I respectfully dissent from the principal and concurring opinions. Under the Constitution it is the exclusive function of the legislative branch of the government to make laws; ours is only to construe them. [1] If a statute be ambiguous it is our duty to say what it means, but where it is plain we are without constitutional authority to vary, enlarge or reduce it. Even where legislation is defective or obscure we cannot, under the guise of construction, go beyond the legislative intent in supplying or amending it; and that intention must be gathered primarily from the language used in the act, not from what we surmise the Legislature may have intended to say or would have said if its attention had been directed to the question. The foregoing general propositions are well settled and in substance have been declared in the following recent cases decided by the court en banc. [State ex rel. American Asphalt Roof Corp. v. Trimble, 329 Mo. 495, 500, 44 S.W.2d 1103, 1105; State ex rel. Cobb v. Thompson, 319 Mo. 492, 496, 5 S.W.2d 57, 59; State ex rel. Koeln v. Southwestern Bell Tel. Co., 316 Mo. 1008, 1012,292 S.W. 1037, 1038.]
In arriving at the meaning of a statute, the language thereof is to receive a common-sense construction, words being taken in their usual and ordinary sense. If the import of the act, so read, is not clear certain extrinsic aids to construction may be resorted to, such as a consideration of the prior state of the law and the legislative policy evidenced by related statutes. [2] Remedial legislation should be liberally construed and penal statutes strictly construed. [Rozelle v. Harmon, 103 Mo. 339, 343, 15 S.W. 432, 12 L.R.A. 187.] The legislative intent in the one case is to be taken as broad and in the other narrow. It is said in 21 Ruling Case Law, section 4, page 209: "The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself." Such was the rule in Missouri when the statute involved in this case was enacted, and it is the same today. [Osagera v. Schaff, 293 Mo. 333, 344, 240 S.W. 124, 127.] Measured by any and all of these rules, I maintain the statute will not bear the construction put upon it by the principal and concurring opinions; and that they are in conflict with many prior decisions of this court.
The statute under construction is Section 3262, Revised Statutes 1929, which, so far as applicable to this cause, provides that whenever the death of a person shall be caused by the negligence of an employee of a street car company while operating a street car, the employer "shall forfeit and pay as apenalty . . . the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased." (Italics mine.) *Page 702
A third subdivision of the section provides that when the person killed is an unmarried minor the father and mother jointly may maintain the action. And a fourth subdivision says if there be no husband, wife or minor child (or surviving parent, where the deceased is an unmarried minor) the suit may be instituted by the administrator or executor of the deceased for the benefit of the next of kin. The statute was first enacted in 1855, Revised Statutes 1855, section 2, page 647. The part quoted above appeared in the original enactment except that it then provided the employer should "forfeit and pay . . . the sum of five thousand dollars." This was changed in 1905 by amendment, Laws 1905, page 135, the words "as a penalty" being inserted after the words "forfeit and pay" and the words "not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury" being substituted for the flat $5000 penalty theretofore fixed. The provision authorizing the administrator to sue, also was added by that amendment.
The person killed in this case was Archie C. Cummins. He left a widow and minor children. The widow did sue within six months for his wrongful death, as the statute requires — but she died while the suit was pending and before it had been tried. Her death occurred about eleven months after the demise of her husband. Section 3266, Revised Statutes 1929, allows one year from the date of the wrongful death for the commencement of actions under Section 3262. There therefore remained about one month of the one year's period of limitation when the widow died. Within that month the minor children brought the instant suit on the same cause of action — the wrongful death of Archie Cummins. The circuit court sustained a demurrer to the petition.
