concurring in part and dissenting in part.
I respectfully dissent. The reason this case was transferred after opinion in the Missouri Court of Appeals, St. Louis district, was to review the question of whether the putative father has a cause of action for the wrongful death of his illegitimate child. The principal opinion recognizes this to be the core issue in the case and, after citing a number of cases, states that we are compelled to conclude that when a biological father openly acknowledges paternity, exercises custody and responsibility with respect to supervision, support, protection and care for the child,1 he has a right to maintain a wrongful death action for the death of his *740illegitimate child. I cannot determine if this conclusion is reached through a reinterpretation of the Missouri wrongful death statutes or because of a belief that constitutional equal protection requires it or both. In any event, I do not believe the court is compelled to the conclusion reached by the principal opinion under statutory interpretation or constitutional equal protection or both.
If our Wrongful Death Act, sec. 537.080, RSMo 1969, grants the putative father the right to sue for the death of his illegitimate child, then the issue is resolved in favor of plaintiff Robert Cobb. In my opinion, sec. 537.080 does not give the putative father the right to sue. Sec. 537.080(2) provides in part, “. . . then by the father or mother, natural or adoptive, . . . .” The principal opinion notes that this statute makes no distinction between unmarried legitimate or illegitimate children, and quoting from Higgins v. Gosney, 435 S.W.2d 653, 657 (Mo.1969), says, “The statute makes no reference to the marital status as between the parents.”
But this case does not involve the rights of children, legitimate or illegitimate, but purely whether the putative father has a right of action, nor does Higgins v. Gosney, supra, decide any issues with reference to legitimate or illegitimate children, nor with reference to putative fathers. The principal opinion seems to infer that the legislature intended to make no distinction between legal fathers and putative fathers reference wrongful death actions for the death of their children.
The language of our wrongful death statutes has not changed very much over the years. In Marshall v. Wabash R. Co., 120 Mo. 275, 25 S.W. 179 (1894), the court had to decide whether the mother of a deceased child was required to join the putative father as a party to a wrongful death action for the death of their child. Sec. 4425, RSMo 1855 (chapter 51, sec. 2), provided in part, “. . . or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in such suit, and each shall have an equal interest in the judgment, or if either of them be dead, then by the survivor.” This statute was amended in 1885 under the title, “An act to amend sections . . . , extending the rights of adoptive children and their parents by adoption,” so as to describe the persons who may sue, and provided in part, “. . .or third, if such deceased be a minor and unmarried, whether such deceased be a natural born or adopted child, . then by the father or mother who may join in the suit, and each shall have an equal interest in the judgment, or if either of them be dead, then by the survivor.”
The court construed the words “natural bom child” in the 1885 amendment to mean the same as the word “child” meant in the 1855 statute and stated that the amendment was intended to extend the rights of adoptive children and their adoptive parents. It was not for the purpose of vesting illegitimate children or a putative father with rights they did not have under the former law. The court reviewed the status of illegitimate children under the common law and earlier cases and then held as follows, 25 S.W. at 181:
“The harsh rules of the common law have been modified by express statute in this state, so that the mother is declared the natural guardian of her illegitimate child. Section 5279, Rev.St. 1889. And section 4473 declares: ‘Bastards shall be capable of inheriting and transmitting inheritance on the part of the mother, and such mother may inherit from her bastard child or children in like manner as if they had been lawfully begotten of her.’ This section does not, it is true, legitimate a bastard, but it concedes to him inheritable blood on the mother’s side. Instead of being the son of nobody, as at common law, he has a mother who is recognized as such by our laws. The duty of supporting him rests upon her, and she is entitled to his services during minority. As the chief and principal incapacity of a bastard has been removed, so far as he and his mother are concerned, there seems to be no good reason why a statute which speaks of parents and children should not *741apply to a mother and her illegitimate child, unless there is something in the statute, or the subject about which it treats, to show that it was not intended to apply to persons standing in that relation. To say the mother of an illegitimate child cannot maintain a suit under the second section of the damage act is to say she cannot maintain one under the third and fourth sections, which do not fix the damages at a stated amount, but allow compensatory damages, not exceeding $5,000; and it is to say an illegitimate child cannot recover, under either section, for the loss of its mother. We cannot believe the legislature ever intended such results. As the mother of an illegitimate child is, by our law, deemed and treated a mother, we think she is within the meaning of the damage act, and that the father of such child is not. This is but giving effect to what we understand to be the legislative policy of this state. It follows that the plaintiff can maintain this suit, and that the reputed father need not, and ought not to, be made a party. All concur.”
