Simpson v. Kilcher

Decision Date19 April 1988
Docket NumberNo. 69314,69314
Citation749 S.W.2d 386
PartiesRichard SIMPSON, et al., Appellants, v. Walter KILCHER, et al., Respondents.
CourtMissouri Supreme Court

Glenn R. Gulick, Jr., Joplin, for appellants.

Richard E. McFadin, F.A. White, Jr., Kansas City, for respondent Jams, Inc.

Raymond E. Whiteaker, Springfield, for respondents John Q. Hammons Hotels, Inc. and Holiday Inns, Inc.


In the early morning of October 6, 1985, Walter Kilcher drove his car out of a bar parking lot, across three lanes of highway, over a concrete median and directly into a motorcycle, causing injuries to its rider, Richard Simpson. Kilcher was subsequently arrested, charged and convicted of driving while intoxicated. Simpson sued John Q. Hammons-Hotels, Inc., and Holiday Inns, Inc., owners of the Water Wheel Lounge, and Jams, Inc., owner of a drinking establishment known as The King of Clubs, alleging their servants negligently served alcohol to Kilcher after he had become obviously intoxicated. The trial court dismissed Simpson's suit because the liquor licensees had not been convicted of selling alcohol to a person obviously intoxicated or to a minor, the necessary element of such suits under section 537.053, RSMo 1986. 1 Simpson concedes that he must prove the statute unconstitutional in order to pursue his case.

Simpson contends section 537.053 is void as being contrary to the due process and equal protection clauses of the Missouri Constitution and the United States Constitution; the open court provision in article I, section 14, of the Missouri Constitution; and the separation of powers provision in article II, section 1, of the Missouri Constitution. Affirmed.

Simpson argues that section 537.053 creates an impermissible obstruction to the courts in violation of Missouri Constitution, article I, section 14, and the first amendment to the United States Constitution. This argument is not persuasive because the constitutional provision was not designed to create rights, but only to allow a person claiming those rights access to the courts when such a person has a legitimate claim recognized by the law. State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939); Horner v. David Distributing Co., 599 S.W.2d 100 (Mo.App.1980). A similar contention was considered and rejected in Schulte v. Missionaries of La Sallette Corp. of Mo., 352 S.W.2d 636 (Mo.1961), overruled on other grounds, Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599 (Mo.1969), where the Court held the rule of charitable immunity was not "in any way" a violation of the open court provision in article I, section 14.

The cases cited by Simpson, Strahler v. St. Luke's Hospital, 706 S.W.2d 7 (Mo. banc 1986), and State ex rel. Cardinal Glennon Mem. Hosp. v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), involved situations where the plaintiffs' claims were legitimate and recognized by the law, but were barred by a technical, statutory precondition or requirement. Strahler had a legitimate medical malpractice claim which she brought beyond the two-year statute of limitations, but within two years of obtaining her majority. The statutes in Cardinal Glennon Mem. Hosp., required that malpractice claims be pursued at the Professional Liability Review Board before the lawsuit could be brought. All the cases cited by Simpson involved legitimate claims, recognized by law, which were being hindered by some technical provision.

In this case Simpson's claim was not a legitimate one recognized by law because it was specifically prohibited by the legislature. Section 537.053, RSMo 1986, declares it is "the policy of this state ... to prohibit dram shop liability...." Neither the constitution nor the cases cited by Simpson can be interpreted as giving a claimant a right to bring into court any grievance he wants. Such an interpretation would require this Court to invalidate numerous statutes and overrule numerous decisions in the area of tort law, including those concerning sovereign immunity, wrongful death, workers' compensation, and claims under the Federal Tort Claims Act.

Simpson's argument does not recognize that under the statute the criminal conviction required by subsection 3 of 537.053 is not a precondition to access to the courts--it is a condition to the existence of a cause of action. Childress v. Sams, 736 S.W.2d 48, (Mo. banc 1987). Thus, in cases where the plaintiff is a victim of drunk driving, the conviction of the liquor licensee is an element of plaintiff's right to sue, not an obstruction or bar to his right to sue.

