And those courts have held that it does. See, e.g.,Whitley v. Georgia W. & Watkins Motor Lines, Inc., 299 F.Supp. 1238 (E.D.Tenn.1969) (applying Tennessee law); Spencer v. Bradley, 351 S.W.2d 202 (Mo.1961); Blessing v. Chicago, B. & Q.R. Co., 171 S.W.2d 602 (Mo.1943); Hamilton v. Mo. Pac. Ry. Co., 248 Mo. 78, 154 S.W. 86 (1913); Holder v. Nashville, C. & St. L.R. Co., 92 Tenn. 141, 20 S.W. 537 (1892); cf.Patten v. Olson, 265 N.W.2d 688, 690–91 (N.D.1978) (noting that the majority rule among states is that a release by a surviving spouse with the primary right of action is binding upon the decedent's children). ¶ 19 Applying wrongful death statutes similar to Colorado's, the Missouri and Tennessee courts have concluded that a beneficiary's right to sue necessarily includes the right to settle.
The statute confers standing first upon the surviving spouse and minor children. If they fail to sue within one year after the death, then the parents of the decedent may bring suit. Appropriation of the cause of action by the spouse and children may occur by means other than initiation of suit. E. g., Spencer v. Bradley, 351 S.W.2d 202 (Mo. 1961) (holding husband appropriated action by releasing several potential defendants within statutory period). But if the spouse and children fail to appropriate the action within one year after it accrues, they are no longer proper plaintiffs.
The Missouri Wrongful Death Act (V.A.M.S. § 537.080) creates a vested right in the plaintiff to bring suit for the death of his minor son. Spencer v. Bradley, 351 S.W.2d 202, 207 (Mo. 1961). The right of action is not derivative.
For this reason the cause of action against the defendant City of Jefferson City will be dismissed without prejudice. The cause could probably be transferred under Title 28 U.S.C.A. § 1404(a) or 1406(a), but there is no need to complicate the record when it appears that under the controlling state law the plaintiff can refile the action in the Central Division of this Court without prejudice to her right to maintain the action. Spencer v. Bradley (Mo.Sup.) 351 S.W.2d 202. It is therefore
This rule is based not only on the law which encourages settlements, but also in recognition of the fact that in a wrongful death claim, the personal representative is only acting as a trustee for those who are the designated beneficiaries under the wrongful death statutes.See, e.g., Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911); Story v. Page, 280 Mich. 34, 273 N.W. 384 (1937); Sykora v. J. I. Case Threshing-Mach. Co., 59 Minn. 130, 60 N.W. 1008 (1894); Spencer v. Bradley, 351 S.W.2d 202 (Mo. 1961); Edwards v. Sullivan, 200 Misc. 488, 102 N.Y.S.2d 951 (1950); Patten v. Olson, 265 N.W.2d 688 (N.D. 1978); Featherolf v. Casserly, 144 N.E.2d 114 (Ohio App. 1956); McKeigue v. Chicago N.W. Ry. Co., 130 Wis. 543, 110 N.W. 384 (1907). See generally Annot., 21 A.L.R. 4th 275 (1983).
This is the majority rule. Walthers v. Kroll, 16 Ariz. App. 282, 492 P.2d 1220 (1972); Council v. France, 276 So.2d 490 (Fla.App. 1973); Whitley v. Georgia Western and Watkins Motor Lines, Inc., 299 F. Supp. 1238 (D.Tenn. 1969); Spencer v. Bradley, 351 S.W.2d 202 (Mo. 1961). We presume that such a settlement presupposes an obligation to pay funeral expenses.
xception that if the person so appropriating dies during the limitation period without having completed enforcement the next alternative claimant may file suit within the two year limitation period, and (10) unless a tolling situation exists the suit must be filed within two years from date of death. The principles we have set out in the preceding paragraph are supported by the following cases: Barker v. Hannibal St. J. R. Co., supra, Wessels v. Gipfel, supra, Huss v. Bohrer, 317 Mo. 204, 295 S.W. 95 (1927), Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920 (1933), Chandler v. Chicago A. R. Co., 251 Mo. 592, 158 S.W. 35 (1913), Nelms v. Bright, 299 S.W.2d 483 (Mo. 1957), Uber v. Missouri Pacific Railroad Company, 441 S.W.2d 682 (Mo. 1969), State ex rel. v. Kimberlin, 504 S.W.2d 237 (Mo.App. 1973), Montemayor v. Harvey, 490 S.W.2d 61 (Mo. 1973), Forehand v. Hall, 355 S.W.2d 940 (Mo. 1962), Goldschmidt v. Pevely Dairy Company, 341 Mo. 982, 111 S.W.2d 1 (1937), and Spencer v. Bradley, 351 S.W.2d 202 (Mo. 1961). See also, Click v. Thuron Industries, Inc., 475 S.W.2d 715 (Texas 1972) in which the Texas court construed the Missouri statutes and decisions in accord with the foregoing.
The cause of action or right to maintain an action and recover for a wrongful death of any person is a single right and the right is vested in specific beneficiaries. Spencer v. Bradley, Mo., 351 S.W.2d 202. As this case reaches this court, there is but one plaintiff, the widow, the original co-plaintiff Vernon Uber having voluntarily dismissed without prejudice the petition as to him only.
"This one indivisible cause of action 'remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute.'" Lumley v. Farmers Ins. Co., Inc., 716 S.W.2d 455, 457 (Mo.App. 1986) (quoting Spencer v. Bradley, 351 S.W.2d 202, 206 (Mo. 1961)). Accordingly, there can only be one recovery and one cause of action, regardless of the number of claimants able to join in that recovery.
This one indivisible cause of action "'remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute.'" Spencer v. Bradley, 351 S.W.2d 202, 206 (Mo. 1961). To the same effect are Uber v. Mo. Pac. Railroad Co., 441 S.W.2d 682, 685 (Mo. 1969); Forsthove v. Hardware Dealers Mutual Fire Ins. Co., 416 S.W.2d 208, 218 (Mo.App. 1967).