Rotella v. Joseph, 11975

• Decision Date: 06 April 1981
• Docket Number: No. 11975,11975
• Citation: 615 S.W.2d 616
• Parties: Peter W. ROTELLA, Administrator of the Estate of Deborah Evans, Deceased, Plaintiff-Appellant, v. Patricia JOSEPH and Willard W. Hutchison, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 616

615 S.W.2d 616

Peter W. ROTELLA, Administrator of the Estate of Deborah Evans, Deceased, Plaintiff-Appellant, v. Patricia JOSEPH and Willard W. Hutchison, Defendants-Respondents.

No. 11975.

Missouri Court of Appeals, Southern District, Division One.

April 6, 1981.

Motion for Rehearing or to Transfer Denied May 1, 1981.

Application to Transfer Denied June 8, 1981.

Stephen H. Ringkamp, Hullverson, Hullverson & Frank, Inc., St. Louis, for plaintiff-appellant.

Noble I. Leighton, Greene, Curtis & Leighton, Springfield, for defendant-respondent Joseph.

Mark E. Gardner, Lynn C. Rodgers, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for defendant-respondent Hutchison.

FLANIGAN, Judge.

Does a two-month-old girl lose her cause of action for the wrongful death of her unmarried mother because a lawsuit, timely filed, was not commenced in her name by a next friend but was filed, expressly on her behalf, by a foreign administrator? The issue is easier to state than to resolve.

This is an action for the wrongful death of Deborah Evans who died on June 28, 1977, as a result of a two-vehicle collision which occurred on that date in Douglas County, Missouri. Decedent was a resident of Connecticut. Plaintiff is Peter W. Rotella, administrator of the estate of Deborah Evans, deceased, who was appointed by a Connecticut probate court. Defendant Joseph, a citizen of Connecticut, was the driver of the vehicle in which the decedent was riding, and defendant Hutchison, a Missouri resident, was the driver of the other vehicle.

The petition, filed June 17, 1978, in the circuit court of Douglas County, alleged that the collision and death resulted from the concurring negligence of both defendants. The petition also alleged that Marissa Joyleen Evans, who was born on April 23, 1977, "was the only child and survivor of the decedent" and that "as result of the death of Deborah Evans, this administrator brings action for wrongful death on behalf of her sole survivor, Marissa Joyleen Evans and prays for damages as provided by law for her wrongful death."

In November 1979 each defendant filed a motion for summary judgment, (Rule 74.04). ¹ Both motions were sustained. Plaintiff appeals.

Various documents filed in the trial court, and the briefs of the parties filed in this court, make it clear that the basis of the trial court's ruling was that the Missouri wrongful death statute, § 537.080 RSMo 1969, controlled the issue of who was the correct plaintiff and that the Connecticut administrator lacked standing to institute this action on behalf of the surviving child.

Plaintiff asserts that the ruling of the trial court was erroneous on several grounds, including: (a) "Connecticut law provides that actions for wrongful death shall be brought by the administrator of the estate of the decedent, and Connecticut law has the most significant relationship to the determination of this particular issue where a two-car collision occurred in Missouri; one of the vehicles was operated by a Missouri resident; the other vehicle was operated by a Connecticut resident; the decedent, sister of the Connecticut operator and a passenger in her vehicle, was a Connecticut resident; the beneficiary, minor daughter of the deceased, and the plaintiff administrator of the deceased were Connecticut residents; and the Missouri operator had no interest in the nominal party plaintiff or the manner of distributions of the proceeds of a wrongful death action," and (b) Although the action was "nominally" filed by the foreign administrator, the petition alleged that the action was filed "on behalf of the sole beneficiary and minor daughter of the decedent" and, under Missouri procedure, "the proceeding should not have been invalidated by the trial court" because the interests of Marissa were adequately protected.

