Nelms v. Bright, 45130

• Decision Date: 11 March 1957
• Docket Number: No. 45130,45130
• Parties: Patricla NELMS, a Minor, by Kenneth Nelms, her Father and Natural Guardian, Appellant, v. Stanley BRIGHT, Respondent.
• Court: Missouri Supreme Court

Page 483

299 S.W.2d 483

Patricla NELMS, a Minor, by Kenneth Nelms, her Father and Natural Guardian, Appellant, v. Stanley BRIGHT, Respondent.

No. 45130.

Supreme Court of Missouri, En Banc.

March 11, 1957.

Tom Brantley Mobley, Kennett, and Glennon T. Moran, St. Louis, for appellant.

Blanton & Blanton, Sikeston, for respondent.

STOCKARD, Commissioner.

This action for $15,000 compensatory damages was instituted by Patricia Nelms for the wrongful death of her mother, Syble Marie Nelms, who met her death on November 15, 1952, as the result of an automobile collision. Suit was not filed by the surviving husband within the prescribed time and plaintiff, who alleges in her petition that she 'is a minor daughter of the deceased,' brought this suit within one year. The petition makes no reference to other minor children.

On March 13, 1954, more than one year before this case went to trial, defendant filed a motion to dismiss the petition in which he alleged that Syble Marie Nelms left two minor children surviving her, and that the failure of both minor children to join in the suit was a defect of parties plaintiff; that it resulted in a nonjoinder of an indispensable party; and that the suit was not brought by the real party in interest. This motion was overruled on July 12, 1954, 'because of being filed out of time,' and on August 10, 1954, defendant filed an amended answer in which he preserved all the objections set forth in the motion.

At the trial, starting April 6, 1955, plaintiff's testimony established that James R. Nelms, the driver of the automobile in which Syble Marie Nelms was riding when she received the injuries resulting in her death, was a brother of plaintiff, and that he was a minor at the time of his mother's death, although he reached him majority prior to the time suit was filed. James was present at the trial and testified on behalf of plaintiff. At the conclusion of plaintiff's evidence the trial court directed a verdict for defendant for the reasons that there was a 'defect of parties plaintiff' and that plaintiff failed to make a submissible case. Plaintiff filed a motion for new trial and in the alternative requested the court to set aside the verdict and grant her leave to join her brother as a party to the action. The trial court made no ruling on this motion, and pursuant to Section 510.360 (all statutory references are to RSMo 1949, V.A.M.S.) it was deemed overruled at the end of ninety days. Plaintiff has appealed.

An action for wrongful death was not cognizable at common law. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889. Thus it is only by virtue of the wrongful death statutes that any claim or cause of action accrues to the persons named in Section 537.070. Plaza Express Company, Inc., v. Galloway, Mo.Sup., 280 S.W.2d 17. (All references to the wrongful death statutes are to the provisions as they existed prior to the amendment in 1955, see Laws of Missouri 1955, p. 778, unless otherwise stated.) 'A party suing under the [wrongful death] statute referred to must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action, and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons may sue as the statute permits, and they alone can sue. * * * It must 'be conceded that the section reserves to itself the exclusive power of naming those who can maintain the action and of fixing the time in which each of the enumerated persons could sue.'' Chandler v. Chicago & Alton Railroad Company, 251 Mo. 592, 600-601, 158 S.W. 35, 37. See also, Bonnarens v. Lead Belt Railway Company, 309 Mo. 65, 273 S.W. 1043; Betz v. Kansas City Southern Railway Company, 314 Mo. 390, 284 S.W. 455; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762.

The wrongful death statute creates but one indivisible cause of action which remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute. Cummins v. Kansas City Public Service Company, 334 Mo. 672, 66 S.W.2d 920; Fair v. Agur, 345 Mo. 394, 133 S.W.2d 402. The cause of action in this case accrued at the time of the death of Syble Marie Nelms. Cummins v. Kansas City Public Service Co., supra; Fair v. Agur, supra. It was not appropriated by the surviving husband within the period authorized by the statute, and the right to maintain the suit then passed to 'the minor child or children' of the deceased. Section 537.070. This means that when the deceased is survived by one minor child the suit may be maintained by him, but if the deceased is survived by two or more minor children, the right to maintain the suit is in 'the minor * * * children'. The right of James to bring suit as a minor child was not lost for the reason that he reached his majority after the cause of action accrued. Rutter v. The Missouri Pacific Railway Company, 81 Mo. 169.

