Kausch v. Bishop

Decision Date24 July 1978
Docket NumberNo. 60632,60632
Citation568 S.W.2d 532
PartiesJenny Elizabeth KAUSCH, a minor by her next friends, Michael Kausch, et al., Plaintiffs-Appellants, v. Dr. Marion D. BISHOP, M. D., Defendant-Respondent.
CourtMissouri Supreme Court

Edward P. Burke, Robert S. Moss, Wion, Burke & Boll, Clayton, for plaintiffs-appellants.

Joel D. Monson, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for defendant-respondent.

SIMEONE, Judge.

This case presents a unique and heretofore unresolved question concerning the right of a child of a deceased unmarried minor to maintain an action for damages under the Missouri Wrongful Death Act. §§ 537.080, 537.100, RSMo 1969.

The precise issue confronting us is whether an infant child of a deceased unmarried minor who is survived by a mother and father may commence an action for the wrongful death of her mother after a period of one year but prior to the expiration of two years from the date of the mother's death allegedly caused by the negligence of the defendant.

The trial court dismissed two counts of the petition relating to the child's claim because the petition was not brought within a period of one year. The trial court, consistent with the Rules, designated the dismissal of the child's petition as a final, appealable order and the child appealed to the Court of Appeals, St. Louis District. That district reversed the judgment and held, in an opinion dated January 10, 1978, that the child of a deceased unmarried minor could maintain an action for the wrongful death of her mother within two years from the date of the mother's death.

After the opinion of the Court of Appeals was handed down, we granted the respondent's motion to transfer and now decide the case as on original appeal. Article V, § 10, Rule 83.03.

The facts of this case are relatively simple but the resolution of the legal issue is not easily settled in view of the present statutes relating to wrongful death.

On August 12, 1976, a petition for damages for the wrongful death of Joanna Kausch, an unmarried minor, was filed. The petition was in four counts. Counts I and II sought damages by Joanna's two year old daughter, Jenny Elizabeth Kausch by and through her next friends Michael and Irene Kausch, the infant's grandparents. 1 Count I sought actual and Count II sought punitive damages. Counts III and IV brought by the parents of Joanna Michael and Irene Kausch, individually sought damages for "loss of services" and for "wrongful death" of their "unmarried minor" daughter. 2

On September 21, 1976, respondent Dr. Marion D. Bishop, M.D., filed his motion to dismiss Counts I and II because (1) the child's mother, Joanna, died on June 13, 1975; (2) that Jenny Elizabeth was a surviving minor child of Joanna; (3) that §§ 537.080 and 537.100 provide that the minor child "must file its action for wrongful death within one year after death"; and (4) that because the action was filed on August 20 (sic 12th?) it was not timely filed, hence Counts I and II should be dismissed. After the motion was submitted and argued, the trial court sustained the defendant-respondent's motion to dismiss Counts I and II, and designated, nunc pro tunc, the dismissal as a final appealable order under Rule 81.06.

On this appeal, appellant, Jenny Elizabeth Kausch contends that the trial court erred in dismissing Counts I and II because the deceased, Joanna, was an unmarried minor and therefore (a) the child or the parents may file suit within two years, or (b) the child and the parents may file suit jointly or severally within two years, or (c) the child having brought suit within two years, the child appropriated the action for wrongful death. The appellant argues that § 537.080, subsection (2) provides that the parents have an immediate claim upon the death of the daughter Joanna 3 and § 537.080, subsection (1) provides that the deceased's minor child may bring the action upon her mother's wrongful death. She argues that the one year limitation requirement if a minor child fails to sue within one year has been held applicable only to situations where the right of action "passes" to the parents of a child, and where there are no parents for the claim to "pass" to the spouse or minor children the children have two full years within which to sue. She also argues that where there is no preferential class of beneficiaries for wrongful death and each class stands on the same footing, the one year requirement that a minor child sue within one year is inapplicable; hence both the minor child under § 537.080(1) and the parents under § 537.080(2) have two years under § 537.100 to maintain an action for the death of an unmarried minor who leaves a minor child. She urges us to liberally construe § 537.080 to reflect the intent of the General Assembly to provide a remedy for those who suffer a loss as a result of another's wrongful death.

Appellant concludes by contending that the legislative intent is to grant to either the child or the parents of the deceased unmarried minor the right to sue within two years so that both child and parents have the right to maintain the action.

