Cummins v. Kansas City Public Service Co.

66 S.W.2d 920, 334 Mo. 672, 1933 Mo. LEXIS 704

• Court: Supreme Court of Missouri
• Decided: December 22, 1933
• Status: Published

Opinions

This is an action for damage for wrongful death. Plaintiffs are the three minor children of Archie C. Cummins, who was killed when a street car belonging to defendant Kansas City Public Service Company collided with a bus. The deceased was a passenger on the bus, which was owned by defendants Brown, copartners, in the business of operating automobile busses for carriage of passengers for hire under the name of Brown Brothers Bus Company. Plaintiffs' amended petition alleged that their father was killed on September 3, 1928; that at that time the wife of deceased, mother of plaintiffs, was living and did, upon September 25, 1928, commence a suit for damages for his death; but that she died on August 1, 1929, while her said suit was pending but before the same had been reached for trial or any order of any kind made therein; and that thereafter, upon her death, being suggested by the defendants and upon their request, her suit was dismissed. This suit was commenced August 31, 1929, within one year after the death of plaintiffs' father. Separate demurrers were filed by the defendants upon the ground that the petition did not state facts sufficient to constitute a cause of action and upon the further ground that whatever cause of action may have accrued out of the death of said Cummins was appropriated by his widow by filing suit as stated in plaintiffs' petition, which was merely a restatement of the first ground but giving reasons why plaintiffs did not state a cause of action. These demurrers were sustained, plaintiffs refused to plead further, and judgment was entered for defendants. From this judgment plaintiffs appealed.

The sole question presented upon this appeal is whether the minor children of the deceased had any right under our wrongful death statutes to sue for the death of their father, when their mother, the wife of the deceased, was living at the time of his death and had brought suit within six months after his death, but had died before the expiration of the one-year period, in which they were permitted to sue in case she had not done so.

We have two wrongful death statutes, Section 3262, Revised Statutes 1929, the railway, steamboat and stage coach statute, and Section 3263, Revised Statutes 1929, the general statute, covering death by other wrongful act, negligence or default. [See Casey v. St. Louis Transit Co., 205 Mo. 721, 103 S.W. 1146; State ex rel. Iba v. Mosman, 231 Mo. 474, 133 S.W. 38.] The right of beneficiaries to sue, in either case, is governed by the following portion of the former section, which provides that damages for wrongful death "may be sued for and recovered," as follows:

"First, by the husband or wife of the deceased; or, second, ifthere be no husband or wife, or he or she fails to sue within sixmonths after such death, then by the minor child or children ofthe deceased whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; . . . or, third, if such deceased be a minor andunmarried, whether such deceased unmarried minor be a natural born or adopted child, . . . then by the father and mother, whomay join in the suit, and each shall have an equal interest inthe judgment; or if either of them be dead, then by thesurvivor; or, fourth, if there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore 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 and the amount recovered shall be distributed according to the laws of descent." [Words of the original Act of 1855 in italics.]

It is required by Section 3266, Revised Statutes 1929, that every action for wrongful death "shall be commenced within one year after the cause of action shall accrue." Saving clauses provide that absence of the defendant from the State tolls the running of this period of limitation, and also that if an action be commenced in time, when a nonsuit is taken, a new action may be commenced within one year thereafter.

[1] No Missouri case settled the question to be decided here and in its consideration the historical basis of our wrongful death statutes is enlightening. The maxim "actio personalismoritur cum persona" was such an established principle of the common law, that it was well settled that an action for personal injuries did not survive to the personal representative but that the right died with the injured person. It was thought, however, that a person entitled to the services of another (as in the case of husband and wife, parent and child or master and servant) could recover for the wrongful death of such person on the theory of loss of services. The common-law rule was settled to the contrary in Baker v. Bolton (1808), 1 Campb. 493 (a husband's action for the wife's death), where Lord Ellenborough held that "in a civil court, the death of a human being could not be complained of as an injury." He did allow recovery for loss of services during the period between the time of the injury and time of death. Some American courts even thereafter, before the passage of wrongful death acts, allowed recovery by a father for loss of services for the death of a minor son. [See James v. Christy, 18 Mo. 162; Shields v. Yonge, 15 Ga. 349, 60 Am. Dec. 698; Sullivan v. Union Pacific Ry. Co., 3 Dill. 334, Fed. Cas. No. 13599.] The first real right to recover for the wrongful death of a person (not on the theory of loss of services) was created by Lord Campbell's Act, St. 9 to 10 Vict., Chap. 93, enacted by the English Parliament in 1846. Its principal provisions were, as follows:

"I. That whensoever the death of a person shall be caused by wrongful act, neglect, or default, 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 would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

"II. And be it enacted that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct. (An amendment in 1864 allowed a direct action by the beneficiaries when none had been brought, within six months after the death, by an administrator).

"III. Provided always, and be it enacted, that not more than one action shall lie for and in respect of the same subject matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of such deceased person."

