State ex rel. Slibowski v. Kimberlin

• Decision Date: 31 December 1973
• Docket Number: No. KCD,C,No. 1,1,KCD
• Citation: 504 S.W.2d 237
• Parties: STATE ex rel. James SLIBOWSKI, Relator, v. Honorable William H. KIMBERLIN, Judge of Divisionircuit Court of Buchanan County, Missouri, Respondent. 26781.
• Court: Missouri Court of Appeals

Page 237

504 S.W.2d 237

STATE ex rel. James SLIBOWSKI, Relator, v. Honorable William H. KIMBERLIN, Judge of Division No. 1 Circuit Court of Buchanan County, Missouri, Respondent.

No. KCD 26781.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1973.

Dale, Flynn & Bauman, Martin M. Bauman, St. Joseph, for relator.

Robert B. Randolph, St. Joseph, for respondent.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD, WASSERSTROM and SOMERVILLE, JJ.

SHANGLER, Judge.

In this original proceeding in mandamus, relator, father of a minor child, seeks to compel respondent circuit judge to permit him to intervene in an action for the wrongful death of the child brought by the mother.

The facts are not in dispute. James Kevin Slibowski, the thirteen year old son of relator James Slibowski and Beverly Slibowski, was killed by accident. At the time of his death, his parents had been divorced for seven months and his custody had been given to the mother by the decree. The mother filed a petition in the Circuit Court of Buchanan County for the wrongful death of her son. The relator promptly brought his motion to intervene in the action and requested that his petition for damages for the death of the child be filed by the court. After evidentiary hearing, the respondent circuit judge denied the relator intervention.

It is the assertion of the relator that by the terms of § 537.080, RSMo 1969, V.A.M.S., the wrongful death statute, and the provisions of Rule 52.12, V.A.M.R., the law accords him an absolute right to intervene in the action brought by Beverly Slibowski for the wrongful death of their son, a right which mandamus will compel.

In the parts relevant to the issue presented, § 537.080 provides:

Action for wrongful death--who may sue

Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered

(1) By the spouse or minor children, natural or adopted, of the deceased . . . or (2) If there be no spouse or minor children or if the spouse or minor 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 if either of them be dead, then by the survivor; or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents; . . . ¹ (Emphasis supplied.)

This statute creates an indivisible cause of action in favor of the parents for the wrongful death of their unmarried minor child and allows them a single recovery for their equal benefit. Higgins v. Gosney, 435 S.W.2d 653, 657(2--4) (Mo.1969). It is the view of respondent, however, that this statute does not accord one parent the unqualified right to intervene in the pending suit of the other for the wrongful death of their unmarried minor child, but that the provision that damages may be sued for and recovered

by the father and mother . . . who may join in the suit . . . or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both parents

allows the mother to refuse the father joinder in the suit and to maintain the action in her name alone for the use and benefit of them both. This proposition, based upon fragments excerpted from the body of the damage act, finds no valid support in either the language or the enactment or its legislative history.

There was no right of action for a wrongful death at common law. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 895(6, 7) (1943). Thus it is only by virtue of legislative enactment that any claim or cause of action accrues under § 537.080. That statute not only prescribes the preclusive remedy for wrongful death, but also nominates those entitled to sue and the terms on which they can sue. Clark v. Kansas City, St. L. & C.R. Co., 219 Mo. 524, 118 S.W. 40, 45(3) (1909); Nelms v. Bright, 299 S.W.2d 483, 487(2--4) (Mo. banc 1957).

The present text of § 537.080 results from an amendment enacted in 1955. Prior to the amendment, § 537.070(3), the predecessor to present § 537.080(2) (under which the mother now asserts right to maintain in her name alone the action for wrongful death of the child James), provided as to persons who may sue:

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 if either of them be dead, then by the survivor.

This provision was uniformly construed to vest in the parents a joint cause of action for the wrongful death of an unmarried minor child in which both, if living, must join. Herrell v. St. Louis-San Francisco Railway Company, 324 Mo. 38, 23 S.W.2d 102, 104(1) (banc 1929); Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 46 S.W. 966, 967 (1898); Clark v. Kansas City, S.L. & C.R. Co., supra, 118 S.W., l.c. 45(3). This provision, construed by the courts with the strictness accorded statutes in derogation of the common law, was held to disentitle one parent alone from maintaining an action for the wrongful death of a child although the other parent refused to join in the recovery (Clark v. Kansas City, St. L. & C.R. Co., supra) or when the other parent could neither be found nor be proved dead (Heath v. Salisbury Home Telephone Co., 326 Mo. 875, 33 S.W.2d 118 (banc 1930)). The hardships of the statute, these decisions noted, could be relieved only by legislation authorizing the prosecution of such cases by one parent where the requirement of joinder by the other living parent cannot be met. The lawmakers responded, if belatedly, by the 1955 amendment which re-enacted the statutory language of former § 537.070(3) (construed by the courts to require the joinder of both parents, if living) and by adding 'or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents'.

Although the 1955 amendment to § 537.070(3) (now § 537.080(2)) enlarged the remedy for the wrongful death of an unmarried minor child to avoid forfeiture of recovery altogether when one parent is unable or refuses to join in the suit, the remedy may be exercised only by the persons and on the terms prescribed by the statute which created the right of action. Chandler v. Chicago & Alton Railroad Company, 251 Mo. 592, 158 S.W. 35, 37(2) (1913); Oates v. Union Pacific Ry. Co., 104 Mo. 514, 16 S.W. 487, 488 (1891); Hennessy v. Bavarian Brewing Co., supra, 46 S.W., l.c. 967. Under the 1955 amendment the cause of action for the wrongful death of an unmarried minor child remains...