(dissenting).
I do not subscribe to the holding in the main opinion because it represents a departure from the prior pronouncements of this Court which I deem sound and viable.
Our wrongful death statute 1 provides, in pertinent part, as follows:
. when the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death . . . . [Emphasis added.]
The cause of action is therefore one jointly held by the heirs of a deceased. This Court has held that when a wrongful death action is brought, either by one of the heirs or by the personal representative of the deceased, the action is deemed to have been brought for the benefit of all the heirs.2 Thus, there is but one cause of action3 whether it is enforced by the surviving spouse, by the minor child or children or by any other party authorized to do so by statute.4 Therefore the minority of some of the heirs cannot toll the statute of limitations where there is at least one plaintiff who could have maintained an action at the time the cause arose.
Consistent with the foregoing, this Court, in Platz v. International Smelting Co.,5 held that a right of action for wrongful death accrues at the time of death, and hence, the statute of limitations begins to run from that time. In reaching that conclusion, the Court cited the case of Louisville & N. R. Co. v. Sanders6 with approval and quoted the following reasoning therefrom:
. [T]he law evidently looks to a speedy settlement of such claims. This is its policy. It has, therefore, prescribed the shortest period of limitation. If there be no one in esse who has the right to sue, then the saving in behalf of the infant would apply by virtue of the express provision of the statute, and his right be preserved for one year after the removal of the disability. But here is but one cause of action. The right to sue upon it is given to either of three persons. If there be one of these in being with the right to sue, then does not the policy of the law, and a comparison and consideration of all the statutory provisions upon the subject, dictate that the action must be brought within a year from the accrual of such right to avoid a bar as to all? Public policy and the general quiet must be regarded rather than the individual hardship. [Emphasis added.]
Also in Platz, the Court relied upon a similar holding in Kennedy v. Burria7 and quoted the following reasoning therefrom:
When, then, did the cause of action accrue? We think the cause of action accrued whenever the defendant’s liability became perfect and complete. Whenever the defendant had done an act which made him liable in damages, and there *250was a person in esse to whom the damages ought to be paid and who might sue for and recover the same, then clearly the cause of action had accrued as against him. When, then, did this liability take place? Evidently at the death of Kennedy. The defendant at that time had done the whole wrong complained of, and there was a person in esse — to wit, Kennedy’s widow — entitled to receive and empowered to sue for damages. Then 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.
Therefore, because there was an heir in esse capable of suing at the time of the accident (i. e., decedent’s widow, Louella), the limitation period began to run at that time. U.C.A., 1953, 78-12-28 establishes a two year limitation period for wrongful death recovery. The period having long since expired for decedent’s widow, Louella, the cause can not be revived by reliance upon the minority of her children. The tolling effect of U.C.A., 1953, 78-12-36 has application to actions of this type only where there is no heir or personal representative capable of suing at the time of death.8
In order to have timely proceeded, Switz-er’s heirs had to institute an action within two years after the death of their husband and father. Having failed to do so, their cause of action is barred and the court correctly so ruled in dismissing the case.
The plaintiffs contend that the defendants waived the defense of the statute of limitations and should be estopped to plead it. The complaint was filed on October 23, 1974. Reynolds filed a motion to dismiss, based on the applicability of U.C.A., 1953, 78-12-28, on November 14, 1974. Clark filed its answer on December 9, 1974, alleging that the claim was barred by the statute of limitations. The court granted Reynolds’ motion to dismiss on December 24, 1974, but allowed the plaintiffs to amend their complaint if they could state any facts which might support a finding that the statute was tolled. On January 9, 1975, the plaintiffs amended their complaint and, after the court permitted the plaintiffs more extensive discovery, Clark moved to dismiss on August 15, 1977, and Reynolds moved for summary judgment on August 31, 1977, both defendants again asserting that the claim was barred. I see no basis to conclude, as plaintiffs urge, that the defendants waived that defense or should be estopped from pleading it.
I deem the additional points raised on appeal to be also without merit. I would affirm the judgment below.
CROCKETT, C. J., concurs in the views expressed in the dissenting opinion.. U.C.A., 1953, 78-11-7.
. Parmley v. Pleasant Valley Coal Co., 64 Utah 125, 228 P. 557 (1924).
. Id.
. Click v. Thuron Industries, Inc., Tex., 475 S.W.2d 715 (1972).
. 61 Utah 342, 213 P. 187 (1922).
. 86 Ky. 259, 5 S.W. 563 (1887).
. 36 Mo. 128 (1865).
. See Scott v. School Bd. of Granite Sch. Dist., Utah, 568 P.2d 746 (1977). In that case we held that the time of a minor’s disability is not a part of the time limited for the commencement of a personal injury action. The cause of action in that case was personal to the minor and not held jointly with other persons.