Danaher v. Smith, 35046

• Citation: 666 S.W.2d 452
• Decision Date: 21 February 1984
• Docket Number: No. 35046,35046
• Parties: Patricia Ann DANAHER, and Burney B. Gibson, et al., Plaintiffs/Relators, v. The Honorable Laurence R. SMITH and the Honorable William J. Marsh, Defendants/Respondents.
• Court: Court of Appeal of Missouri (US)

Page 452

666 S.W.2d 452

Patricia Ann DANAHER, and Burney B. Gibson, et al., Plaintiffs/Relators, v. The Honorable Laurence R. SMITH and the Honorable William J.

Marsh, Defendants/Respondents.

No. 35046.

Missouri Court of Appeals,

Western District.

Feb. 21, 1984.

Lyman Field, Kansas City, for plaintiffs/relators.

William R. Fish, Larry J. Tyrl, Kansas City, for defendants/respondents.

Before NUGENT, P.J., and DIXON and KENNEDY, JJ.

NUGENT, Presiding Judge.

This original proceeding in prohibition was brought by relators, plaintiffs in an underlying wrongful death action against defendant Madole. The object of the petition for a writ is to restrain the respondent judges from enforcing their respective orders compelling the Jackson County Coroner to comply with subpoenas duces tecum to produce at depositions the results of alcohol blood tests performed by her in 1980 on the bodies of plaintiffs' decedents. We issued our preliminary rule in prohibition.

Relators contend the rule should be made absolute because the application of § 58.449 as amended in 1982 ¹ impermissibly divested plaintiffs of their previously vested and substantial rights of non-disclosure under the statute, § 58.449, in effect when the accident occurred and when the blood alcohol tests and reports were made. We now quash the writ.

On November 26, 1980, plaintiff-relator Danaher's husband (driver) and plaintiff-relator Gibson's son (passenger) died in and as a result of an auto accident in Jackson County, Missouri. On November 28, 1980, the Jackson County Coroner performed alcohol blood tests on plaintiffs' decedents and reported the results to the Missouri Division of Highway Safety as required by §§ 58.445 and 58.449 R.S.Mo.1978.

The text of those statutes at that time read as follows:

58.445. Deaths due to motor vehicle accidents--report, when--tests, when.--1. If any driver or pedestrian within his jurisdiction dies within four hours of and as a result of an accident involving a motor vehicle, the coroner shall report the death and circumstances of the accident to the Missouri division of highway safety in writing. The report shall be made within five days of the conclusion of the tests required in subsection 2.

2. The coroner shall make or cause to be made such tests as are necessary to determine the presence and percentage concentration of alcohol, and drugs if feasible, in the blood of the driver or pedestrian. The results of these tests shall be included in the coroner's report to the division.

58.449. Test results, how used.--The contents of the report and results of any test made pursuant to the requirements or authorizations of sections 58.445 to 58.449 shall be used only for statistical purposes which do not reveal the identity of the deceased.

On August 24, 1981, the Gibsons brought suit for the wrongful death of their son, and the case was assigned to respondent Judge Marsh. On May 11, 1982, Mrs. Danaher sued for the wrongful death of her husband. The cause was assigned to respondent Judge Smith.

In August of 1982, §§ 58.445 and 58.449 were amended so as to provide:

58.445. Deaths due to motor vehicle accidents--report, when--tests, when. 1. If any person within his jurisdiction dies within four hours of and as a result of an accident involving a motor vehicle, the coroner or medical examiner shall report the death and circumstances of the accident to the Missouri division of highway safety in writing. The report shall be made within five days of the conclusion of the tests required in subsection 2.

2. The coroner or medical examiner shall make or cause to be made such tests as are necessary to determine the presence and percentage concentration of alcohol, and drugs, if feasible, in the blood of the deceased. The results of these tests shall be included in the coroner's or medical examiner's report to the division.

58.449. Test results, how used, released, when.--The contents of the report and results of any test made pursuant to the requirements or authorizations of sections 58.445 to 58.449 shall be used primarily for statistical purposes which do not reveal the identity of the deceased and shall not be public information; however, the contents of the report and the results of any test so made shall be released upon the issuance of a subpoena duces tecum by a court of competent jurisdiction for use in any civil or criminal action arising out of the accident.

