Acton v. Shields

Decision Date11 January 1965
Docket NumberNo. 1,No. 50523,50523,1
Citation386 S.W.2d 363
PartiesAlvy S. ACTON, Administrator of the Estate of Baby Trumbo, deceased, Appellant, v. Della S. SHIELDS, Administratrix of the Estate of Merle Lawrence Shields, deceased, and Herbert Leslie Wohlgemuth, Jr., Respondents
CourtMissouri Supreme Court

Spencer, Hines & Petri, Columbia, Jack C. Jones, Carrollton, for plaintiff-appellant.

Christian Stipp, Carrollton, and Skelton & Bradley, Newton R. Bradley, Lexington, for respondent Shields.

Somerville & Cleaveland, Ronald L. Somerville, Chillicothe, for respondent Wohlgemuth.

WELBORN, Commissioner.

This action was brought by the administrator of the estate of Baby Trumbo seeking, on behalf of the persons entitled to the proceeds thereof under the laws of descent of the State of Missouri, $25,000 damages for the alleged wrongful death of Baby Trumbo, a child en ventre sa mere. Defendants' motions to dismiss on the grounds that the petition failed to state a cause of action were sustained by the trial court. This appeal followed. We have jurisdiction by reason of the amount of damages sought.

The petition alleged that the plaintiff was the administrator of the estate of Baby Trumbo; that Baby Trumbo 'was a child en ventre sa mere and was a person in being whose existence is recognized by law'; that Baby Trumbo died on October 13, 1962, from injuries sustained on that date when an automobile, in which the plaintiff's decedent's pregnant mother, Carolynn Kaye Acton Trumbo, was a passenger, and which was operated by her husband, Billie Dean Trumbo, on U.S. Highway 65 in Carroll County, Missouri, collided with an automobile driven by Merle Lawrence Shields. The petition charged that Shields and defendant Herbert Leslie Wohlgemuth were guilty of negligence evidencing such a reckless disregard for the rights of others as to indicate willful and wanton misconduct. Essentially Shields and Wohlgemuth were charged with engaging in a racing contest with one another.

The petition alleged that Baby Trumbo left surviving no spouse or minor child and that plaintiff brought the action 'for the benefit of the persons entitled to the proceeds thereof under the laws of descent of the state of Missouri, namely Alvy S. Acton, grandfather; Bessie J. Acton, grandmother; Marilynn Faye Acton, aunt; Anna Belle Trumbo, grandmother; Bill Trumbo, grandfather; Jerry Wayne Trumbo, uncle; Audrey Gail Trumbo, aunt; Ruby Jane Trumbo, aunt; Johnny Ray Trumbo, uncle; and Dianna Kaye Trumbo, aunt.'

The petition further alleged that the beneficiaries had been 'deprived of the decedent's services, society, companionship and other contribution to their well-being.' The petition asked for compensatory damages and additional damages by reason of the aggravating circumstances attending the death of plaintiff's decedent, all in the sum of $25,000.00.

The defendants filed motions to dismiss plaintiff's petition, asserting that on numerous grounds the petition failed to state a cause of action. The trial court sustained the motions and by its memorandum in connection with its order stated that the petition alleged no more than that Baby Trumbo was deceased and did not allege that at the time of the alleged death the unborn child was viable, alleging only that said baby was en ventre sa mere; 'that death of unborn child through wrongful act of another cannot, in law be the basis of suit for damages, under rule pronounced in Vitale v. Biando, Mo.App., 52 S.W.2d 24.'

On this appeal appellant contends that the petition contained the elements of a cause of action under the wrongful death statute and that Baby Trumbo was a person within the meaning of that act. Section 537.080, RSMo 1959, V.A.M.S. The appellant asserts that proper and logical extension of the doctrine of Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577, 581, in which the court en banc held, overruling Buel v. United Rys. Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625, to the contrary, that an action by parents would lie for wrongful death resulting from prenatal injuries to a viable infant subsequently born alive, would admit of the action in this case under the Missouri wrongful death act.

Respondents would support the judgment below on two bases. The first is that the petition failed to allege facts showing that the persons for whose benefit suit was brought suffered pecuniary loss by reason of the death of Baby Trumbo. The second is that the petition did not allege facts showing that Baby Trumbo was a 'person' within the meaning of the Missouri wrongful death statute.

