This action for $15,000 compensatory damages was instituted by Patricia Nelms for the wrongful death of her mother, Syble Marie Nelms, who met her death on November 15, 1952, as the result of an automobile collision. Suit was not filed by the surviving husband within the prescribed time and plaintiff, who alleges in her petition that she “is a minor daughter of the deceased,” brought this suit within one year. The petition makes no reference to other minor children.
On March 13, 1954, more than one year before this case went to trial, defendant filed a motion to dismiss the petition in which he alleged that Syble Marie Nelms left two minor children surviving her, and that the failure of both minor children to join in the suit was a defect of parties plaintiff; that it resulted in a nonjoinder of an indispensable party; and that the suit was not brought by the real party in interest. This motion was overruled on July 12, 1954, “because of being filed out of time,” and on August 10, 1954, defendant filed an amended answer in which he preserved all the objections set forth in the motion.
At the trial, starting April 6, 1955, plaintiff’s testimony established that James R. Nelms, the driver of the automobile in which Syble Marie Nelms was riding when she received the injuries resulting in her death, was a brother of plaintiff, and that he was a minor at the time of his mother’s death, although he reached his majority prior to the time suit was filed. James was present at the trial and testified on behalf of plaintiff. At the conclusion of plaintiff’s evidence the trial court directed a verdict for defendant for the reasons that there was a “defect of parties plaintiff” and that plaintiff failed to make a submissible case. Plaintiff filed a motion for new trial and in the alternative requested the court to set aside the verdict and grant her leave to join her brother as a party to the action. The trial court made no ruling on this motion, and pursuant 'to Section 510.360 (all statutory references are to RSMo 1949, V.A.M.S.) it was deemed overruled at the end of ninety days. Plaintiff has appealed.
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An action for wrongful death was not cognizable at common law. Knorp v. Thompson,
The wrongful death statute creates but one indivisible cause of action which remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute. Cummins v. Kansas City Public Service Company,
Neither minor child has a separate interest in the compensation authorized by the wrongful death statute which he or she may sue for, alien, or release pri- or to the rendition of the judgment therefor. See Herrell v. St. Louis-San Francisco Railway Company,
Prior to the above referred to amendment of the wrongful death statute in 1955, suit for the wrongful death of an unmarried minor child was authorized to be brought by “the father and mother”. It was consistently and repeatedly held that the statute as then worded vested in the father and mother a joint cause of action in which both, if living, must join. Clark v. Kansas City, St. Louis & Chicago Railroad Co., supra; Herrell v. St. Louis-San Francisco Railway Company, supra; Heath v. Salisbury Home Telephone Company,
By plaintiff pleading no more than that she “is a minor daughter of the deceased,” and by her proof that James was also a minor at the time of the death of her mother, she has not brought herself by pleadings or proof within the statutory requirements necessary to confer the right to maintain this action, and the trial court correctly directed a verdict for the reason that there was a defect of necessary parties plaintiff.
Plaintiff urges that if the ruling of the trial court that there was a defect of necessary parties was correct the judgment should be reversed and remanded with leave to amend the petition because she otherwise made a submissible case. We shall review the evidence to determine if a submissible case was made, and if we so find we shall then consider whether, under the circumstances of this case, the cause should be remanded with leave to amend the petition.
Plaintiff pleaded primary negligence, and she contends that she made a submissible case as to her allegations of negligence on the part of defendant in that he “failed to stop his automobile, when in the exercise of the highest degree of care, he would so have done;
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that the defendant “operated his automobile at a high and dangerous rate of speed under the circumstances; ” and that the defendant “failed to slacken the speed of his automobile, when in the exercise of the highest degree of care he would so have done.” Where several grounds of negligence are alleged, a motion for a directed verdict for the defendant should be overruled if plaintiff made a jury case on any of the alleged grounds. Ruby v. Clark,
James, Patricia and their mother left St. Louis, Missouri about one or two o’clock in the morning of November 15, 1952 to go to Brookland, Arkansas in a 1940 Chevrolet driven by James. By five o’clock they were a few miles north of Dexter in Stoddard County on Highway 25, and it was then “just getting daylight.” They had driven through rain earlier, and it had been “foggy in spots.” As James approached the place of the accident he was proceeding southward at about 20 to 25 miles an hour, and was following two vehicles, the first of which was a truck, and a vehicle was following him. The car immediately in front of James passed the truck, and James then moved his car forward closing the gap between his car and the truck. I-Ie pulled up to “within approximately five feet of the truck,” and when he “saw there was nothing coming,” he “pulled over” into or “cut into the left-hand side of the road” to pass. When his car was “approximately even” with the truck, that is, his car and the truck were “abreast,” he saw the headlights of a car “coming out of the fog” and he realized that he could not pass the truck “in time.” He then took his foot off the accelerator, tried to slow down and get back into the right-hand side of the highway, but the car behind him had pulled up close to the truck and he could not get back into the right-hand lane, so he “slammed on the brakes and cut the wheel to the left.” The right side of his car was struck almost immediately by defendant’s car. Defendant was not at any time on the wrong side of the highway, and at the time of the collision James’ car completely blocked the east lane. Between 50 and 80 feet south of the point of collision, in the direction from which defendant was traveling, there was a bridge with heavy concrete “bannisters” three or four feet high which spread out at the ends of the bridge to the width of the shoulder on each side.
