Spencer v. Bradley, 48068

• Decision Date: 13 November 1961
• Docket Number: No. 48068,No. 1,48068,1
• Citation: 351 S.W.2d 202
• Parties: Steven Edward SPENCER, Harold Ray Spencer, Joanne Frances Spencer, Vickie Lea Spencer, Minors, by their next friend Donna Woody, Plaintiffs-Appellants. v. Robert BRADLEY, an individual, d/b/a Bradley L. P. Gas Company, Defendant-Respondent
• Court: Missouri Supreme Court

Page 202

351 S.W.2d 202

Steven Edward SPENCER, Harold Ray Spencer, Joanne Frances

Spencer, Vickie Lea Spencer, Minors, by their next

friend Donna Woody, Plaintiffs-Appellants. v. Robert BRADLEY, an individual, d/b/a Bradley L. P. Gas

Company, Defendant-Respondent.

No. 48068.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Max W. Foust and Russell D. Jacobson, Foust & Lyons, Kansas City, for appellants.

Lynn M. Ewing, Jr., and Boyd Ewing, Ewing, Ewing, Ewing, Carter & Wight, Nevada, for respondent.

DALTON, Judge.

Action by named minor children of Cleo Frances Spencer, deceased, for $25,000 damages for the alleged wrongful death of their said mother. Defendant's motion to dismiss plaintiffs' second amended petition was sustained and judgment of dismissal entered. Plaintiffs have appealed.

The action was commenced on July 10, 1957, by the filing of plaintiffs' petition in the Circuit Court of Vernon County, Missouri. Amended petitions were subsequently filed, the second amended petition on October 22, 1959. The said amended petition alleged that plaintiffs were the natural born children of Cleo Frances Spencer, who sustained fatal injuries on October 5, 1956, which resulted in her death on October 6, 1956; that at the time of her death Cleo Frances Spencer was survived by said children; that said suit was brought under the 'Death Statute of Missouri' for the benefit of said children; that all of said children were under the age of twenty-one years; that the deceased was also survived by her lawful husband, Edward Spencer; that Edward Spencer, as such surviving spouse of the deceased, did not appropriate or institute a cause of action for the wrongful death of his said wife within six months following the date of her death; that this action was instituted more than six months after said death of said Cleo Frances Spencer; that the death of Cleo Frances Spencer was directly and proximately caused by certain specified negligent acts and conduct of defendant as therein set forth; and that said minor children by reason of the death of their said mother had been deprived of her support, maintenance, training, instruction, leadership and care to their damage in the sum of $25,000.

In view of the particular issues presented, we need not review the particular negligence alleged, nor the circumstances attending the death of Mrs. Spencer.

The motion to dismiss was based upon certain alleged facts, the correctness of which were fully covered by a stipulation between the parties, as follows: That on or about the 28th day of November 1956 (a date within six months following the death of Cleo Frances Spencer), Edward Spencer, her husband and the natural father of plaintiffs herein, 'did release the Carter Oil Company, a corporation; C. D. Schmidts, individually and in the capacity of Schmidts Appliance Company and Robert E. McLean, Sr., Thelma F. McLean and Robert E. McLean, Jr., individually and in their capacity as McLean Propane Company, from all rights, claims, liabilities, demands and suits as set forth in said release which is marked Defendant's Exhibit A'; that Cleo Frances Spencer was injured in an explosion, as referred to in plaintiffs' second amended petition, October 5, 1956, and died as a result of said explosion on October 6, 1956; that Edward Spencer, the father of plaintiffs and the husband of Cleo Frances Spencer, did not file any suit or civil action or cause of action in any court in the State of Missouri within six months after the death of his wife, Cleo Frances Spencer; that on July 10, 1957, the plaintiffs in this cause filed suit against defendant without disclosing that Edward Spencer had previously settled with the persons above named; that plaintiffs' action was filed more than six months after the death of Cleo Frances Spencer, but within one year of date of death of Cleo Frances Spencer; and that on October 4, 1957, Edward Spencer, the surviving spouse of Cleo Frances Spencer, did file suit against defendant herein in the Circuit Court of Bates County for the wrongful death of his wife, Cleo Frances Spencer, which said suit was filed within one year after the date of the death of Cleo Frances Spencer but more than six months after such death.

