Crane Ex Rel. Crane v. Riehn

BARDGETT, Judge,

dissenting.

I respectfully dissent. The plaintiffs are the surviving spouse (Mary) of Larry Crane, deceased, and the posthumous son (Nathan) of Larry and Mary. Nathan was born seven and one-half months after his father Larry was killed, allegedly due to the negligence of two other automobile drivers. Unfortunately for Máry and Nathan, the deceased Larry was also survived by his parents whom he did not support and to whom he owed no duty to support and who did not sue within the two-year-limitation period.

The suit by Mary and the minor child Nathan was filed August 20, 1971, twenty-three months after Larry’s death. Here, as in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo.banc 1976), Sel-sor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo.banc 1976), Edmonsond v. Lakeside Hospital Assn., 562 S.W.2d 361 (Mo.banc 1978), the infants of a deceased and/or a surviving wife or husband are denied the right to sue because the deceased was (unfortunately for the children and spouse) survived by parents even though the parents were owed no duty of support by the deceased, received no support from the deceased and filed no suit, nor did the parents “appropriate” the cause of action in any way at all.

So, this makes the fourth casualty in a short time of a confusing wrongful death statute. The victims (minor children and spouses) are those who suffer most by the death and are often those who simply cannot, because of their infancy, as in this case, protect themselves by bringing a suit within the first year after the death of the father or mother. No one could realistically pretend that in this case Nathan could have done a thing to bring suit and thereby have damages for the loss of his right to support by his father.

The denial of the right to sue to a widow and minor child simply because the deceased also left surviving him, somewhere in this world, a mother or father who have not been damaged, completely distorts the purpose of the law and, in my opinion, produces a result which the court should avoid if at all possible.

The court has previously held that if the deceased did not leave a mother or father surviving then the surviving spouse and minor children have the full two years in which to sue, Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973), Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973), and cases cited therein. This even though the statute does not explicitly provide for the additional year in such circumstances. In the instant case the surviving parents did not sue within the two-year period and, therefore, can never sue. The defendants will not be subject to multiple litigation or multiple claimants of different classes. Therefore, I *532would hold that this suit can be maintained by both the surviving spouse and minor child and consider this case the same as if the deceased left no surviving parents.

My views that the origin of wrongful death actions is found in the common law and that such an action existed in Missouri (James v. Christy, 18 Mo. 162 (1853)), prior to the first death damage act have been set forth in my dissenting opinion in State ex rel. Kansas City Stock Yards v. Clark, supra, at 149-157. See also Selsor v. Zenith Radio Corp., supra, Montemayor v. Harvey, supra, Almerantz v. Carney, supra, and Edmonsond v. Lakeside Hospital Assn., supra. For an exhaustive treatise supporting the proposition that such a recovery was allowed at common law, see 1 S. Speiser, Recovery for Wrongful Death 2-28 (2d ed. 1975).

One would think the Missouri general assembly would have given some attention to their wrongful death statute in the past several years in order to correct the obvious injustice being wrought by that law but they haven’t done so yet. Just maybe the fact that an infant not yet born at the time of his father’s death is forever barred from recovery for the loss of his father because, as I say, unfortunately the father’s parents happen to survive him, will get their attention. I hope so. I dissent.