Fisher v. State Highway Com'n of Mo.

• Decision Date: 17 June 1997
• Docket Number: No. 79284,79284
• Citation: 948 S.W.2d 607
• Parties: Joyce FISHER, et al., Appellants, v. STATE HIGHWAY COMMISSION OF MISSOURI, et al., Respondents.
• Court: Missouri Supreme Court

Page 607

948 S.W.2d 607

Joyce FISHER, et al., Appellants, v. STATE HIGHWAY COMMISSION OF MISSOURI, et al., Respondents.

No. 79284.

Supreme Court of Missouri En Banc.

June 17, 1997.

Rehearing Denied Aug. 19, 1997.

Donald L. Schlapprizzi, Jason C. Pulos, Albert Lebowitz, St. Louis, for appellants.

Zachary T. Cartwright, Rich Tiemeyer, Jefferson City, T. Michael Ward, Donald L. James, John P. Rahoy, Eugene K. Buckley, St. Louis, for respondents.

Jeremiah W. (Jay) Nixon, Attorney General, Robert L. Presson, Assistant Attorney General, Jefferson City, for intervenor.

BENTON, Judge.

On June 11, 1989, Joyce Fisher was riding her motorcycle on Highway 270 in St. Louis County. On the bridge over St. Charles Rock Road, her motorcycle tires became trapped in a groove left by the deterioration of the seal in an expansion joint. She lost control of the motorcycle and suffered serious permanent injuries.

Fisher sued the State Highway Commission of Missouri, contractor Millstone Construction Company, and subcontractor Ironmaster Corporation, for negligence and strict liability. Richard Fisher, her husband, sued for loss of consortium. Before trial, the circuit court sustained motions for summary judgment by Millstone and Ironmaster, leaving the Commission as the sole defendant.

The jury assessed fault 90 percent to the Commission and 10 percent to Fisher. The jury returned $2,500,000 on the claim of Joyce Fisher and $500,000 on the consortium claim of Richard Fisher. On both claims, the trial court limited judgment to a total of $100,000 pursuant to section 537.610. ¹ Because the validity of a statute is at issue, this Court has jurisdiction. Mo. Const. art. V., sec. 3. Affirmed.

I. Constitutional Issues

The Fishers raise several constitutional challenges to the validity of section 537.610. This Court held in Richardson v. State Highway and Transportation Commission, 863 S.W.2d 876, 879-80 (Mo. banc 1993), that section 537.610 does not violate equal protection, due process of law, or the right of trial by jury under the Fourteenth Amendment to the United States Constitution and under article I, sections 2, 10, and 22(a) of the Missouri Constitution. The Fishers here invoke other provisions of the Missouri Constitution.

A. Enjoyment of the Gains of Their Own Industry

The Fishers claim that capping their damages at $100,000 violates their right under article I, section 2 of the Missouri Constitution: "... that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry...."

The Missouri Constitution of 1820 did not reference "the enjoyment of the gains of their own industry." This phrase first appeared in the Declaration of Rights of the Missouri Constitution of 1865 as "the enjoyment of the fruits of their own labor." Mo. Const. of 1865, art. I, sec. 1. Although the 1875 Constitution modified the wording to "the enjoyment of the gains of their own industry," this was not a change in substance. 2 Debates of the Missouri Constitutional Convention of 1875, at 7 (Isidor Loeb & Floyd C. Shoemaker, eds., 1932); Mo. Const. of 1875, art. II, sec. 4. The language in the 1875 Constitution continued unchanged in the 1945 Constitution. 5 Debates of the Missouri Constitutional Convention 1945, at 1423 (1944).

Charles D. Drake, the author of the Constitution of 1865, studied the constitutions of other states, particularly the Maryland Constitution of 1864. David D. March, Charles D. Drake and the Constitutional Convention of 1865, 47 MO. HIST. REV . 110, 112 (1953), citing Charles D. Drake, Autobiography of Charles D. Drake 1054-55 (date unknown) (unpublished manuscript, on file with Western Historical Manuscript Collection, Columbia, Missouri). In fact, the language in the Missouri and Maryland constitutions is practically identical. Compare Mo. Const. of 1865, art. I, sec. 1 ("the enjoyment of the fruits of their own labor") with Md. Const. of 1864, art. 1 ("the enjoyment of the proceeds of their own labor"). This provision was intended to apply to the condition of the slaves recently freed. Edward Otis Hinkley, The Constitution of the State of Maryland 121 (John Murphy & Co. 1867). The voters who approved the 1865 Constitution would have understood the provision on "fruits of their own labor" to apply to the recently freed slaves. No other provision in the 1945 Missouri Constitution expressly prohibits slavery or involuntary servitude. See 1 Journal of the Constitutional Convention of The origin of the "enjoyment of the gains of their own industry" phrase is in workplace slavery. Equally, the cases of this Court discussing this phrase concern labor, occupations, professions, and the marketplace. See Appendix A. Only three times has this Court invoked this phrase to invalidate a law: twice when government forced individuals to work without compensation, State ex rel. Scott v. Roper, 688 S.W.2d 757, 768-69 (Mo. banc 1985); Moler v. Whisman, 243 Mo. 571, 147 S.W. 985, 987-88 (1912); and once when the state prevented individuals from selling a lawful product, State ex rel. Knese v. Kinsey, 314 Mo. 80, 282 S.W.2d 437, 439 (1926). Cf. Baue v. Embalmers Federal Labor Union No. 21301, 376 S.W.2d 230, 234-35 (Mo. banc 1964)(picketing of funeral home for purpose of preventing owner-partners from embalming in their own establishment, held against public policy in article I, section 2).

