Action for alleged wrongful death of Archie C. Cummins occasioned by a collision between a motor bus on which he was riding as a passenger, and a street car operated by the Kansas City Public Service Company. The collision occurred on September 3, 1928, in Kansas City, Missouri, as a result of which Cummins died on that day and left surviving him his widow, Ada Jane Cummins, and three minor children. The widow brought suit on September 25, 1928, to recover for the alleged wrongful death of her husband. While the widow's suit was pending and before any trial or determination thereof, she died on August 1, 1929, whereupon her suit was, at the request of the opposite party, dismissed by the court. Thereafter on August 31, 1929, the minor children brought the instant action to recover for the alleged wrongful death of their father.
The action was brought under Section 3262, Revised Statutes 1929, which said section, among other things, provides the following:
"Whenever any person . . . shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing . . . any street, electric or terminal car . . . the corporation, individual or individuals in whose employ any such officer, agent, servant or employee . . . shall be at the time such injury is committed, . . . shall forfeit and pay as a penalty, for every such person . . . so dying, the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of deceased; . . . or third, if such deceased be a minor and unmarried, . . . then by the father and mother, who may join in the suit, and each *Page 698 shall have an equal interest in the judgment, or if either of them be dead, then by the survivor; or fourth, if there be no husband, wife, minor child or minor children, . . . or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of deceased, and the amount recovered shall be distributed according to the laws of descent. . . ."
Section 3266, Revised Statutes 1929, provides that every action instituted by virtue of Section 3262 above quoted shall be commenced within one year after the cause of action shall accrue.
[1] It appears from the dates above set out that the widow brought her suit within six months after the death of her husband, and thereafter died within one year after his death, without trial or determination of her suit. It also appears that the minor children brought their suit after the death of the mother, and within one year after the death of the father.
Defendants demurred to plaintiff's petition, claiming that when the surviving widow brought suit within six months after the death of her husband to recover for his alleged wrongful death, she appropriated the cause of action unto herself and thereby absolutely and forever cut off the right of the minor children to sue. The trial court sustained defendants' demurrer, and plaintiffs declining to further plead, judgment was rendered dismissing the cause and assessing the costs against plaintiffs. This appeal followed.
The sole issue in the case is a proper construction of Section 3262, Revised Statutes 1929. This section gives a right of action for wrongful death. There was no right of action for wrongful death at common law. Under the common law a right of action for personal injuries resulting in death died with the person injured. The statute in question was designed not only to punish the wrongdoer, but to remove the technical rule of the common law of harsh injustice, and in its stead give a right of action for wrongful death, for the benefit of the persons named in the statute. The statute is remedial, at least to the extent that it gives named beneficiaries a remedy against the party causing the wrongful death, where none existed at common law. Remedial statutes should be construed in the light of the prior common law, the mischief to be remedied, and the remedy provided, so as to suppress the mischief and advance the remedy. Speaking of this rule of construction in Shohoney v. Railroad, 231 Mo. 131, 157,132 S.W. 1059, we said:
"It is a golden rule of judicial exposition to discern what the common law was, what was the mischief and defect for which the common law did not provide, what remedy the statute appointed to cure the disease of the commonwealth and what was the reason of the remedy so provided. When these things are discerned by the judge, it is but trite and venerable doctrine that his office is to so construe the new statute as to suppress the mischief, advance the remedy and *Page 699 `to suppress subtle inventions and evasions for continuance ofthe mischief, . . . and to add force and life to the cure andremedy according to the true intent of the makers of the act, probono publico.' [Heydon's Case, 3 Coke, 7b.]"
[2] It is apparent from a reading of the statute that the Legislature intended to penalize the party causing a wrongful death because the statute expressly so states. It provides that the wrongdoer shall forfeit and pay a penalty of not less than $2,000, and not exceeding $10,000 for every such person so dying. The next question is, who is entitled to recover the penalty? The statute provides that the penalty may be sued for andrecovered; first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of such deceased. It is clear that the Legislature intended to give the husband or wife the first opportunity, not to merely sue for, but an opportunity to sue for and recover the penalty, because the statute expressly so states. It is likewise clear that if there be no surviving husband or wife the minor child or children may sue for the penalty at any time after the parent's death without waiting for the six months period to elapse, because the statute so provides. However, if there be a surviving husband or wife, the statute gives him or her the preferential right to sue for and recover the penalty, provided the suit therefor is brought within six months after the wrongful death. In the instant case, there was a surviving wife and she sued for the penalty within six months after her husband's death, but thereafter died within the one year period of limitation without a trial or determination of her suit.
[3] Defendants contend that the mere filing of the suit by the wife within six months after the death of her husband, fully vested the cause of action in her to the exclusion of the minor children, and forever cut off the right of the children to sue.
The construction contended for would defeat the purpose of the statute. To hold in this case that the death of the widow before trial or determination of her case destroyed the cause of action and thereby exonerated defendants, would inject into the administration of this statutory proceedings the harsh and technical rules of the common law and defeat the expressed intention of the Legislature that the wrongdoer should forfeit and pay a penalty for the benefit of the persons named in the statute.
Evidently it was the intention of the Legislature that the parties named in the statute, under the conditions therein specified, might, not merely sue for, but sue for and recover the penalty, because the statute expressly so states. The provision of the statute is that the wrongdoer shall forfeit and pay a penalty "which may be sued for and recovered, first by the husband or wife." The expressed intention of the Legislature being that the penalty may be sued for and recovered; first, by the husband or wife, must it not logically follow *Page 700 that when that body said, "if there be no husband or wife" the clear intention was that if there be no husband or wife to suefor and recover the penalty, then the minor child or children may sue for and recover it? In the instant case there was a wife to sue for the penalty and she did sue for it, but when she died before her case was tried or determined, then there was no wife to sue for and recover the penalty as contemplated by the statute. The clear intention of the Legislature as evidenced by the language of the statute is that where there is no husband or wife to sue for and recover the penalty, then the minor child or children may sue for and recover it. Such is the situation in this case, and for that reason the minor children of deceased are entitled to maintain this action, it having been brought within the one year period of limitation.
We have not overlooked that part of the statute which provides that if there be a husband or wife and he or she fails to sue within six months after the wrongful death, then the minor child or children may sue. As a matter of course, the Legislature intended something by this provision of the statute. We think that intention is clear. The limitation upon a cause of action for wrongful death is one year. As the husband or wife is given the first right to sue for and recover the penalty, were it not for the provision which, in effect, requires them to sue within six months after the death, they could, either purposely or carelessly, omit to sue until the one-year Statute of Limitations had run and thus defeat the right of the minor children. The clear and only intention evidenced by this provision of the statute is to protect the minor children against such a contingency.
There is no reported case in this State where the husband or wife brought a suit within six months after the wrongful death and thereafter died within the one year period of limitation without a trial or determination of the case, and for that reason the reported cases shed no light on the question presented in this case. However, there are many reported cases which do say, although unnecessary to a decision of the cases in which it is said, that where a husband or wife sues within six months after the wrongful death, he or she thereby appropriates the cause of action and forever cuts off the right of the minor children to sue.
For reasons heretofore stated, which we need not repeat here, the mere filing of a suit by the husband or wife within six months after the wrongful death, without more, does not forever cut off the right of the minor children to sue, and cases so holding are unsound and should be overruled to the extent of that holding.
Our conclusion is that the judgment should be reversed and cause remanded for trial on the merits. We therefore concur in the principal opinion written by Commissioner HYDE. Gantt, C.J.,Atwood, Hays and Leedy, JJ., concur; Ellison, J., dissents in separate opinion in which Tipton, J., concurs. *Page 701