Section 475.025, RSMo 1969, provides that when there is no lawful father, “then the mother, if living, is the natural guardian of their children, and has the custody and care of their persons and education.”
The interpretation Marshall places on our wrongful death statute regarding a putative father’s right to sue for the death of his illegitimate child has been recognized as the currently prevailing interpretation of the present wrongful death act by several law committees of the Missouri Bar which reviewed wrongful death acts and wrote a proposed act for Missouri. See “Wrongful Death", Washington University Law Quarterly 1973, pp. 327-378. The committee proposed, Inter alia, to abolish illegitimacy “as a bar to recovery by a child for a parent’s death and vice versa”. Id. 368. The committee proposed extensive amendments to the Missouri wrongful death act which were introduced as H.B. 1466 in the 76th General Assembly but the bill did not go beyond the first or second reading stage. I do not cite the introduction of H.B. 1466 and its failure of passage as any indication of current legislative intent, for it is obvious that many bills fail of passage for reasons that have nothing to do with the merits of the proposal. Sometimes bills are not passed simply because time runs out. I cite the Washington Law Quarterly article and H.B. 1466 as support for the proposition that the current thought as to the meaning of the Missouri wrongful death act regarding a putative father’s right to sue among lawyers and law professors is the same as expressed by this court in Marshall, and the principal opinion does not expressly modify or overrule Marshall.
I will not undertake a detailed re-analysis of the cases cited in the principal opinion with respect to what the opinion describes as the first three stages of the development of rights of illegitimates and putative fathers. Suffice it to note that those cases deal primarily and almost exclusively with the rights of the illegitimate child, not the putative father. That is understandable because it was the child, not his putative father, who, under the common law suffered because of the single status of his parents. The putative father had no rights with respect to the child, but what was of more importance to most of them was that they had no obligations to either the child or the mother. Today, although support can be ordered by a court of a putative father, the fact is that the mother still, in almost every instance, bears the actual responsibility for the support and care of the child. The facts of this case show a man who, while married to another woman and with children by her, abandons his legal family and resides sporadically with Norma Jean and sires her children but leaves when he pleases. He has not entered into any legal relationship which involves reciprocal legal duties, as in the case of marriage, which, in turn, provides the basic recognizable unit, the family, which is considered to be in our society the best and acceptable environment for the rearing of children. I have found no legal authority to the effect that a putative father is entitled to the services and earnings of his illegitimate *742child. Indeed, our laws designate the mother to be the natural guardian of such child. This is not by law a shared guardianship — it is by law the mother’s and not the father’s.
Our wrongful death law is essentially a compensatory rather than a punitive act.
With respect to the constitutional issue, it should be stated at the outset that no decision of the United States Supreme Court requires a state to afford the right to sue for the “wrongful death” of a child to a putative father just because it affords that right to the mother. The most recent case dealing with rights of illegitimate children vis a vis their putative father is Lalli v. Lalli, - U.S. -, 99 S.Ct. 518, 58 L.Ed.2d 503 [1978]. The court there held the equal protection clause of the U. S. Constitution, Amendment 14, does not require that legitimate and illegitimate children be afforded equal rights as to inheriting from their fathers. The New York statute considered in Lalli required that an illegitimate child could inherit from his father only, “. . . if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child.” The court proceeded on the basis that the appellant-claimant, Robert M. Lalli was the son of the deceased Mario Lalli. There had been no order of filiation obtained as required by the statute and Robert Lalli contended the equal protection clause of Amendment 14 rendered the statute, supra, unconstitutional. The Supreme Court held that the statutory requirement of a filiation order served an important state interest, to wit, a “just and orderly disposition of property at death”, [at -, 99 S.Ct. at 523], and therefore did not violate the equal protection clause.
