Wessels v. Gipfel, No. 36046

• Court: Missouri Court of Appeals
• Writing for the Court: ALDEN A. STOCKARD; SMITH, C.J. and NORWIN D. HOUSER
• Citation: 522 S.W.2d 653
• Decision Date: 22 April 1975
• Docket Number: No. 36046
• Parties: Tonya Georgette WESSELS, a minor, by Luanna Sams, her next friend, Plaintiff-Appellant, v. Howard GIPFEL, Jr., Defendant-Respondent. . Louis District, Division Four

Page 653

522 S.W.2d 653 Tonya Georgette WESSELS, a minor, by Luanna Sams, her next
friend, Plaintiff-Appellant,
v.
Howard GIPFEL, Jr., Defendant-Respondent. No. 36046. Missouri Court of Appeals, St. Louis District, Division Four. April 22, 1975.

Friedman & Fredericks, Oval A. Phipps, Clayton, for plaintiff-appellant.

Heneghan & Roberts, Inc., Kemper R. Coffelt, Jay G. Newquist, St. Louis, for defendant-respondent.

ALDEN A. STOCKARD, Special Judge.

Plaintiff has appealed from the judgment of the circuit court dismissing her petition for compensatory damages resulting from the alleged wrongful death of her putative father.

Certain facts are admitted, or for the purpose of this appeal are assumed by the parties. George Wessels, age twenty-five, met his death on October 24, 1971, by reason of the negligence of Howard Gipfel, Jr., respondent. At the time George Wessels was not married and was living with his widowed mother, Juanita Wessels, and was her principal source of support. On

Page 654

November 10, 1971, Juanita Wessels brought suit against Howard Gipfel, Jr. for the wrongful death of her son. That suit was dismissed on April 30, 1973, pursuant to a stipulation, apparently as the result of a negotiated settlement.

On August 28, 1973, almost four months after the dismissal of the wrongful death suit brought by the mother of George Wessels, the petition in this suit to obtain compensatory damages for the wrongful death of George Wessels was filed by Tonya Georgette Wessels. For the purposes of this appeal we accept as a fact that George Wessels was the natural father; that Luanna Sams is the mother of plaintiff; that plaintiff was born on May 16, 1972; and that George Wessels and Luanna Sams were never married.

The trial court dismissed plaintiff's petition on the basis that it was barred by the statute of limitations, and plaintiff has appealed.

There is no contention that an illegitimate child does not have the same right to sue for the wrongful death of its natural father which occurred before its birth, as a child whose mother was married to the natural father at the time of the father's death. See the annotation at 38 A.L.R.3d 613. Whatever right either has is now governed by § 537.080 to § 537.100, RSMo 1969, V.A.M.S., and it is only by virtue of these statutes, comprising what is called the Wrongful Death Act, that any claim or cause of action accrues. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889 (1943); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957).

By reason of the construction by the courts on previous wrongful death acts, and the relation between those provisions and the provisions of the present Wrongful Death Act, we will first refer to the previous provisions and the judicial construction of them. However, as to any wrongful death statute, 'A party suing under the statute . . . 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 & A. R. Co., 251 Mo. 592, 158 S.W. 35, 37 (1913). Also, '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.' Nelms v. Bright, supra, at p. 487.

Prior to the amendment of the wrongful death statute, Laws of 1967, p. 663, effective October 13, 1967, what was then §§ 537.080, 537.090 and 537.070, provided that the damages...