The principal and concurring opinions reverse that ruling and remand the cause, holding that although the widow complied with the sole condition expressed in the statute — by bringing her suit within six months — nevertheless the cause of action was not hers absolutely. To the contrary, they say that on the death of the widow within the year without a determination of her suit, the right to sue passed on to the children; and that they can maintain the present action since they brought it before the expiration of the period of limitation. The reasoning of the two opinions is that since the statute says the employer shallforfeit and pay a penalty which shall be sued for andrecovered by the beneficiaries therein named, therefore we ought to conclude the Legislature intended the employer should not escape the punishment imposed for his servant's wrongdoing, and that the beneficiaries nominated in the statute should not only sue but should also recover the penalty. Having deduced this legislative intent, the two opinions construe the statute to mean that if a beneficiary (in this case the widow) bring suit but die without recovering, the cause of action passes on to the next beneficiary in the order named in the statute (in this case the minor children) *Page 703 unless or until the cause of action is exhausted by the one-year Statute of Limitations. On this theory if the widow should duly bring suit and die and there were no minor children or they should sue and die, all within the year, the administrator could still sue for the benefit of the next of kin.
[3] This construction of the statute concedes it is penal. The reasoning starts with the premise that the Legislature intended the wrongdoer should not escape punishment. It is also at variance with the terms of the statute. For the section authorizes the minor children to sue only in two instances: (1) where there is no surviving husband or wife; (2) or where that surviving parent fails "to sue" (not sue and recover) within six months. And as to the executor or administrator, the express statutory condition is that he can sue only when there are no husband, wife or minor children. But both opinions justify their broad interpretation on the ground that the statute is remedial and therefore open to liberal construction. In other words to fasten liability on the employer under a penal statute they say it is remedial and open to a liberal construction. The principal opinion of HYDE, C., says one of the primary objects of the statute is to furnish compensation to the dependents of the deceased. The concurring opinion says it affords a remedy for wrongful death, which did not exist at common law.
[4] Now when is a statute penal? And what is a "remedy" in the legal sense? It is said in 59 Corpus Juris, section 658, page 1111: "The true test in determining whether a statute is penal is whether the penalty is imposed for the punishment of a wrong to the public, or for the redress of an injury to the individual." [See, also, 25 R.C.L., sec. 303, p. 1086.] A remedy is the legal means employed to enforce a right or redress an injury. [Words Phrases, 1st, 2d 3rd and 4th Series.] It involves the idea of compensation, as the principal opinion recognizes. Forgetting for a minute that Section 3262 has always said the employer shall "forfeit and pay" the sum named therein, and that by the Amendment of 1905 the emphatic words "as a penalty" were added, is the statute compensatory?
For the first fifty years the amount exacted was a flat sum of $5000 — no more no less — regardless of whether the deceased supported his family or was a charge upon them. Evidence of the actual pecuniary loss of the plaintiff relatives and had no place in the case. [Weller v. C., M. St. P. Ry. Co., 120 Mo. 635, 654, 23 S.W. 1061, 1065; Boyd v. Mo. Pac. Ry. Co., 236 Mo. 54, 88, 139 S.W. 561, 570.] In 1905 the penalty was changed from $5000 to a sum ranging between a minimum of $2000 and a maximum of $10,000, in the discretion of the jury; and the same amendment permitted the administrator to sue for the benefit of the next of kin in default of the other relatives named in the statute. As the section has since stood it is held evidence of the actual pecuniary loss may be considered by the jury in assessing the penalty just as the punishment in criminal cases may *Page 704 be varied according to the amount of injury inflicted by the defendant; but the jury are not bound by that evidence or required to fix the penalty on that basis. They must award $2000 or nothing; they can give the dependent wife or minor children the minimum of $2000 when their actual loss is much greater; or they can allow remote kin suing through the administrator the maximum of $10,000 though they have suffered no loss whatever. As a necessary result of the holding of the principal opinion they could do that even in a case where the deceased had left a wife and minor children who would be his heirs — thus excluding remotor kin under the laws of descent and distribution — if the wife and children had died before the expiration of the one year period of limitation and the administrator sued within that time.
