McDonald v. Ward

• Decision Date: 20 February 1996
• Docket Number: No. 20303,20303
• Citation: 919 S.W.2d 251
• Parties: Stephen McDONALD, Plaintiff-Appellant, v. Russell WARD, Defendant Ad Litem for Thomas R. Johnson, Deceased, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 251

919 S.W.2d 251

Stephen McDONALD, Plaintiff-Appellant, v. Russell WARD, Defendant Ad Litem for Thomas R. Johnson, Deceased, Defendant-Respondent.

No. 20303.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 20, 1996.

Motion for Rehearing and Transfer to

Supreme Court Denied March 14, 1996.

Appeal from the Circuit Court, Jasper County; Jon Dermott, Judge.

Paul G. Taylor, Myers, Taylor & Whitworth, P.C., Joplin, for appellant.

Michael D. Talley, Thomas & Talley, Joplin, for respondent.

PREWITT, Presiding Judge.

Plaintiff sought damages for wrongful death as the result of the death of his son, Regan L. McDonald, following a motor vehicle collision. Defendant filed a motion to dismiss and the trial court sustained the motion, dismissing Plaintiff's petition. Plaintiff appeals.

"In reviewing such a dismissal, this court assumes every fact pleaded in the petition as true and takes every favorable inference in favor of plaintiff which may reasonably be drawn from the facts pleaded." Cuba's United Ready Mix, Inc. v. Bock Concrete Foundations, Inc., 785 S.W.2d 649, 650 (Mo.App.1990). "If the facts pleaded and the reasonable inferences to be drawn show any ground that would entitle plaintiff to relief, the petition should not have been dismissed." Id.

In determining whether the trial court correctly ruled on Defendant's motion, we consider only the contentions briefed by Defendant-Respondent. See BCCLW/Casey, Inc. v. S.O. Gillioz Partners, Inc., 783 S.W.2d 174, 175 (Mo.App.1990).

Plaintiff's petition alleged that his son was killed in an automobile collision on April 8, 1989, in Cherokee County, Kansas. The petition at issue here was filed on February 17, 1995. Previously Plaintiff had filed a similar, if not identical, suit on April 5, 1991. That action was dismissed without prejudice for failure to prosecute on February 23, 1994.

In granting Defendant's motion to dismiss, the trial court found that the Kansas wrongful death statute applied; ¹ that Missouri's borrowing statute, § 516.190 RSMo1994 required the use of the Kansas statute of limitation; and the Kansas saving statute, K.S.A. § 60-518 applied. The latter section requires the refiling of a suit within six months after dismissal to prevent the statute of limitations from barring an action, whereas Missouri's § 516.230, RSMo1994, allows one year. ² As the action was not refiled within six months, the trial court determined it was barred.

Although neither party questions the procedure resulting in dismissal here, we initially note that attempting to apply the most significant contacts rule, as initially set forth in Missouri in Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969) is difficult at best, but more so when an action is dismissed on a motion to dismiss. Summary judgment may well have provided a more practical remedy. This is illustrated by both parties' reference to facts which apparently exist but are not in the pleadings or otherwise shown in the record except for discussion by counsel and the court at a hearing on the motion to dismiss. However, it is not necessary to determine whether the law of Missouri or the law of Kansas applies, as a Missouri savings statute of one year, not the Kansas savings statute, would be applicable in either event.

If Missouri law applies to the wrongful death action, § 537.100, RSMo1994, would prevent this action from being barred by limitations, as it allows a wrongful death action to be refiled "within one year." If Kansas law is applicable, then Missouri § 516.230 applies. Our basis for the latter determination follows.

The Missouri borrowing statute, § 516.190, RSMo1994, makes the statute of limitation of the state in which the action originated applicable, but does not prevent a savings statute of Missouri from applying. The effect of the borrowing statute is to make the foreign statute of limitations come within §§ 516.010 to 516.370, RSMo1959, the sections affected by the savings statute. See Toomes v. Continental Oil Co., 402 S.W.2d 321, 322 (Mo.1966), and cases therein discussed. Those sections, 516.190 and 516.230, are set forth marginally. ³

Toomes, however, found that because Kansas at the time relevant there had a "built-in" limitation in its wrongful death act the Missouri "borrowing statute" did not apply, as it is not a general procedural statute, but applies only to certain sections. Included within the application of the saving statute is § 516.300, RSMo1994, which states:

516.300. Actions otherwise limited.--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.

As noted in Toomes, however, the Kansas wrongful death act limitation no longer is a part of that act, but is covered in the general limitation article. ⁴ Therefore, § 516.300 is not applicable. If Kansas law applies, the Missouri savings statute § 516.230, a procedural statute but not a general procedural statute (see Toomes, 402 S.W.2d at 324),...