The action is for damages for the wrongful death of Gust Drakopulos, the husband of plaintiff. The original petition was filed August 7, 1915. The fourth amended petition, filed December 3, 1918, ran in the name of Samuel B. Strother, Administrator of the Estate of Gust Drakopulos, deceased. It alleges that plaintiff therein was the "duly appointed administrator," etc. Certain allegations relating to the appointment of receivers for the St. Louis San Francisco Railroad Company, foreclosure sale of its property and purchase thereof by defendant, St. Louis San Francisco Railway Company, are made. Said petition then averred the facts relative to the death of Gust Drakopulos in the State of Kansas on April 26, 1915, and that the same was caused by the negligence of defendants; *Page 429 that deceased left surviving him a widow, Sotero Drakopulos, and three minor children therein named, all dependent upon him; that plaintiff has been given a right of action for said death by the laws of Kansas, and sets out Section 6014 of Chapter 95, Article 18, of the General Statutes of Kansas for 1909, as follows:
"Action for death by wrongful act; limitations; damages. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for injury for the same act or omission. This action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."
The prayer of said fourth amended petition is as follows:
"Wherefore, plaintiff, for and in behalf of said widow and children, asks judgment against defendants for the sum of ten thousand dollars together with his costs herein incurred and expended."
On February 12, 1919, the widow, Sotero Drakopulos, present plaintiff, applied for leave to be substituted as party plaintiff and to adopt the pleadings and proceedings in said cause. On March 4, 1919, and over the objection and exception of defendants, she was permitted to be substituted as plaintiff, and on that date filed a fifth amended petition, in which she alleged that on and prior to April 26, 1915, she was the wife of Gust Drakopulos, and sets out the names of her three children and that she and said children were residents of the Kingdom of Greece and were dependent upon said Gust Drakopulos.
The fifth amended petition in other particulars is substantially in the same words as the fourth amended *Page 430 petition, except that it sets out in full Section 6015 of the General Statutes of Kansas for 1909, Chapter 95, Article 18, as follows:
"Section 6015. When action may be brought by widow or next ofkin. That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this State, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased."
There is also a slight difference in the two petitions caused by the use of appropriate words to make the fifth amended petition applicable to plaintiff as widow of deceased, instead of applicable to the plaintiff named in the fourth amended petition as administrator of deceased. The prayer of the fifth amended petition is as follows:
"Wherefore, plaintiff, for and in behalf of herself and said minor children, asks judgment against defendants in the sum of ten thousand dollars, together with her costs herein incurred and expended."
On March 17, 1919, defendants filed their motion to strike out plaintiff's fifth amended petition and said motion was sustained by the trial court, to which action plaintiff duly excepted and judgment of dismissal with costs was entered against plaintiff. The appeal is from the order of the trial court striking out such fifth amended petition and dismissing the cause. The propriety of such action is the sole question before us.
As appears from defendants' motion to strike out the fifth amended petition, the theory of defendants is that such amended petition is a departure from the cause of action stated in the fourth amended and prior petitions; because a new plaintiff is substituted who is a stranger to the original cause of action and to the plaintiff *Page 431 therein, and because the fifth amended petition is based upon a statute different from the one which is the basis of the claim of the fourth amended petition, and because entirely different proof will be required in the two petitions, and because a judgment upon one petition would be no bar to the cause of action stated in the other.
We do not think there is any merit in the contention that plaintiff is a stranger to the original cause of action. It is expressly alleged in the fourth amended petition that Sotero Drakopulos is the widow of deceased and the names of the minor children are set out therein, and that such administrator prays judgment for and in behalf of said widow and children.
Nor is it true that the fifth amended petition is based on a statute different from the one pleaded in the fourth amended petition. Both petitions plead Section 6014 and both are based thereon. The fifth amended petition pleads Section 6015 in addition. Section 6015 merely provides when the widow may maintain the action provided for in Section 6014. Section 6015 adds nothing to the liability of defendants in any way.
The only difference in the proof required is that in the fourth amended petition such proof should show deceased was a resident of Kansas and the appointment of a competent administrator; while in the fifth amended petition the proof should show either that deceased was not a resident of Kansas, or, if a resident, that no personal representative is or has been appointed. Additional proof of Section 6015 as a law of Kansas is required in the fifth amended petition. Proof of the existence of the widow and children is necessary in both petitions. The subject of the action, the cause of action, the grounds of negligence and the measure of damages are the same in both petitions. The damages sought to be recovered are for the benefit of the widow and children in both petitions and the proceeds recovered on a judgment under either petition are required by the law of Kansas to be distributed in the same manner. *Page 432
Nor are we able to agree that a recovery on the fifth amended petition would not be a complete bar to the action by the administrator or vice versa. If the fourth amended petition properly alleges the appointment of a competent administrator and the proof showed that fact and the administrator obtained a judgment thereon, such judgment would bar recovery upon the fifth amended petition, since a recovery by the administrator suing merely in a representative capacity would be for the benefit of the widow and children. Under Section 6014 the administrator acts as a trustee for the widow and children, and not for the estate of the deceased. The damages recovered could not be subjected to the debts of the deceased. A recovery by him for them would bar their subsequent suit. A recovery by them in the name of the widow would bar a suit by the administrator for their benefit. [23 Cyc. 1245; Landis v. Hamilton, 77 Mo. 554; Davidson v. Real Estate Inv. Co., 249 Mo. l.c. 502; Cooley v. Warren, 53 Mo. l.c. 169.]