[2] It is interesting to note that this act was entitled: "An Act for compensating the Families of Persons Killed by Accidents;" that it provided for an action for the joint benefit of only certain members of the family; and that it required the jury to divide the amount allowed by them into shares for these beneficiaries according to their estimate of the loss of each. It was therefore intended to be much broader in its scope than either the old (rejected) theory of the right to recover for loss of services only or the mere survival of the deceased a cause of action for his injuries. Although it provided for an action by an administrator, the act was construed as creating a new cause of action and not as providing for a survival of any action the party injured might have had, the administrator not representing the estate of the deceased but acting as trustee for the statutory beneficiary. [Leggott v. Great Northern Ry. Co., 1 Q.B.D. 599, 45 L.J.Q.B. 557, 35 L.T. (N.S.) 334; Bradshaw v. L. Y. Ry. Co., 10 C.P. 189, 44 L.J.C. 148, 31 L.T. (N.S.) 847.] It was held to be an action "new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who, under such circumstances, suffers pecuniary loss." [Seward v. The Vera Cruz, 10 App. Cas. 59; see, also, Blake v. Midland Ry. Co., 10 Q.B. 93, 21 L.J.Q.B. 233, 16 Jur. 562, 118 Reprint 35.] This is the generally accepted view under most American statutes, which were enacted by almost all of our states within a few years after the adoption of the English act and patterned after it, although in a few states statutes provide instead for survival of the cause of action of the deceased. [17 C.J. 1184-1188, secs. 37-39; 8 R.C.L. 724-727, secs. 20-22; Tiffany, Death by Wrongful Act, sec. 23.] The Federal Employers' Liability Act provides both for a new cause of action for the loss to the beneficiaries occasioned by the death (Title 45 U.S.C.A. 51), and for survival of the injured person's own cause of action, so that his administrator can recover for his conscious pain and suffering. [Title 45, U.S.C.A. 59.] Missouri has now, after leaning the other way as hereinafter pointed out, definitely taken the view that our statute gives "a new and different cause of action" to the beneficiary; and that because its "very purpose . . . was to give a cause of action where none existed at common law, it did not revive a cause of action theretofore belonging to the deceased, but it gave a new cause of action to named parties bearing relationship to the deceased." [State ex rel. Thomas v. Daues, 314 Mo. 13,283 S.W. 51, 45 A.L.R. 1466.]

Our first wrongful death acts were passed in 1855. [See Vol. I.R.S. 1855, p. 647, chap. 51.] Sections 3 and 4 of the original act (now Secs. 3263 and 3264, R.S. 1929), adopted several of the principal features of the English act and very closely followed its wording, as to the acts from which the cause of action arises and as to the measure of damages, except that a maximum limit of $5,000 was set and consideration of aggravating and mitigating circumstances authorized. Section 6 (Sec. 3266, R.S. 1929) made the same one-year limitation as to when suit must be brought. There has been practically no change in these three sections except that the saving clauses above referred to in case of nonsuits (see Laws 1905, p. 137) and absence from the State (see Laws 1909, p. 463) were added to the limitation section, and that the maximum amount of damages which could be recovered was increased to $10,000. [See Laws 1907, p. 252.] However, the second section of the original act, which is the statute applicable to the facts stated in the present case, added a feature not found in the English act: Namely, a fixed penalty of $5,000, where any person was killed by negligence in the operation of a railroad train, steamboat, stage coach or other public conveyance, or was killed while a passenger by reason of any defect or insufficiency in any railroad, steamboat, stage coach or other public conveyance. Street cars and automobiles used as public conveyances were included by the Amendment of 1905. [See Laws 1905, p. 135] While stagecoach travel is thus still protected, air transport has not yet been specifically included. This amendment also made the act apply where an employee's death resulted from the negligence of a coemployee. A later amendment (see Laws 1911, p. 203) made the negligent employee also liable for the penalty prescribed. The designation of the beneficiaries who were entitled to sue either under this penalty section or the other section, were stated by it. These provisions have been hereinabove set out.

The Amendment of 1905 changed the amount to be recovered under this section so that, instead of a penalty of $5,000 in all cases, the jury were given discretionary powers to fix the penalty at not less than $2,000 and not exceeding $10,000. Concerning that amendment this court, in Grier v. K.C. Clay County St. Joseph Ry. Co., 286 Mo. 523, l.c. 538, 228 S.W. 454, said:

"Under the statute as construed before the amendment, those who were entitled to sue were required to sue for the exact penalty. The precise penalty, no more and no less, was recoverable in every case, regardless of whether death was caused by mere unskillfulness, or by negligence, or by criminal intent, and regardless of whether the person killed was a man who was `a vagabond, a curse to his family, consuming the earnings of his wife and children,' or whether he was a comfort to them "earning thousands by his industry and spending it liberally for their benefit.' . . . By striking out `$5,000' and substituting in lieu thereof `not less than $2,000, and not exceeding $10,000, in the discretion of the jury,' the lawmakers intended that the jury in fixing the forfeiture should take into consideration both the facts constituting the negligence or wrongful act, with the attending, mitigating and aggravating circumstances, and those showing the extent of the pecuniary loss inflicted. But, in making the forfeiture variable instead of a fixed sum, the Legislature was careful to point out that no other change in its character was intended. . . . The lawmakers intended that the entire recovery should continue to be a penalty in the same respect that it had theretofore been."

By the Amendment of 1905, a new class of beneficiaries was added (designated under the fourth alternative) by the provision that suit could be brought by an administrator for the benefit of the next of kin, "if there be no husband, wife or minor children." The only other amendment in the original act affecting the beneficiaries was that including adopted minor children. [See Laws 1885, p. 153.] One of the new features, distinguishing the original Missouri act from the English act and many of the American statutes was the requirement that the children permitted to sue be minors and restricting the right of parents to sue to the death of minor children. Another was that the action was vested directly in the persons entitled to the amount recovered with preferential rights to the surviving spouse rather than providing for a suit for the benefit of all of them, sustaining a loss, by the administrator of the deceased. [3] Then, too, while persons entitled to sue are the same under both of our statutes, the amount of their recovery is based upon entirely different principles. Section 3264, Revised Statutes 1929, provides primarily for damages for pecuniary loss such as the jury "may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue." [For measure of damages in such cases, see Steger v. Meehan, 63 S.W.2d 109, and Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115.] In the case of a minor child this loss depends largely upon what he would have received prior to his majority. [McPherson v. St. L., I.M. S. Ry. Co.,97 Mo. 253, 10 S.W. 846; Smith v. Mederacke, 302 Mo. 538, 259 S.W. 83; Stookey v. St. L.S.F. Ry. Co., 215 Mo. App. 411, 249 S.W. 141.] Under Section 3262, Revised Statutes 1929, however, the cause of action is not for damages but for the penalty accruing under the statute. In a suit by minors under that section this court said: "Plaintiff's pecuniary loss was in no sense the measure of his recovery. While his award . . . could reasonably have equaled or exceeded the amount that would compensate him for his pecuniary loss, it could just as reasonably have been fixed at a lesser sum. . . . The jury in assessing the penalty against the defendant . . . may properly take into consideration the pecuniary injury inflicted upon plaintiff. . . . But such injury is but one fact to be considered with others, and the importance to be given it as a factor in determining the amount of the penalty should be left to the unfettered discretion of the jury." [Treadway v. United Railways Co., 300 Mo. 156, 253 S.W. 1037 (also 282 S.W. 441); see, also, Ward v. Mo. Pac. Ry. Co.,311 Mo. 92, 277 S.W. 908.]