If the statute Section 3262, were like Lord Campbell's Act (much of which is set out in the principal opinion) and gave an action for damages "proportioned to the injury resulting from such death," there would be reason for saying it was compensatory and therefore remedial. As a matter of fact, when the Legislature passed what is now Section 3262, they adopted two companion sections in the same act (R.S. 1855, secs. 3 and 4, p. 648, now Secs. 3263 and 3264, R.S. 1929) authorizing a recovery for wrongful death, which were modeled after Lord Campbell's Act and which did put the recovery on a damage or compensatory basis. But in that respect they differ from Section 3262, which is penal. [Hawkins v. Mo. Pac. Ry. Co., 182 Mo. App. 323, 336, 170 S.W. 459, 464.] In other words, as regards the causes of action created by Section 3262, the Legislature was unwilling to limit the recovery to damages or compensation, so they imposed a flat penalty of $5000, later changing it to a sum ranging between $2000 and $10,000 which must be paid in the discretion of the jury whether pecuniary loss had been suffered or not.
Not only is the holding of the principal and concurring opinions that the statute is remedial at variance with the terms thereof and the provisions of the companion sections just referred to. It is in conflict with practically all the decisions of this court on the point for the last thirteen years and more. The very constitutionality of the statute depends upon the fact that it is penal and enacted in the exercise of the police power. [Humes v. Mo. Pac. Ry. Co., 82 Mo. 221, 228; Carroll v. Mo. Pac. Ry. Co., 88 Mo. 239, 246; Casey v. St. L. Transit Co.,166 Mo. App. 235, 250, 91 S.W. 419, 424; Boyd v. Mo. Pac. Ry. Co., 236 Mo. l.c. 86, 139 S.W. l.c. 570.]
More to the point, it has been expressly held penal in a long line of cases. Five years after the Amendment of 1905 the statute was before the court in Young v. St. L.I.M. S. Ry. Co.,227 Mo. 307, 317, 127 S.W. 19, 20. It was held "the words `as a penalty' inserted by the amendment add nothing to the meaning or effect of the section; we have always held it a penal statute." The next year, 1911, the case of Boyd v. Mo. Pac. Ry. Co., 236 Mo. l.c. 83, 139 S.W. l.c. 568, *Page 705 called it "remedio-penal." When this Boyd case on a second appeal came to the court en banc in 249 Mo. 110, 120, 155 S.W. 13, 14, the court said that while earlier decisions had announced the statute possessed compensatory features, yet "the penal nature of the statute as it existed prior to 1905 has been quite uniformly held to overshadow its compensatory feature;" the first Boyd case was overruled; and the statute was held penal as to the minimum of $2000, and compensatory between that sum and the maximum of $10,000.
In 1920 a case came to the court en banc wherein the suit was brought by the administrator of a deceased bachelor who had no dependents. [Grier v. K.C., C.C. St. J. Ry. Co., 286 Mo. 523,228 S.W. 454.] The second Boyd case, supra, was overruled and it was held the statute is penal throughout its whole range, and that the administrator could recover the maximum of $10,000 without any proof of pecuniary loss. In so ruling the court said it was manifest "that the Legislature intended to make the entire recovery primarily a punishment for causing death by negligence, unskillfulness, or criminal intent, whatever incidental or secondary purpose it might at the same time subserve;" and that "damages or compensation is nowhere hinted at."
The opinion in this Grier case, by RAGLAND, J., then commissioner, had the full concurrence of only two judges, WALKER, C.J., and D.E. BLAIR, J., with J.T. BLAIR, and ELDER, JJ., concurring in the result, and WOODSON, J., absent. But on the essential point that the statute is penal and not compensatory the case has ever since been consistently followed in more than a dozen decisions. Thus, shortly afterward in Lackey v. United Rys. Co., 288 Mo. 120, 144, 231 S.W. 956, 962, decided by Division Two, it was said: "In the well-considered case of (citing the Grier case) the Court en Banc at the present term held that the section is penal as to the entire amount recoverable, and allowed a verdict under the section for $10,000 to stand, though there was no pleading or proof of the pecuniary loss." And in the closely following case of Midway Bank Trust Co. v. Davis, 288 Mo. 563, 586, 233 S.W. 406, 413, the court en banc said the "statute is purely penal, and is in no sense or degree compensatory, as was held in" the Grier case. Likewise in Treadway v. United Rys. Co., 300 Mo. 156, 176, 253 S.W. 1037, 1042, Division One said of the statute: "The sum recoverable thereunder is a penalty. While it may be in lieu of compensation and may incidentally afford the same relief (citing case), it is, notwithstanding, unqualifiedly penalty and is to be assessed as penalty," citing the Grier case. In this Treadway case an instruction which told the jury if they found for the plaintiff they should assess his damages at such sum as wouldcompensate him for injuries resulting to him from the wrongful death, was held reversible error. In State ex rel. Thomas v. Daues, 314 Mo. 13, 31, 283 S.W. 51, 56, 45 A.L.R. 1466, a leading case, the court en banc declared that an action under Section 3262 "is a purely statutory *Page 706 action for a penalty." And so we might go on citing numerous other cases, but we shall refer to only one more.