Respondent, Dr. Bishop, on the other hand contends that the statute, § 537.080 clearly provides that since the child, Jenny, did not commence her action within one year after the death of her mother, Joanna, she has no claim, and the right of action "passes" to the deceased's parents. Respondent, however, concedes in his brief that within one year after the death of Joanna, the parents (Michael and Irene) could have immediately brought suit for the wrongful death of Joanna. Respondent's argument is that the

". . . correct interpretation of the statute and its resultant application in this case is that whereas the surviving minor child could have brought action within a year of her mother's death either severally or jointly with the parents of the deceased, once the year's period had passed, she no longer had any right to bring this action and whatever rights she initially did, in fact, pass to the parents of deceased. . . ."

The resolution of the issue presented requires a construction of our Wrongful Death Act, §§ 537.080, 537.100, RSMo as amended in 1967.

Section 537.080 provides:

"Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, . . . the person who . . . would have been liable if death had not ensued shall be liable to an action for damages, . . . which damages may be sued for and recovered

"(1) By the spouse or minor (child) children, natural or adopted, of the deceased, either jointly or severally; . . . and provided, further, that only one action may be brought under this subdivision against any one defendant; or

(2) If there be no spouse or minor children or if the spouse or minor (child) children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; . . . or

(3) 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, . . . ." (Emphasis added.)

Section 537.100, RSMo provides:

"Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; . . . ."

Although serious doubt has been raised in recent decisions, 4 the traditional principle is, and the overwhelming weight of authority holds, that no cause of action or claim for relief existed at common law and it is only by the creation of the wrongful death acts that such a claim was established. Glick v. Ballentine Produce, Incorporated, 343 F.2d 839, 841 (8th Cir. 1965), cert. den. 382 U.S. 891, 86 S.Ct. 184, 15 L.Ed.2d 149 (1965); Glick v. Ballentine Produce Incorporated, 396 S.W.2d 609, 614 (Mo.1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 44, 15 L.Ed.2d 5 (1966); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 922 (banc 1933); State v. Daues, 314 Mo. 13, 283 S.W. 51, 56, 45 A.L.R. 1466 (banc 1926); Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808); Davis Wrongful Death, 1973 Wash.U.L.Q. 327, 327-329.

From this traditional principle and the judicial constructions thereof many subsidiary and corollary principles flow. 5

In our opinion, the one year limitation statute embodied in § 537.080(2) requires the child of a deceased unmarried minor to commence an action for wrongful death within one year from the date of death. We believe such conclusion is compatible with previous decisions and the statutory scheme for compensation in wrongful death cases.

In Wessels v. Gipfel, 522 S.W.2d 653 (Mo.App.1975), George Wessels, a 25-year old unmarried adult lived with his mother and was her principal source of support. He met his death by reason of the alleged negligence of the defendant. He also left an infant daughter born out of wedlock. 6 The daughter's action was not filed within one year after his death or after one year after her birth. The mother had filed suit for damages for wrongful death of her son but the suit was dismissed upon a negotiated settlement. The trial court dismissed the infant's petition and the Missouri Court of Appeals, St. Louis District affirmed.

The court examined the basic theory of the Wrongful Death Act and held that the infant child of the unmarried adult, a member of the class described in subsection (1) of § 537.080 who did not file her action within one year after such death was barred from maintaining an action so that the claim was subject to appropriation by the mother.

In State ex rel. Kan. City Stock Yards v. Clark, 7 this court en banc held that the surviving spouse and...

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    • Missouri Court of Appeals
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    ...in the operation of the predecessor law. See Crane v. Riehn, 568 S.W.2d 525 (Mo. banc 1978) and dissent of Bardgett, J.; Kausch v. Bishop, 568 S.W.2d 532 (Mo. banc 1978); dissent of Bardgett, J. and concurrence in dissent of Seiler, J. The strictures and uncertainty as to the sense of the s......
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    ...banc 1978) (superseded by statute as stated in State ex rel. Research Medical Center v. Peters, 631 S.W.2d 938 (Mo.App.1982)); Kausch v. Bishop, 568 S.W.2d 532 (Mo. banc 1978); Edmonsond v. Lakeside Hospital, 562 S.W.2d 361 (Mo. banc 1978) (all holding minors to the provisions of the former......
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    ...naturally suffer the greatest loss; and that subsection 2 and 3 of that section establish exceptions to that principle." Kausch v. Bishop (Mo.1978), 568 S.W.2d 532, 536. While Illinois, unlike Missouri, specifically provides that a wrongful death action is to be brought by the personal repr......
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