[4] While it is intimated in many cases that the principal purpose of our wrongful death act was to preserve life from the perils of our modern mechanical age (see Schultz v. The Pacific Railroad, 36 Mo. 13) by providing a penalty for negligently killing a human being, nevertheless, under both compensatory and penalty statutes, the purpose of providing compensation for those dependent upon persons killed by wrongful acts is at least one of the primary purposes of the act. This is evidenced by the fact that the amount whether penalty or damages, which the wrongdoer was required to pay was given to the bereaved relatives to, in some measure, compensate them for their loss; and by the further fact that for fifty years (1855-1905) the only relatives granted a right of action for the death of any person, except the father and mother of an unmarried minor and the husband of a married woman (no doubt both by analogy to the loss of services theory), were those most dependent, the surviving wife and minor children. The death of an unmarried person, after reaching majority, of a minor with no surviving parent or of a widow or widower, with children of legal age, gave no right of action to anyone, no matter what the circumstances. To put it more pointedly, there was no legal accountability whatever for negligently killing such person, unless the act was one punishable under the criminal law. [See, also, our Mining Statute, sec. 13671, R.S. 1929, still limited to dependents.] Perhaps the Legislature felt that only a death, which resulted in a loss to the surviving relatives enumerated, was of sufficient social consequence to justify assessment of a penalty or damages.

To solve the question to be decided in this case, we must determine the nature of the rights given to the widow and children respectively by our statute. Because of the peculiar features of our own statutes, the decisions of other states will not solve it. The authorities upon similar situations, arising in other states, are collated in annotations in 13 American Law Reports, 225 and 59 American Law Reports, 760. They differ widely as to whether the important thing is providing for the penalty or damages, or providing for the distribution of it; as to whether such statutes are punitive or remedial; and as to whether they should be strictly or liberally construed. It is said that the action, created by the wrongful death statutes, usually has the three following distinguishing features:

"(1) That it may be maintained whenever death is caused by wrongful act, neglect, or default, such as would, if death had not ensued, have entitled the party injured to maintain an action; (2) that it is for the exclusive benefit of certain designated members of the family of the deceased; and (3) that the damages recoverable are such as result to the beneficiaries from the death."

It is also said:

"In matters which are not distinguishing features of the action created by Lord Campbell's act, these statutes differ greatly from that act, and from each other. These differences are mainly in respect (1) to the particular members of the family for whose benefit action may be brought; (2) the persons in whose names it may be brought; (3) the time within which it may be brought; (4) the manner of distribution; and (5) in respect to practice. They differ also materially in their provisions concerning (6) the measure of damages; some fixing one amount, some another, and some none at all, as the limit of recovery; and a few providing for the recovery, also, of exemplary or punitive damages, or containing other peculiar provisions." [Tiffany, Death by Wrongful Act, secs. 22-24.] The principal provisions of the statutes of every state may be found there.

[5] It has been said that our death statutes must be strictly construed because they are in derogation of the common law. [Jackson v. St. L., I.M. S. Ry. Co., 87 Mo. 422, 56 Am. Rep. 460; Strottman v. St. L., I.M. S. Ry. Co., 211 Mo. 227, 109 S.W. 67; Clark v. K.C., St. L. C. Ry. Co., 219 Mo. 524, 118 S.W. 40; Troll v. Laclede Gas Light Co., 182 Mo. App. 600, 169 S.W. 337.] The further reason has also been pointed out that because our railroad, steamboat and stage coach statute is a penalty statute, it must be strictly construed. [8 Am. Eng. Enc. of Law, 931.] Then it is also well said: "That statutes may be in part penal and in part remedial and that statutes which provide a penalty recoverable by the party aggrieved are in many cases construed remedial as well as penal and hence in dealing with such statutes the courts are called upon to make proper application of two adverse principles to some extent; that requiring strict construction on account of the penalty, and that requiring a liberal construction to prevent the mischief sought to be deterred and advance the remedy thereby given in favor of the party aggrieved." [Casey v. St. Louis Transit Co.,116 Mo. App. 235, 91 S.W. 419, approved by Supreme Court in 205 Mo. 721, 103 S.W. 1146.] This principle was referred to in the Grier case (286 Mo. l.c. 542, 228 S.W. 454), as follows: "The provisions giving the penalty, that is, creating the liability should be strictly construed, while those relating to the remedy should be liberally construed."

The first part of Section 3262, as does Section 3263, merely states the circumstances from which a defendant's liability will arise, and provides in the former the penalty and in the latter (by Sec. 3264) the damages he must pay. In both cases it was provided that the penalty or damages might be sued for and recovered by the parties designated in the latter part of Section 3262, which, until the Amendment of 1905, were only those dependent upon or entitled to the services of the deceased. It would seem to violate no rule of statutory construction to strictly construe the liability, penalty and damage provisions and liberally construe this part designating the persons entitled to the penalty or damages in case the defendant, by wrongful conduct in violation of the provisions imposing liability, had become liable to pay such penalty or damages. Whether the purpose be primarily to punish him for such violation, or to compensate those who actually sustained a loss thereby, it would seem that either purpose would be best served by requiring the guilty person to pay when those persons existed. Should he be freed from the obligation to pay a penalty or damages for his wrongful act when such dependents survived the deceased, suffered a loss by his death, and, as here, brought suit within the statutory period of limitations? Unquestionably, it was because of its regard for the welfare of widows and orphans and the advantage to society that provisions be made to prevent them from becoming charges of public charity that the Legislature imposed liability to them for negligent acts which took away from them a husband or father.

