State Ex Rel. Kansas City Stock Yards Co. of Maine v. Clark

536 S.W.2d 142, 1976 Mo. LEXIS 322

• Court: Supreme Court of Missouri
• Decided: April 14, 1976
• Docket: 59217
• Status: Published

Opinions

HOLMAN, Judge.

This is an original proceeding in prohibition in which relator seeks to prevent respondent judge from proceeding further in the case of Peggy Ann Smith, et al. v. Kansas City Stock Yards Company of Maine now pending in the Jackson County Circuit Court. Before seeking relief here relator had filed a motion to dismiss in which it stated as grounds therefor the contention hereinafter discussed. Respondent overruled that motion. Upon petition of relator we issued our provisional rule. We have decided that said rule should be made absolute.

The facts are not in dispute. Roy Ruis died on June 12,1970, as a result of injuries received while employed by relator. He was survived by his wife and three minor children. Roy was also survived by his father and mother who are still alive at this time. Deceased had not made any contributions for the support of his parents for twenty-five years prior to his death. On May 25,1972, the widow and children (hereinafter referred to as plaintiffs) filed the aforementioned suit against relator. It is suggested that the delay in filing said suit may have resulted from the fact that said dependents unsuccessfully sought to recover compensation under the Kansas Workmen’s Compensation Law.

It is relator’s contention that plaintiffs have not stated and cannot state a claim for relief and hence the circuit court has no jurisdiction to proceed with the case. The basic question for our decision is whether plaintiffs can maintain the wrongful death action which was commenced more than one year but less than two years after decedent’s death.

At the outset of our consideration of this contention it is appropriate to observe that under the circumstances indicated prohibition is a proper remedy. State ex rel. Henderson v. Cook, 353 Mo. 272, 182 S.W.2d 292[5] (1944).

There was no right of action for wrongful death at common law. It is only by virtue of statutory enactments that a recovery may be had upon such a claim. Our present statute reads as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.

“(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; . . . and provided, further, that only one action may be brought under this subdivision against any one defendant; or

“(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, . then by the father and mother,

“(3) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, 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 the deceased and the amount recovered shall be distributed according to the laws of descent.” Section 537.080. It should also be noted that Section 537.100 provides that: “Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; . . . ”

Those statutes were amended and reenacted in 1967. The amendments have been described as follows: “There was no change in the basic theory of the Wrongful Death Act. The class of persons who had first priority to sue was changed, the time in which they were permitted to sue was extended to one year, and the maximum period in which any suit could be brought was extended from one year to two years. Therefore, the construction of the Wrongful Death Act prior to the 1967 amendments which resulted in the present Act is applicable to the present Act, subject only to the changes made in the definition of classes and the lengthening of the periods of limitation.” Wessels v. Gipfel, 522 S.W.2d 653, 656 (Mo.App.1975).

In an early case this court construed the statute in certain respects in a manner which has been followed to this day. The court stated that, “In conferring the right of action, and in providing such remedy, in designating when and by whom suits may be brought, it was, as a matter of course, competent for the legislature to provide and impose such conditions as it might deem proper, and the conditions thus imposed modify and qualify the right of recovery, or form rather, we think, a part of the right itself, and upon which its exercise depends. In the statute which creates the right of action, and in the same section in which the statutory right and remedy is thus conferred upon the husband or wife, it is further provided, by the second subdivision, as we have seen, that if there be no husband or wife, or he or she fails to sue within six months after the death, the right of action therefor shall be vested in the minor children of the deceased, if there be such. This provision is not, we think, merely a limitation or bar to the remedy of the wife, but is a bar to the right itself, if there are minor children, . . . So in the case now before us, where the action is brought by the widow after the expiration of the six months, her right to maintain the same is conditional, and depends on the non-existence of the minor children, — a material and necessary fact, as we think, and which was not alleged or proved. . . . ” Barker v. Hannibal & St. J. R. Co., 91 Mo. 86, 14 S.W. 280, 281 (1886).

