Behan the result -it rights govern personal the distinction between laWs rights govern property.” those that as follows: The court this further explained bar, “By casé at we would con- applying these "observation's"to the violating respondent’s in- relations of the domestic vict appellant taking is, wrongfully the lives of deceased’s father testate, that legal rights "him" to haVe"his mother, 'thereby deprive of his "him, he for which is entitled for, and educate parents care support cents; but would damages in dollars pecuniary to recover logically contended, say,"'hor Could be clearly a misnomer tó bé wrong was a done his Trilling parents deceased’s rights. . property, property wrongful'killing a Seriously that the Contended “Could rights? not, I injury think her’property to is an husband woman’s care, society support much entitled her to just yet she is as husband as are his minor According laws, children. to all excepting the 'eases before considered, killing the unlawful of a husband or wrong a father is rights done to the personal of the wife and- the child, and not to rights. their property Sylvester, supra; [Bates Hannibal, Gibbs v. supra.] very

“This must be things, so in the nature of for Sections give and 2865 action, the widow and minor children a 'cause of even though the father property any husband and had no or income-of whatever, totally kind earning and was incapable of a dollar his own support, support fact, much care less to them. his for. .In physical might mental and conditions be such as him a to constitute grievous them, most a care and burden instead of to comfort and yet support, under Sections 2864 and would be entitled recovery a true, to If his unlawful death. that is it cannot questioned, given by then their cause of action those sections n Wrong relations, because violation of their domestic personal rights, wrong done their to and not because was done be'injured. interest, to their . property for he had none to respondent into, “The error has fallen have learned counsel Opinions relies-upon support also able his courts whose he confusing case,' pecuniary sus contention consists in loss child, by a minor caused his or her tained done n Ms or mother, property to her with the father While, (mother. the child has property interests act of eases, and is damage in both entitled pecuniary sustained a loss or as the recovery each, yet injury to a is not same rights, injury personal his injury the other —the former is an injury rights; is the measure property nor the latter an " pointed .palpable This Case, out. damages the same in each as before which very courts enter error is the stone those corner base their tain this court different' views from those entertained ’’ argument a cause of action. in favor of such entire survival Co., 222 Mo. l. c. Mo. Pac. Railroad [Gilkeson brbught again Louis-San Francis up was in Freie v. matter St. The 204. case 222 S. A. L. R. This Ry. Co., co It was a case where elaborately presented. briefed was also both killed a rail having children-were and wife no minor husband however, husband, survived his wife crossing. The road at a train This court held brought by administrator. Suit short time. petition because the á demurrer sustained properly trial court Action. court show a cause of sufficient to failed state facts cases, saying: Gilkeson the Gibbs and reviewed Assembly informed, were judiciary'and General bar, “The can opinion an administrator publication of the above- exactly an on facts successfully maintain like: the be Action case fore criticism judicial us. opinion The above the test of has withstood during Legislature although has thirty-five and, years last been in many law has never been during period, session times said changed upon so as to maintain to confer an administrator an action under the circumstances of this ease. personnel having changed

“The in of the court since the decision ease, plaintiff the Gibbs representing the industrious counsel urg Gilkeson, Admr., Ry. Co., conceived the idea of v. ing change principles this court of law ruling respect its declared in the Gibbs case. . following ease,

“With published ruling Gilkeson City Legislature taken, Hannibal, supra, Gibbs of never v. has least, cases, have, apparently action to overturn the above at- acquiesced placed by upon in the construction this court said sec Ry. Co., 283 tions.” v. St. Louis-San Mo. l. c. Francisco [Freie 467.] majority generally This same result in the seems to be reached jurisdictions. tort, for-death, being action an “The generally actions held to fall within the common-law rule that such do not ac party survive the death in whose favor the 78; 43; Tiffany, tion existed.” C. R. C. L. J. sec. sec. [17 by Wrongful (2 87; Ed.), p. 210, Death Ann. Cas. Act see. authority respectable is, however, annotation to Gilkeson There case.] contrary. case, 17 following the Gilkeson Annotation [See might (where Ann. Cas. survival often be One result of such a 774.] children) amount recovered part the deceased had no that no (Where go anyone a husband or would related to the deceased. kin.) wife was the their be their own It has beneficiary heirs would n beneficiary even been held that the interest of a v. assignable. [Quin see, also, 15 N. Fritz Western Moore, Y. v. (Utah), Union Tel. Pac. In view the sound reason Co. ’ ease, against given in Gilkeson of the beneficiaries cause survival action, it and other cases we feel that we should follow long uniformly against survival. have so ruled Plaintiffs not, bringing ac here are this suit because the therefore barred given by their mother tion the statute survived n personal though' representative, her State ex Thomas even rel. given disapprove Daues did one of the reasons in the former cases for reaching that result. will, therefore, proceed examine the authorities which de We ’ say hold, plaintiffs even if

fendants there no survival administrator, bringing by plaintiffs’ to her mother’s action regardless year within the months, within six her death mother maintaining death, prevents them from plaintiffs’ after father’s statutory year although they it within the commenced Moore, period oases, of limitations. Coover One of the earliest 'OSr-1 CO interpreting rights of the beneficiaries named in the statute, held that where there were minor children widow had no right to sue after six months. The court said: general “The limitation of time ‘one is. after cause of action shall accrue.’ The cause of accrues, action of minor children in case there wife, husband or death;. six' months after eases accrues at right the death. The of wife a accrues at the death of the husband, generally year and has she one within suit; bring which to be, if however, children, right there minor their of action aceues six months death, after the if the wife have then sue; failed question to is, and the right has the wife then a to sue concurrent not; with that of the minors? think We the one sum can recovered, and, therefore, only prosecuted; one suit having right, the undoubtedly right minors the no such can remain to the wife.”