Neither minor child has a separate interest in the compensation authorized by the wrongful death statute which he or she may sue for, alien, or release prior to the rendition of the judgment therefor. See Herrell v. St. Louis-San Francisco Railway Company, 324 Mo. 38, 44, 23 S.W.2d 102, 104, 69 A.L.R. 470, where this rule is announced concerning the interest of the father in the penalty authorized by the wrongful death statute. In Clark v. Kansas City, St. Louis & Chicago Railroad Co., 219 Mo. 524, 118 S.W. 40, 45, suit was brought under the penalty provision of the wrongful death statute by the mother. The statute then authorized the suit to be brought by 'the father and mother'. In support of the conclusion that the father and mother both must join, this court said: 'As the clear law reads, this defendant must pay in a specified case, to wit, when the father and mother join in the suit prior to judgment * * *. Shall we write into it [the statute] by construction an added provision, to wit, that the wrongdoer is not only liable in cases put by the statute itself, but is also liable in any case where one of two parents or one of a family of minors * * * is alone willing to sue for the penalty? Is it the statutory scheme that the wrongdoer should pay to one what the statute ordains should go to both parents, or all the minors? Or must he pay in full what all are not willing to receive? Or if he is to pay only part what part shall it be? The statutory penalty is indivisible, and all of it or none must be sued for.' (Italics added.) The quoted language pertaining to the necessity of all minor children to join in the suit is dictum, but we agree with the statement, and we see no reason to distinguish what was there said in reference to a suit under the penalty section from a suit under the compensatory section. The provision pertaining to those who are entitled to maintain the suit is the same. In this case 'the minor * * * children' have a joint claim, and all must be made parties. 25 C.J.S., Death, Sec. 57. See also Sharp v. Missouri Pacific Railway Company, 213 Mo. 517, 523, 111 S.W. 1154, 1156, where the question of defect of necessary parties plaintiff in a suit for wrongful death is discussed in connection with the contention that the petition did not allege that plaintiffs constituted all of the minor children of the deceased.

Prior to the above referred to amendment of the wrongful death statute in 1955, suit for the wrongful death of an unmarried minor child was authorized to be brought by 'the father and mother'. It was consistently and repeatedly held that the statute as then worded vested in the father and mother a joint cause of action in which both, if living, must join. Clark v. Kansas City, St. Louis & Chicago Railroad Co., supra; Herrell v. St. Louis-San Francisco Railway Company, supra; Heath v. Salisbury Home Telephone Company, 326 Mo. 875, 33 S.W.2d 118; Reynolds v. Thompson, Mo.Sup., 215 S.W.2d 452, 2 A.L.R.2d 785; Clark v. Kansas City, St. Louis & Chicago Railroad Co., 153 Mo.App. 689, 135 S.W. 979. Plaintiff attempts to distinguish these cases for the reason that, unlike the statute pertaining to the right of minor children to maintain the action for wrongful death of a parent, the statute which authorized suit by the father and mother for the wrongful death of an unmarried minor child provided that the father and mother should have an 'equal interest in the judgment'. The absence of such a provision in the statute pertaining to the right of the minor children to sue does not indicate that the cause of action is not joint. The cause of action is given to all the minor children, and only one judgment in a lump sum can be obtained.

By plaintiff pleading no more than that she 'is a minor daughter of the deceased,' and by her proof that James was also a minor at the time of the death of her mother, she has not brought herself by pleadings or proof within the statutory requirements necessary to confer the right to maintain this action, and the trial court correctly directed a verdict for the reason that there was a defect of necessary parties plaintiff.

Plaintiff urges that if the ruling of the trial court that there was a defect of necessary parties was correct the judgment should be reversed and remanded with leave to amend the petition because she otherwise made a submissible case. We shall review the evidence to determine if a submissible case was made, and if we so find we shall then consider whether, under the circumstances of this case, the cause should be remanded with leave to amend the petition.

Plaintiff pleaded primary negligence, and she contends that she made a submissible case as to her allegations of negligence on the part of defendant in that he 'failed to stop his automobile, when in the exercise of the highest degree of care, he would so have done;' that the defendant 'operated his automobile at a high...