The wrongful death cases decided by the appellate courts of this state have established certain principles which have been uniformly followed by our courts. They are: (1) The statute provides for one indivisible claim for the death of a person which accrues on the date of death. (2) The claim vests first in the spouse and minor children either jointly or severally. (8) If the deceased left surviving a father or mother the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. (4) If the spouse and minor children fail to sue within one year the claim passes to and vests in the father and mother or the survivor. (5) If there is no father and/or mother the spouse and minor children have the full two years in which to sue. (6) If there is no spouse or minor children the father and mother may sue at any time within the two year period. (7) The party having the right to enforce the claim has absolute control over it during the period specified and may file suit or settle without suing. (8) There is but one claim for relief and if not enforced by one class during the period specified it passes to another class of beneficiaries. (9) When a claim is appropriated by one preferential beneficiary it completely terminates all rights of any others mentioned in the statute with the exception 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., 384 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.

Decedent received his fatal injury at a place near the state line between Kansas and Missouri. While there is some uncertainty concerning the state in which he was killed it now appears that all parties have accepted the fact that he was a few feet into the state of Kansas. In an effort to avoid the effect of the foregoing decisions respondent’s attorneys have briefed the contention that the Kansas law (particularly Section 60-513, the statute providing that the statute of limitations for wrongful death shall be two years) should apply to this case. We see no merit in that contention.

Ordinarily the wrongful death statute of the state in which the fatal injury occurred would apply. If plaintiffs desired to recover under Kansas law they were required to plead that statute and if they failed to do so the petition would not state a claim for relief. Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591[12] (1932). However, in this case both sides apparently concluded that under the choice of law rule announced in Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) the law of Missouri should apply. Accordingly, plaintiffs obviously relied upon the Missouri statutes in all respects including the amount of damages sought. In fact, they alleged in their petition, “That the laws of the State of Missouri govern and apply to all matters in this cause because the majority of the relevant contacts herein relate to the State of Missouri; that the State of Missouri has the most significant relationship to the occurrence and the parties.” Relator in its answer admitted those allegations. Furthermore, at a pretrial conference the parties stipulated, “that the laws of the State of Missouri shall govern and apply in all matters in this cause by reason of the significant and relevant contacts just described, and that the laws of the State of Missouri, including, but not limited to, the statutory recovery and procedure therefor in the event of wrongful death, shall apply.” In this connection it should be noted that the Kansas statutes differ in a number of respects from the Missouri wrongful death statute. See K.S.A., Sections 60-1901 to 60-1905 inclusive.

As indicated, the brief of respondent primarily requests that the Kansas two year statute of limitation be applied. This cannot be done because, as heretofore indicated, this case in its entirety is governed by Missouri law.

Moreover, it should be noted that we are not ruling that plaintiffs are barred by the statute of limitation. Our holding is that they are barred because they did not file suit within the period provided for in the wrongful death statute which is an essential element of the claim for relief. In other words the question is — were plaintiffs the proper parties to file and maintain a suit at the time such was commenced? As indicated, this contention is ruled adversely to respondent.

As we have indicated plaintiffs filed a claim under the Kansas Workmen’s Compensation Law on November 30, 1970. That claim was finally decided adversely to them on August 9,1971. It is now contended that the filing of that claim tolled the running of the Missouri statute of limitation and that plaintiffs could file this action within one year after August 9, 1971. Plaintiffs say they could not file a suit in Missouri until the compensation claim was concluded. We do not agree. There was no reason why this case could not have been timely filed in Missouri. There could only be one recovery but both matters could have been pending at the same time.

It should be noted that plaintiffs did not plead the filing of the claim as tolling action and that such is essential in order to' state a claim. Moreover, the tolling statute, Section 537.100, refers to Section 537.-080 and provides, “. . . that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit, or after a verdict for him the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time within one year after such nonsuit suffered or such judgment arrested or reversed; . . .” A somewhat similar contention was made in King v. Smith Baking Co., 228 Mo.App. 721, 71 S.W.2d 115 (1934) and ruled against the plaintiff. In King the deceased had filed a claim for compensation for the injuries, which subsequently caused his death, and after his death the claim was unsuccessfully continued to conclusion by his widow. The court in ruling the contention stated that, “. . .it cannot be seriously contended that the complaint for compensation before the Workmen’s Compensation Commission, including the proceedings thereinafter had and the appeal by respondent — although the claim might have ripened into a claim for compensation for death, by respondent — was the action contemplated by sections 3262, 3263, and 3264 above mentioned or that the cause of action before the commission was the cause of action provided by said sections. Such contention is necessarily overruled.” 71 S.W.2d 118.

