Cummins v. K.C. Pub. Serv. Co., 31239.

• Citation: 66 S.W.2d 920
• Decision Date: 22 December 1933
• Docket Number: No. 31239.,31239.
• Parties: WESLEY CUMMINS, by Next Friend et al., Appellants, v. KANSAS CITY PUBLIC SERVICE COMPANY, CHARLES BROWN AND CLAUD BROWN.
• Court: United States State Supreme Court of Missouri

66 S.W.2d 920 WESLEY CUMMINS, by Next Friend et al., Appellants,
v.
KANSAS CITY PUBLIC SERVICE COMPANY, CHARLES BROWN AND CLAUD BROWN. No. 31239. Supreme Court of Missouri. Court en Banc, December 22, 1933.

[66 S.W.2d 921]

Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.

REVERSED AND REMANDED.

Clif Langsdale and Roy W. Rucker for appellants.

This action was brought under Section 4217, Revised Statutes 1919, now Section 3262, Revised Statutes 1929. It is apparent from the terms of the above section that the Legislature intended to make provision for the dependents of the deceased. The mere fact that the widow, who had priority for six months, filed suit seeking to recover damages for the wrongful death of her husband, should not deprive appellants, who were minor children of the deceased and who filed this action within one year after the death of their father, of the right of recovery, where it appears that before any order had been made in the widow's case she died and the suit abated upon the motion of the respondents. Davis v. Railroad, 41 Ga. 223; Morris v. Railroad, 49 S.E. 854; Cooper v. Railroad, 44 Atl. 633; Walsh v. Bresette, 155 Atl. 1.

Charles L. Carr, M.T. Prewitt and E.E. Ball for Kansas City Public Service Company.

(1) The trial court did not err, but correctly ruled, in sustaining the separate demurrers of defendants (respondents here) to plaintiffs (appellants) amended petition. (a) There is no right of action for wrongful death at common law. State ex rel. Thomas v. Daues, 314 Mo. 30; Betz v. K.C. So. Ry. Co., 314 Mo. 399; Freie v. Ry. Co., 283 Mo. 464; Chandler v. Railroad Co., 251 Mo. 601; McNamara v. Slavens, 76 Mo. 331. (b) A party seeking to recover from a street railway corporation the penalty prescribed by Revised Statutes 1929, Section 3262 (R.S. 1919, sec. 4217), for the negligent killing of another, must by his pleading bring himself squarely within the terms and requirements of said statute, otherwise he states no cause of action. Betz v. K.C. So. Ry. Co., 314 Mo. 399; Chandler v. Railroad Co., 251 Mo. 601; Packard v. Railroad Co., 181 Mo. 428; Barker v. Railroad Co., 91 Mo. 94; Longan v. K.C. Rys. Co., 299 Mo. 570; Freie v. Ry. Co., 283 Mo. 464; McNamara v. Slavens, 76 Mo. 331. (c) Under Section 3262, Revised Statutes 1929 (R.S. 1919, sec. 4217, under which section this action is brought) a surviving widow by bringing suit within six months after the death of her husband fully vests the cause of action for the husband's wrongful death in herself to the exclusion of his minor children, and this regardless of the subsequent disposition made of the suit brought by the widow; the bringing of the suit by the widow within six months after the death of her husband irrevocably establishes her right to the action and forever cuts off any right in the children. R.S. 1929, sec. 3262; Huss v. Bohrer, 317 Mo. 206; Packard v. Railroad Co., 181 Mo. 432; McNamara v. Slavens, 76 Mo. 332; Barker v. Railroad Co., 91 Mo. 94; Anderson v. Asphalt Distributing Co., 55 S.W. (2d) 692; Lampe v. St. Louis Brewing Assn., 204 Mo. App. 382; certiorari quashed in State ex rel. St. Louis Brewing Association v. Reynolds, 226 S.W. 579; Betz v. K.C. So. Ry. Co., 314 Mo. 414. (d) Where a statute, as Revised Statutes 1929, Section 3262 (R.S. 1919, sec. 4217), is plain and unambiguous, admitting of only one meaning, there is no room or need for judicial construction, and the usual rules for construing ambiguous statutes do not apply. Betz v. K.C. So. Ry. Co., 314 Mo. 412; Grier v. Ry. Co., 286 Mo. 534; Clark v. Railroad Co., 219 Mo. 534. (e) The contention of plaintiffs herein that Section 3262, Revised Statutes 1929 (R.S. 1919, sec. 4217), should give minor children a right of action for the death of their father, even though the surviving widow has brought suit within six months after the death of the father and husband (such right not being within the present purview of the statute), should be addressed to the Legislature and not to the court, as the Legislature must write the law and it would be an invasion of the Legislature's prerogative for the court to amend the clear and unambiguous language of a statute by judicial legislation. Betz v. K.C. So. Ry. Co., 314 Mo. 413; Clark v. Railroad Co., 219 Mo. 541.

