Cannada v. Moore

• Decision Date: 13 March 1979
• Docket Number: No. 60989,60989
• Citation: 578 S.W.2d 597
• Parties: Pinkie L. CANNADA, Individually and for the benefit of herself and Myles Cannada, Respondents, v. Joe MOORE, Cleothes Smith and Alex Junior Burden, Appellants.
• Court: Missouri Supreme Court

Page 597

578 S.W.2d 597

Pinkie L. CANNADA, Individually and for the benefit of

herself and Myles Cannada, Respondents, v. Joe MOORE, Cleothes Smith and Alex Junior Burden, Appellants.

No. 60989.

Supreme Court of Missouri, En Banc.

March 13, 1979.

Denis C. Burns, James E. Godfrey, Godfrey, Vandover & Burns, Inc., St. Louis, for appellants.

Robert F. Ritter, Thomas C. DeVoto, Gray & Ritter, St. Louis, for respondents.

RENDLEN, Judge.

This wrongful death action was transferred after opinion by the Missouri Court of Appeals, St. Louis District (now Eastern District) under Rule 83.02 that we might reexamine the existing law. The case is decided here as an original appeal, Mo. Const., art. V, § 10; Rule 83.09. Much of the Court of Appeals' opinion by Stewart, J., is utilized without quotation marks.

The decedent, Frank Lee Cannada (Frank), an unmarried adult with no minor children, was killed July 2, 1972. Suit was brought by decedent's mother, Pinkie L. Cannada, individually and for the benefit of Myles Cannada, decedent's father. Frank died as a result of injuries received when the car in which he was riding was struck from the rear by an automobile driven by defendant Burden then being pursued by police authorities. Judgment was entered upon a verdict against three named defendants in the sum of $20,000 and from that judgment Joe Moore (Moore) has appealed. We affirm.

The jury could have found these facts: The accident occurred on Sunday, July 2, 1972, at about 5:00 p. m. on Interstate Highway 55 near its intersection with Missouri Highway 162 in New Madrid County near Portageville, Missouri. Highway I-55 runs generally in a north-south direction, while Highway 162 runs generally east-west and overpasses I-55. Just south of the Highway 162 overpass a ramp leads from the east side of the northbound lanes of I-55, up to the south side of Highway 162, and immediately north thereof a ramp leads down from 162 to the easterly side of the northbound lanes of I-55. At that location I-55 is a four lane highway with the northbound and southbound lanes separated by a grass median. The traffic lanes are 12 feet wide with nine foot asphalt shoulders. At the time of the accident the speed limit was seventy miles per hour and a mist caused the highway to be wet. The northbound lanes of I-55 will be referred to as the right and left lanes for northbound travelers.

At the time of the accident Frank was a passenger in a 1967 Ford, with three other adults and two small children, returning to St. Louis from a trip to Cleveland, Mississippi. They were preceded by a 1970 Chevrolet traveling in a northerly direction occupied by friends of Frank who had also been in Cleveland, Mississippi. Jimmy Whitehead, one of those friends, was driving the 1970 Chevrolet. These cars, traveling in tandem at approximately 50 m. p. h., were in the right lane of I-55.

A short time before the accident defendant Cleothes Smith (Smith), a part-time deputy sheriff of Pemiscot County and a part-time policeman of Hometown, Missouri, had arrested Alex Burden (Burden) for careless driving. While Smith was making a phone call near the scene of the arrest, Burden escaped and drove north on I-55 toward the overpass of Highway 162. Smith gave chase.

Defendant, Joe Moore, the Chief of Police of Portageville, Missouri and a deputy sheriff of Pemiscot County, was in Portageville near Highway 162 and I-55 when he heard Smith's radio transmission to the New Madrid Sheriff's Office advising of the chase. Hearing Smith say that they were traveling about 120 m. p. h., Moore drove to a point north of the overpass and placed his car astride the northbound lanes of I-55 about 20 to 25 feet north of the point where the north entry ramp from Route 162 joins the northbound lanes of I-55. The rear portion of Moore's car was blocking the right lane of the highway, the lane in which the 1967 Ford was traveling. Moore, who remained in the car, activated the flashing red dashboard light in the windshield of his unmarked vehicle. He did not have a description of the automobile that was being chased and did not know what kind of car he was looking for. Before the vehicles involved in the chase came into view, Moore heard Smith's radio transmission advising that Smith had Burden "cornered" in the right hand lane of the highway. Smith was in the left land alongside Burden. Moore then knew that "(Burden) was going to run over them people if he was going as fast as he said he was . . .." Smith did not know that Moore had stationed his car on the highway until he saw the red light as he came within view of the interchange. There was a curve in the road to the south of the scene of the accident but a person on the highway could see at least one and one-half miles to the south from the scene.

