Gaines v. Monsanto Co., No. 46216
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | KAROHL |
| Citation | 655 S.W.2d 568 |
| Parties | James L. GAINES and Margaret M. Frazier (Formerly Margaret M. Gaines), Plaintiffs-Appellants, v. MONSANTO COMPANY, Defendant-Respondent. |
| Docket Number | No. 46216 |
| Decision Date | 24 May 1983 |
Page 568
M. Gaines), Plaintiffs-Appellants,
v.
MONSANTO COMPANY, Defendant-Respondent.
Eastern District,
Division Three.
Motion For Rehearing and/or Transfer to
Supreme Court Denied July 15, 1983.
Application to Transfer Denied
Sept. 20, 1983.
Page 569
David G. Lupo, St. Louis, for plaintiffs-appellants.
P. Terence Crebs, St. Louis, for defendant-respondent.
KAROHL, Judge.
Plaintiffs, the parents of Kasandra Gaines, appeal after the trial court dismissed their petition for wrongful death of their daughter with prejudice. The adult daughter, Kasandra Gaines, was employed as a secretary at defendant Monsanto Company's headquarters. Burton Woods III, who had previously been convicted of rape and robbery, also worked at defendant's headquarters as a mail clerk. Subsequently, Woods killed Kasandra Gaines at her apartment, and was convicted of capital murder.
Defendant's motion to dismiss alleged five grounds: (1) the Statute of Limitations, § 537.100 RSMo 1978; (2) that the Worker's Compensation Law, § 287.120 RSMo Supp.1982 grants plaintiffs their exclusive remedy; (3) improper venue; (4) lack of proximate cause; and (5) failure to state a claim upon which relief can be granted. The trial court dismissed the petition with prejudice without stating reasons. We reverse and remand.
A dismissal is authorized if it appears from the petition that the applicable statute of limitations has expired. Uber v. Missouri Pacific Railroad Co., 441 S.W.2d 682, 683 (Mo.1969). Here, Kasandra Gaines died on April 10, 1979, when the wrongful death limitation period was two years. § 537.100 RSMo 1978 (amended, now, § 537.100 RSMo Supp.1982). The amended statute, enlarging the limitation period to three years, became effective September 28, 1979. Plaintiffs filed suit on March 25, 1982--more than two years after the accrual of the cause of action, but within three years. Since plaintiffs' claim had not been barred on the effective date of the amendment, September 28, 1979, the three year statute of limitations applies. Wilkens v. Drummon, 637 S.W.2d 273, 274 (Mo.App.1982). Plaintiffs' cause of action is not barred and defendant's first ground fails.
Page 570
In the second ground for dismissal, defendant contends that if the petition states a cause of action, plaintiffs' exclusive remedy is the Worker's Compensation Law, § 287.120 RSMo Supp.1982. The Worker's Compensation Law is the exclusive remedy only for an "accident arising out of and in the course of" employment. § 287.120. The murder, occurring at the victim's apartment, was not an accident in the course of employment and thus not within the exclusive realm of the Worker's Compensation Law. See Combs v. City of Maryville, 609 S.W.2d 475, 478 (Mo.App.1980). Therefore, any possible common law action is unaffected. Lathrop v. Rippee, 432 S.W.2d 227, 231 (Mo.1968). Moreover, this ground is addressed to lack of subject matter jurisdiction and would require the dismissal to be without prejudice, if granted. Parmer v. Bean, 636 S.W.2d 691, 694 (Mo.App.1982).
Defendant has not presented any argument on the third ground in the motion to dismiss, improper venue, and the record is not informative. Hence, we make no ruling on venue. Accordingly, we consider grounds four and five together as a motion to dismiss for failure to state a claim upon which relief can be granted.
Plaintiffs' complaint charged defendant with negligent hiring or retention of an employee. Plaintiffs specifically alleged (1) that Woods was previously convicted of the crimes of rape and robbery; (2) his assigned duties required him to circulate among defendant's female employees; (3) he thereafter came into contact with Kasandra Gaines and his assigned duties provided him the opportunity to learn her name and home address; and (4) that Woods had dangerous proclivities which defendant knew or should have known. The complaint also alleged that in the course of his employment, Woods made advances upon female employees, including Kasandra Gaines, and had a reputation for harassing and making advances upon these employees. Defendant had no established business practice to determine dangerous proclivities of its employees, before or after hiring. Plaintiffs contend that defendant's acts or omissions were the proximate cause of Kasandra's death.
In determining the sufficiency of a petition challenged by a motion to dismiss we give the petition its broadest intendment, treat all facts alleged as true, and construe the allegations favorably to plaintiffs to determine whether they invoke principles of substantive law. McCoy v. Liberty Foundry Co., 635 S.W.2d 60,...
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Schmidt v. HTG, Inc., Nos. 79039
...of Gideon was the proximate cause of the attack upon Stephanie. The Schmidts rely in part on the Missouri case of Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo.App.1983), and a string of Kansas cases dealing with the issue of negligent hiring and retention of unfit or incompetent In reaching i......
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Magnum Foods, Inc. v. Continental Cas. Co., Nos. 92-6148
...is premised upon the wrongful conduct of the employer itself.); Connes, 831 P.2d at 1320-21 (citing cases); Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.Ct.App.1983) ("... [A]n employer may be directly liable for negligent hiring or negligent retention of an employee where the employer k......
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Gibson v. Brewer, No. 79291
...dangerous proclivities, and (2) the employer's negligence was the proximate cause of the plaintiff's injuries. Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo.App.1983). See also McHaffie v. Bunch, 891 S.W.2d 822, 825-26 (Mo. banc 1995); Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 512 R......
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Bennett v. Mallinckrodt, Inc., No. 47771
...be dismissed only if it appears the pleader can prove no set of facts in support of his claim for relief. E.g., Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983); Pillow, 564 S.W.2d at The narrow issue here is whether plaintiffs' allegations of "various health and physical" illnesse......
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Schmidt v. HTG, Inc., Nos. 79039
...of Gideon was the proximate cause of the attack upon Stephanie. The Schmidts rely in part on the Missouri case of Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo.App.1983), and a string of Kansas cases dealing with the issue of negligent hiring and retention of unfit or incompetent In reaching i......
-
Magnum Foods, Inc. v. Continental Cas. Co., Nos. 92-6148
...is premised upon the wrongful conduct of the employer itself.); Connes, 831 P.2d at 1320-21 (citing cases); Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.Ct.App.1983) ("... [A]n employer may be directly liable for negligent hiring or negligent retention of an employee where the employer k......
-
Gibson v. Brewer, No. 79291
...dangerous proclivities, and (2) the employer's negligence was the proximate cause of the plaintiff's injuries. Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo.App.1983). See also McHaffie v. Bunch, 891 S.W.2d 822, 825-26 (Mo. banc 1995); Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 512 R......
-
Bennett v. Mallinckrodt, Inc., No. 47771
...be dismissed only if it appears the pleader can prove no set of facts in support of his claim for relief. E.g., Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983); Pillow, 564 S.W.2d at The narrow issue here is whether plaintiffs' allegations of "various health and physical" illnesse......