In Herrell v. St. L.-S.F. Ry. Co., 324 Mo. 38,23 S.W.2d 102, decided by the court en banc in 1929, the parents of an unmarried minor sued under the statute for his wrongful death. One of the pleaded defenses to the action was that the father of the deceased had been guilty of contributory negligence. There was no contention that the plaintiff mother had been guilty of such contributory negligence. This court held that where both parents sue for the death, the contributory negligence of only one of them is no defense because the statute is penal, and a penalty cannot be split. In the course of its discussion the court said: "In an action under section (3262) no question of apportioning damages can arise: such an action is not for damages, but for penalty — assessed as a punishment for the commission of a wrongful act which results in death. In some instances the penalty is recoverable by persons who presumptively sustained pecuniary loss through the death; in others it is not. When it goes to persons sustaining loss, its serving in a measure as compensation — damages — is purely incidental. The recovery in its entirety is penalty: not damages," citing the Grier case.
In the face of the foregoing decisions and the terms of the statute itself, the principal opinion argues that even if the section be penal, it is only so in part, i.e., with respect to its liability and penalty provisions; and that the part designating the persons entitled to the penalty is remedial and should be liberally construed. On this point Casey v. St. L. Transit Co., 116 Mo. App. l.c. 249, 91 S.W. l.c. 424, and the Grier case, 286 Mo. l.c. 542, 228 S.W. l.c. 459, are cited.
The Casey case does say the same statute sometimes may be penal for some purposes and remedial for others, and may be liberally construed as to the latter. It is even stated that particular statute here under consideration, Section 3262, is remedial as well as highly penal, and that such portions of it as confer a remedy are to be liberally construed. But the opinion goes on tohold the entire statute penal as imposing a forfeiture and says "it would almost seem to overturn the constitutional guaranty of right of trial by jury . . . except for the police power of the State underlying it." Then the opinion says "the only exception which we have been able to find to this rule requiring strict construction of statutes which are in their nature penal, is in the case of a statute which provides for more than actual compensation, such as double or treble recovery for the commission of some wrong" (as in trespass) where the plaintiff has an actual, common-law right to recover compensatory damages, and the cause of action is not a new one created by the statute — in other words, where the damages are simply "engrafted on a common-law recovery by the statute in the nature of a penalty."
The Grier case likewise says "statutes which provide a penalty recoverable by the party aggrieved are remedial as well as penal;" *Page 707 and that two diverse principles therefore have some application: that of requiring "strict construction on account of the penalty, and that of liberal construction to prevent the mischief and advance the remedy." The decision goes on to say: "Applying the rule to the statute under consideration, the provisions giving the penalty, that is, creating the liability, should be strictly construed, while those relating to the remedy should be liberally construed." But as will be remembered this Grier case had the full concurrence of only two judges out of six, and of two judges in the result. And the ruling on this point was obiter anyway because the decision was expressly put on the ground that the statute by its own plain terms was penal. We cannot find it has ever been followed since on this point. On the contrary, in Betz v. K.C. So. Ry. Co., 314 Mo. 390, 412, 284 S.W. 455, 457, it was held the statute calls for neither a strict nor a liberal construction because its language is clear and unambiguous, speaking the legislative intent without the aid of auxiliary rules of construction, citing the Grier case.