[6] We should also remember that "`strict construction' is not a precise but a relative expression; it varies in degree of strictness according to the character of the law under construction." [Grier v. K.C., C., C., St. J. Ry. Co., supra.] "It is not the exact converse of liberal construction, for it does not consist in giving words the narrowest meaning of which they are susceptible." [Meyering v. Miller, 330 Mo. 885,51 S.W.2d 65.] The primary rule of construction of statutes is to ascertain the lawmakers' intent, from the words used if possible; and to put upon the language of the Legislature honestly and faithfully, its plain and rational meaning and to promote its object, and "the manifest purpose of the statute, considered historically," is properly given consideration. [See Grier and Meyering cases; 2 Lewis-Sutherland on Stat. Const. (2 Ed.), sec. 363; Endlich on Interpretation of Statutes, sec. 329; and Maxwell on Statutes (5 Ed.) 425.]

[7] There was much confusion in the Missouri decisions (until settled by the court en banc in State ex rel. Thomas v. Daues, supra) upon the proposition as to whether the beneficiaries' cause of action was a new cause of action for their own injury, or whether it was the cause of action of the deceased for his own injuries which survived to them because the statute changed the common-law rule of "action personalis moritur cum persona." The latter view was first taken. [Proctor v. Hannibal St. Joseph Railroad Co., 64 Mo. 112, see, however, dissenting opinion to effect that this was true of compensatory section but not of penalty section; see, also, Connor v. C., R.I. P. Railroad Co.,59 Mo. 308.] It would seem that the only change in that common-law rule is made by Sections 98-99, Revised Statutes 1919, enacted before the wrongful death statute (see R.S. 1835, p. 48, secs. 34, 35) and Section 3280, Revised Statutes 1929, enacted thereafter (see Laws 1907, p. 252). As to their effect, in connection with the wrongful death acts, see Gilkeson v. Missouri Pacific Ry. Co., 222 Mo. 173, 121 S.W. 138; Longan v. Kansas City Rys. Co., 299 Mo. 561, 253 S.W. 758; Ryan v. Ortgier,201 Mo. App. 1, 208 S.W. 856.

A recent decision of this court, Betz v. K.C. Southern Ry. Co.,314 Mo. 390, 284 S.W. 455, construed the effect of that part of the Amendment of 1905 adding a fourth alternative to the provision designating the beneficiaries who may sue and recover for wrongful death. This case is strongly relied upon by defendants. There a husband and wife were killed in a crossing collision. The wife was killed instantly, the husband survived for a few hours, and there were no minor children. The administrator of the deceased wife brought suit on the theory that he was given the right to sue for her death by the Amendment of 1905 and distribute the amount recovered to her next of kin according to the laws of descent, there being no husband or minor children, when this suit was begun, to sue for the wife's death. The court, after reviewing the authorities and the history of our wrongful death statute, held that the fourth alternative added by that amendment meant that the administrator could sue for the benefit of those entitled under the laws of descent only if no husband, wife or minor child survived the deceased and that the administrator could not sue in this case because the husband did survive. The court said:

"Under the wrongful death statute in question, he (the husband) fell within the first class of beneficiaries who are given the right to sue and to maintain an action thereunder. A right of action sprang up, or vested, in him, under and by virtue of the statute, immediately upon the death of his wife. The right of action thus given by statute to the husband for his wife's death is dependent solely upon his surviving his wife, and not upon the commencement, or time of commencement, of a suit by him (unless, of course, there be a minor child or children, when the husband must sue within six months after the wife's death). His failureto sue, whether by reason of death or otherwise, does notrevest the right of action in the wife's personalrepresentative, who is the plaintiff in this action." (Note — failure of a surviving spouse to sue does vest the right of action in the minor children.)

The argument was made by the plaintiff that "if he cannot maintain this action, then defendant must go unpunished for its negligent acts, although the primary object and purpose of the act is to punish for causing death by negligence." The court said that, although that argument was true, only the Legislature could correct it. It is said in the Grier case, concerning beneficiaries of this class:

"As originally enacted the statute provided for a recovery by those only who had presumptively sustained pecuniary injury through the tortious death, while as amended it creates a liability not only in cases where there is a presumed loss, but in those as well where there is ordinarily no loss at all."

[8] Since there was no liability, where there was no one capable of sustaining an actual loss, before the amendment and since beneficiaries designated by the amendment hardly ever could suffer an actual loss, especially when those dependent upon or entitled to the services of the deceased exist, it seems reasonable that the Legislature did not intend to provide for them, if those sustaining the actual loss survived. An administrator is not entitled to bring suit for the benefit of the next of kin if other designated beneficiaries do not do so within a definite time, as minor children are, therefore, it is not unreasonable to hold that he may do so only when there are none of the designated beneficiaries, who did suffer actual loss, surviving at the time of the death. The same construction, as to similar beneficiaries, has since been put upon the Federal Employers' Liability Act by the Supreme Court of the United States. [C., B. Q. Railroad Co. v. Wells-Dickey Trust Co.,275 U.S. 161, 48 Sup. Ct. 73, 72 L.Ed. 216, 59 A.L.R. 758.] This court has never given the provision for dependent beneficiaries the strictest possible construction. It has held that a minor child born after the death of his father may sue therefor (Bonnarens v. Lead Belt Ry. Co., 309 Mo. 54, 273 S.W. 1043); and that a child, if not of age when his father died, may commence suit therefor although no longer a minor. [Rutter v. Mo. Pac. Ry. Co., 81 Mo. 169; see, also, State ex rel. Mo. Pac. Ry. Co. v. Haid, 332 Mo. 616, 59 S.W.2d 690, subrogation of employer under the Workmen's Compensation Act.]