In Kennedy Burrier, statement was modified. this argument that, The was made since court held in the Coover case the that the sur- cause of action of the children case the wife minor year vived accrued six months children had a after the the from eighteen in all bring suit, give that time in which them which would court, however, The held other- months after their death. father’s wise, stating rights widow and the minor of the nature the children as follows: Kennedy, death of clearly the

“The cause of action accrued- at The time. fact running and the statute commenced them, consequent at damages, right to sue right the the differ- individuals, make no can times, is vested different different accrued. time cause of action ence as to the the the husband accrues to aetion, and that cause “There is but one of suing, passes her statute, of his or and, in default the or wife under note promissory just right on children; tó sue as the to the minor same cause It is the administrator. passes from the intestate to liability was the defendant’s when time. It accrued all the action Kennedy; and the death of was at the which in case complete, time.” running at that necessarily commenced left the deceased 329, where 76 Slavens, Mo. In McNamara six within commenced widow minor children widow Thereafter, her suit. and later dismissed months saying : right so, do had no court held suit. commenced “ can sue statute, no one by created of action cause It is a joint right not a It is its terms. bring himself within unless he gives The statute children. or wife in the husband aetion to elect within six months wife surviving husband in- by made action, the election cause appropriate six sue within wife If the suit. husband stitution of 692

months, that is given by an exercise statute. He or option any she then has as absolute com- cause of control of the right mon law may have, may compromise, of action he or she releases or controversy with otherwise settle matter the de- By dismissing fendant. her her widow did not lose suit the action, children, nor did operate such dismissal to transfer toit any might but at time within the six an- months she have instituted other suit.

“Nothing foregoing warrants other construc- any sections By mother, tion. the commencement six months father, after of the children to away.” sue was forever taken

In Hannibal, Barker v. Joseph Co., St. Railroad Mo. S. 280,W. that, children, court held there were no minor widow husband, could sue at time within after the her death of petition but the [See, must state state a action. that fact to cause of also, Co., Chandler v. C. & A. S. W. Railroad In Packard Joseph v. Hannibal & Railroad St. 951,W. plaintiffs, employed the father of Rock Island Rail against

road, brought was killed. His widow suit within six months company upon that trial that case recover. There of failed to after, death, plaintiffs year from within the the date of their father’s brought against Joseph Company, the & St. Railroad suit Hannibal negligence. alleging by father had killed reason of its that their been maintain The court said: This court that could not the suit. held having months, brought “Mrs. her suit within the six Packard absolutely and remained in entire of action became hers the cause friend her children. She right in her next her own not as required by made institution of her bad election the statute against brought If in her action suit. she had been nonsuited months, think can be no doubt Island the six we there Rock within she year her death could any after husband’s that at time within Island or against Rock suit a new action have renewed the Having appropriated the option. both at Company Hannibal or her against right was Her of action control it. right, she had absolute Having plenary of her husband. negligence all whose caused the jointly, liberty all as to sue them she was at action control satisfaction, be but one true, is could many she fit. It there saw her liable at elec- negligent parties were all the until satisfaction but single concurrent is and not right of action . . . The tion. then, first, under widow cer- children, but in the widow and both . children. conditions, tain having appropriated the one widow say in this case: we “So given within six of action statute single, cause indivisible cnt off forever months after her her election husband’s ’’ right. plaintiffs, children, availing themselves of 95, where recently, 204, 295 S. W. Bohrer, More Huss v. hus her brought for the death of widow suit within sis months but than six months band but dismissed and a new more refiled was year trial court thereafter, within less than held the this court was wrong sustaining ground a demurrer on the summed not filed within six months after the death. This court up matter as follows: children, may sue

“A wife, husband no minor when there are 86, 14 Railroad, 91 year. at time within a [Barker wife, children, be no husband Likewise the minor if there And, are there where have a which to commence an action. suit, bringing children, both husband or wife minor the time down. concerned, cut so far as the defendant for that reason chil- year. It is still a wife and the But between husband or sue, gives dren, respect with to which shall be entitled or she ‘sue preferential right, that he the former a conditioned ’ fully per- In instant case the wife six months after such death. her after condition; six months formed the she sue within did fully the cause bringing vested husband’s The of the suit death. Regardless children. the minor action her to exclusion of action suit, subsequent disposition her made of forever thereby irrevocably established and that of the cut off.” six widow within that a suit statement these eases makes appropriation the cause of action

months is an rights children is what absolutely and forever cuts off hers In all here. contention defendants to sustain their is relied living, proceed able to cases, however, the widow was still of these therefore, so, do and, had the since she with the is different. The here course, not. The situation the children could could not expired; the widow one-year had not period of limitations she because upon of action anything the cause further to recover do but no one else could enforce dead; right was ended her Should to her administrator. right it did not survive her because bring prescribed within the children, were still able to minor who n doing these cir- so under limitations, prohibited from period of concerning by the appropriation say, 1 What cases these cumstances particular situation to with reference widow, must be considered involved. following however, prin do, establish the These authorities by negligence a man killed to cases where ciples applicable minor children or both: surviving him a widow or leaves another which ac- of action but one cause provides for First: The his passes and then to to his wife man’s death of a at the time crues any for reason. within six months to sue if fails she minor children would, therefore, It with- pass six months to them if she died suing. out right

Second: Whether the have the widow or the children action, enforce this cause action and it remains same cause of passes joint from beneficiary They not have a to another. do passes cause of action nor It from the concurrent causes of action. passes widow to the minor as an intestate’s Burrier, administrator. [Kennedy supra.] children, brings Third: When if there are minor the widow by appropriate within six months is an the cause election her to year action. If there are no minor children she has the whole which to sue. if Likewise there is no the children do not have widow to wait six months to sue.

Fourth: When appropriation, the widow makes such she has ab- may solute long control of the action as settle she lives. She thereby may terminate it. and start another She dismiss it by permitted suit at time the limitation section. children, Fifth: While as between the widow and minor sue, given preferential right former is if within six exercised months, wrong- as "between the widow and minor children and the down, doer the time to sue is not cut whether both widow and may rights children survive or not and whatever be their between themselves, year. but remains a says “may Section penalty that the provides sued by says designated. recovered” those therein Section for that damages “resulting parties who be entitled to sue.” be sued and recovered those designated says in Section 3262. Section 3266 that such suits “shall ’’ be commenced within one after the cause of action shall accrue. is, course, together. Therefore these sections must be construed plain fundamental that language where the aof statute is and admits meaning of but one there no room for construction. Defendants contend that such is the case here and that widow sues it is rights plain that the of the children are all circumstances forever say so, cut off. The statute does not but that statement has been obviously correct; added construction in situations where it was namely, where the widow preferential right had exercised her penalty damages; enforce the action to recover the and was still capable doing so, living, and not barred the Statute of Limita circumstances, was, course, reason, tions. There under such taking rights away her from her. It is obvious that none of these sued, here, specifically cases cover the situation where the widow has damages, but has not recovered the where because of her nothing can anyone ever be recovered her upon her sue, suit or her and where her to recover has not been and never can be even considered. The statute evidentlv con right may templates a suit in which the to recover be decided. undoubtedly recover in some right must to be the existence of the chil- hold that rights. else which cuts off If we children’s rights by- commence- off, to the mere dren’s recover are forever cut on right to recover suit, although only preferential ment of a longer right no party the cause of action to such and the entitled "We exists, than substance. giving would be rather we effect form as between cutting also be limitations period would down the loss wrongdoer an actual widow and children who suffered original wrongful act, forgetting the evident would be and we section) provide purpose act (at least the compensatory wrongfully deprived of action, legally an for those entitled right husband, wife, father support from or services of a child, minor to recover their loss. original the widow and put