On May 12, 1983, defendant Madole in the underlying wrongful death action, caused subpoenas duces tecum to be served on the county coroner directing her to bring the alcohol blood test results and reports to scheduled depositions in both cases. On May 18, 1983, motions for protective orders to prohibit the taking of the deposition and to quash the subpoenas duces tecum were filed in both cases. Respondent Judge Smith overruled the motion in the Danaher case, finding that § 58.449 (Supp.1982) was a procedural law. Respondent Judge Marsh also overruled the motion for a protective order. The filing of this proceeding in prohibition followed.

Prohibition is the proper remedy when a trial court makes an order that constitutes an abuse of discretion in discovery proceedings, State ex rel. Charterbank of Springfield v. Donegan, 658 S.W.2d 919, 924 (Mo.App.1983), or where the order exceeds the jurisdiction of the court, State ex rel. Collins v. Donelson, 557 S.W.2d 707, 709 (Mo.App.1977). See also State ex rel. Richardson v. Randall, 660 S.W.2d 699 (Mo.1983), where the Court, after State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo.1983) (en banc), issued a writ prohibiting the judge from granting the state's motion to divulge the name and address of expert with whom a criminal defendant has consulted but does not intend to call as a witness.

The sole issue for our consideration is whether or not § 58.449 (Supp.1982), which requires disclosure in certain circumstances of the contents of the report and results of any blood alcohol tests made pursuant to § 58.445 (Supp.1982), is to be applied retroactively. If the statute is to be applied retroactively, then the trial judges did not abuse their discretion or exceed their jurisdiction by issuing orders compelling compliance with the subpoenas duces tecum and the writ should be quashed. If, on the other hand, the statute may not be applied retroactively, then the preliminary writ should be made permanent.

Article I, Sec. 13 of the 1945 Missouri Constitution, provides that no ex post facto law, nor law impairing the obligations of contracts nor retrospective in its operation shall be enacted. Retrospective or retroactive laws have been generally defined "as those which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past." State ex rel. St. Louis-San Francisco Railway Company v. Buder, 515 S.W.2d 409, 410 (Mo.1974) (en banc); Barbieri v. Morris, 315 S.W.2d 711, 714 (Mo.1958); Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686, 690 (1941). Two exceptions have been carved out of the rule that a statute shall not be applied retrospectively: First, where the legislature shows a clear intent that the statute be applied retrospectively, and second, where the statute is procedural only and does not affect any substantive right of the parties. State ex rel. St. Louis-San Francisco Railway Company v. Buder, supra.

Relators contend that the amended statute meets neither of these exceptions and thus cannot be applied retrospectively. Here, the legislature was silent as to the retrospective application of said statute, therefore, the amended statute does not come within the first exception. To determine whether the amended statute fits within the second exception, we must first decide whether the relators acquired vested rights under the earlier version of § 58.449. If so, we must determine whether the amended statute took away or impaired those vested rights. State ex rel. St. Louis-San Francisco Railway Company v. Buder, supra.

Relators argue that they acquired vested rights of non-disclosure under the earlier section. They say that the amended statute impairs their rights by allowing disclosure of the results and reports of blood alcohol tests in certain circumstances and, therefore, the amended statute affects substantive rights and cannot be applied retrospectively.

Respondents, on the other hand, contend that old § 58.449 did not create vested rights of non-disclosure in the family of a deceased whose blood was so tested. Thus, respondents argue that the amendment which allows disclosure in certain circumstances does not affect substantive rights, was procedural only, and as such can be applied retroactively.

The Missouri Supreme Court in State ex rel. St. Louis-San Francisco Railway Company v. Buder, supra, in determining whether the removal of the monetary ceiling in wrongful death cases could be applied to deaths occurring before the effective date of the change, considered whether the change was procedural or substantive. The court said, at 411:

It is best to keep in mind that the underlying repugnance to the retrospective application of laws is that an act or transaction, to which certain legal effects were ascribed at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto. Merely to label certain consequences as substantive and others as procedural does not give sufficient consideration to this principle, and notions of justice and fair play in a particular case are always germane....

Because we think that the earlier enactment of § 58.449 did not vest any right or privilege of non-disclosure in relators, we hold that the amended statute, § 58.449 (Supp.1982), did not alter any substantive rights of relators. No notions of justice or fair play are...