In the Betz case, however, this court noted the line of decisions holding that the cause of action of the surviving husband did not survive his death and noted also that the case of State ex rel. Thomas v. Daues, supra, then recently decided, had rejected the theory, stated in all of these cases as one reason for reaching that result, namely: That the action for wrongful death was a transmitted action, that is a survival of the action which the deceased had, and had definitely held to the contrary that it was a new cause of action. The court did not decide the effect of that decision upon these previous decisions, but raised the question as follows:

"Quaere, since the case of State ex rel. Thomas v. Daues et al., supra, was ruled by this court, would the personal representative of Charles Baker have succeeded to Charles Baker's right of action for the wrongful death of his wife, had such personal representative brought an action within the period of one year after Jennie Baker's death? That question we do not rule in this case because it does not confront us."

Defendants point to this and say that plaintiffs cannot maintain this suit because, if anyone could maintain a suit for the death of plaintiffs' father, it would be the personal representative of plaintiffs' mother. In view of the importance of this question and the resulting hardship to minor children, who are actual dependents, if their right to sue is lost by the death of the remaining parent, when they could still sue within the statutory period of one year, we will re-examine the authorities in light of the changed ruling of the court en banc in State ex rel. Thomas v. Daues, supra, as to the nature of the right of action which they have.

It was first held in the case of Gibbs v. City of Hannibal,82 Mo. 143, that upon the death of the beneficiary entitled to sue, the action died also and did not survive to the personal representative of the beneficiary designated by the statute. In that case a man and his wife and two minor children, driving across a bridge, fell through it and all were killed. Suit was brought by the administrator of the wife, on the theory that she survived the others a short time, to recover for the death of her husband and two minor children. This court held that a general demurrer was properly sustained to the petition and that the beneficiary's administrator under the statute had "no standing in court." The court said: "It is a right personal to the beneficiary and does not survive to his personal representatives." The court, however, at least in part, based its conclusion upon the language of Proctor v. Hannibal, St. Joseph Ry. Co., 64 Mo. 112, l.c. 120, where the court said that the statute "creates no new cause of action but simply continues or transmits the right to sue, which the party whose death is occasioned would have had, had he lived." In other words, the court thought the action having survived once (from the injured person to the beneficiary) could not survive a second time (from the beneficiary to his administrator).

Later, in Behen v. St. Louis Transit Company, 186 Mo. 430, 85 S.W. 346, without any mention of the Gibbs case, this court held that the cause of action given by the statute survived the designated beneficiary's death and could be revived in the name of his administrator. In that case, suit had already been commenced by the designated beneficiary before his death, which was not true in the Gibbs case. This court, there, after reviewing the English authorities and cases from New York and New Jersey, stated, as a reason for its ruling, that the statute gave a new cause of action separate and distinct from any action which the deceased would have had for his injury in his lifetime. Then in Bates v. Sylvester, 205 Mo. 493, where the defendant died, it was held that the action did not survive against his estate. In so holding the court took occasion to say that Behen v. St. Louis Transit Company was wrong in holding that the statute created a new cause of action and said that the contrary doctrine had been announced in White v. Maxcy, 64 Mo. 552, l.c. 559; Gray v. McDonald, 104 Mo. 303, l.c. 311, 16 S.W. 398; Hennessy v. Bavarian Brewing Co., 145 Mo. 104, l.c. 112, 46 S.W. 966, 41 L.R.A. 385; and Strode v. St. Louis Transit Co., 197 Mo. 616, l.c. 626, 95 S.W. 851. According to State ex rel. Thomas v. Daues, supra, the Strode case does not so hold; but that there this court was "trying to dodge and . . . succeeded in dodging the very question;" and "that this case has been wrongly cited both in and out of this State." Other cases which might be added to the above list are Harrell v. Q., O. K.C. Ry. Co. (Mo.), 186 S.W. 677, and Millar v. St. Louis Transit Co., 216 Mo. 99, 115 S.W. 521. The Miller case followed Bates v. Sylvester, supra, saying that a new action was not created by the statute, and held that, where a widow had brought suit for wrongful death and recovered judgment but died after new trial was granted defendant, the action ended with her death and could not be revived in her administrator.

Thereafter, in Gilkeson v. Mo. Pac. Ry. Co., 222 Mo. 173, 121 S.W. 138, 24 L.R.A. (N.S.) 844, 17 Ann. Cas. 763, the matter was elaborately briefed and presented and very fully reviewed and the conclusion, reached in the Gibbs case, was adhered to, that the cause of action of the beneficiary did not survive to his administrator. In that case the father, mother and two minor children were killed in a railroad collision. One son survived until about four days after the accident. Suit was commenced by his administrator, and his deceased brother's administrator joined. The court noted the discrepancy, between the Behan and Bates cases, upon the proposition of whether or not the statute created a new cause of action or transmitted one already in existence. The court approved the former cases, holding that the action was a transmitted one, which survived the deceased to his statutory beneficiary, but gave another and, we think, better reason for its decision, saying that the fundamental error in the Behan case, in reaching the result it did, was that it "ignores the distinction between the laws that govern personal rights and those that govern the rights of property."

The court explained this further as follows:

"By applying these observations to the case at bar, we would convict appellant of violating the domestic relations of respondent's intestate, that is, of wrongfully taking the lives of deceased's father and mother, and thereby deprive him of his legal rights to have his parents care for, support and educate him, for which he is entitled to recover pecuniary damages in dollars and cents; but it would clearly be a misnomer to say, nor could it be logically contended, that the wrongful killing of deceased's parents was a wrong done to his property, or his property rights. . . .

"Could it be seriously contended that the wrongful killing of a woman's husband is an injury to her property rights? I think not, yet she is just as much entitled to the care, society and support of her husband as are his minor children. According to all laws, excepting the cases before considered, the unlawful killing of a husband or father is a wrong done to the personal rights of the wife and the child, and not to their property rights. [Bates v. Sylvester, supra; Gibbs v. Hannibal, supra.]