When James first saw the headlights of defendant’s car it was beyond the bridge, and he could not see the car itself because of the fog. He estimated that he could see the lights of defendant’s car about 600 feet away. His estimate of the speed of defendant’s car was that “it was going at a rather fast rate of speed, I would say, now that I have thought it over a great deal since the time of the accident, 55 or 60 miles an hour, maybe 50.”
Plaintiff’s evidence included a pre-trial statement made by defendant in which he gave the following version of the accident. Defendant was driving north on Highway 25 in a 1952 Chevrolet. At the time he saw the car operated by James pull out from behind the truck into the east lane of the highway he was going about 45 or 50 miles per hour and the two cars were about one-quarter of a mile apart. When the defendant saw that James could not get by the truck he then began “applying” his brakes, and at that time he was “400 or 500 feet before the bridge, probably it was about 500 feet before the bridge.” Defendant could not estimate the speed of James’ car, and when James tried to turn off the highway his car began turning sideways. The front end of defendant’s car struck James’ car at the right door and there was “quite an impact.”
It has been said that in the exercise of the highest degree of care a motorist need not slow down or stop merely because he sees another car approaching on his side of the road. 60 C.J.S., Motor Vehicles, § 317. However, when he has knowledge or by the exercise of the high
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est degree of care should have knowledge, that the driver of the car advancing toward him on the wrong side of the road is unable or is not intending to move to the right or to a position of safety, and when he knows or should know that if the approaching driver does not change his position a collision will likely occur, then he must take all reasonable precautions to avoid a collision. McGuire v. Steel Transportation Co., Inc.,
In this case defendant saw James’ car on the wrong side of the road when the cars were 1,320 feet apart. We cannot say that any precautionary acts were then required of him. But when the defendant was more than 550 feet from the approaching car (we say more than 550 feet because the length of the bridge is not shown and during the time that defendant traveled northward to the point of the collision James was driving his car, apparently at a slower speed than that of defendant, southward to the point of collision) he not only could have seen but did actually see that “he (James) could not get by” the truck. Therefore defendant knew that unless he stopped or slackened his speed substantially so that James would have time to let the truck get past him, James could not move over into his proper lane. Defendant was traveling 45 or 50 miles an hour and there is no evidence of stopping distance. While we cannot take judicial notice of the exact distance within which a certain automobile may be stopped under given conditions, McCombs v. Ellsberry,
Under the circumstances we have here, should the judgment be reversed and the cause remanded? Since plaintiff’s evidence did present a submissible case, for the purpose of the present discussion the situation is somewhat analogous to those cases where plaintiff obtained a judgment in an action for wrongful death, but on appeal it was determined that by both pleading and proof the plaintiff did not establish that he was entitled to maintain the action. See
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Lee v. St. Louis Public Service Co.,
Apparently in the above referred to cases it was not necessary to add additional parties. However, in this case plaintiff must do so. In Cytron v. St. Louis Transit Co.,
Defendant contends the cause should not be remanded because plaintiff was apprised of the defect of parties long before trial, and that when she voluntarily proceeded alone she “waived” any right to bring her brother in after disposition of the case in the trial court. Defendant cites Smith v. St. Louis Public Service Co.,
It is obvious that in this case the plaintiff attempted to maintain this suit without her brother in an effort to obtain 1 the strategic advantage of not presenting to the jury the situation where her brother would be seeking compensation from the defendant for the death of his mother when his negligence unquestionably was a contributing cause. Plaintiff was aware of the contention of defendant that he was not liable to plaintiff alone, but if liable at all then only to plaintiff and her brother jointly. Except for the circumstances hereafter mentioned, we would not be inclined to remand this case so that she “may experiment with different theories of [her] ad *492 versary’s liability.” See Borrson v. Missouri-Kansas-Texas R. Co., supra, 172 S.W.2d loc. cit. 8S0. However, in this case when the trial court overruled the defendant’s motion to dismiss on the ground that plaintiff alone was not entitled to maintain this suit, it did so for the stated reason that defendant’s objections were “'filed out of time.” If this were true, which we think not, then the same objections incorporated in the answer and urged in defendant’s motion for a directed verdict were also “out of time.” The trial court unquestionably led plaintiff to believe that because defendant had not timely objected, she had the right to proceed alone with her suit. But, at the 'end of her evidence without any notice to her that he had arrived at the opposite conclusion concerning her right to proceed alone, the trial judge directed a verdict against her because of a “defect of parties plaintiff,” and did not afford her an opportunity to amend her petition before doing so. After judgment was entered on the directed verdict, plaintiff sought to have it set aside to permit her to amend her petition and include her brother as a party, but this was denied.
There is nothing in the record to show that defendant would have been prejudiced in any way by permitting plaintiff to amend her petition to add her brother as a party. In fact this would have been in accord with defendant’s demand, and the amendment would have been supported by plaintiff’s evidence and by the evidence brought out by defendant on cross-examination. In Robinson v. Unit Iron Co., Mo.App.,
For the reason that under the unusual circumstances of this case we believe plaintiff should have been afforded an opportunity to amend her petition after the trial judge changed his ruling that the objections of defendant were not timely ■filed, and for the reason that plaintiff did seek to amend her petition after judgment to include her brother as a party, we reverse the judgment and remand the cause so that plaintiff may, if she is so advised, amend her petition.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
Adopted as the opinion of the Court En Banc.