Effective 28 Aug 1991

537.080. Action for wrongful death — who may sue — limitation. — 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;

(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;

(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.

2. Only one action may be brought under this section against any one defendant for the death of any one person.

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(RSMo 1939 §§ 3652, 3653, A.L. 1955 p. 778 § 537.070, A.L. 1967 p. 663, A.L. 1979 S.B. 368, A.L. 1991 H.B. 236)

Prior revisions: 1929 §§ 3262, 3263; 1919 §§ 4217, 4218; 1909 §§ 5425, 5426

(1971) Where parents of deceased child were not made defendants in plaintiff's suit against child's administrator, they could not bring themselves into that action as counter-claimants for wrongful death. State ex rel. Saupe v. Swink (A.), 475 S.W.2d 466.

(1973) A husband or wife, when there is no living father or mother of the deceased, may sue at any time within two years. Montemayor v. Harvey (Mo.), 490 S.W.2d 61.

(1974) Held that father has an absolute right to intervene in an action brought by mother for wrongful death of their son. State ex rel. Slibowski v. Kimberlin (A.), 504 S.W.2d 237.

(1974) Held that stepdaughter cannot maintain an action for wrongful death of her mother against her stepfather since doctrine of interspousal immunity would operate to bar such action by the mother and would extend to the daughter. Klein v. Abramson (A.), 513 S.W.2d 714.

(1975) Even though alleged daughter of deceased was born seven months after putative father's death she would have had to have filed within the year to have prevented deceased's mother from appropriating the action. Wessels v. Gupfel (A.), 522 S.W.2d 653.

(1976) Held, it is essential to plead and prove that any heir who would receive damages collected, when distributed under laws of descent and distribution, suffered a pecuniary loss by reason of the death. Pittock v. Gardner (Mo.), 530 S.W.2d 217.

(1976) If the deceased left a surviving father or mother, the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. State ex rel. Kansas City Stock Yards v. Clark (Mo.), 536 S.W.2d 142.

(1976) Held, since an unborn fetus is incapable of maintaining an action there is no cause of action to pass to another and no claim for wrongful death can be asserted. State ex rel. Hardin v. Sanders (Mo.), 538 S.W.2d 336.

(1978) Parents could recover for wrongful death of an unmarried adult child who left no surviving minor children. State ex rel. Zigler v. Adolf (A.), 561 S.W.2d 691.

(1978) Held, that divorced father not entitled to equal interest in judgment for wrongful death where mother paid vast majority of expenses arising from accident. Taylor v. Aspey (A.), 567 S.W.2d 670.

(1978) Held, infant child of deceased unmarried minor deserves no preference over any other child and must bring action within one year for wrongful death. Kausch v. Bishop (Mo.), 568 S.W.2d 532.

(1984) Child decreed equitably adopted by his aunt six months after her death was a proper plaintiff in a wrongful death action based upon her death. Holt v. Burlington Northern R. Co. (Mo.App.W.D.), 685 S.W.2d 851.

(1990) Non-viable fetus is not a person within the meaning of wrongful death statute. Rambo v. Lawson, 799 S.W.2d 62 (Mo.banc).

(1991) Statute limits wrongful death action to a single or sole cause of action. When a person entitled to bring a wrongful death action has settled case, other persons claiming to be within class entitled to recover are barred from bringing an action and have the exclusive remedy of attacking validity of prior judgment under Rule 74.06. Davis v. Wilson, 804 S.W.2d 392 (Mo.App.).

(1992) Under wrongful death statute, survivorship damages incurred by the decedent before death, such as medical expenses and pain and suffering, are recoverable as part of wrongful death claim, but no recovery, either in terms of economic loss or in terms of premature termination of pleasures of life, is allowed for damages to the decedent caused by the death itself. Powell v. American Motors Corp., 834 S.W.2d 184 (Mo.banc.).