Frazee v. Partney

• Decision Date: 14 July 1958
• Docket Number: 46390,No. 2,Nos. 46389,s. 46389,2
• Citation: 314 S.W.2d 915
• Parties: Warren FRAZEE, Appellant, v. Howard PARTNEY, Respondent. Richard FRAZEE, Linda Frazee, Donna Jean Frazee, and Gary Frazee, Minors, by Warren Frazee, Next Friend, Appellants, v. Howard PARTNEY, Respondent
• Court: Missouri Supreme Court

Page 915

314 S.W.2d 915

Warren FRAZEE, Appellant, v. Howard PARTNEY, Respondent.

Richard FRAZEE, Linda Frazee, Donna Jean Frazee, and Gary

Frazee, Minors, by Warren Frazee, Next Friend, Appellants, v. Howard PARTNEY, Respondent.

Nos. 46389, 46390.

Supreme Court of Missouri, Division No. 2.

July 14, 1958.

Robert L. Carr, Potosi, for appellants.

Roberts & Roberts, J. Richard Roberts, Farmington, for respondent.

EAGER, Judge.

Two actions for wrongful death have been argued and submitted together on one set of briefs, but with separate, though largely identical, transcripts. In the first Warren Frazee sues for the death of a minor child, and in the second four minor children sue for the death of their mother in the same accident. The injuries and deaths occurred on October 10, 1954, and the suits were not filed until September 21, 1956. We shall refer to all appellants as plaintiffs and to the respondent as defendant. The petition in each case alleged that the defendant 'fraudulently, intentionally, deliberately, wilfully, maliciously, and of his spite absented himself and concealed his identity from the plaintiffs and all other persons from and after the 10th day of October, 1954, until the 23rd day of March, 1956. This action is commenced within one year after the accrual of the cause of action herein stated.'

Defendant pleaded in each case the one-year bar of Sec. 537.100 RSMo 1949, V.A.M.S (to which all statutory citations will refer unless otherwise stated); and the defendant, by motion, requested a separate hearing on this issue of limitations. This request was granted and such a hearing was held by the court, a jury being waived; evidence was heard, and it was agreed that the evidence should be applicable to both cases. At the conclusion of this hearing the court found the issues for the defendant upon the stated ground that the plaintiffs' causes of action were barred by Sec. 537.100, and it thereupon entered judgments for the defendant. Motions for new trial were duly filed and overruled; these adequately preserved the points here considered.

The evidence of plaintiff Warren Frazee was in substance as follows: On Sunday, October 10, 1954, at a little after 1:00 p. m., he was driving west on Missouri Highway No. 8, about 10 miles west of Potosi in Washington County; he was driving a 1953 Chevrolet, and his wife and five children were with him; the weather was good. As Frazee approached a curve a green pickup truck, traveling east, came around the curve and 'swerved directly over on my side of the road * * * directly in my path'; to avoid a head-on collision Frazee, applying his brakes, swerved to the right, but when he did so he caused his car to go down an embankment and it turned over several times; Mrs. Frazee died almost immediately, and Karen Frazee, one of the children, died in a hospital later the same day; there was no contact between the cars. Mr. Frazee testified that the horn of his car was blowing after the accident until someone shut it off, and that his older children were screaming, but that no one came back to the scene from the pickup, and that he first learned the identity of its driver in March, 1956, from the Highway Patrol. The testimony of two members of the Highway Patrol, considered jointly, indicated the following: That in the investigation of this accident the defendant was located and interviewed at Potosi in March, 1956; that he admitted driving a green pickup truck at the time and place in question, and that he went to the scene of the accident with them and showed 'where it occurred'; that, in fact, he was able to tell them of the location shortly before they actually reached the place; that defendant stated that at the time he was drowsy and had dozed off, when suddenly his wife (sitting beside him) grabbed him or the wheel and shouted 'look out'; as he opened his eyes he saw a car 'whiz by' on his left and he was then headed toward the right-hand ditch; he looked in the rear vision mirror but never saw the other car any more; that he did not stop until he got to the top of a hill, where he got out and looked back but didn't 'see anyone'; that about a mile further on, he drove off on a side road and stopped for perhaps 15 minutes; there they discussed the fact that there might have been an accident, but then proceeded on to St. Louis. There was further evidence from the sheriff of the county that no one except Warren Frazee and the Highway Patrol had reported the accident, either to him or to the nearest police station.