The case relied on by respondent is Slater v. Kansas City Terminal Railway Company, 271 S.W.2d 581 (Mo.1954) but we consider it clearly distinguishable on the facts. In that case the widow filed a suit within six months but misconceived the nature of her claim and sought to recover as administra-trix under the F.E.L.A. This court ruled that since she had filed a timely suit for the death of her husband she should be permitted to amend seeking recovery under the wrongful death statute after the year had elapsed and that such would relate back to the date of filing the original petition.

We rule that the compensation claim did not toll the operation of the applicable statutes.

Respondent next asserts that the legislature in amending Section 537.080 in 1967 clearly broadened the scope thereof and that the amended Act should therefore be liberally construed. It is stated in the brief that the legislative intent was, “. simply to give the surviving wife or husband or minor children preference during the first year but not to prevent any of them from maintaining an action any time before the the expiration of the second year provided there be no surviving parents or provided that the surviving parents, if any, have not instituted or are not entitled to institute judicial proceedings. The one-year provision is not a limitation on the right of the persons described in subsection 1 to sue, but rather is a limitation on the preference given the persons described in subsection 1 over those persons described in subsection 2. This provision is, therefore, not a limitation on plaintiffs’ cause of action and does not bar them from maintaining their action in the instant case.”

We see nothing in the wording of the amended Act to warrant a conclusion that the legislative intent was as respondent contends. As stated in Wessels, supra, the Act extended the time in which to sue and changed the class given first priority but there was no change in the basic theory of the wrongful death act.

Along the same line respondent says that Section 537.100 is the only limitation statute and that Section 537.080, by use of the permissive word may, merely established a preferential order among the classes and therefore plaintiffs had the full two years to commence their suit. He says that, by analogy, Cummins, supra, and Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973) support that suggestion. In Cummins the widow filed suit within six months and then died shortly thereafter. The court held that, in that situation, the minor children could sue during the second six months since the widow had not been able to pursue the remedy to a conclusion. Almcrantz simply followed the well established rule that where no parent survived, the surviving widow had the entire two years in which to sue. We do not think these cases or the wording of the statute support respondent’s contention. The 1967 statute used the word may in precisely the same manner as the prior statute and hence we see nothing to support a finding of legislative intent to change the law in that respect.

Both sides have discussed Wessels, supra, at some length. Relator says it supports its contentions and respondent says it is distinguishable. In that case the decedent, age 24 and unmarried, lived with and supported his widowed mother. After her son’s death on October 24, 1971, the mother filed a suit on November 10, 1971, and it was settled and dismissed on April 30, 1973. Probably unknown to the mother decedent was the father of an illegitimate daughter born posthumously May 16, 1972, who filed a wrongful death suit on August 28,1973. In ruling that the trial court properly dismissed said daughter’s petition the court pointed out that the suit was not filed within the first year or even within a year after plaintiff was born. It was further stated that, “. . . the mother of the deceased, prematurely as it turned out, filed suit during the first year following the death of her son. That was the period within which appellant could have, but did not, appropriate the cause of action. At the termination of the ‘one year’ referred to in subsection 2 the statute of limitations ran on appellant’s cause of action, and the cause of action was subject to appropriation by the mother. Her suit was already pending, and it was her privilege to prosecute it to judgment or to settle pursuant to stipulation.” 522 S.W.2d 656. While the facts are not the same as those in the case at bar we think Wessels clearly supports relator’s contentions.

The final contention of respondent, as stated in his brief, is that, “The parents of the deceased suffered no pecuniary loss or damages as a result of their son’s death and could not institute proceedings against Relator within two years of decedent’s death. Therefore, under Section 537.080 of the Revised Statutes of Missouri, the Plaintiffs had the right to sue more than one year but less than two years after decedent’s death.” It has, of course, been relator’s contention that since deceased had parents in existence that after the passage of one year the right to sue passed from plaintiffs and vested in the parents. Relator cites cases such as Wessels and Almcrantz using the words “in existence” in describing that situation. Respondent says that is not an accurate expression. He says a person does not exist within the meaning of the statute, unless he is entitled to sue and recover damages. Respondent points out that the deceased had not contributed to the support of his parents for many years and therefore contends that they suffered no damage by reason of his death and could not maintain a suit. He reasons from that premise that the situation is the same as in Almcrantz where deceased had no surviving parents and it was held that the widow could sue any time within two years.