In my opinion, there are important state interests which a state legislature is entitled to recognize and serve by granting the right to sue for the wrongful death of an illegitimate child to the mother and not to the father. It is important that someone be legally responsible for the care of children born out of wedlock from birth onward. Our statute, sec. 475.025, places this responsibility with the mother and vests her with the rights of guardianship of the child. This is for the child’s welfare and is a matter in which the state obviously has an interest. It is important that authority over the child not be divided between two persons who have no legal relationship to one another (the unmarried mother and putative father) and who, therefore, owe each other no legal duties.
Just as the state’s interest in the just and orderly disposition of property at death was recognized in Lalli, so, too, should the state’s interest of wrongful death actions be recognized. This also is a pecuniary item as the only purpose in filing the suit is to obtain money damages. The state has, in my opinion, a substantial interest in providing that the one who has the legal obligation to care for the illegitimate child and who is entitled to the child’s services be the one who is to be compensated for the loss. That is what, in effect, our wrongful death statute provides and, as such, I believe that it does not violate the state or federal constitutions in failing to allow the putative father to sue. See Hughes v. Parham, 241 Ga. 198, 243 S.E.2d 867 (1978)2 where a statute similar to ours was upheld as against similar contentions.
Once again it should be noted that the issue here cannot be resolved on the basis of the “best interests of the child.” The child is dead. In Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), cited in the principal opinion, the putative father’s rights with respect to vetoing the adoption of his illegitimate child were adjudicated on the basis of the “best interest of the child” standard. Denying the putative father’s rights equal to a legal father’s did not offend constitutional due process or equal protection in Quilloin.
*743Quilloin is inapposite to the instant case as, in my opinion, is Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), because in both of those cases there was a living child or children whose interests played a significant role in the case as it was the future care of those children that was involved. Here nothing in the future can serve the interest of the child because the child is dead. Therefore, the “best interest of the child” criterion cannot be applied. Additionally, the principal opinion leaves the basic question of whether or not a particular putative father has the right to sue for the wrongful death of the child without utilizable guidelines or method of decision. It cannot be assumed that the natural mother will always welcome the putative father’s intrusion into the case. Obviously his presence in the case will cause a reduction in the mother’s share of the proceeds, as sec. 537.080(2) specifies that when the action is for the death of an unmarried minor by the father and mother then “each shall have an equal interest in the judgment.” How will a mother suing for the death of her illegitimate child determine whether the putative father has a right to sue? What lawyer could advise his defendant client to settle a case where the deceased is an illegitimate child with any confidence that the settlement will end the claim?
In my opinion, our wrongful death statute does not grant the right to sue to a putative father and that statute is not unconstitutional as depriving a putative father of equal protection.
I would hold that plaintiff Robert Joe Cobb does not have a cause of action for the wrongful death of Rhonda House. This would require the judgment in favor of Robert Joe Cobb to be reversed and the cause remanded for a new trial and permit the new trial to be on damages only with the sole party plaintiff being Norma Jean House if Norma Jean House is entitled to maintain this type of action as against State Security Insurance Company under the uninsured motorist coverage of the policy.
I agree with the holding of the principal opinion that the deceased child was a relative of the named insured and “a member of the same household” as the named insured. Under the definition in the policy, Rhonda was an “insured”. Norma Jean was her mother and natural guardian and had the right, as her mother, to sue for the child’s wrongful death. Sterns v. M.F.A. Mutual Ins. Co., 401 S.W.2d 510, 517 (Mo.App.1977), cited in the principal opinion, holds that the term “legal representative”, as used in uninsured motorist policy provisions, means any person who is entitled to sue for the death of another under sec. 537.080. Norma Jean has the right to sue as the mother of the deceased child and therefore is entitled to the benefits of an “insured” under the uninsured motorists coverage of the policy.
I would reverse the judgment in favor of Robert Joe Cobb outright and reverse the judgment in favor of Norma Jean House and remand the case for retrial as to damages only with the sole plaintiff being Norma Jean House.
. These issues were not submitted to the jury and there has been no finding by either the trial judge or the jury that the putative father satisfied these criteria.
. This case is pending on appeal to the U. S. Supreme Court [- U.S. -, 99 S.Ct. 75, 58 L.Ed.2d 106, 1978],