Neither the Casey decision nor the Grier case is authority for the proposition laid down in the principal opinion. But aside from that, as a matter of reason how can the remedy (?) be enlarged without a corresponding enlargement of the liability? To say the liability will be restrictively enforced but that a liberal policy will be followed in determining what beneficiaries can enforce that liability, involves the plainest contradiction. As was said in McGinnis v. Mo. Car Foundry Co., 174 Mo. 225, 232, 73 S.W. 586, 588, 97 Am. St. Rep. 553, where the suit was based on the wrongful death statute of Illinois: "When . . . a statute creates a liability and prescribes the person who shall have the right to enforce it, the two parts of the statute are component parts of the whole, and both are necessary to constitute the whole, and it must be done exactly in the manner and by the persons or agencies that the statute prescribes. There can be no equivalent or other means employed."
[5] Instead of the law's being that the part of the statute "designating the persons entitled to the penalty" should be liberally construed, the rule has always been to the contrary since the statute was first enacted in 1855. In the early case of Coover v. Moore Walker, 31 Mo. 574, 576, it was said: "There being thus no general right of recovery open to all persons representing the estate of the deceased or interested in his life, only such persons can recover in such time and in such manner as is set forth in the statute." And in Barker v. H. St. J. Ry. Co., 91 Mo. 86, 94, 14 S.W. 280, 282: "In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements, necessary to confer the right, and this must appear in his petition; otherwise, it shows no cause of action." These decisions have been followed without deviation on down to the present time, though in some instances a great hardship was worked upon the plaintiff. [See Oates v. Union Pac. *Page 708 Ry. Co., 104 Mo. 514, 518, 16 S.W. 487, 488; Packard v. H. St. J. Railway Co., 181 Mo. 421, 427, 80 S.W. 951, 953; Clark v. K.C. St. L. C. Railroad Co., 219 Mo. 524, 538, 118 S.W. 40, 45; Chandler v. C. A. Railroad Co., 251 Mo. 592, 600, 158 S.W. 35, 37; Freie v. St. L.-S.F. Ry. Co., 283 Mo. 457, 463, 222 S.W. 824, 825, 13 A.L.R. 204; Longan v. K.C. Rys. Co., 299 Mo. 561, 570,253 S.W. 758, 761; Hicks v. Simonsen, 307 Mo. 307, 324,270 S.W. 318, 323; Betz v. K.C. So. Ry. Co., 314 Mo. l.c. 398, 284 S.W. l.c. 457; Heath v. Salisbury Home Tel. Co., 326 Mo. 875, 884,33 S.W.2d 118, 122; Rositzky v. Rositzky, 329 Mo. 662, 669,46 S.W.2d 591, 594.]
Without further discussion of these important but collateral questions, the remaining fact to be considered is that the principal and concurring opinions are in conflict with a number of decisions of this court construing and declaring the meaning of the precise part of the statute here involved. The statute says the minor children may sue for and recover the penalty if the widow fails to sue within six months. The widow in this instance did sue within six months, but the two opinions hold this did not operate as an exclusive appropriation of the cause of action by her; that the statute means she must not only sue, but must recover or at least exhaust the cause of action as against subsequent beneficiaries by retaining control over it for the full period of limitation; and that if she dies before the year has run the right to sue within that time passes on to the minor children although no such permissive condition is set out in the statute.
What do the cases say on that point? (Italics in quotations are ours.) In 1862, seven years after the first enactment of the statute, it was held in Coover v. Moore Walker, 31 Mo. l.c. 576, that the right of the minor children to sue does notaccrue if the widow has brought suit within six months. In Kennedy v. Burrier, 36 Mo. 128, this court said: "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." In McNamara v. Slavens,76 Mo. 329, 331, the widow sued within six months after the death of her husband, but on a trial voluntarily dismissed her case after the evidence was in on both sides, and thereafter commenced no other action. The minor children thereupon brought the suit in judgment, apparently within the year. This court said:
"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 absolute control of the cause of action as of any common law right of action he or she may have, and may compromise, release or otherwise *Page 709 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 section 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."