Missouri 1943-1944, at 13-14 (82d day, Feb. 14, 1944).

Clearly, this constitutional provision does not negate sovereign immunity. Sovereign immunity existed when Missouri joined the Union. Findley v. City of Kansas City, 782 S.W.2d 393, 395 (Mo. banc 1990). Sovereign immunity was recognized in Missouri before the "enjoyment of gains" phrase was added to the Missouri Constitution in 1865, and sovereign immunity prevailed when the Missouri constitutions of 1865, 1875 and 1945 were adopted. When approving Missouri's constitutions, the citizens could never have thought that "the enjoyment of the gains of their own industry" provision abrogated sovereign immunity. Equally, "the enjoyment of gains" phrase has no relevance to a partial waiver of sovereign immunity. Section 537.610 does not violate article I, section 2 of the Missouri Constitution. Semble, Schumann v. Missouri Hwy & Transp. Comm'n, 912 S.W.2d 548, 551-52 (Mo.App.1995).

B. Equal Protection

The Fishers assert that section 537.610 violates another part of article I, section 2 of the Missouri Constitution: "... that all persons are created equal and are entitled to equal rights and opportunity under the law...." The Fishers contend that imposing a $100,000 cap only on certain tort claims denies them equal rights under the law.

Under the Missouri equal protection clause, a classification survives if rationally related to a legitimate state interest. Asher v. Lombardi, 877 S.W.2d 628, 630 (Mo. banc 1994). This traditional test does not apply if the statute burdens a suspect class or impinges a fundamental right. Id. "A statute that neither touches a fundamental right nor involves a suspect classification will withstand an equal protection challenge if a rational basis for the legislative classification can be found." Richardson, 863 S.W.2d at 879.

The Fishers do not reference a suspect class. Victims of government negligence are not members of a suspect class. See Batek v. Curators of University of Missouri, 920 S.W.2d 895, 898 (Mo. banc 1996).

The Fishers, however, attempt to reference a fundamental right under the Missouri Constitution to "the enjoyment of the gains of their own industry." Richardson does not control, according to the Fishers, because the Richardsons did not reference a fundamental right. Richardson, 863 S.W.2d at 879. The issue is whether, on these facts, the term "the enjoyment of the gains of their own industry" creates a fundamental right under the equal protection clause of the Missouri Constitution.

As outlined above, this constitutional provision applies only to conditions in the marketplace. Further, this Court implicitly rejected a fundamental rights argument in holding that the legislature's readoption of sovereign immunity, and limited waiver of immunity, did not violate equal protection under either the United States or Missouri Constitutions. See Winston v. Reorganized School District R-2, 636 S.W.2d 324, 329 (Mo. banc 1982), citing sec. 537.600 and sec. 537.610. Strict scrutiny is thus not required, and the statute will be upheld if it is rationally related to a legitimate state interest.

"The General Assembly has a rational basis to fear that full monetary responsibility for tort claims entails the risk of insolvency or intolerable tax burdens. Restricting the

amount recoverable--like limiting recovery to certain enumerated torts--allows for fiscal planning consonant with orderly stewardship of governmental funds, while permitting some victims to recover something." Richardson, 863 S.W.2d at 879. Section 537.610 does not violate the equal protection clause of the Missouri Constitution.

C. Uniformity of Taxation

The Fishers also argue that imposing a cap on damages violates the principle of uniform taxation, citing article IV, section 30(b) of the Missouri Constitution. The Fishers did not raise this point below. A constitutional question is waived unless raised in the trial court at the earliest opportunity. Crittenton v. Reed, 932 S.W.2d 403, 406 (Mo. banc 1996). This Court need not address the uniform taxation issue.

D. Open Courts and Certain Remedy

The Fishers assert that section 537.610 violates their fundamental right of access to the courts and to a certain remedy under article I, section 14 of the Missouri Constitution.

"This Court has distinguished between statutes that impose procedural bars to access, and statutes that change the common law by the elimination (or limitation of) a cause of action." Adams, 832 S.W.2d at 905. The former are not permitted; the latter are...