"This must be so in the very nature of things, for Sections 2864 and 2865 give the widow and minor children a cause of action, even though the husband and father had no property or income of any kind whatever, and was totally incapable of earning a dollar for his own support, much less to care for and support them. In fact, his mental and physical conditions might be such as to constitute him a most grievous care and burden to them, instead of a comfort and support, yet under Sections 2864 and 2865 they would be entitled to a recovery for his unlawful death. If that is true, and it cannot be questioned, then their cause of action is given by those sections because of the violation of their domestic relations, and the wrong done to their personal rights, and not because any wrong was done to their property interest, for he had none to be injured. . . .

"The error learned counsel for respondent has fallen into, as have also the able courts whose opinions he relies upon in support of his contention in this case, consists in confusing thepecuniary loss sustained by a minor child, caused by thewrongful death of his or her father or mother, with the damagesdone to his or her property or property interests by a wrongfulact of another. While the child has sustained a pecuniary loss or damage in both cases, and is entitled to a recovery in each, yet the injury to the one is not the same as the injury to the other — the former is an injury to his personal rights, and the latter is an injury to property rights; nor is the measure of damages the same in each case, as before pointed out. This palpable error is the very corner stone upon which those courts which entertain different views from those entertained by this court base their entire argument in favor of the survival of such a cause of action." [Gilkeson v. Mo. Pac. Railroad Co., 222 Mo. l.c. 197.]

The matter was brought up again in Freie v. St. Louis-San Francisco Ry. Co., 283 Mo. 457, 222 S.W. 824, 13 A.L.R. 204. This case was also elaborately briefed and presented. It was a case where a husband and wife having no minor children were both killed by a railroad train at a crossing. The husband, however, survived his wife a short time. Suit was brought by his administrator. This court held that the trial court properly sustained a demurrer because the petition failed to state facts sufficient to show a cause of action. The court reviewed the Gibbs and Gilkeson cases, saying:

"The bar, judiciary and General Assembly were informed, by the publication of the above opinion in 1884, that an administrator cannot successfully maintain an action on facts exactly like the case before us. The above opinion has withstood the test of judicial criticism during the last thirty-five years and, although the Legislature has been in session many times during said period, the law has never been changed so as to confer upon an administrator the right to maintain an action under the circumstances of this case.

"The personnel of the court having changed since the decision in the Gibbs case, industrious counsel representing the plaintiff in Gilkeson, Admr., v. Ry. Co., 222 Mo. 173, conceived the idea of urging this court to change its ruling in respect to the principles of law declared in the Gibbs case. . . .

"With the published ruling in the Gilkeson case, following that in Gibbs v. City of Hannibal, supra, the Legislature has never taken any action to overturn the above cases, and have, apparently at least, acquiesced in the construction placed by this court upon said sections." [Freie v. St. Louis-San Francisco Ry. Co., 283 Mo. l.c. 467.]

This same result seems to be generally reached in the majority of other jurisdictions. "The action for death, being an action for tort, is generally held to fall within the common-law rule that such actions do not survive the death of the party in whose favor the right of action existed." [17 C.J. 1232, sec. 78; 8 R.C.L. 754, sec. 43; Tiffany, Death by Wrongful Act (2 Ed.) p. 210, sec. 87; 17 Ann. Cas. 773, annotation to Gilkeson case.] There is, however, respectable authority to the contrary. [See Annotation following the Gilkeson case, 17 Ann. Cas. 774.] One result of such a survival might often be (where the deceased had no children) that no part of the amount recovered would go to anyone related to the deceased. (Where a husband or wife was the beneficiary their heirs would be their own kin.) It has even been held that the interest of a beneficiary in the damages is assignable. [Quin v. Moore, 15 N.Y. 432; see, also, Fritz v. Western Union Tel. Co. (Utah), 71 P. 209.] In view of the sound reason given in the Gilkeson case, against survival of the beneficiaries cause of action, we feel that we should follow it and the other cases which have so long and uniformly ruled against such survival. Plaintiffs here are not, therefore barred from bringing this suit because the action given by the statute survived upon the death of their mother to her personal representative, even though State ex rel. Thomas v. Daues did disapprove one of the reasons given in the former cases for reaching that result.

We will, therefore, proceed to examine the authorities which defendants say hold, even if there be no survival of the plaintiffs' mother's action to her administrator, that bringing suit by plaintiffs' mother within six months, regardless of her death within the year after plaintiffs' father's death, prevents them from maintaining this suit although they commenced it within the one year statutory period of limitations. One of the earliest cases, Coover v. Moore, 31 Mo. 574, interpreting the rights of the beneficiaries named in the statute, held that where there were minor children the widow had no right to sue after six months. The court said:

"The general limitation of time is `one year after the cause of action shall accrue.' The cause of action of minor children accrues, in case there be a husband or wife, six months after the death; in other cases it accrues at the death. The right of a wife accrues at the death of the husband, and generally she has one year within which to bring suit; if there be, however, minor children, their right of action accues six months after the death, if the wife have then failed to sue; and the question is, has the wife then a right to sue concurrent with that of the minors? We think not; for only the one sum can be recovered, and, therefore, only one suit prosecuted; and the minors having undoubtedly the right, no such right can remain to the wife."

In Kennedy v. Burrier, 36 Mo. 128, this statement was modified. The argument was made that, since the court held in the Coover case that the cause of action of the minor children in case the wife survived accrued six months after the death, the children had a year from that time in which to bring suit, which would give them in all eighteen months after their father's death. The court, however, held otherwise, stating the nature of the rights of the widow and the minor children as follows:

"The cause of action clearly accrued at the death of Kennedy, and the statute commenced running from that time. The fact that the right to the damages, and consequent right to sue for them, at different times, is vested in different individuals, can make no difference as to the time the cause of action accrued.