As soon as Whitehead, who was leading in the 1970 Chevrolet, saw Moore's car ahead of him on the highway, he slowed his car, turned on the right turn blinker and moved toward the right (east) shoulder of the road. When Whitehead had slowed to about 10-15 m. p. h. with the right front wheel on the shoulder, the Burden car struck the 1967 Ford occupied by Frank, driving it into the Whitehead car. Upon the impact of the Burden car with the 1967 Ford, the Ford exploded and burned, killing Frank and the other occupants.

Moore remained in his car at all times and did not attempt to direct the oncoming vehicles to move from the path of the chase or to direct them around his vehicle. If, on the other hand, the jury believed Moore's or Smith's version (which we shall presently discuss) as to Moore's conduct in placing his car with flashing light on or near the foot of the north ramp of 162, the fact remains that Moore admitted he made no attempt to direct the oncoming vehicles from the path of the chase.

I.

For his first allegation of error defendant Moore contends that Pinkie L. Cannada, as a parent of the deceased adult child (who left no surviving wife, minor child or children) was not the proper party to bring this action. He argues that suit should have been brought by the executor or administrator of the estate of the deceased under § 537.080(3), RSMo 1969, pursuant to the holding in Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1973). Plaintiff, on the other hand, asserts that under § 537.080(2), she is a proper party to the suit.

Through the interpretative cases, certain ambiguities of § 537.080 have been resolved. One such ambiguity is the absence of express language in the section or its subdivisions concerning the marital status or age of decedents for whose death an action may be brought. Except for the reference to unmarried minor decedents in subdivisions (2) and (3), it is not stated whether he may be a minor or one who attained his majority, or whether he may be married or on the other hand unmarried. This legislative deficiency, and it seems to be such, has been alleviated by decisions broadly construing the statute as to the classes of decedents for whose death actions may be brought. Those classes have been held to include: (A) unmarried adults, Wessels v. Gipfel, 522 S.W.2d 653 (Mo.App.1975); (B) married adults, Edmonsond v. Lakeside Hospital Ass'n, 562 S.W.2d 361 (Mo. banc 1978); Crane v. Riehn, 568 S.W.2d 525 (Mo. banc 1978); and (C) unmarried minors, Kausch v. Bishop, 568 S.W.2d 532 (Mo. banc 1978); Mitchell v. Buchheit, 559 S.W.2d 528 (Mo. banc 1977) (This class of decedents is expressly mentioned in the statute, subdivisions (2) and (3).) As to married minors, our research discloses no case where a member of this class of decedents has been involved, but it seems inconceivable that such class is not within the purview of § 537.080 as a part of the legislative scheme. Thus we may safely state this latter class is included with those discussed above.

Addressing now the particular question before us, we examine the statutory classes of Persons entitled to bring such actions. Decedent here is an Unmarried adult who left no spouse or minor children that might qualify to appropriate the action under § 537.080(1). ¹ This being so, we look to the next preferred class or classes of wrongful death claimants described in § 537.080(2). ² Subdivision (2) has been consistently construed to include within its terms Parents (or parent) of Married adult decedents whose spouse or minor children (if any) fail to appropriate the action within one year. Edmonsond v. Lakeside Hospital Ass'n; Crane v. Riehn; Kansas City Stockyards v. Clark, 536 S.W.2d 142 (Mo. banc 1976). It has also been held that the Parents of an Unmarried adult decedent are included within the class of those entitled to proceed under subdivision (2). Wessels v. Gipfel. Wessels involved the suit of a widowed mother for the death of her unmarried adult son. The suit was settled during the second year following the son's death. Four months later decedent's illegitimate daughter brought suit which the court held was barred by the one-year limitation period provided in subdivision (2) of the statute. In reaching that decision, the court considered and ruled that the presence of the dead man's mother triggered the one-year limitation period of subdivision (2) and that as the surviving Parent of the unmarried adult decedent she was a member of the class of claimants provided in the subdivision. ³

We turn now to appellant's contention as to Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1968). The first three lines of subdivision (2) are as follows: "If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, . . ." This portion of the subdivision has been construed by the cases cited above to read as follows: "(If the deceased be a (1) married adult (Edmonsond ), or (2) an unmarried adult (Wessels ), or (3) an unmarried minor with minor children (Kausch ) and) (i)f there be no spouse or minor children...