We do not think that the now next of kin are separate classes, dependents children in as classes, really separate only provided classes. for two The statute only those situations, but for providing based different both support who suffered a loss services of deceased. were person killed,

First: Where a married is the beneficiaries husband) pref- surviving wife children with a (or and minor single cause wife, them, erential to the between to enforce of action created. killed, the

Second: Where is beneficiaries an unmarried minor equal right parents were the with an as between them. third, for a added, provided

When the fourth alternative was situation, namely, an un- fourth, class of where beneficiaries (all person having pre- classes married mature was killed been included), original part of viously for his next kin. The a suit providing does not as in the the amendment say, the statute case of kin, that chil- for an benefit of the next of the minor action given only They no widow. are dren have the sue there be rights rights though survive, widow but even does their their them in her own cut the widow’s election to exercise off names, in the childrens’ name, rather than to have them exercised remaining parent matter, being their which, practical as a she usually where guardian, be the case the suit and natural would there- brought widow minor children are in their names. The cause class, entitled enforcement of the in the same both fore father, of the husband and of action created rights during as between them- preferential periods, certain but with though it. the cause of selves, as which enforce Even even regardless plaintiff same, which is the death, though loss from the measure both suffer an actual compensation considered, because insofar as is different an for providing reason of their loss is different. One the nature might plaintiff some circumstances as to the that under election most, might (if recover the very young example) larger might while in entitled to recover a others the widow well be English act, they amount. not all be in Under the would making judgment up same class but in the action in the total same ours, Under jury apportion would loss of each. the amount of the can be someone must make the choice and take the chances. There question, however, historically or from the whether it is viewed plain meaning part (providing language, of its that this of the statute beneficiaries) all primarily provide was intended for any by helpless dependents a man killed acts de- surviving, statutes. Where he left a widow this scribed these purpose would, experience in all human a mother’s for her as to care children, surely accomplished received, if almost as in her own she name, as if the amount of the it was received sues, jury If she is allowed to into consideration theirs. take damages. fixing If the minor children to be cared for she it, not act to collect the clear is does not survive does intention right pass If that the to do so should then children. by inactivity, why them it passes this action her should not also ? pass by her death If the widow did not sue and six to them after brought children, if they the minor died within months suit any year there be doubt that the could then sue? should widow Considering light, in this situation here would seem that narrow, harsh, only by most and technical construction of creating rights provision, children, the widow and minor could say that, upon we the death of the widow preferential entitled to the right beneficiaries, composed to sue this class of the actual de- supported legal pendents entitled to be under all deceased precepts, remaining rules and moral when those that class could gives still commence suit within the time the statute them so, to do exist, right although yet of action itself has ceased to it is not by the Statute of Limitations. This is the even barred remedial sec- construction, of these statutes. does not call for such a tion destroy plain purpose. If, its dies, to make it would when the widow right proceed ended, so that it her her cannot be exercised logical why administrator, say reason there we cannot her ended, of the action is also appropriation bring that the (as passes the action it would have done after six months had she though sued, even she survived their father and her failure time) prior to sue was due to her death to that to those the statute says bring not, they could it if she did if do so within the time the gives ? statute them to do so There is then no suit the widow and never can be there is then no widow and no one who can enforce preferential given to her. exactly The situation is the same as where the widow “fails to sue within rights six months” and parties should be the same. We do not think that the action, requires hold that the us to creates but does not bar for year, passes one dies and out existence with her death before the who were year, for those purpose, provide end tbe when its who actually, legally dependent upon and morally deceased death, defeated sustained an actual loss will be widow and minor that, construction. Our conclusion is where both survive, if but dies the widow sues within six months minor children after her then the husband’s year after still maintain a it within one commence their father’s death. - judgment is and the cause remanded. reversed foregoing opinion

PER C., adopted Hyde, CURIAM:—The by opinion Gantt, J., Atwood, Leedy as and of G. the Court en Banc. -7J., concur; Frank, opinion which Says, J., separate concurs concur; J., J., Gantt, Leedy Says, JJ., Ellison, Atwood, C. Tipton, separate J., dissents in in which concurs. opinion of wrongful FRANK, (concurring). alleged J. death —Action bus a motor by Archie between C. Cummins occasioned a collision by operated car riding on passenger, which he was as a a street City occurred The collision Company. Kansas Public Service which result of September City, Missouri, on as a 3, 1928, in Kansas Ada surviving widow, day him his Cummins died on that and left brought Cummins, suit children. The widow Jane and three minor of alleged death September 25, 1928, on to recover for the trial any pending her and before husband. While the widow’s suit was whereupon her August 1929, thereof, 1, or determination she died on by the court. request was, opposite party, suit at the dismissed in- brought August 31, Thereafter on minor children of their father. alleged death stant action to recover for the brought Revised Statutes The action was under Section following: among things, section, provides the which said any injury result- any . die from person “Whenever . . shall criminal intent ing by negligence, unskillfulness or or occasioned conducting running, any agent, employee, whilst officer, servant or . managing any . or terminal car street, or . . electric employ such corporation, individual or individuals whose . at time officer, agent, employee ... shall' be servant or penalty, injury committed, pay . such .' . shall forfeit and dying, less than every person ... the sum of not such so exceeding dollars, in dollars, ten thousand two thousand jury, may for and recovered: be sued discretion of deceased; or, second, if there First, or wife of the the husband wife, months after sue within six be no husband or or or she fails to he . deceased; . . death, then the minor child or children unmarried, third, or if such deceased be a minor join in and each mother, suit, who then the father co CD equal