Defendant's motion to dismiss was based upon the theory that the action of Edward Spencer in settling for $7,500 his claims against the persons named in the above release 'did thereby appropriate unto himself the claim for the wrongful death of Cleo Frances Spencer within six months of the date of death of Cleo Frances Spencer and did thereby appropriate unto himself all rights for said claim and did thereby bar any rights which the children of Cleo Frances Spencer as above-named might have for the wrongful death of their mother Cleo Frances Spencer; and that the plaintiffs in the cause herein as the result of the appropriation of said cause of action by their father Edward Spencer have no interest whatsoever and no claim whatsoever for the death of Cleo Frances Spencer, their mother.'

The release mentioned in the stipulation covers several pages of the transcript, but the particular paragraph emphasized by the parties is as follows: 'It is specifically understood that the undersigned, Edward Spencer, is releasing hereby only his claim against the above-named parties, their agents, employees, heirs, successors and assigns, and that said Edward Spencer does hereby expressly reserve any claims, right or cause of action which he may have against Robert Bradley, Bradley Gas Company, and any other individual, organization or corporation and does hereby expressly reserve and right which he may have to proceed against said Robert Bradley or any other said party.'

In the order dismissing the cause, the trial court incorporated an extended opinion, reviewing authorities and stating the conclusions reached, in part, as follows: 'It thus appears that Edward Spencer, by executing this release for a valuable consideration as recited therein, recognized that he had some type of claim against the persons named therein as surviving spouse of Cleo Frances Spencer for her wrongful death, and Exhibit A is some evidence thereof, and that his action in so executing the release is a bar to plaintiffs' claim here, and the defendant's position should be sustained.'

Appellants assign error on the action of the court in dismissing their amended petition and say that the question involved here 'is whether, under the Missouri Death Act, a surviving spouse by executing a partial release to a party, but not all of the alleged tort-feasors who were responsible for his wife's death, has effectively barred, appropriated and/or extinguished the balance of said claim on behalf of his deceased spouse's children against a tort-feasor not included in the release.'

Appellants insist that 'under Missouri law plaintiffs' father could validly reserve a cause of action against the defendant and in fact did release only a part of those responsible for the death, and specifically reserved a cause of action against the defendant'; that there is no provision in the Missouri Death Act and no judicial decision prohibiting a reserved, but unused, right of action under said Act from vesting in deceased's minor children after the surviving spouse's period for bringing his action had expired; and that the 'legislative intent behind the Act lends support to an interpretation allowing such a vesting of the unused right; said interpretation being that each wrongdoer is liable to each proper party in his turn for the whole period of the Act's statute of limitations unless effectively released by suit or other appropriate means.'

Respondent, on the other hand, seeks to sustain the action of the court upon the ground (1) that 'a cause of action for death creates only a single cause of action under the statutes of the State of Missouri and such cause of action cannot be split between several classes of claimants'; (2) that 'pursuant to Section 537.080 R.S.Mo. 1959, Edward Spencer, father of plaintiffs, was entitled, within six months after the death of Cleo Frances Spencer to appropriate to himself all claims for her wrongful death, and by executing defendant's Exhibit 'A', Edward Spencer did appropriate unto himself all claims for the wrongful death of Cleo Spencer for the entire one year statutory period, to the exclusion of these plaintiffs'; and (3) that 'the reservation of rights contained in defendant's Exhibit 'A' runs in favor of Edward Spencer, and this reservation plus the settlement with the parties thereto is an effective appropriation of the claim by Edward Spencer so as to bar plaintiffs herein from asserting any claim for the death of Cleo Spencer, and Edward Spencer had control of any such claim against defendant for the one year statutory period.'

Respondent does not contend that the release (defendant's Exhibit 'A') given by Edward Spencer to certain named persons in release of his claims against them for the alleged wrongful death of his wife, Cleo Frances Spencer, was a full and complete release of all claims for her death, nor does respondent question the rule that, 'where joint tort-feasors are involved, a claimant may settle with part of the alleged joint tort-feasors and reserve or retain his rights against the others.' See Sec. 537.060 RSMo 1959, V.A.M.S.; Birmingham v. Kansas City Pub. Serv. Co., 361 Mo. 458, 235 S.W.2d 322, 325.

As we view respondent's position it is that Sec. 537.080 RSMo 1959, V.A.M.S., provides for a single right of recovery for the death of Cleo Frances Spencer; that during the first six months following her death this right of recovery was vested exclusively in her surviving husband, Edward Spencer; that during this period Edward Spencer appropriated this right of recovery by the execution of the partial release to certain named and alleged joint tort-feasors who contributed to cause her death; that having so appropriated the right of...