Simpson argues that section 537.053 is invalid because it violates the separation of powers doctrine, Missouri Constitution, article II, section 1, in that the statute: (a) contains an impermissible effort by the legislature to declare and interpret the law by stating how the statute will be interpreted; (b) is an impermissible effort by the legislature to dictate to the judiciary the weight to be given evidence by declaring that proximate cause cannot be found unless the liquor licensee is first convicted; (c) unlawfully delegates to the executive branch discretionary authority to admit or exclude plaintiff in presenting his claim to the courts by permitting the prosecuting attorney's charging decision to control whether a right to sue can arise; (d) improperly places burdens upon and causes undue delay in the administration of justice by forestalling suit until the liquor licensee is convicted; and (e) attempts retroactive abrogation of existing judicial decisions.

Simpson's claim that the legislature impermissibly interprets the law and dictates the effect to be given evidence must be rejected. To support his claim, Simpson cites State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987), which involved a statutory provision dictating that intoxilyzer results, when the test is performed by someone with a department of health permit, are competent evidence in an alcohol-related traffic offense. The court held:

[T]he Legislature may not declare the weight to be given evidence or what evidence shall be conclusive proof of an issue of fact; ... that is to say, determining whether evidence is of probative value is a legal question, and the legislature cannot impair judicial analysis and resolution of such questions.

Id., 400 N.W.2d at 876. In this case section 537.053.2 does not "impair judicial analysis" because no analysis is necessary. Under the facts of this case the statute simply bars Simpson's cause of action. The reference to proximate cause was designed to restate the reasoning used by common law courts in rejecting dram shop liability. By explicitly rejecting the reasoning of Carver, Sampson and Nesbitt, the legislature made it clear that dram shop liability would no longer exist in Missouri. The reference to the cases may not have been the best means available for the legislature to express its intent, but in this case there can be no doubt the intent was to prohibit dram shop liability. A similar attack on a dram shop act which specifically abrogated established case law was rejected and the statute upheld in Cory v. Shierloh, 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8, (1981), superseded by statute as stated in Baker v. Sudo, 194 Cal.App.3d, 936, 240 Cal.Rptr. 38 (1987). The reasoning of Cory is persuasive.

This Court is required to construe legislative enactments so as to render them constitutional and avoid the effect of unconstitutionality, if it is reasonably possible to do so. State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69 (Mo. banc 1982). Thus this Court interprets 537.053 as a legislative prohibition of dram shop liability coupled with the creation of a new, limited cause of action rather than an impairment of judicial analysis or an unconstitutional precondition on a valid cause of action. This Court has held:

"The constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 58, 74 L.Ed. 221, 65 A.L.R. 939 [1929].... "It can be assumed without misgiving that there is no vested right in any remedy for a tort yet to happen which the Constitution protects. Except as to vested rights, the legislative power exists to change or abolish existing statutory and common-law remedies."

Holder v. Elms Hotel Co., 338 Mo. 857, 866, 92 S.W.2d 620, 624 (1936). Because this case does not involve vested rights, the interpretation upholding this statute is both authorized and required by the cases cited.

Simpson also argues that section 537.053.3 impermissibly delegates to the executive branch discretionary authority to permit or exclude plaintiff's claims by permitting the prosecuting attorney's charging decision to control whether a right to sue can arise. The Missouri cases cited by Simpson, State ex rel. Missouri Pac. R.R. Co. v. Public Service Commission, 303 Mo. 212, 259 S.W. 445 (1924), and State Tax Commission, 641 S.W.2d 69, do not support his argument of impermissible delegation. The issue in Missouri Pacific was whether the Public Service Commission could determine whether one person is entitled to recover money from another by way of damages. The State Tax Commission case held the Administrative Hearing Commission lacked the power to make declaratory judgments because such a ruling would be void as being a violation of the doctrine of separation of powers and an invasion of judicial authority. The other cases cited by Simpson are equally inapposite.

Because this Court is required to construe this statute in a manner that renders it constitutionally valid if reasonably possible to do so, State Tax Commission, 641 S.W.2d at 73, this Court determines the statute creates a limited cause of action rather than delegating to the executive branch the authority for determining when suit can be brought. The plain, obvious...

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