shall have an of them judgment, interest or either wife, dead, survivor; husband, then fourth, if or there be b^the minor child . . an children, or minor . if the deceased be linmarried minor mother, and there father such case be no then recovery be instituted and the administrator deceased, executor of distributed and the recovered shall be amount ” according . to the laws of descent. every Section provides Revised Statutes that quoted instituted virtue of shall be commenced Section above year within one after the cause action shall accrue. appears brought It from the dates above set out the widow husband, her within months after death of her and there six year died within one after after without trial or determina brought appears tion her suit. also the. minor children their suit mother, after the after death of the father. petition, claiming Defendants demurred to plaintiff’s when brought widow suit within six after the death months alleged wrongful death, of her ap- husband to recover for his she propriated thereby absolutely the cause of action unto herself and and forever off cut children to The trial sue. demurrer, declining court plaintiffs sustained defendants’ to and judgment plead, dismissing further sessing was rendered the cause and as- against plaintiffs. the costs This appeal followed. The sole case is proper issue the a construction of Section gives wrong- Revised 1929. right Statutes This section a of for action right wrongful ful death. There for at was no of action death common injuries right law. Under resulting law personal the common a of action for person with injured. in death died The the statute question designed punish wrongdoer, not the but to re- move the injustice, technical rule of the common harsh law of and its give right wrongful death, stead for for the bene- persons fit of the remedial, named the statute. The statute at is gives remedy against least to the extent that it named beneficiaries a party causing the death, the none at where existed common light law. Remedial should prior statutes be construed in the of the law, remedied, common remedy the mischief to be and the provided, remedy. so as to suppress Speaking the mischief and advance the Shohoney Railroad, this rule of construction in S. W. said: we “ judicial golden It exposition is a rule of to discern what the com- was, mon law what the and for was mischief defect which the common remedy did provide, law not what appointed the statute to cure the disease of the commonwealth and what was the reason of the remedy provided. things so When these judge, are discerned the but trite and venerable doctrine that his office so is to construe new as to suppress mischief, the statute the remedy advance the and the continuance suppress ‘to subtle evasions inventions and for remedy and mischief, cure . and to add and life force act, pro bono according true makers intent publico.’ Coke, [Heydon’s Case, 3 7b.]” Legisla that apparent reading It is statute from a of the because wrongful death penalize causing ture party intended to wrongdoer shall expressly the statute provides It that so states. exceeding $2,000, not pay penalty of not less than forfeit $10,000 is, who every question dying. for next person so provides entitled penalty? to recover the The statute wife or penalty recovered; first, be sued the husband for wife, or he deceased; or, or second, of the if there be no husband death, minor she fails to sue within then six months after such Legislature child or children is clear that of such deceased. give opportunity, intended to first husband or wife the penalty, merely for, recover the an opportunity sue but to sue clear expressly because the It is likewise statute so states. surviving there be minor child husband or wife the parent’s without penalty death sue for the at time after the so statute waiting elapse,' six because period months wife, the surviving provides. However, if husband there be a recover gives preferential sue him or her the months brought six penalty, provided therefor is was a case, after the there death. In instant her hus after and she months wife sued for the within six limita period band’s but thereafter within the one died tion without a trial her suit. or determination of wife by the filing Defendants of the contend that the mere fully husband, vested the within six months after death of her children, and cause of action her to the exclusion sue. forever cut off the of the children to purpose The construction contended for would defeat widow before To hold in statute. this case destroyed 'action cause of trial or case the determination of her thereby defendants, inject the administration into exonerated would the statutory rules of and technical proceedings this the harsh Legislature expressed of the common intention law and defeat the for the benefit pay penalty wrongdoer a the should forfeit and persons of the named in statute. the parties that the Evidently Legislature it was the intention might, specified, statute, therein named the under the conditions the because for, penalty, merely sue and recover sue but for is that statute provision expressly so states. The may “which wrongdoer penalty pay shall forfeit and sued'for recovered, in- expressed The by or wife.” a-nd first the husband may Sued Legislature being penalty tention of that the for first, follow logically recovered; it not wife, or must by husband body said,

that when that “if there be no husband or wife” the clear intention was that if there be no husband or to sue and re- wife for penalty, cover the then minor child or sue for ? recover it In the instant case penalty there was a wife to for sue it, she did sue but when she died before her case was tried determined, then there was no wife to sue and recover the contemplated by as the statute. The clear intention of Legislature language evidenced of the statute is that where there is no husband or penalty, wife to sue and recover the then the minor child or children sue for and recover it. Such is the case, situation in this and for that reason the minor children deceased action, brought are entitled to having maintain this been period the one of limitation. "We have not part overlooked that provides the statute which that if there be a husband or wife and he or she fails to sue within six months wrongful after the death, then the minor child or children may sue. As a matter course, Legislature something intended provision this of the statute. We think that intention is clear. limitation wrongful year. a cause of action for death is one As given the husband right or wife is the first to sue for and recover penalty, were it provision which, requires not for effect, them to sue within six months death, they could, after the either purposely carelessly, omit to one-year sue until Statute of Limitations run right thus defeat the of the minor children. The clear and intention provision evidenced of the stat- protect ute is to against contingency. the minor children such a reported There is no case in this State where the husband or wife brought a suit within six months after the death and there- year period after died within the one of limitation without a trial or case, determination of reported and for that reason the cases shed light question presented on the However, this case. are there many reported which say, although cases do unnecessary to de- said, cision of the cases in which it is where husband or wife sues within six thereby months after the he or she appropriates the cause of action and forever cuts off the minor children to sue. stated, For reasons heretofore which repeat here, we need not filing

mere of a suit husband wife within six months after wrongful death, more, without does not forever cut off the sue, of the minor holding children to and eases so are unsound and holding. should be extent overruled of that judgment Our conclusion is that the should be reversed and cause remanded for trial on the merits. We therefore prin- concur in Hyde. J., cipal Gantt, written opinion Atwood, Commissioner C. concur; Hays Leedy, JJ., Ellison, J., separate opinion dissents in Tipton, J., concurs. prin from ELLISON, (concurring). <J. dissent respectfully —I ex the' it is cipal concurring Constitution opinions. Under make to government clusive legislative function of branch of the ambiguous laws; be ours is If a statute to them. construe arewe is'plain duty it say means, it is our where what it but Even it. enlarge reduce authority vary, without or constitutional obscure, guise cannot, legislation under where is we defective supplying construction, go beyond legislative intent amending it; primarily gathered and that intention must be Legislature language act, used from what we surmise not may attention have if its say said intended or would have general propositions been question. foregoing directed to the The following well are settled and in substance have been declared American by recent ex rel. cases decided the court en banc. [State 1103, 500, Asphalt 495, (2d)W. Corp. Trimble, Roof v. S. 329 Mo. (2d) 496, 5 492, S. W. Thompson, State ex rel. Cobb v. 57, 59; Co., 316 Mo. ex Bell Tel. State rel. Koeln Southwestern 1008, 1012, 292 1037, W. S. 1038.] is arriving statute, language In thereof meaning at of a being in their construction, taken receive a words common-sense act, read, is not ordinary usual and so import sense. If to, such resorted clear certain extrinsic be aids to construction legislative as a consideration law and prior state legislation should policy by evidenced related statutes. Remedial liberally strictly penal construed construed. statutes [Rozelle Harmon, 432, R. A. 339, 343, 15 W. L. 187.] legislative as broad and intent in the case is to be taken 209: Law, page Ruling other narrow. It is in 21 section said Case strictly not perhaps penal rule “The laws be construed are to in Mis the rule much less than old construction itself.” Such enacted, souri when the statute involved in this case was 240 S. Schaff, today. the same [Osagera v. rules, I maintain the Measured all of these con principal and

