Howell v. Murphy
Decision Date | 20 October 1992 |
Docket Number | No. WD,WD |
Citation | 844 S.W.2d 42 |
Court | Missouri Court of Appeals |
Parties | Paul D. HOWELL, et al., Appellants, v. Frank MURPHY, Trustee, & Robert A. Berdella, Jr., Respondents. 45,386. |
William R. Merryman, Kansas City, for appellants.
Randall W. Cain, Lee's Summit, for respondents.
Before KENNEDY, P.J., and SPINDEN and SMART, JJ.
This is a wrongful death action against Robert A. Berdella, Jr., for the deaths of three of four individuals he held captive and tortured to their deaths. Berdella pleaded guilty to first degree murder in connection with the death of Robert Allen Sheldon and second degree murder in connection with the deaths of James Ferris and Jerry D. Howell. 1
At issue in this appeal is the trial court's granting of Berdella's motion for summary judgment. 2 The motion asserted that the plaintiffs did not file their wrongful death actions, Counts I and II of the four-count petition, within the three-year limitation of *44s 537.100. 3 The trial court also granted summary judgment in favor of Berdella on Counts III and IV. In these counts, the personal representatives of the victims' estates sought damages for intentional and negligent torts inflicted on the victims prior to their deaths pursuant to § 537.020. In this appeal, the plaintiffs do not contest the court's granting summary judgment in favor of Berdella on Count III. They do challenge the trial court's granting summary judgment to Berdella on Count IV, and they challenge the trial court's refusal to sanction Berdella for not answering the plaintiffs' questions during three depositions.
The plaintiffs filed their wrongful death action on May 10, 1989. In deciding that Counts I and II, the wrongful death counts, were precluded by § 537.100 because the plaintiffs filed their petition more than three years after the victims' deaths, the trial court relied solely on the dates of death set by Berdella. Berdella pleaded guilty to murdering the victims, and at the plea hearing, he testified that Jerry Howell died on July 6, 1984; Robert Allen Sheldon, on April 14, 1985; and James Ferris, on September 27, 1985. He reaffirmed those dates in his answers to plaintiffs' interrogatories and in an affidavit filed in support of the motion for summary judgment.
After Berdella filed his motion, the plaintiffs tried three times to take Berdella's deposition at the state penitentiary where Berdella was an inmate. It was to be a joint deposition for four cases involving the same facts. 4 Berdella refused to answer any question except for one asking him his name, and he refused to answer even that one at the first deposition.
At the first deposition on April 26, 1990, Berdella refused to answer any question. His reason was that he was not represented by an attorney, but Charles E. Atwell, who had been retained by Berdella's insurer to represent Berdella and who had filed all responsive pleadings for Berdella and Murphy, was present. Atwell did announce that he did not represent Berdella in the Economy Fire 5 case and that Berdella was not represented by an attorney in that case. Atwell would later file the motion for summary judgment which is the subject of this appeal.
On June 12, 1990, the plaintiffs tried again to take Berdella's deposition. Berdella appeared along with Atwell, but Berdella again refused to answer any question except for one asking his name. He stated, "It is my position that I am going to refrain from any deposition prior to having psychiatric evaluation and setting up proper psychiatric and medical supervision to allow this deposition to go on properly, and have asked Charles Atwell to file a Writ of Mandamus to have this take place." Atwell actively participated in that deposition as Berdella's attorney and counseled on several matters throughout the proceeding.
On October 9, 1990, the plaintiffs asked the trial court to strike Berdella's pleadings in this case because of his refusal to give a deposition statement. On October 19, 1990, the trial court granted the plaintiffs additional time to commence more discovery. In that order, the court stated:
It should be noted that this court has previously ordered sanctions against Defendant Berdella for his failure to abide by discovery orders entered by this court. 6 Defendant Berdella and his counsel are hereby informed that, if further sanctions arise, it will be a relevant consideration of this court upon the timely ruling on all the motions stated herein.
At a third deposition on March 22, 1991, penitentiary personnel informed the plaintiffs' attorney that Berdella refused to leave his prison cell for the deposition. Berdella had written attorneys a few days before the deposition informing them that he would refuse to appear.
On May 21, 1991, the trial court entered an order refusing to sanction Berdella because the plaintiffs had not moved for an order to compel Berdella to answer. The court further reasoned:
Assuming that an order to compel is granted and the witness continues to refuse to testify, it would appear that the court would be authorized, upon a finding of lack of good cause for the refusal, to impose monetary sanctions upon the witness for the expenses incurred in securing the motion. If the witness is not a party, it is doubtful whether or not the court is empowered to strike pleadings unless the court found that a party to the action advised the witness not to testify.
In this case, in view of the provisions of Chapter 460 RSMo. and the case law interpreting the provisions of those statutes, it is not at all clear that Robert Berdella is a "party" to this action inasmuch as he is represented by his court appointed trustee.
We conclude that the three-year statute of limitations did not bar the plaintiffs' claim. We also conclude that Berdella was a party to the action and that the trial court should not have considered Berdella's motion for summary judgment because of his contumacious refusal to give deposition testimony.
The trial court concluded that the plaintiffs' action was barred by the three-year limitation of § 537.100 because Berdella set the deaths at more than three years before the plaintiffs filed their petition. The court concluded, consistent with caselaw, 7 that a wrongful death action accrues at the moment a victim dies.
