Grothe v. St. Louis-San Francisco Ry. Co.

• Decision Date: 09 November 1970
• Docket Number: No. 54765,No. 1,LOUIS-SAN,54765,1
• Citation: 460 S.W.2d 711
• Parties: Kathryn GROTHE, Wife of Clifford J. Grothe, Deceased, and Jean Marie Grothe, Barbara Ann Grothe, Joseph Francis Grothe and Steven Michael Grothe, Minor Children of Clifford J. Grothe, Deceased, by and through Kathryn Grothe, their Mother and Next Friend, Respondents, v. ST.FRANCISCO RAILWAY CO., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 711

460 S.W.2d 711

Kathryn GROTHE, Wife of Clifford J. Grothe, Deceased, and

Jean Marie Grothe, Barbara Ann Grothe, Joseph Francis Grothe

and Steven Michael Grothe, Minor Children of Clifford J.

Grothe, Deceased, by and through Kathryn Grothe, their Mother and Next Friend, Respondents, v. ST. LOUIS-SAN FRANCISCO RAILWAY CO., a Corporation, Appellant.

No. 54765.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 14, 1970.

Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for plaintiffs-respondents.

James M. Reeves, Ward & Reeves, Caruthersville, for appellant; John E. McCullough, St. Louis, of counsel.

HIGGINS, Commissioner.

In this joint action by surviving spouse and minor children against railroad for damages for wrongful death of husband and father, a jury awarded plaintiffs $50,000 and judgment was entered accordingly.

Clifford J. Grothe, age 35, died December 21, 1967, from injuries received that date when the motor vehicle which he was operating was struck by defendant's train at the intersection of Old State Road and defendant's railroad tracks in Imperial, Jefferson County, Missouri.

Mrs. Grothe, as surviving spouse, instituted this action by petition filed April 3, 1968, pursuant to provisions of Sections 537.080 and 537.090, RSMo 1959, V.A.M.S., as amended Laws 1967, page 663, section 1. On May 6, 1968, defendant filed motion to dismiss joined with its answer, on grounds that there was a nonjoinder of necessary parties and that the statutes as revised by Laws 1967 were unconstitutional. The motion was overruled and, on October 18, 1968, an amended petition was filed by plaintiffs alleging that on December 21, 1967, plaintiff Kathryn Grothe was lawfully married to Clifford J. Grothe, deceased; that plaintiffs Jean Marie, 11, Barbara Ann, 9, Joseph Francis, 7 and Steven Michael, 2, were 'all of the lawful children of' Clifford J. Grothe, born of his marriage to Kathryn, and that Kathryn as widow and her joint plaintiffs as minor children of deceased brought their action under the provisions of Sections 537.080 through 537.100, RSMo 1959, V.A.M.S., as amended Laws 1967. Defendant renewed its motion to dismiss again joined with answer which, among other things, admitted all allegations of relationship between the parties and the deceased husband and father. Apparently, the motion was denied, inasmuch as the parties proceeded to trial on the amended petition and answer.

Defendant kept its constitutional challenges alive in its motion for new trial and now continues to assert that the wrongful death act, Sections 537.080 through 537.100, Laws 1967, is unconstitutional. As grounds, appellant contends:

(a)(d) That subsection (1) of Section 537.080, in giving to the spouse and minor children, either jointly or severally, a cause of action for wrongful death, in providing that only one action may be brought, and in requiring that in any such action the petitioner(s) shall satisfy the court that he (they) has (have) 'diligently attempted to notify all parties having a cause of action under this subdivision,' does not provide, in cases where the suit is brought by the widow, 'any effectual means of bringing into the jurisdiction of the court any of the minor children who have a joint interest in the cause of action, so that their rights can be adjudicated';

(b)(c) That subsection 1 of Section 537.095, in providing that the trier of facts shall state total damages found in one amount and that the court shall then apportion the judgment 'among those persons entitled thereto as determined by the Court,' 'purports to authorize the Court to adjudicate * * * conflicting claims of the widow and * * * minor children, although the minor children have never been brought into court'; and that 'it undertakes to delegate to the Court a legislative power to divide a final judgment * * * without fixing any guidelines * * * and is so vague, indefinite and uncertain that the Court cannot give an intelligent application to the circumstances. * * *'

Appellant's contentions have been stated at length to demonstrate the insuperable difficulty facing them in the posture of this case. The difficulty stems from the admitted presence in this case not only of the surviving spouse but of 'all of the lawful children' of the deceased, joined with her in one action. The difficulty is further manifested by appellant's argument which would pose its contentions by hypothetical situations and questions: When the widow alone files the action, how are minor children to be notified? Can it be said that due process would be served by delivering a notice to an infant? Suppose that a mother filed suit for wrongful death of her husband in Kansas City and that the deceased had minor children living in Chicago, New York, and California. How would the Kansas City court get jurisdiction? Assuming jurisdiction over widow and children, how is the court to make division? One judge might rule one way and another a different way, even though the relationship of parties be the same.