Crouch & Crouch and John D. Wendorff for Charles L. Brown and Claud E. Brown.

HYDE, C.

This is an action for damage for wrongful death. Plaintiffs are the three minor children of Archie C. Cummins, who was killed when a street car belonging to defendant Kansas City Public Service Company collided with a bus. The deceased was a passenger on the bus, which was owned by defendants Brown, copartners, in the business of operating automobile busses for carriage of passengers for hire under the name of Brown Brothers Bus Company. Plaintiffs' amended petition alleged that their father was killed on September 3, 1928; that at that time the wife of deceased, mother of plaintiffs, was living and did, upon September 25, 1928, commence a suit for damages for his death; but that she died on August 1, 1929, while her said suit was pending but before the same had been reached for trial or any order of any kind made therein; and that thereafter, upon her death, being suggested by the defendants and upon their request, her suit was dismissed. This suit was commenced August 31, 1929, within one year after the death of plaintiffs' father. Separate demurrers were filed by the defendants upon the ground that the petition did not state facts sufficient to constitute a cause of action and upon the further ground that whatever cause of action may have accrued out of the death of said Cummins was appropriated by his widow by filing suit as stated in plaintiffs' petition, which was merely a restatement of the first ground but giving reasons why plaintiffs did not state a cause of action. These demurrers were sustained, plaintiffs refused to plead further, and judgment was entered for defendants. From this judgment plaintiffs appealed.

66 S.W.2d 922

The sole question presented upon this appeal is whether the minor children of the deceased had any right under our wrongful death statutes to sue for the death of their father, when their mother, the wife of the deceased, was living at the time of his death and had brought suit within six months after his death, but had died before the expiration of the one-year period, in which they were permitted to sue in case she had not done so.

We have two wrongful death statutes, Section 3262, Revised Statutes 1929, the railway, steamboat and stage coach statute, and Section 3263, Revised Statutes 1929, the general statute, covering death by other wrongful act, negligence or default. [See Casey v. St. Louis Transit Co., 205 Mo. 721, 103 S.W. 1146; State ex rel. Iba v. Mosman, 231 Mo. 474, 133 S.W. 38.] The right of beneficiaries to sue, in either case, is governed by the following portion of the former section, which provides that damages for wrongful death "may be sued for and recovered," as follows:

"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 whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; ... or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, ... then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor; or, fourth, if there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore 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." [Words of the original Act of 1855 in italics.]

It is required by Section 3266, Revised Statutes 1929, that every action for wrongful death "shall be commenced within one year after the cause of action shall accrue." Saving clauses provide that absence of the defendant from the State tolls the running of this period of limitation, and also that if an action be commenced in time, when a nonsuit is taken, a new action may be commenced within one year thereafter.

[1] No Missouri case settled the question to be decided here and in its consideration the historical basis of our wrongful death statutes is enlightening. The maxim "actio personalis moritur cum persona" was such an established principle of the common law, that it was well settled that an action for personal injuries did not survive to the personal representative but that the right died with the injured person. It was thought, however, that a person entitled to the services of another (as in the case of husband and wife, parent and child or master and servant) could recover for the wrongful death of such person on the theory of loss of services. The common-law rule was settled to the contrary in Baker v. Bolton (1808), 1 Campb. 493 (a husband's action for the wife's death), where Lord Ellenborough held that "in a civil court, the death of a human being could not be complained of as an injury." He did allow recovery for loss of services during the period between the time of the injury and time of death. Some American courts even thereafter, before the passage of wrongful death acts, allowed recovery by a father for loss of services for the death of a minor son. [See James v. Christy, 18 Mo. 162; Shields v. Yonge, 15 Ga. 349, 60 Am. Dec. 698; Sullivan v. Union Pacific Ry. Co., 3 Dill. 334, Fed. Cas. No. 13599.] The first real right to recover for the wrongful death of a person (not on the theory of loss of services) was created by...