"There is but one cause of action, and that accrues to the husband or wife under the statute, and, in default of his or her suing, it passes to the minor children; just as the right to sue on a promissory note passes from the intestate to the administrator. It is the same cause of action all the time. It accrued when the defendant's liability was complete, which in this case was at the death of Kennedy; and the statute necessarily commenced running at that time."

In McNamara v. Slavens, 76 Mo. 329, where the deceased left a widow and minor children the widow commenced suit within six months and later dismissed her suit. Thereafter, the minor children commenced suit. The court held they had no right to do so, saying:

"It is a cause of action created by the statute, and no one can sue unless he bring himself within its terms. It is not a joint right of action in the husband or wife and the children. The statute gives the surviving husband or wife six months within which to elect to appropriate the cause of action, the election to be made by the institution of a suit. If the surviving husband or wife sue within six months, that is an exercise of the option given by the statute. He or she then has as absolute control of the cause of action as of any common law right of action he or she may have, and may compromise. releases or otherwise settle the matter in controversy with the defendant. By dismissing her suit the widow did not lose her right of action, nor did such dismissal operate to transfer it to the children, but at any time within the six months she might have instituted another suit.

"Nothing in the foregoing sections warrants any other construction. By the commencement of the suit by the mother, within six months after the death of the father, the right of the children to sue was forever taken away."

In Barker v. Hannibal, St. Joseph Railroad Co., 91 Mo. 86, 14 S.W. 280, the court held that, if there were no minor children, the widow could sue at any time within one year after the death of her husband, but the petition must state that fact to state a cause of action. [See, also, Chandler v. C. A. Railroad Co.,251 Mo. 592, 158 S.W. 35.] In Packard v. Hannibal St. Joseph Railroad Co., 181 Mo. 421, 80 S.W. 951, the father of plaintiffs, employed by the Rock Island Railroad, was killed. His widow brought suit within six months against that company and upon trial of that case failed to recover. There after, within the year from the date of their father's death, plaintiffs brought suit against the Hannibal St. Joseph Railroad Company, alleging that their father had been killed by reason of its negligence. This court held that they could not maintain the suit. The court said:

"Mrs. Packard having brought her suit within the six months, the entire cause of action became hers absolutely and remained in her in her own right and not as next friend of her children. She had made the election required by the statute by the institution of her suit. If she had been nonsuited in her action brought against the Rock Island within the six months, we think there can be no doubt that at any time within the year after her husband's death she could have renewed the suit by a new action against the Rock Island or the Hannibal Company or both at her option. Having appropriated the right, she had absolute control of it. Her right of action was against all whose negligence caused the death of her husband. Having plenary control of the action she was at liberty to sue them all jointly, or as many as she saw fit. It is true, there could be but one satisfaction, but until satisfaction all the negligent parties were liable at her election. . . . The right of action is single and not concurrent in both widow and children, but in the widow first, and then, under certain conditions, in the children. . . .

"So say we in this case: the widow having appropriated the one single, indivisible cause of action given by the statute within six months after her husband's death, her election forever cut off the plaintiffs, the children, from availing themselves of that right."

More recently, Huss v. Bohrer, 317 Mo. 204, 295 S.W. 95, where a widow brought suit within six months for the death of her husband but dismissed and refiled a new suit more than six months but within less than a year thereafter, this court held the trial court was wrong in sustaining a demurrer on the ground that the suit was not filed within six months after the death. This court summed the matter up as follows:

"A husband or wife, when there are no minor children, may sue at any time within a year. [Barker v. Railroad, 91 Mo. 86, 14 S.W. 280.] Likewise the minor children, if there be no husband or wife, have a year in which to commence an action. And, where there are both husband or wife and minor children, the time for bringing suit, so far as the defendant is concerned, is not for that reason cut down. It is still a year. But between husband or wife and the minor children, with respect to which shall be entitled to sue, the statute gives the former a preferential right, conditioned that he or she `sue within six months after such death.' In the instant case the wife fully performed the condition; she did sue within six months after her husband's death. The bringing of the suit fully vested the cause of action in her to the exclusion of the minor children. Regardless of the subsequent disposition made of that suit, her right to the action was thereby irrevocably established and that of the children forever cut off."

The statement in these cases that a suit by the widow within six months is an appropriation of the cause of action which makes it hers absolutely and forever cuts off the rights of the children is what is relied upon by defendants to sustain their contention here. In all of these cases, however, the widow was still living, able to proceed with the action and, since she had the right to do so, therefore, of course, the children could not. The situation here is different. The one-year period of limitations had not expired; the widow could not do anything further to recover upon the cause of action because she was dead; not only her right was ended but no one else could enforce her right because it did not survive to her administrator. Should the minor children, who were still able to bring suit within the prescribed period of limitations, be prohibited from doing so under these circumstances? What these cases say, concerning appropriation by the widow, must be considered with reference to the particular situation involved.

[9] These authorities do, however, establish the following principles applicable to cases where a man killed by the negligence of another leaves surviving him a widow or minor children or both:

First: The statute provides for but one cause of action which accrues at the time of a man's death to his wife and then passes to his minor children if she fails to sue within six months for any reason. It would, therefore, pass to them if she died within six months without suing.

Second: Whether the widow or the children have the right to enforce this cause of action, it remains the same cause of action and passes from one beneficiary to another. They do not have a joint cause of action nor concurrent causes of action. It passes from the widow to the minor children as an intestate's action passes to his administrator. [Kennedy v. Burrier, supra.]

Third: When there are minor children, if the widow brings suit within six months that is an election by her to appropriate the cause of action. If there are no minor children she has the whole year in which to sue. Likewise if there is no widow the children do not have to wait six months to sue.

Fourth: When the widow makes such appropriation, she has absolute control of the action as long as she lives. She may settle it and thereby terminate it. She may dismiss it and start another suit at any time permitted by the limitation section.

Fifth: While as between the widow and minor children, the former is given a preferential right to sue, if exercised within six months, as between the widow and minor children and thewrongdoer the time to sue is not cut down, whether both widow and minor children survive or not and whatever may be their rights between themselves, but remains a year.