Again, by stating the situations which appellant would argue, it is demonstrated that appellant contends that the statute is violative of due process with respect to nonresident minors, and that it leaves apportionment of damages found by the trier of facts to the court. These circumstances show that appellant's questions are not ripe for answer. In the first situation, there are no interests of nonresident minor children to consider; and, in the second, appellant is not the party to complain of a division between relationships in which it has no interest. In State v. Williams, Mo., 343 S.W.2d 58, defendant contended that the reenactment of the Second offense Act after the date of his offense deprived defendants of their right to jury trial and violated the prohibition against ex post facto laws; however, there was no record to indicate any application of the constitutional provisions in his case, and the court denied relief on the familiar statement: "The sum of the matter is, not that his neighbor is hurt, but that a litigant himself must be hurt by the unconstitutional exercise of power before he may vex the judicial ear with complaints." 343 S.W.2d l.c. 61(6). By the first contention, appellant would have the court assume a hypothesis different from, and irrelevant to, the facts of the case, and such is not the posture in which constitutional questions are answered. Ballentine v. Nester, 350 Mo. 58, 164 S.W.2d 378, was for habeas corpus seeking release from imprisonment for violation of the St. Louis Smoke Control ordinance. Petitioner attacked the validity of the ordinance on constitutional grounds. The arguments posed theoretical situations of which the court said: 'The record does not present any such questions. When the petitioner is charged with an offense innocently committed under the hypothesized circumstance or that when charged * * * that his defense is that he innocently violated this section will be the appropriate time to deal with these academic questions.' 164 S.W.2d l.c. 383--384. To paraphrase, perhaps a case involving the situation of notice to nonresident minors will yet arise on constitutional attack, but only then will the constitutional question be for determination.

Neither is appellant in position to challenge the constitutionality of the provision for court apportionment of the award in this case. The challenged section provides only for apportionment of an award between the family members who may be entitled to all or some portion of it. The verdict of the jury has set appellant's obligation at a single sum, and any apportionment of it will not affect its obligation in any respect. Under such circumstances, appellant is not entitled to raise the apportionment issue because it is "well settled that a person may not urge the unconstitutionality of a statute in the absence of showing injury. A person may question the constitutionality of a statute only when it is applied to his disadvantage' * * * Appellant has in no way been injured by the alleged defects in the statute (the apportionment feature) * * * and by reason of that statute * * * has not been denied due process of law.' Miller v. Police Retirement System, Mo., 296 S.W.2d 78, 79--80(1, 2). See also 16 C.J.S. Constitutional Law § 76, pp. 226--236; State v. Mucie, Mo., 448 S.W.2d 879, 886(1, 2).

State ex rel. Pressner and Co. v. Scott, Mo., 387 S.W.2d 539, 542, and Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, 769(13), cited by appellants are not in point on the notice issue because they involved defendants who were being brought into court by unconstitutional process compared to the present plaintiffs who have, on this record, brought themselves into court. Similarly, State ex rel. Orr v. Kearns, 304 Mo. 685, 264 S.W. 775, 781--782, and Missouri Pac. R. Co. v. Morris, Mo., 345 S.W.2d 52, 57, are not in point on the alleged vagueness of the apportionment provisions because the parties there were affected by the provision in question.

Appellant contends that the court erred in denying its motion for directed verdict at the conclusion of the case because plaintiffs did not make a case on the submitted theory of failure to sound a warning signal under the humanitarian doctrine. In stating its point appellant asserts there was no evidence to show when deceased came into a position of imminent peril, to show deceased's obliviousness, and to show how and in what manner the engineer could have given warning 'as the whistle was being sounded and the bell was ringing.' The argument emphasizes evidence of the defendant's engineer, Robert M. Moore, to the effect he was just a few feet from the crossing when deceased's vehicle came to a stop twelve or eighteen inches over the rail; that he was then blowing the whistle; that he had activated the bell half a mile away from the crossing; and that decedent...