dissenting.
I respectfully dissent. This is another case brought by minor children for the death of a parent — mother—where access to the courts is again denied because the children did not sue within the first year of their mother’s death even though the general statute of limitations on wrongful death actions is two years. This case is decided here by following the majority opinion in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976).
I will not fully restate my views on the matter. See my dissenting opinions in State ex rel. Kansas City Stock Yards, supra, at 149, and Selsor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo. banc 1976); and concurring opinions in Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973), and Almenante v. Carney, 490 S.W.2d 59 (Mo.1973).
In the instant case the deceased died December 13, 1973. Suit was filed on behalf of her two minor children on March 13, 1975, some fifteen months later. On July *36528, 1976, the first motion to dismiss or for summary judgment on the ground that the deceased was survived by her mother was filed. This was well after the two-year statute of limitations had expired but as of the end of the two-year-limitations period there was no suit filed or pending by the mother of the deceased. The effect of waiting until after the two-year period expired before moving to dismiss because the deceased was survived by her mother is to relieve the defendants of all liability for the death of Mrs. Edmonsond. If the minor children’s suit is permitted to proceed, having been filed within the two-year period, and there being no suit by the surviving mother on file, the defendants would not be subjected to any more liability than if the mother had not survived the deceased, and therefore the children, would have had two years to sue. See Almcrantz at 61, and Montemayor, supra. I would hold that the defendants’ failure to bring to the court’s attention the fact that the deceased left a surviving mother within the two years following the death and seek dismissal on that ground constituted a waiver of that ground.
I believe this course is wholly justified by the mandate of sec. 1.010, RSMo 1969, which in pertinent part provides: “but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.”
Certainly the primary intent, meaning and purpose of our wrongful death act was and is to provide a method to compensate children for the loss of their mother or father by death through another’s negligence. Sec. 1.010 tells courts to construe acts liberally so as to effect their true intent and meaning and to disregard any aspect of the common law which, if considered, might limit the scope and effect of the statute.
This is at least the third case (known to us) in a relatively short time where widows or minor children have been denied the benefit of our wrongful death statute simply because the deceased was survived by a parent even though the parent made no claim. I do not suggest that the principal opinion and the cases it relies upon present an unreasonable view, but I do contend that the view taken in those cases does not comport with the legislative policy set forth in sec. 1.010 because Almcrantz and Montema-yor show that the true intent and purpose of the wrongful death statute can be satisfied by construing that statute liberally as directed by sec. 1.010.
I dissent.