[10] Section 3262 says that the penalty it provides "may besued for and recovered" by those therein designated. Section 3264 says that damages "resulting from such death, to the surviving parties who may be entitled to sue." may be sued forand recovered by those designated in Section 3262. Section 3266 says that such suits "shall be commenced within one year after the cause of action shall accrue." Therefore these sections must be construed together. It is of course, fundamental that where the language of a statute is plain and admits of but one meaning there is no room for construction. Defendants contend that such is the case here and that if the widow sues it is plain that the rights of the children are in all circumstances forever cut off. The statute does not say so, but that statement has been added by construction in situations where it was obviously correct; namely, where the widow had exercised her preferential right to enforce the action to recover the penalty or damages; and was still living, capable of doing so, and not barred by the Statute of Limitations. There was, of course, no reason, under such circumstances, for taking her rights away from her. It is obvious that none of these cases specifically cover the situation here, where the widow has sued for but has not recovered the penalty or damages, where because of her death nothing can ever be recovered by her or by anyone upon her suit or upon her right to sue, and where her right to recover has not been and never can be even considered. The statute evidently contemplates a suit in which the right to recover may be decided. It undoubtedly must be the existence of the right to recover in some one else which cuts off the children's rights. If we hold that the children's rights to recover are forever cut off, by the mere commencement of a suit, although the only preferentialright to recover on the cause of action and the party entitled to such right no longer exists, we would be giving effect to form rather than substance. We would also be cutting down the period of limitations as between the wrongdoer and the widow andchildren who suffered an actual loss from his wrongful act, and we would be forgetting the evident original purpose of the act (at least the compensatory section) to provide an action, for those legally entitled to and wrongfully deprived of the right of support from or services of a husband, wife, father or minor child, to recover their loss.

We do not think that the original statute put the widow and minor children in separate classes, as dependents and next of kin are now in separate classes. The statute really only provided for two classes, based upon different situations, but both providing only for those who suffered a loss of the support or services of the deceased.

First: Where a married person is killed, the beneficiaries were the surviving wife (or husband) and minor children with a preferential right to the wife, as between them, to enforce the single cause of action created.

Second: Where an unmarried minor is killed, the beneficiaries were the surviving parents with an equal right as between them.

When the fourth alternative was added, it provided for a third, not fourth, class of beneficiaries and situation, namely, where an unmarried mature person was killed (all other classes having been previously included), a suit for his next of kin. The original part of the statute does not say, as in the case of the amendment providing for an action for the benefit of the next of kin, that the minor children have the right to sue only if there be no widow. They are given their rights even though the widow does survive, but their rights may be cut off by the widow's election to exercise them in her own name, rather than to have them exercised in the childrens' names, which, as a practical matter, she being their only remaining parent and natural guardian, would usually be the case where the suit was brought in their names. The widow and minor children are therefore in the same class, both entitled to the enforcement of the cause of action created for the wrongful death of the husband and father, but with preferential rights during certain periods, as between themselves, as to which may enforce it. Even though the cause of action is the same, regardless of which is the plaintiff in the suit and even though both suffer an actual loss from the death, the measure of damages is different insofar as compensation is considered, because the nature of their loss is different. One reason for providing an election as to the plaintiff might be that under some circumstances the children (if very young for example) might recover the most, while in others the widow might well be entitled to recover a larger amount. Under the English act, they would not only all be in the same class but in the same action in making up the total judgment the jury would apportion the amount of the loss of each. Under ours, someone must make the choice and take the chances. There can be no question, however, whether it is viewed historically or from the plain meaning of its language, that this part of the statute (providing for beneficiaries) was intended primarily to provide for all of the helpless dependents of a man killed by any of the wrongful acts described in these statutes. Where he left a widow surviving, this purpose would, in all human experience as to a mother's care for her children, almost as surely be accomplished if she received, in her own name, the amount of the penalty or damages as if it was received in theirs. If she sues, the jury is allowed to take into consideration the minor children to be cared for in fixing the damages. If she does not survive or does not act to collect it, the clear intention is that the right to do so should then pass to the minor children. If this action passes to them by her inactivity, why should it not also pass to them by her death? If the widow did not sue and after six months suit was brought for the minor children, if they died within the year should there be any doubt that the widow could then sue?

Considering the situation here in this light, it would seem that only by the most narrow, harsh, and technical construction of the provision, creating the rights of the widow and minor children, could we say that, upon the death of the widow entitled to the preferential right to sue in this class of beneficiaries, composed of the actual dependents entitled to be supported by the deceased under all legal rules and moral precepts, when those of that class remaining could still commence suit within the time the statute gives them to do so, the right of action itself has ceased to exist, although it is not yet even barred by the Statute of Limitations. This is the remedial section of these statutes. It does not call for such a construction, and to make it would destroy its plain purpose. If, when the widow dies, her right to proceed is ended, so that it cannot be exercised by her administrator, is there any logical reason why we cannot say her appropriation of the action is also ended, and that the right to bring the action passes (as it would have done after six months had she not sued, even though she survived their father and her failure to sue was due to her death prior to that time) to those the statute says could bring it if she did not, if they do so within the time the statute gives them to do so? There is then no suit by the widow and never can be for there is then no widow and no one who can enforce the preferential right given to her. The situation is exactly the same as where the widow "fails to sue within six months" and the rights of the parties should be the same. We do not think that the statute requires us to hold that the action, it creates but does not bar for one year, dies and passes out of existence with her death before the end of the year, when its purpose, to provide for those who were actually, legally and morally dependent upon the deceased and who sustained an actual loss by this death, will be defeated by such a construction. Our conclusion is that, where both widow and minor children survive, if the widow sues within six months but dies within one year after her husband's death, then the minor children may still maintain a suit if they commence it within one year after their father's death.

The judgment is reversed and the cause remanded.