will not put'upon bear the construction many prior de curring with opinions; in conflict and that are cisions of this court. Statutes Revised The statute is Section under construction cause, whenever 1929, which, provides that so far applicable an person negligence of em- the death of a shall be caused car, the em- ployee company operating street of a street ear while . ployer penalty sum of pay “shall aédI as a forfeit dollars, exceeding dol- than ten thousand less lars, two thousand and not re- jury, the discretion of the sued for second, deceased; or, : First, covered the husband or wife of the wife, within six there be or she to sue no husband or he fadls or children of months after such' then the minor child mine.) (Italics deceased.”

A person third when the provides subdivision that of the section jointly killed is an unmarried and mother minor the father maintain be no says the action. if there And a fourth subdivision husband, (or surviving wife or minor the deceased parent, child where minor) is an by unmarried the administra- the suit be instituted tor kin. or executor of next of the deceased for the benefit of the The statute was first section Statutes enacted Revised 2, page original 647. part quoted The enact- appeared the above except ment provided that it then and “forfeit employer should pay changed . the sum This was of five thousand dollars.” in 1905 amendment, 1905, page 135, penal- Laws the words “as a ty” being words pay” inserted after the words and the “forfeit and “not less than exceeding two thousand dollars and not ten thousand dollars, in the discretion jury” being the flat substituted for penalty $5000 provision authorizing theretofore fixed. ad- The sue, ministrator to also was added that amendment. person

The killed in this case was Archie C. Cummins. He left a widow and minor children. The widow sue within six months did wrongful requires as the while the statute she died —but suit pending and before it been tried. Her death occurred about eleven months after Section the demise of her husband. year Revised Statutes allows one from the date of the death for the 3262. There commencement of actions under Section year’s therefore remained limi- period about one month of the one tation when the widow died. Within month minor children that brought the instant suit on the same cause action—the’ death of Archie Cummins. The circuit court sustained a demurrer petition. principal concurring opinions ruling

The that and reverse cause, holding although complied remand the with the widow expressed the sole condition bringing in the her statute — within six months—nevertheless the cause of was not hers absolutely. contrary, they say To that on of 'the the death suit, widow within the without a determination of her passed children; to sue that'they on to the can maintain present they brought action since expiration before period reasoning of limitation. opinions The of the two is that since says employer pay statute shall forfeit named, shall be sued for and recovered the beneficiaries therein ought Legislature therefore we to conclude the intended .the em- ployer escape punishment imposed should not for his servant’s wrongdoing, and that beneficiaries nominated in the statute should penalty. Having not sue but should recover also deduced legislative intent, this opinions the two construe the statute to mean beneficiary (in widow) bring this case the suit but with- die recovering, passes beneficiary out the cause of action on to the next children) (in in the order named this case the minor one-year unless Statute or until the cause action is exhausted bring duly Limitations. On theory if the widow should die there should sue were no minor children or die, for the year, all could still sue the administrator benefit of the next of kin. penal. it is

This construction statute concedes reasoning Legislature premise starts with intended wrongdoer escape punishment. should It is also at variance with chil the terms of the For section the minor statute. authorizes only (1) dren to sue two instances: there is no where wife; (2) husband or or where that fails “to sue” parent (not recover) to sue and six months. And as the executor or administrator, statutory express condition is he can sue the husband, when there are wife minor children. But both or ground opinions interpretation the justify their broad on the open In statute is remedial and therefore to liberal construction. liability employer penal words to fasten on the under a statute they say prin it is to a open remedial and liberal construction. The objects opinion C., says primary of of cipal Hyde, compensation to of dependents statute is to furnish the deceased. concurring opinion says remedy wrongful death, it affords a not exist common law. did at “ ’’ ? penal remedy Now when is And what is a in the a 658, 59 legal Corpus Juris, 1111: page It is said in section sense? determining penal test whether a statute is whether “The true wrong imposed punishment public, penalty is for the of also, injury [See, of 25 or redress an the individual.” for the legal 303, p. remedy A L., employed' R. see. is the means C. 1086.] injury. 2nd, Phrases, 1st, or an & enforce a redress [Words compensation, involves idea of as the and 4th 3rd Series.] recognizes. Forgetting opinion for a minute that Section principal pay” always shall employer 3262 said the “forfeit the sum has therein, emphatic Amendment of and that named added, is penalty” compensatory? were the statute words “as a fifty years fiat $5000 the amount exacted was a sum of For first regardless supported of whether the deceased —no more no less— family charge upon pecuniary them. Evidence of the actual was a r place and had no in the relatives case. plaintiff loss [Welle 635, 654, 23 W. Ry. Co., P. S. & St. C., M. 54, 88, 139 S. W. In Boyd Mo. Pac. changed ranging $5000 to a sum between penalty minirmTm $10,000, maximum of discretion of $2000 and a permitted jury; administrator and the same amendment kin in default of the other relatives benefit the next sue for the section has since stood is held evi the statute. As the named in jury in pecuniary loss be considered the actual dence of punishment in criminal just as the cases assessing penalty according injury be varied to tbe amount of inflicted tbe defend- required ant; jury but tbe not bound that evidence or are They nothing; fix $2000 on that basis. must award they give dependent minimum can tbe wife or children the greater; they $2000 when their actual loss is much can allow suing through $10,000 remote kin though they the administrator the maximum of necessary

have suffered no loss whatever. As a result holding principal opinion could do that even in a a wife and minor children who case where the deceased had left excluding kin would his heirs —thus remotor under the laws of descent and distribution-—if the wife children had died before expiration period of the one limitation and the adminis- trator sued within that time.

