IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-01222-SCT

SHAWNDEE AND SHARETTE THIROUX, MINORS, BY AND THROUGH THEIR LEGAL

GUARDIAN, VANESSA E. SANTA CRUZ

v.

JASON W. AUSTIN, A MINOR, BY AND THROUGH HIS LEGAL GUARDIAN AND

NEXT FRIEND, NETTIE ARCENEAUX

DATE OF JUDGMENT: 08/11/97

TRIAL JUDGE: HON. BILL JONES

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: ROBERT H. TYLER

V. DENISE LEE

ATTORNEYS FOR APPELLEES: H.M. YOSTE, JR.

RUSSELL S. GILL

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND REMANDED - 11/18/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/09/99

EN BANC.

WALLER, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE AND FACTS

¶1. Jason W. Austin was tried, convicted, and sentenced for the murder of William Albert Thiroux, Jr., who

left no surviving spouse, and was survived by two minor children, who were also his sole heirs at law. The

legal guardian of the two minor children filed the instant wrongful death action almost three and a half years

after the death of their father. The trial judge dismissed the action on Austin's M.R.C.P. 12(c) motion,

finding that the minor savings clause did not toll the statute of limitation for a wrongful death action. We

reverse and remand.

STANDARD OF REVIEW
¶2. This Court employs a de novo standard of review for dismissals of actions on the pleadings pursuant to

M.R.C.P. 12. See Young v. State, 731 So. 2d 1120 (Miss. 1999).

STATEMENT OF THE LAW

¶3. In Arender v. Smith County Hosp., 431 So. 2d 491 (Miss. 1983), this Court held that the minors

saving clause would not apply to a wrongful death claim. Arender erroneously relied on the 1895 case of

Foster v. Yazoo & M.V.R. Co., 72 Miss. 886, 18 So. 380 (1895). Foster, in finding that the savings

clause did not apply to a wrongful death action, interpreted a predecessor wrongful death statute containing

its own statute of limitation, and a predecessor savings clause with slightly different wording than the one

applicable in Arender. The savings clause at issue in Foster applied to "any of the personal actions before

mentioned." Miss. Code of 1892 § 2746 (emphasis added). Therefore, the Court reasoned that it did not

apply to a wrongful death action, as the wrongful death statute was not "before mentioned." At that time, the

wrongful death cause of action was provided its own statute of limitation, which did not include a savings

clause for minors. On the contrary, the current wrongful death statute, and the one in effect at the time of

Arender, does not contain its own statute of limitation. Therefore that statute is subject to the provisions

regarding limitations of actions in Title 15 of the Mississippi Code. See Miss. Code Ann. § 11-7-13 (Supp.

1999). Also, the savings clause interpreted in Foster no longer contains the phrase "before mentioned" as it

did at the time of Foster, which limited its application to the actions provided for in the same Chapter.

There is no question now that the savings clause, set out in § 15-1-59 of the Mississippi Code, applies to a

wrongful death action. But see Cole v. State, 608 So. 2d 1313 (Miss. 1992) (holding that the savings

clause does not apply to the Mississippi Uniform Post-Conviction Collateral Relief Act, which provides its

own separate statute of limitation in Miss. Code Ann. § 99-39-5(2)) and Marcum v. Hancock County

Sch. Dist., 1999 WL 353073 (Miss. 1999) (holding that the minor savings clause in Miss. Code Ann.

§ 15-1-59 does not apply to the Mississippi Tort Claims Act, which has a separate statute of limitation

contained in Miss. Code Ann. § 11-46-11).

¶4. We note that the parties in this case have concluded that the applicable statute of limitation is that found

in Miss. Code Ann. § 15-1-49 (1995), the general three-year statute of limitation applied to "all claims for

which no other period of limitations is prescribed." However, a wrongful death action, since it is predicated

on an underlying tort, is limited by the statute of limitation applicable to the tort resulting in the wrongful

death. In this case, the underlying tort is one of assault and battery (murder), which cause is limited to a

one-year period. Miss. Code Ann. § 15-1-35 (1995); see Veselits ex rel. Cruthirds v. Veselits, 653 F.

Supp. 1570, 1575 (S.D. Miss.), aff'd on other grounds, 824 F.2d 391 (5th Cir. 1987). However, the

applicable statute of limitation is not outcome-determinative since the action is still preserved by the minor

savings clause.

¶5. We reverse the trial court's judgment which dismissed this action, and we remand this case for further

proceedings consistent with this opinion.

¶6. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., BANKS, SMITH, MILLS AND COBB,

JJ., CONCUR. McRAE, J., SPECIALLY CONCURS WITH SEPARATE

WRITTEN OPINION JOINED BY SULLIVAN, P.J.
McRAE, JUSTICE, SPECIALLY CONCURRING:

¶7. Because I agree that the savings clause applies to toll the running of the statute of limitations, I concur in

this Court's judgment to reverse and remand. However, the majority opinion does not go far enough to

protect the rights of minors, wrongful death beneficiaries and to give guidance to the litigants. While it is true

that the wrongful death statute (Miss. Code Ann. § 11-7-13) requires one suit, this is merely a procedural

matter. The defendant should not be required to defend numerous suits; neither should minors be required

to give up their right to sue or lose their claim because some adult is either ignorant or refuses to bring a

lawsuit for and on behalf of all other heirs. Arender v. Smith County Hosp., 431 So. 2d 491 (Miss.

1983), should be overruled.

¶8. Today's majority decision takes a step forward in protecting the rights of minors by holding that the

savings clause tolls the statute of limitations for wrongful death actions. However, just as quickly as it takes

"the step," it takes another backwards by not overruling Arender.

