Blessing v. Chicago, B. & Q. R. Co.
| Decision Date | 25 March 1943 |
| Docket Number | 38299 |
| Citation | 171 S.W.2d 602 |
| Parties | BLESSING et al. v. CHICAGO, B. & Q. R. CO. et al |
| Court | Missouri Supreme Court |
Motion to Transfer to Court in Banc Denied June 7, 1943.
K. L Stockman and Johnson & Garnett, all of Kansas City, for appellants.
H. M Langworthy and E. F. Halstead, both of Kansas City, and J. A Lydick, of St. Joseph (Langworthy & Matz, of Kansas City, of counsel), for respondents.
BOHLING, Commissioner.
May the minor children maintain an action under Section 3652, R.S.1939, Mo.R.S.A. § 3652, instituted between six months and a year following their father's death, for his alleged negligent death where the widow of the deceased, their stepmother, settled with and released, for a valuable consideration, the alleged tort feasor within six months after decedent's death without instituting suit?
Defendants say, and plaintiffs admit, the matter stands decided against plaintiffs in Hamilton v. Missouri Pac. R. Co., 248 Mo. 78, 154 S.W. 86. Plaintiffs insist that the case be overruled. The gist of plaintiffs' position is that the widow, where there are minor children, may not appropriate the statutory cause of action and defeat the statutory rights of the minor children other than by filing the statutory authorized suit within the six months' period. Recognizing the widow's right to settle, they contend her settlement without instituting suit binds only herself and does not extinguish their right of action. The facts are not disputed. Plaintiffs' sole assignment of error, which sufficiently indicates the factual issue, is that the trial court erred in overruling plaintiffs' motion to strike the defense of full payment, satisfaction, and release by the widow from defendants' answer and, upon plaintiffs' refusal to plead further, entering judgment for defendants.
The statute, so far as necessary, provides that whenever the death of any person is caused by the negligence of any employee of a railroad et cetera, 'the corporation * * * or any such * * * employee * * * shall forfeit and pay as a penalty, for every such person * * * so dying, the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, 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 * * *.'
The statute created a new cause of action. It did not revive a cause of action belonging to a deceased. Cummins v Kansas City Pub. Serv. Co., Banc, 334 Mo. 672, 678[2], 66 S.W.2d 920, 923[3]. It created but a single cause of action. Packard v. Hannibal & St. J. R. Co., 181 Mo. 421, 430, 80 S.W. 951, 954, 103 Am.St.Rep. 607; Kennedy v. Burrier, 36 Mo. 128, 130; Coover v. Moore, 31 Mo. 574, 576. The widow was given a preference over the minor children in the statutory created benefits. Huss v. Bohrer, 317 Mo. 204, 206, 295 S.W. 95, 96; McNamara v. Slavens, 76 Mo. 329, 331; Kennedy v. Burrier, supra; Coover v. Moore, supra. These benefits the 'penalty' and the right to sue are not joint and concurrent in the widow and the children. Cases cited supra. By instituting suit within the statutory six months' period, a widow appropriates the cause of action, thereby extinguishing the minor childrens' cause of action. Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 690-694, 66 S.W.2d 920, 929[14-18], reviewing the cases. Cases state the widow, having timely sued, may compromise, release or otherwise settle the controversy. McNamara v. Slavens, supra; Cummins v. Kansas City Pub. Serv. Co., supra. The foregoing observations are from plaintiffs' cases. Hamilton v. Missouri Pac. R. Co., supra, holds that, without instituting suit, the widow may timely settle and release the tort feasor of liability, and such settlement and...
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