We are unwilling to agree that Roy’s parents suffered no damage by reason of his death. It is true, as ruled in our recent case of Pittock v. Gardner, 530 S.W.2d 217[5] (Mo.1975), that where the executor sues for the benefit of the collateral heirs he is required to allege and prove that the beneficiaries suffered pecuniary loss. But such is not the case where the statute, such as in subparagraphs (1) and (2) of Section 537.080, grants a right of action directly to certain classes. We are impressed with the view that an adult son, “. . . might be of pecuniary value to his mother in the future, although previously he had contributed nothing at all but had only been an expense to her.” Talbert v. Chicago, R. I. & P. Ry. Co., 321 Mo. 1080, 15 S.W.2d 762, 765 (1929). It is not at all unusual for parents to give money to their adult children while the children are endeavoring to get a start in life with the thought that if, in later years, they, the parents, are in need the children will help them. Many parents receive comfort and reassurance from the thought that their child will contribute to their needs if such should ever become necessary. This, however, is not a proper case for a decision as to the amount parents may recover for the wrongful death of adult children and we will not do so. This, because we are convinced that parents, in any event, are entitled to recover nominal damages and that is sufficient to authorize the filing and maintenance of a suit. And that right is sufficient to require a ruling that plaintiffs in the case before us were not entitled to sue after the expiration of one year.

In Stroud v. Masek, 262 S.W.2d 47 (Mo.1953) a widow sued for the wrongful death of her husband and apparently failed to prove pecuniary loss. On appeal this court ruled that she would be entitled to recover nominal damages at least. In that opinion we stated that, “ ‘According to the general current of American authority, where it appears in a statutory action for death that the death was caused by defendant’s negligence, nominal damages may be recovered, although no actual pecuniary damage has been shown.’ 25 C.J.S. Death § 96, page 1238.

“The case of Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, loc. cit. 954, 145 A.L.R. 1176, was a wrongful death case. In that case we quoted with approval the following quotation in King v. City of St. Louis, 250 Mo. 501, loc. cit. 513, 157 S.W. 498, loc. cit. 501:

“ ‘ “The rule is that for every actionable injury there is a corresponding right to damages, and such an injury arises whenever a legal right of plaintiff is violated. ‘If there is no inquiry as to actual damages, or none appears on inquiry, the legal implication of damages remains; * * * therefore nominal damages are given.’ Suth. on Dam. (3rd Ed.) § 9; 13 Cyc. 14.”

“Judgment for nominal damages is a substantial right since such a judgment decides the incident of costs.” 262 S.W.2d 51. See also, Acton v. Shields, 386 S.W.2d 363[7] (Mo.1965). It is interesting to note that in cases such as the one before us the approved instructions do not require a finding that plaintiff has suffered damage. See MAI 20.01 and 20.02. This was explained in the case of Aubuchon v. LaPlant, 435 S.W.2d 648, 652 (Mo.1968) as follows: “In wrongful death actions, unlike suits for personal injuries, the issue of whether plaintiff has proved pecuniary loss (damages) is not hypothesized in plaintiff’s verdict directing instructions. See MAI 20.01 and 20.02. The reason for this, as set out in the Committee’s Comment to MAI 20.01, is that nominal damages may be recovered in such a case as this even though actual damage is not sustained.”

We recognize that relator will benefit from the failure of plaintiffs to exercise diligence and file their suit within the time specified in the statute and the failure of the parents to sue during the second year. That, of course, is the situation in every case where the claim is barred by statutory limitation. We have concluded, however, that there is no reasonable basis under the statute for granting plaintiffs relief. This is a matter of statutory construction. When the 1967 amendments were enacted the legislature is presumed to have been familiar with the long line of cases which have held that the persons named in the wrongful death statute must exercise the right so granted within the time and manner fixed by the statute or recovery will be denied. In reenacting that statute (Section 537.080) the legislature did not include any provision therein which indicated an intent to change the rule in those cases. Accordingly, we would deem it imprudent to overrule that long line of cases in order to hold that plaintiffs could maintain their action under the circumstances heretofore detailed.

It follows that the provisional rule should be made absolute.

MORGAN, HENLEY, FINCH, and DON-NELLY, JJ., concur. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.