If (much the statute Section were Campbell’s like Lord Act principal opinion) gave of which is set out in the an action for injury “proportioned resulting death,” from such saying there would be reason for it was and therefore compensatory fact, Legislature remedial. As a matter of passed when the what 3262, they adopted companion now Section two sections in same (R. 4, p. 648, S. act secs. now Secs. 3263 R. 1929) authorizing recovery which were Campbell’s modeled put recovery after Lord Act and which did damage on compensatory a or in respect they basis. But that differ 3262, penal. Section Ry. Co., is Mo. Pac. v. [Hawkins 182 323, 336, Mo. 170 App. 459, words, S. In other as re- 464.] gards Legislature the causes of action created Section 3262, the unwilling recovery to limit compensation, or so they imposed $5000, changing a flat rang- later it to a sum ing $10,000 $2000 between paid and in which must the discretion jury pecuniary whether loss had been suffered not. holding

Not only is principal concurring of the opinions and that the statute is remedial at variance with the terms thereof and provisions companion just of the sections referred to. It is in practically conflict with all point the decisions of this court on the years the last thirteen very constitutionality and more. The depends upon penal fact that it is and enacted in the police power. exercise of Ry. Co., v. Mo. 82 Pac. Mo. [Humes 221, 228; Ry. Co., Carroll v. Mo. 88 239, Casey Pac. Mo. v. St. Co., L. Transit 166 App. 235, 250, Mo. 419, 424; Boyd 91 W. S. Ry. Co., Mo. Pac. 236 86, Mo. l. c. 139 S. W. l. c. 570.] point, More to the it has expressly penal long been held line of years cases. Five after the 1905 Amendment of be the statute was fore the Young court in L. M. & Co., 307, St. I. 227 Mo. 317, 127 19, S. W. 20. It was “the penalty’ held words ‘as a inserted by nothing amendment add meaning ; or effect of the section ’ ’ always wé have held' it penal 1911, statute. year, The next Boyd case of Ry. Co., v. Mo. Pac. 236 139 83, Mo. 568, l. c. S. W. l. c.

705 called it “remedio-penal.” Boyd- When appeal case on a second came to 110, 120, the court en banc in 13, 14, S. W.

court said that while earlier decisions had announced the statute possessed compensatory yet features, penal “the nature the statute as it prior quite existed has been uniformly held to over- shadow compensatory its feature;” Boyd overruled; first case was and penal the statute was $2000, held as to the minimum of and compensatory between $10,000. that sum and the maximum of

In 1920 a case came to the court en banc wherein the suit was brought by the administrator of a deceased bachelor de who had no pendents. C., Ry. Co., v. K. 523, C. C. & St. J. 286 Mo. [Grier Boyd S. W. case, supra,- The second was overruled and it was throughout held the penal range, statute is its whole $10,000 administrator could recover the maximum of without proof pecuniary ruling In loss. so said court it was manifest Legislature “that intended to make the entire recovery primarily causing punishment negligence, unskillfulness, or crim intent, secondary inal whatever incidental or purpose might at subserve;” “damages the same time compensation is nowhere hinted at.” opinion case, RaglaND, J., this Grier commissioner, then judges, Walker, J., the full concurrence of two C. D. E. J., with J. T. JJ., concurring result,

Blair, Blair, Elder, WoodsoN, J., absent. point But on the essential that the statute penal compensatory and not the case has ever since been consistent ly Thus, shortly followed more than a dozen decisions. afterward Lackey Rys. 962, 120, v. United 956, 231 S. W. Two, decided Division it was said: “In the well-considered case case) (citing Banc present Grier the Court en at the term held penal as to recoverable, the section is the entire amount $10,000 stand, though allowed a verdict under the section there proof closely pleading pecuniary was no loss.” And in the following Midway Bank Davis, case of & Trust Co. v. S. W. the court en banc said the “statute degree

purely penal, compensatory, and is no sense or as was held Treadway Rys. in” Grier case. Likewise in 300 Co., United 156, 176, 1037, 1042, 253 S. W. Mo. Division One said of the statute: penalty. may “The recoverable thereunder is a it sum While be compensation may incidentally lieu of afford the same relief (citing case), is, notwithstanding, unqualifiedly penalty it and is to citing penalty,” Treadway Grier case. In be assessed as this jury they plaintiff an instruction which told the found for case damages compensate sum should assess his at such as would him injuries wrongful resulting death, him from the for was held re Daues, 314 13, 31, In State ex rel. Thomas v. Mo. versible error. leading 51, 56, 1466, case, 45 283 W. A. L. R. the court en banc statutory purely an action under Section “is a declared that other citing penalty.” might go action for a numerous And so we on cases, only but we shall one refer more. 102, (2d) In Herrell 23 S. W. Co., 38, v. St. F. L.-S. parents decided of an unmarried court en banc One sued under the statute for his death. pleaded of the deceased defenses to the action was that the father guilty contributory negligence. been no contention There was neg plaintiff contributory guilty that the mother had been of such ligence. parents This sue for the court held that where both contributory negligence only them is defense became of. no penal, penalty split. the statute is and a be In the course cannot (3262) its discussion the said: “In action under section an court question of apportioning damages can arise: such an action is not damages, for for the com penalty- punishment but as a. —assessed mission which of a act results in death. In some instances penalty by persons is presumptively recoverable who sustained pecuniary loss.through death; goes in others is not. it When sustaining persons loss, serving compensation— its a measure as damages purely recovery entirety penal incidental. The in its —is ty: citing damages,” the Grier case. foregoing

