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Bell v. Nolan9/14/2001
nt to pursue a cause of action" and that "to open up this possibility to innumerable collateral kin is irrational." We do not agree with that analysis. By ruling that a spouse can waive his right of action to the next of kin of the deceased, we do not thereby imply that by inaction, the next of kin can devolve his right to a still more remote relative.
Further, in Foster v. Jeffers, supra, we observed that the wrongful death statutes provide several ways whereby a surviving spouse can maintain control over his right of action if he wishes.
"He could bring the wrongful death action himself, he could waive his right to the administrator who could bring the action on his behalf, or he could effect a bona fide compromise in the form of a release and simply not bring the action to trial. It is clearly the legislative intent that a surviving spouse ought to be able affirmatively to maintain control over his right of action regardless of whether he intends to bring the action to trial. Because the statutes provide several means by which a spouse may retain his right of action, we find that a spouse can waive his right by inaction." 813 S.W.2d at 453
While none of these options may have been practical or palatable for Mr. Nolan, they do provide a measure of protection for the individual whose spouse has died under circumstances that would support a wrongful death suit, but who has legitimate objections to the institution of such a suit.
VI.
The judgment of the trial court dismissing the American Legion is reversed. Remand this cause to the Circuit Court of Coffee County for further proceedings consistent with this opinion. Tax the costs on appeal to the Appellee, Memorial 39, Post #43, the American Legion.
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