And immediately following the above the court further said this, which is exactly in point on the question in the instant case:
"Section (3262) does not authorize the children to sue if the father or mother fail to sue and recover. It declares that the forfeiture may be sued for and recovered by the children if the father or mother fail to sue within six months. Their right to maintain the action depends upon the failure of the father or mother to sue, not upon his or her failure to sue andrecover."
In Packard v. H. St. J. Railroad Co., 181 Mo. l.c. 429, 80 S.W. l.c. 953, decided in 1904, the court said:
"Mrs. Packard having brought her suit within the six months, the entire cause of action became hers absolutely and remainedin her in her own right and not as next friend of her children. She had made the election required by the statute by theinstitution of her suit. . . . Having appropriated the right, she had absolute control over it. . . . 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. . . . We think that by bringing her suit within six months Mrs. Packard clearly evinced her intention to appropriate the cause of action, whether successful or unsuccessful, and thereby cut off the right of the children to sue."
To the same effect are: Barker v. H. St. J. Railroad Co.,91 Mo. 86, 14 S.W. 280; Huss v. Bohrer, 317 Mo. 204, 206,295 S.W. 95; Anderson v. Asphalt Distributing Co. (Mo.), 55 S.W.2d 688, 692. The two principal opinions attempt to distinguish all these cases by saying their facts were different — that none of them dealt with a situation where the surviving husband or wife haddied pendente lite. The concurring opinion further says it was unnecessary for them to hold the bringing of a suit by the surviving husband or wife operated as a permanent and exclusive appropriation of the cause of action. But this unbroken line of decisions cannot thus summarily be brushed aside. All of them were declaring what the statute meant, and then applying that construction to their facts. The question was who owned the cause of action. They held the statute vested the exclusive title in the surviving parent if he or she sued within six months, and forever cut off the children. In the McNamara case the widow had sued within six months and thereafter abandoned her suit. In the Packard case she had sued the wrong party. Obviously the court was required in both cases to determine *Page 710 whether the minor children had any claim to the cause of action after the parent had complied with the statutory condition by suing within six months.
Of course, where the action is being prosecuted by two or more beneficiaries under the statute for their joint benefit and one of them dies, the action does not abate as to the other plaintiffs. At least it was so held in a case where the father and mother were suing for the wrongful death of their minor child, and the mother died while the suit was pending. [Senn v. So. Ry. Co., 124 Mo. 621, 28 S.W. 66.] Very likely that would be true if under our statute the widow prosecuted the action for the joint benefit of herself and the minor children (as is true in some states) and she should die pendente lite. But our statute says she may sue and recover. The intransitive verb "recover" as used in law means "to obtain a final judgment in one's favor," Webster's New International Dictionary; and as shown in the two preceding paragraphs, it has been held time and again the widow and minor children have no joint interest in the action. It is either hers or theirs depending on whether she sues within six months.
And as to the right of the administrator or executor to sue. We have already pointed out the necessary result of the reasoning of the principal and concurring opinions is that if a widow should duly sue and die and there were no minor children or they should sue and die, all within the period of limitation, the administrator or executor still could bring suit if he did so within the year. This point, likewise, was decided the other way in Betz v. K.C. So. Ry. Co., 314 Mo. 390, 284 S.W. 464, and O'Donnell v. Wells, 323 Mo. 1170, 1174, 21 S.W.2d 762, 764. In the Betz case the wife and husband were struck and fatally injured by a train, the wife dying first and the husband three hours later, leaving no minor children. The administrator of the wife sued for her wrongful death. It was held he could not recover because under the statute his right to sue was contingent on the wife's leaving no widower or minor children surviving her, as the statute explicitly says.