Counsel for plaintiffs makes two points: (1) that the causes of action did not accrue until suits could be validly commenced and maintained against an 'actual' defendant; and (2), that defendant's criminal violation of Sec. 564.450 (requiring reports of accidents) prevented plaintiffs from filing their suits earlier and excused their delay. Construing the petitions somewhat broadly, we hold that these points are within the pleadings. We shall, however, consider the substance of these points in the following manner and order: A. Did defendant's acts operate to toll or extend the one year bar of Sec. 537.100 (which is the substance of plaintiffs' Point 2)? B. When did the causes of action accrue? In so doing we shall accept as true, for our present purposes, the substance of the evidence as related above. The trial court made no findings of fact as such, and we may consider the evidence here anew under Sec. 510.310.

Sections 537.070 to 537.100, inclusive, being part of Ch. 537 on 'Torts and Actions for Damages,' constitute our wrongful death act. The applicable part of Sec. 537.100 is as follows: 'Every action * * * shall be commenced within one year after the cause of action shall accrue * * *'. These identical words were contained in the original section enacted in 1855. In 1905 a proviso was added extending the benefits of the general 'nonsuit' section to the death act (Mo.Laws 1905, pp. 137-138). Under the prior law it was held (see Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40) that the general saving clause in case of nonsuit did not apply to suits under the death act, which carried 'its own special statute of limitations, which must control.' And see Gerren v. Hannibal & St. Joseph R. Co., 60 Mo. 405. In 1909 the tolling provision of the general statutes applicable in case of absence from the state (now Sec. 516.200) was added to the death act, in a somewhat broader form than the general statutory section. (Laws 1909, pp. 463-464.) This was undoubtedly done for the same reason; namely, that the general tolling provisions or exceptions did not apply to this special act which carried its own limitations. At this point we should also note the provisions of Sec. 516.300, as follows: 'The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.' The sections therein referred to are, of course, the provisions of the general statutes of limitations.

Our death act creates a new and different cause of action not known to the common law. Cummins v. Kansas City Public Service Co., Banc, 334 Mo. 672, 66 S.W.2d 920. There has been considerable discussion in our cases as to whether the one-year limitation therein is a condition imposed upon the right itself, so that the very right ceases to exist after one year, or whether it is merely a statute of limitation. For the former view see: Barker v. Hannibal & St. Joseph R. Co., 91 Mo. 86, 14 S.W. 280; Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; Packard v. Hannibal & St. Joseph R. Co., 181 Mo. 421, 80 S.W. 951; Chandler v. Chicago & A. R. Co., 251 Mo. 592, 158 S.W. 35, and see, generally, for this view 25 C.J.S. Death Sec. 53b, pp. 1158-1159. The contrary view appears to have been taken in Cytron v. St. Louis Transit Co., Banc, 205 Mo. 692, 104 S.W. 109, and in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. In the Cytron case the question actually involved was whether (after one year) the court should have permitted the filing of an amended petition which sought to add the mother as a plaintiff in a suit instituted by the father alone, for the death of a minor; it was held that the proposed amendment did not change the cause of action and that such was permissible even after the limitation had expired. In the Wentz case the court was primarily concerned only with the limitation section of the Workmen's Compensation Act (now, in substance, Sec. 287.430), considerably different in wording and meaning from that of the death statute. (On this see the discussion in State ex rel. Bier v. Bigger, quoted hereinafter.) However, the court discussed the death act by way of analogy, and its statements appear to be broad enough to constitute, by decision or dicta, a determination that the limitations of both acts are merely limitations upon the remedy, or statutes of 'limitation and repose.' The sole question involved there was whether an amendment extending the period for filing claims from six months to one year was applicable to an accrued claim, and such was held proper in the case of a pure statute of limitation, affecting the remedy only. The Baysinger case, supra, 199 S.W.2d 644, took the contrary view without discussing the Wentz case, and, so far as we have found, it is the last direct word of this court on the subject. We have determined that in this case we need not attempt to rescue that particular phase of the law from the morass into which it seems to have fallen; perhaps, for practical purposes, the distinction is more academic than real.

If we consider the one year provision of Sec. 537.100 as a statute of limitation affecting only the remedy, it is nevertheless a special statute of limitation. And it seems also to come within the precise terms of Sec. 516.300 which excludes from the operation of the general statutes any...