Malone By and Through Alexander v. Jackson, A-C

• Decision Date: 29 March 1983
• Docket Number: 45727,Nos. 45647,A-C,s. 45647
• Parties: Donna MALONE, Yolanda Malone, and Robin Malone, By and Through their Next Friend, Margaret ALEXANDER, Plaintiffs-Appellants, v. Pamela JACKSON, Budget Rent-ar of St. Louis, Inc., and General Motors Corporation, Defendants-Respondents. and Barbara MALONE, Plaintiff-Appellant, v. Pamela JACKSON, Budget Rent-ar of St. Louis, Inc., and General Motors Corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 170

652 S.W.2d 170

Donna MALONE, Yolanda Malone, and Robin Malone, By and Through their Next Friend, Margaret ALEXANDER, Plaintiffs-Appellants, v. Pamela JACKSON, Budget Rent-A-Car of St. Louis, Inc., and General Motors Corporation, Defendants-Respondents. and Barbara MALONE, Plaintiff-Appellant, v. Pamela JACKSON, Budget Rent-A-Car of St. Louis, Inc., and General Motors Corporation, Defendants-Respondents.

Nos. 45647, 45727.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 29, 1983.

Ellen F. Watkins, St. Louis, for Donna Malone, et al., etc.

Michael D. Stokes, Frances M. Luehrman, St. Louis, for Barbara Malone.

Robert C. Ely, St. Louis, for Pamela Jackson.

E. Thomas Liese, St. Louis, for Budget Rent-A-Car.

Kortenhof & Ely, St. Louis, for General Motors.

CRANDALL, Presiding Judge.

These are consolidated appeals from the dismissals of wrongful death suits brought by the sisters and the mother of the deceased, James Malone, a minor. The issues presented are (1) whether the sisters or the mother are entitled to maintain the wrongful death action, and (2) whether the Tennessee statute of limitations is applicable by reason of the Missouri "borrowing statute." We affirm in part and reverse and remand in part.

Pamela Jackson, a Missouri resident, rented an automobile in Missouri from Budget Rent-A-Car of St. Louis, Inc. The automobile was a General Motors' product. Jackson drove the automobile to Tennessee where she was involved in a one-car collision in which her passenger, James Malone, also a Missouri resident, was killed. General Motors Corporation and Budget Rent-A-Car, Inc., are foreign corporations authorized to do business in the State of Missouri.

One year after Malone's death, his sisters (appellants) filed a wrongful death suit against Pamela Jackson, Budget Rent-A-Car and General Motors (respondents). On motion, the trial court dismissed the sisters' suit ruling that they were not proper parties because the deceased was survived by his mother, Barbara Malone. Barbara Malone, appellant, then filed a wrongful death suit which the trial court dismissed, on motion, ruling that her suit was barred by the Tennessee statute of limitations.

The initial question presented to this court is whether the Tennessee one-year statute of limitations, Tenn.Code Ann. § 28-3-104 (1980), or the Missouri three-year limitation of action, § 537.100, RSMo (Supp.1979) is applicable to this case. Appellants pleaded recovery under the Missouri Wrongful Death Statute, § 537.080, RSMo (Supp.1979). Respondents have never contended that it was improper for appellants to proceed under the Missouri Wrongful Death Statute, and a review of the record clearly establishes the statute's applicability in this case under the "most significant relationship test" of Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969). See Restatement (Second) of Conflicts of Laws, § 145 (1971). Despite the fact that appellants brought suit pursuant to the provisions of the Missouri Wrongful Death Statute, respondents contend that we are bound to apply the Tennessee statute of limitations pursuant to § 516.190, RSMo (1978), the Missouri borrowing statute. ¹ The application of the borrowing statute is expressly limited by § 516.300, RSMo (1978). This section states that the various provisions of Chapter 516, one of which is the "borrowing statute," do "not extend to any action which is or shall be otherwise limited by any statute ...." Wrongful death actions, as defined by § 537.080, RSMo (Supp.1979), are otherwise limited by and inseparable from § 537.100, RSMo (Supp.1979) which has a three-year period of limitation, and thus are not within the purview of § 516.190, RSMo (1978). Regardless of whether § 537.100, RSMo (Supp.1979) is characterized as procedural or substantive, ² we hold that the limitations of that section are applicable to this action; and therefore, Barbara Malone's petition was timely filed.

Furthermore, the right to maintain an action for the wrongful death of the deceased in this case is vested in his mother to the exclusion of his sisters. ³ § 537.080 RSMo (Supp.1979); see State ex rel. Research Medical Center v. Peters, 631 S.W.2d at 940; Mo. Bar CLE, Tort Laws Vol. II, Wrongful Death § 22.18 (1980); see generally Anderson and O'Brien, Recent Developments in Missouri Tort Law, 48 UMKC L.Rev. 680-687 (1980).

The trial court, therefore, correctly dismissed the deceased's sisters' petition...