dissenting.
I respectfully dissent. Jenny Kausch was born on September 28, 1974, to Joanna Kausch. Joanna died on June 13, 1975, allegedly due to defendant’s negligence. At the time of her death Joanna was still a minor and was unmarried and left surviving her daughter, Jenny aged 8 months, and her parents, Michael and Irene Kausch.
Jenny, aged 8 months, did not sue during the first year following her mother’s death. The principal opinion, by reading words into the statute, construes it so as to limit Jenny’s right to sue to the first year after her mother’s death and bars the instant action by her. So, Jenny becomes casualty number five of a confusing wrongful death law. Casualty number four was Nathan Crane, a child born 7½ months after his father’s death, who failed to sue within the remaining 4½ months of the first year following his father’s death. Crane v. Riehn, 568 S.W.2d 525 (Mo. banc 1978) [No. 59686] decided concurrently herewith, in which I also dissented.
The Missouri Court of Appeals, St. Louis District, in an opinion by Judge Gerald Smith, construed the wrongful death statute so as to uphold this child’s right to sue in this case. I agree with the court of appeals analysis of the statute in this case and adopt Judge Smith’s opinion as my dissent in this case as follows:
“This case presents the question whether when the deceased is an unmarried minor survived by parents and a child, the child must bring its wrongful death action within a year or whether the two year statute applies. We find no case in Missouri dealing with this fact situation. Sec. 537.080 RSMo 1969, provides that a wrongful death action may be brought:
“ ‘(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; ... (2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, . . .’ (Emphasis supplied).”
“Respondent concedes, and the emphasized language makes clear, that under the fact situation here the parents of Joanna were entitled to bring a suit immediately upon Joanna’s death. Since she was a minor and unmarried at the time of her death, *538her parents are not required to wait for one year as provided in the second disjunctive clause of paragraph 2.
“That clause providing for a one year waiting period as to the parents has no application to the fact situation here and is unnecessary to any determination of the parent’s rights. Inasmuch as the function of that clause is to determine the right of suit in a different fact setting than is here involved, we are unable to conclude that it has application to this case. Only that clause imposes upon a minor child a shorter statute than the two year provision in Sec. 537.100, RSMo 1969. Since the clause has no application to the fact situation before us, it cannot limit the rights of the minor child. Plaintiff and the parents of Joanna are limited solely by the two year statute of limitations contained in Sec. 537.100, RSMo 1969.
“The conclusion we reach is not only in keeping with the statute as written but with the cases which have dealt with the one year ‘internal’ limitation period. In Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973) and Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973) the Supreme Court held that a spouse was not restricted to one year in which to bring suit where there was no other class of beneficiary to step forward upon the failure of the spouse to exercise the right within a year. These decisions, in essence, are based upon the premise that the one year ‘internal’ statute comes into play only when a second class of potential beneficiaries are in existence awaiting the failure of the primary beneficiaries to proceed under the wrongful death statute. The thrust of State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976) is the same. That case imposed the one year limitation upon a spouse and minor children when the deceased was also survived by parents who were still alive several years after decedent’s death, but who did not claim to have suffered any pecuniary loss from their son’s death. See also Selsor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo. banc 1976). Both Clark and Selsor are based upon the concept that certain beneficiaries are given a preferred right to proceed for wrongful death, but that upon their failure to so proceed their rights irrevocably pass to a less preferred class of existing beneficiaries. An essential difference between the majority and dissenting opinions in those cases was whether the right irrevocably passed or simply was subject to defeasance by action of the less preferred class. Inherent in both majority and dissenting opinions is the requirement that for the one year ‘internal’ statute to be applicable, there must exist two classes of beneficiaries, one having preference over the other. In the absence of such preferential treatment in the statute the one year limitation simply has no application.
“In the case at bar no preferential class of beneficiaries exist. Both the minor child and the parents could bring the suit immediately after the death of the unmarried minor mother. Both have equal preference. The one year statute does not apply.
“Nor does such a finding produce an unfair or unseemly race for the courthouse. Rules 52.04, 54.05 and 52.06 provide for joinder of interested beneficiaries. Sec. 537.095 RSMo 1969 provides for apportionment of damages among those entitled thereto.
“Judgment dismissing Counts I and II of plaintiff’s suit is reversed and cause is remanded for further proceedings.”
The principal opinion suggests the construction placed on the statute by it avoids giving greater rights to an illegitimate child over a legitimate one. But it makes no difference under the principal opinion whether the child is legitimate or illegitimate. Had Joanna been married when Jenny was born and her husband died or they were divorced, after which Joanna, a minor, died leaving Jenny, the same result would obtain. Joanna would still have been an unmarried minor who was survived by a minor child and her own parents.
The Crane case, where a minor child had only until he was 4¼ months old to sue, and this case, where a baby had only from 8 months of age to 20 months of age within *539which to sue for the parent’s death, before losing their causes of action to less damaged persons, dramatically demonstrate the dire need for corrective legislation. However, until such legislation is forthcoming, I believe this court should, whenever possible, construe the statute so as to allow the most damaged persons (minor children and widows to sue, as the court of appeals did, rather than bar the action.
These cases where infants lose their right to sue for the death of their parents by the mere passage of just a few months’ time, during which the infants can do absolutely nothing for themselves, ought to cause us to reconsider the origin of wrongful death actions and to hold, as the Massachusetts Supreme Court did in Gaudette v. Webb, 284 N.E.2d 222 (1972), that the action is of common law origin1 and the limitation period is tolled by the disability of infancy. I dissent.
. See F. Tiffany, “Death by Wrongful Act”, at 1-16 (2d ed. 1913); Davis, “Wrongful Death”, 1973 Wash.U.L.Q. 327 (1973); the authorities cited in the dissenting opinions of State ex rel. Kansas City Stock Yards v. Clark, supra, Sel-sor v. Zenith Radio Corp., supra and Crane v. Riehn, supra; and authorities cited in the principal opinion in this case.