The Missouri wrongful death act, Section 537.080, authorizes recovery for wrongful death by or on behalf of specified beneficiaries as follows: (1) By the husband or wife of the deceased; or (2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children; or (3) If such deceased be a minor and unmarried, whether such deceased be a natural born or adopted child, then by the father and mother; or (4) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and 'the amount recovered shall be distributed according to the laws of descent.'

The petition in this case alleges that Baby Trumbo left surviving no spouse or minor child, natural or adopted. However, it does not affirmatively allege that Baby Trumbo left no mother or father surviving. That conclusion may be drawn from the allegation that the persons entitled to the proceeds for any recovery for the death of Baby Trumbo are grandparents, aunts and uncles. See Section 474.010(2)(c), RSMo 1959, V.A.M.S. Although the right of an administrator to sue should be affirmatively shown in the petition, we will not rule the petition in this case defective solely on that ground, particularly in view of the fact that it appears that the plaintiff offered to amend his petition to allege that parents did not survive Baby Trumbo, although the actual amendment was never carried out.

The Missouri wrongful death act on its original enactment (R.S. 1855, p. 647) authorized two classes of actions. The first class against certain public carriers was penal in nature. Leaman v. Campbell, 66 Express Truck Lines, Inc., 355 Mo. 939, 199 S.W.2d 359. The second class, applying generally to death caused by the wrongful act, neglect or default of another, was compensatory in nature, with the measure of recovery the pecuniary loss to the survivors resulting from the death. Domijan v. Harp, Mo.Sup., 340 S.W.2d 728; Troll v. Laclede Gas Light Co., 182 Mo.Spp. 600, 169 S.W. 337.

In 1955 (Laws of Mo. 1955, p. 778), the wrongful death act was amended to eliminate the penal action, leaving only a compensatory action in which aggravating circumstances attending the wrongful act resulting in death might be considered in determining damages within the $25,000 maximum. See Contestible v. Brookshire, Mo.Sup., 355 S.W.2d 36.

A right of action by the administrator or executor was first authorized in 1905, Laws of Mo. 1905, p. 135. It first applied only to the penal action. Crohn v. Kansas City Home Telephone Co., 131 Mo.App. 313, 109 S.W. 1068. A 1907 amendment authorized action by the personal representative for the compensatory cause of action, Laws of Mo. 1907, p. 252. The cause of action so authorized is not for the benefit of the estate of the decedent. The administrator or executor sues as trustee for the benefit of the persons entitled to share in decedent's estate under the laws of descent. Caen v. Feld, Mo.Sup., 371 S.W.2d 209; Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504; McCullough v. W. H. Powell Lumber Company, 205 Mo.App. 15, 216 S.W. 803. In such actions there must be a person or persons entitled to take the estate of the decedent under the laws of descent. Johnson v. Dixie Mining & Development Co., Mo.Sup., 187 S.W. 1. Contrary to the situation with respect to the relationship between the decedent and person or persons authorized in other categories to sue, such as a parent's suit for the death of a child (Parsons v. Missouri Pacific R. Co., 94 Mo. 286, 6 S.W. 464), there is no presumption of pecuniary loss to the beneficiaries in an action by the personal representative for the benefit of collateral heirs of the deceased. Pecuniary loss to the beneficiaries must be alleged (Lynch v. St. Louis Public Service Co., Mo.App., 261 S.W.2d 521; Williams v. Hines, Mo.App., 229 S.W. 414 416(4, 5)) and proved (Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176).

In an effort to meet that requirement the administrator in his petition in this case alleged that the beneficiaries had been 'deprived of the decedent's services, society, companionship and other contribution to their well-being.' The named beneficiaries, grandparents, aunts and uncles of the decedent, would not have been entitled as a matter of right to the services of the child had it survived. The mere possibility that some of the persons named might have acquired custody of the infant, and, by adoption or by standing in loco parentis, have succeeded to the rights of the natural parents for the services of the child is insufficient to show a reasonable probability of pecuniary benefit to the beneficiaries in the continued life of the child. The loss of society and companionship is not recognized as an element of pecuniary loss for the death of a child under our wrongful death act. Oliver v. Morgan, Mo.Sup., 73 S.W.2d 993, 997; Marshall v. Consolidated Jack Mines Co., 119 Mo.App. 270, 95 S.W. 972; ...

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