The principal and concurring opinions say a construction of the statute which would deny the minor children the right to sue after the death of the surviving parent with a suit pending, would be harsh. As pointed out in Rositzky v. Rositzky, 329 Mo. l.c. 668, 46 S.W.2d l.c. 593, the charge has been made in some cases from other states that the common law was "barbarous." In one analogous case in Missouri it was argued that if the Legislature intended to cut off an action for wrongful death they were "monsters of injustice." [Strottman v. St. L., I.M. S. Ry. Co., 211 Mo. 227, 300, 109 S.W. 769, 791.] But as the Rositzky case says, whatever may be thought of the common law, it is still our law except where the statute has changed it. And as to the charge of harshness. If Section 3262 were compensatory and the beneficiaries were limited to *Page 711 their loss there would be merit in it. But it is a penal statute which gives the beneficiaries the right to recover the full $10,000 as a punishment, without proving any loss, and which also permits a joint beneficiary to recover in spite of his own contributory negligence. May it not fairly be said to be harsh to adopt a liberal construction in imposing a liability of that character? And further concerning the hardship on the minor children. According to the plaintiff's own construction the statute only gives them the second six months of the year in which to sue, if there be a surviving parent who outlives the first six months even without suing. In this case if the widow had lived one month longer the children would have been barred. The very terms of the statute and the fact that a one-year period of limitation is imposed, show the Legislature regarded it assui generis and as creating a cause of action which should be restrictively enforced.
Finally, and as stated in the beginning of this opinion, one of the permissible extrinsic aids to the construction of a statute is a consideration of the prior state of the law. It has been pointed out that the general rule in force in Missouri when Section 3262 was first enacted in 1855 was that penal statutes should be strictly construed. Between that time and 1905, when the statute was amended, an unbroken line of decisions had held that where the widow sued within six months she appropriated the cause of action and it became exclusively hers like any common-law action she might own. One of these decisions was the Packard case decided in 1904, just a year before the amendment. And yet no change was made in that part of the statute, nor has there been in the thirty years (nearly) since.
Furthermore, it was the legislative understanding at the time of the passage of the statute in 1855 that tort actions should abate on the death of the plaintiff. Under the common law the rule was actio personalis moritur cum persona. Prior to the first enactment of Section 3262 the rule had been guardedly relaxed by statute only to the extent that for tortious wrongs done to the property rights or interests of another, the action would survive the death of either the claimant or the tort-feasor. [R.S. 1835, secs. 24, 25, p. 48; Secs. 98, 99, R.S. Mo. 1929.] The present Section 3262 was passed twenty years later creating a cause of action for wrongful death which did not exist at all at common law, without the insertion of any provision for a survival or transmission between statutory beneficiaries. Not until 1907 did a cause of action for tortious wrongs to the person or health of another survive his death (Laws 1907, p. 252, Sec. 3280. R.S. 1929). And even this statute only permits a survival where a suit has been instituted before the death of the injured party and the tort-feasor. [Shoop v. Martin,321 Mo. 811, 12 S.W.2d 450.] To this day if tortious injuries be inflicted upon a person and he dies before bringing suit, the action abates. Certainly the history of our law on the subject shows it is the legislative understanding and intention *Page 712 that tort actions do not survive except where it is expressly so provided by statute. With respect to wrongful death statutes like ours, as between primary and secondary beneficiaries, the weight of authority elsewhere is to that effect. [13 A.L.R. 237, note.]
Our statute only says the minor children may sue when: (1) there is no surviving parent; (2) or that parent fails to sue within six months. The principal and concurring opinions interpolate a third condition; that the minor children may sue even where the surviving parent has sued within six months, if that parent die pendente lite within the one year's period of limitation. The statute further provides an executor or administrator may sue only when no husband, wife, minor child or children survive the deceased. The necessary effect of the reasoning of the principal opinions is that the executor or administrator may sue even though a husband or wife and minor child or children do survive the deceased, provided they successively sue and die within the period of limitation. I respectfully submit that construction does violence to the statute, measured by its own terms, by other statutes in parimateria, and by its historical setting. It also necessarily overrules a large number of former decisions of this court.Tipton, J., concurs.