Berdella was the only source for the dates on which the trial court relied. Precluded from testing those dates in a deposition of Berdella, the plaintiffs presented Sheldon's death certificate which reported his date of death to be April 2, 1988, the date authorities found parts of his body, and a presumptive certificate of death issued on December 21, 1988, by the circuit court of Jackson County setting Ferris' date of death as September 27, 1985. They presented evidence that the Sheldons did not know of Sheldon's death until parts of his body were found and that the Howells did not know that Jerry Howell was dead until Berdella testified at his guilty plea on December 19, 1988, to killing him. The plaintiffs also asserted that Bonnie Ferris also assumed her husband to be alive, though missing, until Berdella's guilty plea, but they presented no competent evidence to support that allegation.
Although the court acknowledged the virtual impossibility for the plaintiffs' ascertaining that the victims were dead--not just missing--before the three years expired, the court relied on Frazee v. Partney, 314 S.W.2d 915 (Mo.1958), to conclude that § 537.100 must be strictly construed. The trial court concluded that a strict construction of § 537.100 precluded any tolling of the three-year limitation or a delayed accrual even though Berdella's misdeeds provided a means of escaping liability.
Frazee represents a long line of decisions by the Supreme Court of Missouri in which the court concluded that the limitation in the wrongful death statute was a condition imposed on the right itself. This has been the interpretation of a majority of jurisdictions. Annotation, Exceptions Attaching to Limitation Prescribed by Death Statutes or Survival Statutes Allowing Recovery of Damages for Death, 132 A.L.R. 292 (1941). This interpretation, however, can defeat the very purpose of the wrongful death action. One commentator stated:
[B]y unlawful concealment, a wrongdoer is able to defeat the cause of action which otherwise the representatives were intended to have. In other areas of the law, unlawful concealment is recognized as tolling the statutory period. However, since no such tolling provision seems to be applicable to the death act, the wrongdoer escapes civil liability. This may be a possible interpretation of the statute but it is shocking to the conscience.
John D. Rahoy, Recent Cases, 24 Mo.L.Rev. 397, 399 (1959) (footnote omitted).
In 1983, the Supreme Court of Missouri announced a major shift in its interpretation of Missouri's wrongful death statute. In O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), the court announced that the wrongful death statute should not be so strictly construed as to avoid the wrongful death statute's purposes. The court stated:
Respondents assert that this statute must be "strictly construed" because it is "in derogation of the common law." We do not agree. The wrongful death statute is not, strictly speaking, in "derogation" of the common law. Derogation is defined as "[t]he partial abrogation or repeal of a law, contract, treaty, legal right, etc." or as a "lessening, weakening, curtailment, ... impairment," detraction or taking away of a power or authority. 3 Oxford English Dictionary 232 (1933). Wrongful death acts do not take away any common law right; they were designed to mend the fabric of the common law, not to weaken it. Remedial acts are not strictly construed although they do change a rule of the common law....
To continue reading
Request your trial-
Corkill v. Knowles
...the legislative enactment." United Air Lines v. State Tax Commission of Missouri, 377 S.W.2d 444, 451 (Mo. banc 1964). Howell v. Murphy, 844 S.W.2d 42, 46 (Mo.Ct.App.1992). The wrongful death act is remedial, in that it was intended to make a change, not to repeal or abolish a law or to lim......
-
Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007)
...the Supreme Court of Missouri announced a major shift in its interpretation of Missouri's wrongful death statute." Howell v. Murphy, 844 S.W.2d 42, 46 (Mo. App. W.D. 1992). "In O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), the court announced that the wrongful death statute should not b......
-
Smith v. Brown & Williamson Tobacco Corp.
...the Supreme Court of Missouri announced a major shift in its interpretation of Missouri's wrongful death statute." Howell v. Murphy, 844 S.W.2d 42, 46 (Mo.App. W.D.1992). "In O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), the court announced that the wrongful death statute should not be ......
-
Smith v. Brown & Williamson Tobacco Corporation, No. WD65542 (Mo. App. 9/2/2008)
...the Supreme Court of Missouri announced a major shift in its interpretation of Missouri's wrongful death statute." Howell v. Murphy, 844 S.W.2d 42, 46 (Mo. App. W.D. 1992). "In O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), the court announced that the wrongful death statute should not b......
-
Section 7.70 Appointment of a Personal Representative, Plaintiff ad Litem, or Defendant ad Litem
...or plaintiff ad litem must be appointed. An action brought by anyone else will be dismissed for lack of standing. Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992); Carter v. Pottenger, 888 S.W.2d 710 (Mo. App. S.D. 1994). A plaintiff ad litem is a separate legal person. The appointment ......
-
Section 14.32 Presumption as to Death
...largely applicable as precedent. See generally 22A AM. JUR. 2D Death § 390 (Westlaw through 2014 legislation). In Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992), the court reiterated the fact that a missing person is not presumed dead until the person has been missing for at least fiv......
-
Section 7.74 Generally
...until the plaintiffs can ascertain that they have a cause of action if the wrongdoer conceals the decedent’s body. Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992). If the wrongdoer is also dead, the written notice of the filing of the action must be filed in the probate division within......
-
Section 7.78 When Must Wrongful Death Action Be Filed?
...are aware of the death, they must obtain letters within the statutory time period so they can maintain the action. Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992). Once the period for obtaining letters passes, a plaintiff ad litem must be appointed under § 537.021, RSMo...