¶9. Without the majority clearly addressing the issue, a problem will continue to exist when there is an exspouse, son or daughter of a decedent from another marriage living in another state who has little contact

with the present family minors and fails to bring a timely lawsuit. The claim for loss of love, society,

companionship and support which belongs to the individual minor is forever lost. The procedure is to bring it

in one lawsuit.

¶10. By not overruling Arender, no guidance is given to minors, nor is the constitutional right that we said

must exist in Mississippi State Bar Ass'n v. Moyo, 525 So. 2d 1289 (Miss. 1988). Vindicated in Moyo,

we recognized the long established rule that the courts should act as the superior guardian for all persons

under disability: "The court will not and cannot permit the rights of an infant to be prejudiced by any waiver,

or omission or neglect or design of a guardian, or of any other person, so far as within the power of the

court to prevent or correct." Moyo, 525 So. 2d at 1293 (quoting Union Chevrolet Co. v. Arrington,

162 Miss. 816, 826-827, 128 So. 593, 595 (1932)).

¶11. We are stripping minors of their constitutional right to "due process of law" merely because they are

not aware of what other heirs will or won't do. If injury is done to a minor's person, as in this case, by the

loss of a relative's companionship and financial support (both of which are invaluable to a minor's

development into an adult), then the aggrieved minor should be allowed to seek remedy when that minor

has the requisite capacity to do so. Minors, like everyone else in this state, deserve the chance to exercise

the right to remedy. They suffer under a disability declared by law.

¶12. The Majority concedes that the Arender erroneously relied on the case of Foster v. Yazoo &

M.V.R. Co., 72 Miss. 886, 18 So. 380 (1895), which interpreted a predecessor wrongful death statute

containing its own statute of limitation, and a predecessor savings clause with slightly different wording than

the one applicable in Arender.(1) The Court blindly quoted and followed Foster as it concluded that Miss.

Code Ann. § 15-1-59 does not apply to a wrongful death action. As a result, the holding in Arender is

inapplicable and should be overruled, not overlooked as in this decision, by allowing the savings clause to

apply to minors in wrongful death cases and by not barring those minors from suit when another beneficiary,

not under a disability, allows the statute to run. The majority opinion does hoop dances around Arender,

and the logic for not overruling it is misguided. It fails to keep us up to date with modern law, specifically

that of our sister states. The majority's position is one that has the potential to pose a great hardship,
especially in these modern times of split families.(2)

¶13. Other jurisdictions have addressed this question.(3) Consideration has been given to those minors who

still suffer from disabilities but who are impeded upon by the fact that there is an adult heir who, for

whatever reason, did not bring the lawsuit for and on behalf of all.

¶14. Oklahoma, for example, holds that the child may bring the suit. See Brookshire v. Burkhart, 283 P.

571, 573, 576, & 578 (Okla. 1929). Accord, Hamilton v. Vaden, 721 P. 2d 412, 414-15 (Okla. 1986)

. The Brookshire court found the damages at issue to inure to the exclusive benefit of the minor. See

Brookshire, 283 P. at 573. The court held that where the suit was brought after the running of the statute

of limitations, the father was precluded from suit himself, but the minor was entitled to sue by his father. See

id. at 573, 576, & 578. In Hamilton, the Oklahoma Supreme Court bluntly stated "that the minority status

of a surviving child tolls the limitation period prescribed by the wrongful death act." Hamilton, 721 P.2d at

414.

¶15. The prevailing rule appears to be similar to that of Oklahoma:

Perhaps the rule which is best supported by the authorities is that if the right is joint and several the

disability of one will save him but will not avail another who is not under disability, and that if the right

is joint so that the suit cannot be brought except by the parties jointly, then the rights of all are saved if

any are under disability; . . ."

54 C.J.S. Limitations of Actions § 110, at 149 (1987). The statute runs as against those not under

disability but not as to the others. We should follow the lead of other states and allow the child to bring the

wrongful death suit for and on behalf of all heirs except those non-disabled heirs who are precluded for

failure to timely bring suit.

¶16. Since the time of Price v. Crone, 44 Miss. 571 (1871), this Court has given special protection to the

rights of minors. To write around Arender is misguided. It should simply be overruled as it was bad law

from its inception. While I agree that procedurally only one lawsuit should be brought against a defendant,

by the same token we should protect the rights of minors and not deny them the chance to bring a lawsuit

due to the indolence of another. In order to protect those rights, and fulfill our duties to minors as expressed

in Moyo, this Court should overrule Arender.

SULLIVAN, P.J., JOINS THIS OPINION.

1. Foster interpreted the case of Railroad Co. v. Sanders, 5 S.W. 563 (Ky. 1887), which was based on

the Kentucky statute, chapter 57, § 3, Gen. St. That statute provided for the recovery of damages, as did

section 663, Code 1892 (except that the Kentucky statute, in the case cited, provided for punitive

damages), and did not contain in itself the one-year statute.

2. If the minor's constitutional right to redress were not so protected, the minor would be unduly harmed. It

is conceivable and likely that a minor may be subject to a scenario in which the wrongfully deceased adult

leaves a majority child from the first marriage and the minor from the second marriage such that the majority

child fails to bring suit, the statute runs on the first child's majority, and the minor child is unwittingly

deprived of the right to sue.

3. Some examples of other jurisdictions that follow this rule are exemplified in the following cases:
Chastang v. Washington Lumber & Turpentine Co., 102 So. 2d 899 (Ala. 1958); Hart v.

Wimberly, 296 S.W. 39 (Ark. 1927); Riddle v. Roll, 24 Ohio St. 572 (1874); Haley v. White, 58

S.E.2d 88 (S.C. 1950).