It is true the amended petition requires somewhat different proof from the fourth amended petition, but not substantially different proof. If the test of departure be that the proof required is different in any respect, then every amendment would be a departure. We think Section 1274, Revised Statutes 1919, is sufficiently broad to cover the amendment here in question. It provides for an amendment by adding or striking out the name of a party and even provides for amendment after the proof has been made in order to conform the pleadings to the proof where such amendment does not substantially change the claim or defense. This is the consideration which should guide the courts. If the amendment does not substantially change the claim or defense, there is no departure.
The subject of the action here is the right of Gust Drakopulos to immunity from injury by the negligent acts of defendants. The cause of action is the alleged violation of that right by defendants. The object of the *Page 433 action is the recovery of damages for such violation to inure to the exclusive benefit of the widow and children. These are the substantial elements of the claim. Whether the action is brought by the administrator or the widow is a mere detail of procedure. The only concern of defendants as to parties plaintiff is that whoever prosecutes the action shall be competent to maintain it in such a way as to bar any other action for the same injury. Defendants' rights in this regard are amply safeguarded and the amendment did not injuriously affect the substantial rights of the defendants.
Support for these views is found in Vaughan v. Railroad,177 Mo. App. 155, in which case the Kansas City Court of Appeals held that it was error to enter judgment after verdict in favor of the admintratrix, who was added as plaintiff after verdict, without the fact of her appointment as administratrix having been submitted as an issue for trial by the jury. On page 171 the court held that the trial court properly permitted the substitution, but should then have sustained a motion for a new trial instead of permitting the administratrix to adopt the judgment and previous proceedings and remanded the cause for new trial with the administratrix as a party plaintiff. The action in that case was under the Federal Employers Liability Act, wherein the administratrix was the proper party plaintiff. The ruling in that case was approved by the same court in Dungan v. Railroad,178 Mo. App. 164. We are further fortified in the view we take of the amendment in this case by the opinion of Mr. Justice PITNEY of the United States Supreme Court in M.K. T. Ry. Co. v. Wulf,226 U.S. 570. In that case the action had been instituted by the mother of the deceased as his sole heir, and subsequently she was appointed administratrix and was made a party plaintiff. The action in that case was under the Federal Employers Liability Act, where the action could only be maintained by the personal representative of the deceased. The substitution was approved and it was ruled that the substitution did not change the cause of action. *Page 434
Defendants cite the case of Broyles v. Eversmeyer, 262 Mo. 384, as supporting their contention. It is difficult to understand how that case is authority for defendants' position. This court, speaking through GRAVES, J., held proper an amendment correcting a mistake in the description of a tract of land. Section 1848, Revised Statutes 1909 (now Sec. 1274, R.S. 1919), was there invoked as authority for the amendment. That same statute provides for adding or striking out the name of a party and for amendment of the pleadings, even after the proof has been made, in order to conform pleading to proof where such amendment does not change substantially the claim or defense. Defendants also cite Garber v. Mo. Pac. Ry. Co., 210 S.W. 377. The question there was the propriety of the action of the trial court in striking out the third count of the third amended petition as a departure. The first and second counts of said amended petition were based on Missouri statutes and the third count on the Federal Employers Liability Act. As no exceptions were saved to the action of the trial court in striking out such third count, it was held that the question was not properly raised for review and the propriety of the amendment was not before this court, and that even if the question had been properly saved, as neither the original nor any other petition prior to the third amended petition was incorporated in the record, the court was in no position to determine the propriety of the amendment. The question of departure was not determined.
In Bank v. Thompson, 223 S.W. 734, relied on by defendants, the original petition counted on a demand note and the amended petition upon an agreement under which the note set out in the original petition had been given to secure the payment of other notes. The two petitions were based on different subject-matters and required quite different evidence to support them. None of the other cases on the question of departure cited by defendants give us any additional light.
No reason except the alleged departure appears in the record before us to justify the court's action in striking *Page 435 out the fifth amended petition. It is true that the permitting of amendments is largely within the sound discretion of the trial court. The court having exercised its discretion in plaintiff's favor and having permitted the substitution of the widow as party plaintiff, we are justified in assuming that it would not have stricken out the pleading except for the supposed departure. We are satisfied that was not a sufficient reason. We regard the exercise of the court's power as unwise and unsound where its action finally closed the door to relief in plaintiff's face. The Statute of Limitations is a complete bar to the prosecution of a new suit.
From what has been said it is apparent that the court erred in striking out plaintiff's fifth amended petition and dismissing the cause and entering judgment against plaintiff for costs. The judgment of the trial court must be reversed and the cause remanded with directions to the trial court to set aside its order of dismissal of the cause and to reinstate plaintiff's fifth amended petition and to proceed with the cause in conformity to law.
It is so ordered. All concur.