In face decisions and terms of statute itself, argues principal opinion penal, that even if the section be part, e.,.with respect it is i. liability penalty so to its pro visions; part designating persons entitled to the liberally should is remedial and On point construed. Casey App. L. Transit l. St. c. S. W. l. c. case, 286 and the Grier Mo. l. c. S. W. l. c. 459, are cited. Casey say ease does the same statute sometimes be penal others, purposes liberally and remedial for some con- n as to latter. It is even stated that particular strued statute here consideration, highly under Section remedial as well as penal, portions remedy liberally as confer a are to be opinion goes construed. But the on to hold entire penal says imposing “it a forfeiture and would almost seem to overturn guaranty by jury trial the constitutional . except police power underlying of the State it.” opinion for the Then the which, says only exception we have been “the able to find to this requiring strict construction of statutes which rule are in their nature provides penal, is in the ease of a statute which for more than actual recovery as double or treble compensation, such the commission wrong” (as trespass) plaintiff where the actual, of some has an right, compensatory to recover damages, common-law and the cause one created action is not new statute —in words, “engrafted simply on a where the are common-law recovery penalty.” in the nature of the statute likewise'says provide The Grier case “statutes a penalty aggrieved by the-party are remedial as well recoverable as penal;” and. that that two application: diverse principles have some therefore that requiring of penalty, “strict the construction on of account the of liberal advance prevent construction the mischief and remedy.” goes say: the rule “Applying decision on to giving penalty, provisions statute under consideration, the the strictly is, construed, those creating liability, while should be will relating remedy liberally But as should be construed.” only two be remembered Grier the full this ease had concurrence ruling judges six, judges out of and of in the result. And two point expressly anyway on this obiter because the decision was was ground penal. was put plain on that the own terms statute its On point. We it cannot find has been followed since on ever 390, 412, 284 S. contrary, Betz K. So. in C. 455, 457, for neither a strict nor a was held the statute calls unambiguous, language is liberal construction because its clear and auxiliary legislative speaking the intent without the aid rules citing construction, Grier case. Casey authority decision nor the Grier case is for the

Neither the that, opinion. proposition principal laid down But aside remedy enlarged (?) be without as a matter of reason how can the liability? say liability enlargement To corresponding of the restrictively policy will enforced but that liberal be followed will determining liability, can involves what beneficiaries enforce plainest contradiction. As was said McGinnis v. Car & the Foundry Co., Rep. 586, 588, 73 S. W. 174 Mo. Am. St. the suit was based on the death statute where . liability prescribes “When a statute creates a Illinois: it, parts who have the to enforce two person shall necessary parts whole, and both are component are exactly in whole, and it must manner be done to constitute agencies prescribes. the statute persons There equivalent employed.” other means can be being part “desig law’s that the Instead of the the statute penalty” liberally nating entitled to the should be con persons always contrary has been to the since was strued, rule the statute early Walker, 1855. In the case Coover v. Moore & first enacted being general right said: “There thus no 574, 576, it was 31 Mo. representing the estate of the recovery open persons all deceased life, only persons recover in such time in his can or interested forth in Barker set statute.” And manner and in such 94, 14 W. 282: Ry. Co., J. “In v. H. & St. suing bring sort, party must himself of this statutory actions statutory requirements, necessary to confer the strictly within the otherwise, petition; in his appear must shows no right, and this been have followed without devia These decisions of action.” cause time, though great in some instances a present on down to tion Pac. plaintiff. Oates Union upon worked hardship [See 708 Ry. Co., 104 514, 518, 488; 16 487, Mo. S. W. Packard H. & St. v. Railway Co.,

J. 951, 953; 181 421, 427, Mo. 80 S. v. K. W. Clark C. St. &L. C. 219 Co., 524, 40, 45; Railroad 118 538, Mo. S. W. Chandler v. C. & Co., 600, 35, A. 251 Mo. S. 592, Railroad 158 W. 37; v. St. F. 222 Ry. Co., 463, 824, Freie L.-S. 283 Mo. S. W. 457, 825, 204; 13 A. L. Longan Rys. Co., 561, 570, R. v. K. 299 C. Mo. 253 758, 761; S. W. 307 Simonsen, 307, 324, Hicks 270 W. v. Mo. S. 318, 323; 398, Betz K. Co., v. C. So. 314 Mo. 284 S. W. l. l. c. Salisbury 875, c. Heath v. 33 884, Home Tel. Mo. (2d) 118, 122; Rositzky Rositzky, v. Mo. S. W. (2d) 591, 594,] important ques-

Without further of but discussion these collateral tions, remaining principal the fact to the be considered concurring opinions are in of conflict with number decisions of this construing meaning precise court declaring of part the says may here involved. The statute the minor children sue and recover if to within the widow sue six months. fails months, in widow this instance did sue within six but the two opinions operate hold this did not as appropriation an exclusive of by her; the cause of action she the statute means must not sue, against but must recover or at of least exhaust cause action as subsequent by retaining beneficiaries period control over full limitation; if right of and that dies she before the has run the passes although sue on to within time the minor children no permissive condition is set out in the statute. (Italics say point? quotations What do cases on that are ours.) years statute, In first seven after the enactment of the Walker, & it was held Coover Moore l. c. that the right of the minor children sue if does accrue the widow has brought Kennedy In Burrier, six months. ‘‘ action, There is one cause of this court said: but and that accrues statute, and, the husband or wife under the his or her default of suing, passes Slavens, to the minor children.” In McNamara v. 329, 331, the widow sued within six months after the death of her voluntarily husband, but on a trial dismissed her case after evi sides, was in on both and thereafter dence commenced other ac brought thereupon judgment, tion. The the suit in year. within the This court apparently said: cause statute, “It is a of action created and no can sue bring its himself within terms. joint right he is not a unless husband or gives wife the children. The statute surviving six husband or wife months within which to elect action, appropriate ~by cause election to made the institu- tion If a su/it. husband or wife sue within months, six option given by that is an the' statute. exercise He or she then any the cause of action absolute control of common right has law compromise, have, or she action he release or other- By dis- wise settle controversy the matter in with the defendant. missing action, did her nor suit the widow did not lose her any time children, such dismissal at operate to transfer but it to the Nothing might within the six suit. months she another have instituted By the foregoing in the section construction. warrants after mother, commencement of the within six months father, death of the sue of the children to forever away.” taken this, immediately following And said the court further above exactly question which is point on instant case: (3262) “Section sue does not authorize the children for- fail father mother to sue and recover. It declares father by if the feiture sued recovered the children and right or mother fail to sue six months. Their within maintain sue, depends upon action of the father or mother failure upon his or her failure to sue and recover.” 80 W. Co., Packard J. 181 Mo. S.

