Fair v. Agur

• Citation: 133 S.W.2d 402
• Decision Date: 22 November 1939
• Docket Number: No. 35811.,35811.
• Court: Missouri Supreme Court
• Parties: PEARL FAIR, Natural Guardian of ELWOOD FAIR, PETE FAIR, MARTHA JANE FAIR, DIXIE FAY FAIR and ALPHA LEE FAIR, Appellant, v. MAY AGUR.

133 S.W.2d 402

PEARL FAIR, Natural Guardian of ELWOOD FAIR, PETE FAIR, MARTHA JANE FAIR, DIXIE FAY FAIR and ALPHA LEE FAIR, Appellant, v. MAY AGUR.

No. 35811.

Supreme Court of Missouri.

Division Two, November 22, 1939.

Appeal from Jasper Circuit Court. — Hon. Wilbur J. Owen, Judge.

AFFIRMED.

Prettyman & Prettyman for appellant.

"To hold that the substitution of a new party, in the instant case, changes the cause of action would be inequitable and iniquitous." I think this case is entirely in point. Also other cases in point are, to-wit: Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Stone v. McClinton, 177 Mo. App. 499, 160 S.W. 833; Hackett v. Van Frank, 119 Mo. App. 648, 96 S.W. 247; Insurance Co. v. Milling Co., 135 Mo. App. 365, 116 S.W. 1112; Merryman v. Springfield, 142 Mo. App. 506, 127 S.W. 122; Ward v. Pine, 50 Mo. 38; Cytron v. Transit Co., 205 Mo. 692, 103 S.W. 109; Walker v. Railroad Co., 193 Mo. 453, 92 S.W. 83. A widow suing as beneficiary could substitute herself as administratrix; even substituting a new party plaintiff is permissible. Eulinberg v. Quick Payment Old Line Life Ins. Co., 261 S.W. 725. Under facility of payment clause a mother could not sue — administrator was substituted. Craig v. Met. Life Ins. Co., 296 S.W. 209. Father sued for death of child, after one year the mother joined as a plaintiff. Statute of Limitations held not to prevent. Cytron v. Transit Co., 205 Mo. 692. The general rule to substitute an administrator for a person party or vice versa is permissible. 24 C.J. 423.

Ray Bond for respondent.

(1) Since the deceased, Harvey Dixon Fair, was survived by a widow and minor children, no action for his death could be maintained by the administratrix of his estate. Secs. 3262, 3263, 3264, R.S. 1929; Longan, Admr., v. Kansas City Rys. Co., 299 Mo. 570, 253 S.W. 758; Freie v. Frisco Ry. Co., 283 Mo. 463, 222 S.W. 825. (2) There being no cause of action in the administratrix when the original petition was filed, such petition could not be amended more than one year after the death of the deceased, Harvey Dixon Fair, by bringing in the minor children, through their mother, as natural guardian, as parties plaintiff. Secs. 3262, 3263, 3264, R.S. 1929; Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W. (2d) 1; Meservey v. Pratt-Thompson Const. Co., 291 S.W. 174.

BOHLING, C.

This is an action seeking the recovery of $10,000 damages for the allegedly wrongful death of Harvey D. Fair, who departed this life November 1, 1934. Eleven months thereafter and on October 9, 1935, Pearl Fair, the duly appointed, qualified and acting administratrix of the estate of Harvey D. Fair, deceased, instituted the action against May Agur. Thereafter and on January 22, 1936, more than a year and two months after the death of deceased, Pearl Fair filed a motion alleging that she was the widow of said Harvey D. Fair and the mother and natural guardian of Elwood Fair, Pete Fair, Martha J. Fair, Dixie F. Fair and Alpha L. Fair, minor children of said Harvey D. Fair, deceased, and prayed leave to amend said petition and continue said action as said natural guardian of said minor children; and, on said date, filed an amended petition as such natural guardian aforesaid. Thereafter, defendant filed a motion to strike said amended petition from the files; which motion was, by the court, sustained. Thereupon, plaintiff refused to further plead and a judgment was entered dismissing plaintiff's cause of action and in favor of defendant for costs.

An issue with respect to the right to make an amendment differs from an issue involving the legal sufficiency of the amendment when made. The litigants present no procedural issue here. Plaintiff's ultimate position is that she is entitled to proceed with the trial on the merits under the amended petition in any event and we so treat this review. The issue may be said to involve the substitution of a proper party plaintiff after the expiration of the limitation period in an action under the wrongful death statute originally instituted by a plaintiff in whom no cause of action existed.

Sections 3262 and 3266, Revised Statutes 1929, Mo. Stat. Ann., pp. 3353 and 3385 (considered in connection with Secs. 3263 and 3264, Ibid., pp. 3371 and 3377), state by whom and when suits for wrongful death may be instituted. Sufficient for our discussion, Section 3262 provides that recovery may be had: "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 ...; or, third, if such deceased be a minor and unmarried, ... then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment ...; or fourth, if there be no husband or wife, minor child or minor children ..., 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 ...;" and Section 3266 provides: "Every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue... ."

Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 986[1-3], 111 S.W. (2d) 1[1-6], was an action for the death of Henry C. Goldschmidt, who was killed April 8, 1934. On October 18, 1934, more than six months after the death, the widow, as sole plaintiff, instituted suit. June 17, 1935, more than a year after the death, the widow, minor children, employer and insurer joined as parties plaintiff in an amended petition. Demurrer thereto was sustained, as was a demurrer to a second amended petition by the same plaintiffs. In sustaining the action of the trial court, BRADLEY, C., said: "The widow did not sue within six months, therefore, when the first petition was filed by her alone, there was no cause of action in her to state." And speaking to the contention that the amended petition related back to the filing of the original petition: "There would be merit in the relating back contention if there had been a cause of action vested in the widow when she, as sole plaintiff, filed the original petition, but, when the original petition was filed, there was no cause of action in the widow, hence there was nothing to relate back to... . To rule in accordance with the relating back theory, under the facts as appear here, would be to nullify ...