If ground (a) is valid, the issue of who was the correct party to bring the action is governed by the Connecticut statute, § 52-555 (Conn. Gen. Statutes). ² In support of ground (a) plaintiff relies on Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969) and cases decided in its wake. Kennedy dealt with "the basis on which the choice of law in tort cases should be made." In Kennedy, at p. 184, the court said, "We have concluded that we should abandon the inflexible lex loci delicti rule in favor of the rule set forth in § 145 of the Proposed Official Draft of Restatement (Second) on Conflict of Laws." (Adopted May 23, 1979.)

Ground (b), on the other hand, assumes that the issue of who is the correct party plaintiff is governed by § 537.080 RSMo 1969. Defendants take the position that the assumption is valid. Although the parties devote the major portions of their briefs to ground (a), ground (b) will be considered first.

" 'A party suing under the (wrongful death) statute referred to must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action, and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons may sue as the statute permits, and they alone can sue. * * * It must "be conceded that the section reserves to itself the exclusive power of naming those who can maintain the action and of fixing the time in which each of the enumerated persons could sue. " ' Chandler v. Chicago & Alton Railroad Company, 251 Mo. 592, 600-601, 158 S.W. 35, 37." Nelms v. Bright, 299 S.W.2d 483 (Mo. banc 1957).

When the death of Deborah Evans occurred and the instant action was instituted, the Missouri wrongful death statute was § 537.080 RSMo 1969. That statute provided, in pertinent part, that damages for wrongful death "may be sued for and recovered

"(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; ... or

"(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; ... or

"(3) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased, and the amount recovered shall be distributed according to the laws of descent."

Section 537.100 RSMo 1969, provided, in part: "Every action instituted under 537.080 shall be commenced within two years after the cause of action shall accrue...."

"Those statutes (§ 537.080 and § 537.100) were amended and reenacted in 1967. The amendments have been described as follows: 'There was no change in the basic theory of the Wrongful Death Act. The class of persons who had first priority to sue was changed, the time in which they were permitted to sue was extended to one year, and the maximum period in which any suit could be brought was extended from one year to two years. Therefore, the construction of the Wrongful Death Act prior to the 1967 amendments which resulted in the present Act is applicable to the present Act, subject only to the changes made in the definition of classes and the lengthening of the periods of limitation.' Wessels v. Gipfel, 522 S.W.2d 653, 656 (Mo.App.1975)." State ex rel. Kan. City Stock Yards v. Clark, 536 S.W.2d 142, 144(3) (Mo. banc 1976).

In Clark, at p. 144, the court approved the following language from Barker v. Hannibal & St. J. R. Co., 91 Mo. 86, 14 S.W. 280, 281 (1886): "In conferring the right of action, and in providing such remedy, in designating when and by whom suits may be brought, it was, as a matter of course, competent for the legislature to provide and impose such conditions as it might deem proper, and the conditions thus imposed modify and qualify the right of recovery, or form rather, we think, a part of the right itself, and upon which its exercise depends."

"The wrongful death cases decided by the appellate courts of this state have established certain principles which have been uniformly followed by our courts. They are: (1) The statute provides for one indivisible claim for the death of a person which accrues on the date of death. (2) The claim vests first in the spouse and minor children either jointly or severally. (3) If the deceased left surviving a father or mother the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. (4) If the spouse and minor children fail to sue within one year the claim passes to and vests in the father and mother or the survivor.... (7) The party having the right to enforce the claim has absolute control over it during the period specified and may file suit or settle without suing. (8) There is but one claim for relief and if not enforced by one class during the period specified it passes to another class of beneficiaries. (9) When a claim is appropriated by one preferential beneficiary it completely terminates all rights of any others mentioned in the statute with the exception that if the person so appropriating dies during the limitation period without having completed enforcement the next alternative claimant may file suit within the two year limitation period, and (10) Unless a tolling situation exists the suit must be filed within two years from date of death." Clark, supra, 536 S.W.2d at p. 145.

Deborah Evans, on the date of her death, was an unmarried adult survived by her infant daughter Marissa and by her parents. Under the principles stated in Clark, the claim for her wrongful death vested first in Marissa. It was incumbent upon Marissa to exercise her "preferred right by filing suit within one year from the date of...