In v. H. & St. Railroad l. c. l. c. in decided the court said: months, having brought her within the six “Mrs. Packard absolutely in and action became remained entire cause of hers had right and her children. She her in her own not as next of friend her suit. required by institution made the the statute election of Having appropriated right, had absolute control . she single in right . . concurrent over it. . The of action is and not children, first, under and then both widow but the widow and bring- . "Wethink that certain conditions the children. in- clearly evinced her ing six Mrs. Packard her suit within months or un- action, successful appropriate tention to the cause whether sue.” successful, thereby of the children to and cut off Co., J. Railroad Barker v. H. & St. To the effect are: same Bohrer, 295 W. 204, 206, 317 Mo. S. 280; Huss v. S. W. Distributing (2d) Asphalt (Mo.), 55 S. W. Co. Anderson distinguish all attempt these opinions 692. principal The two dealt none them by saying facts were different —that their cases wife died husband or had where the with a situation unneces- concurring says it pendente opinion further lite. The surviving husband bringing sary for them to hold appropriation of the exclusive operated permanent as a and or wife cannot thus line of decisions this unbroken of action. But cause declaring the- what summarily All of them were aside. be brushed facts. construction their meant, applying that and then They held the the cause action. question was who owned The if he surviving parent or she exclusive title statute vested the ,In off the children. months, cut within six sued forever six months and thereafter case the widow had sued McNamara wrong sued the she had In Packard case abandoned her suit. to determine cases required both party. Obviously the court was after whether the minor children had claim to the cause of suing within parent complied statutory with condition six months. course, being or more prosecuted

Of where the two action is joint one of them beneficiaries under the statute for their benefit and dies, At plaintiffs. the action does not abate as to the other least suing was so held a case where the father and mother were child, while their minor the mother died 621, 28 W. pending. the suit was v. So. [Senn Very likely if under the widow that would be true our statute joint prosecuted the action for benefit of herself and the minor states) (as pendente is in some die lite. true and she should says But our statute she verb sue recover. intransitive judgment “recover” in'law “to used means obtain a final in one’s favor,” Dictionary; New International Webster’s and as shown preceding paragraphs, again it has the two been held time and joint widow and -children have interest in the action. depending hers or theirs on whether either she sues within six months.

And of the administrator as to or executor to sue. We already pointed necessary out the reasoning have result of the concurring opinions principal duly a widow should no minor sue die and there were children or should sue die, period limitation, all within the administrator or executor bring year. if did so within the still could wise, he point, This like- way in the other Betz v. K. Ry. Co., was decided C. So. 390, 464, 284 S. W. and O’Donnell Wells, v. 323 1170, (2d) 1174, 762, 764. In S. W. the Betz case the wife and husband fatally injured by train, a dying were struck and the wife first and later, leaving hours the husband three no minor children. ad- The of wife ministrator the sued her death. It was held he right not recover because under the statute his could to sue con- was leaving tingent the no on wife’s widower or minor children says. explicitly her, as the statute opinions concurring say principal The a construction of the deny the minor which would statute the to sue after surviving parent pending, death the with a of would be harsh. Rositzky Rositzky, in pointed 668, As out Mo. l. c. 46 W. S. charge (2d) has l. been c. made some cases from other the common law was states that “barbarous.” In one analogous argued was if Legislature in Missouri it case intended off an action death cut were “monsters of in M. justice. I. L., St. & S. 211 Mo. 227, 300, [Strottman ” Rositzky says,' 109 S. But case 791.]' whatever be'thought law, of common it still our law except where the changed charge it.- has And as to the statute harshness. If Sec compensatory were and the beneficiaries tion were limited to -which their statute penal loss there :is á would be merit it. But it pun $10,000 as -a gives the full beneficiaries the to recover the joint a ishment, proving any loss, permits without which also beneficiary contributory negligence. in spite to recover of his own May fairly construction a- liberal adopt said to be harsh to concerning imposing liability further a of that character? And hardship According plaintiff’s on minor children. months own six gives construction the second the statute them who out year surviving parent in which a sue, there be if the suing. lives this case the first six In months even without been have longer widow had lived would one month the children one-year very barred. a The fact that terms of the statute and the regarded1 it as period Legislature imposed, limitation is show the generis be re sui which should creating and as action a cause of ' strictively enforced. Finally, beginning opinion, one 'of. and as stated consider- permissible extrinsic aids to the construction of statute pointed' prior ation of the law. has out-that state of the been general enacted 8262 was first rule in force in "Section Missouri when penal strictly in 1855 Between was that construed/ statutes should be amended, line that time was an unbroken when the statute she six months decisions had held that the widow sued within where hers like appropriated exclusively it became cause action and might decisions common-law she own. One these 1904, just the amendment. the Packard case decided in before statute, nor yet change part And has was made thirty years (nearly) there been in the since. understanding at time

Furthermore, legislative was the abate'on passage should of the statute in that tort actions was actio law rule plaintiff. the death of the Under the common enactment of personalis persona. the first moritu-r cum Prior only to guardedly relaxed Section rule been rights or wrongs property done the extent that tortious another, of either' the interests of the action would survive 25, p. Secs. tort-feasor. secs. claimant [R. twenty passed 3262 was 98, 99, Section present R. S. Mo. which did creating death years of action for later a cause any provision law, not exist at at common without insertion all statutory Not beneficiaries. between for survival or transmission a person wrongs to the for tortious a cause of action until did (Laws p. Sec. death health of another survive his a 1929). only survival where permits R. S. And even this statute injured party and the suit has been instituted before the death (2d) Martin, To 12 S. W. [Shoop tort-feasor. he day injuries person if inflicted dies this tortious history Certainly our bringing suit, abates. the action before understanding legislative and inten- subject on shows is the law the tion so that tort actions except expressly do survive where provided by like statute. statutes respect With ours, weight beneficiaries, primary secondary between authority R. elsewhere is A. L. to that effect. note.] [13 only (1) says Our may there the minor when: children sue (2) surviving parent; is no within six parent to sue or that fails principal concurring interpolate The a third opinions months. condition; may that the minor children sue even where parent has lite months, parent pendente sued within six die within the year’s period pro- of limitation. The statute further husband, vides an executor or administrator when no sue wife, necessary minor child survive the deceased. reasoning effect of the principal that the executor opinions is though administrator sue even or wife husband successively deceased, child or children do provided survive the sue and die I period respectfully within the of limitation. submit statute, construction does violence measured its own terms, by pari materia, setting. statutes its historical necessarily large also overrules a number of former decisions of Tipton, J., court. concurs. Reynolds J. Appellant. Frank Company, v. Grain Belt Mills (2d)W. 947. January 4, One,

Division 1934. Brown, Douglas appellant. <& for Brown Stringfellow Garvey <& for respondent.

GANTT, personal injuries. Judg- J. Action $8000. ment for Plaintiff judg- $600 remitted of this amount and interest) ment was entered (including $7470.64, costs. defendant, On granting motion of court an made order an appeal Supreme during Court. Thereafter and the same

Case Details

Case Name: Cummins v. Kansas City Public Service Co.

Court Name: Supreme Court of Missouri

Date Published: Dec 22, 1933

Citation: 66 S.W.2d 920

Court Abbreviation: Mo.