State ex rel. Griffin v. Belt

• Decision Date: 28 January 1997
• Docket Number: No. WD,WD
• Citation: 941 S.W.2d 570
• Parties: STATE of Missouri, ex rel., Willa F. GRIFFIN, Relator, John Glaspie, Intervenor, v. The Honorable Ronald M. BELT, Respondent. 52657.
• Court: Missouri Court of Appeals

Page 570

941 S.W.2d 570

STATE of Missouri, ex rel., Willa F. GRIFFIN, Relator, John Glaspie, Intervenor, v. The Honorable Ronald M. BELT, Respondent.

No. WD 52657.

Missouri Court of Appeals,

Western District.

Jan. 28, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 4, 1997.

Application to Transfer Denied

April 29, 1997.

Hadley E. Grimm, Jill Whitehead Creed, Collins & Grimm, Macon, for Relator.

Scott Templeton, Oswald & Cottey, P.C., Kirksville, for Respondent.

Before EDWIN H. SMITH, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Frankie Fern Huntsman was killed when the car in which she was being driven by her daughter, Relator Willa F. Griffin, was involved in a collision with a car driven by John Glaspie. Mrs. Huntsman's sister, Ethelene Graves, brought suit against Ms. Griffin and Mr. Glaspie for the wrongful death of Mrs. Huntsman. Ms. Griffin filed a third-party claim against Mr. Glaspie and moved for summary judgment on Mrs. Graves' claim against her. In support, Ms. Griffin argued that because she is the deceased's sole surviving "class (1)" beneficiary under Missouri's Wrongful Death statute, she had the sole right to sue for the death of Mrs. Huntsman. Mrs. Graves countered that because Ms. Griffin is fully or partially at fault for her mother's death, Ms. Griffin is not entitled to sue under the Wrongful Death statute, and the right to sue thus devolved to her as the deceased's sister and only "class (2)" beneficiary under the Wrongful Death statute.

The court below agreed with Mrs. Graves and denied Ms. Griffin's motion for summary judgment. At the application of Ms. Griffin, we issued our preliminary writ of prohibition to prevent Judge Ronald M. Belt from denying Ms. Griffin's motion for summary judgment on the claim of Mrs. Graves against her. We now make our writ permanent.

I. FACTUAL AND PROCEDURAL BACKGROUND

Relator Willa F. Griffin and her mother, Frankie Fern Huntsman, were in an automobile accident on December 13, 1991, when the vehicle Ms. Griffin was driving collided with a vehicle driven by Third Party Defendant John W. Glaspie. As a result of injuries sustained in this accident, Mrs. Huntsman died on January 7, 1992. Mrs. Huntsman's husband and parents predeceased her. She was survived by a sister, Ethelene Graves, and by relator, who is her only surviving child.

On April 28, 1994, Ethelene Graves filed a wrongful death action against relator, alleging that her negligence caused the death of her sister, Mrs. Huntsman. Relator moved for summary judgment on Mrs. Graves' claim against her, asserting that Mrs. Graves had no standing to sue for the death of her sister because the Missouri Wrongful Death statute sets up a system of priorities as to who can bring a claim for wrongful death. Under that system, children of the deceased are class (1) beneficiaries. Siblings of the deceased are class (2) beneficiaries and may sue only if there is no person in class (1) entitled to sue. Ms. Griffin argued that, as the deceased's only surviving child, she and not Mrs. Graves, as the deceased's sister, had the statutory right to sue for Mrs. Huntsman's death. Ms. Griffin also filed a third-party petition against the other driver involved in the accident, Mr. Glaspie, alleging that he was liable to her because he was wholly or partially responsible for the death of Mrs. Huntsman.

Mrs. Graves filed an amended Petition which asserted claims against both Ms. Griffin and Mr. Glaspie. She also argued that Ms. Griffin had no right to sue for the wrongful death of Mrs. Huntsman where, as here, her own negligence was partially or totally the cause of Mrs. Huntsman's death, for she cannot sue herself.

Judge Belt agreed with Mrs. Graves' arguments. He held that Ms. Griffin was barred from bringing a claim for the death of her mother and that this in effect meant that there were no class (1) beneficiaries. The right to sue thus devolved to the only class (2) beneficiary, Mrs. Graves. He therefore denied Ms. Griffin's motion for summary judgment on Mrs. Graves' claims against her. He did permit Ms. Griffin's Third-Party Petition for contribution against Mr. Glaspie to stand. ¹

Ms. Griffin then filed a Petition for a Writ of Prohibition with this Court, in which she claimed that Judge Belt exceeded his jurisdiction by allowing Ms. Graves to proceed with her wrongful death claim. This Court issued its Preliminary Writ in Prohibition on May 17, 1996.

II. WRIT OF PROHIBITION AS APPROPRIATE REMEDY

A writ of prohibition is the proper remedy to prevent a lower court from acting beyond its jurisdiction. State ex rel. Coyle v. O'Toole, 914 S.W.2d 871, 872 (Mo.App.1996). It is not a substitute for a direct appeal, and will issue only where there is lack of jurisdiction and lack of an adequate remedy by appeal. State ex rel. Riederer v. Mason, 810 S.W.2d 541, 543 (Mo.App.1991). Nonetheless, "where unnecessary, inconvenient, and expensive litigation can be avoided, prohibition is the appropriate remedy." State ex rel. Anheuser-Busch, Inc. v. Mummert, 887 S.W.2d 736, 737 (Mo.App.1994). While it is unusual to issue a writ directing a court to grant summary judgment, such a writ is appropriate where the motion should have been granted because the other party has no cause of action as a matter of law. State ex rel. Police Retirement Sys. v. Mummert, 875 S.W.2d 553 (Mo. banc 1994). Here, if there is a class (1) beneficiary, then Mrs. Graves lacks capacity to sue. Such a lack is jurisdictional rather than procedural, and precludes suit. Call v. Heard, 925 S.W.2d 840 (Mo. banc 1996).

III. MS. GRAVES IS EXCLUDED FROM BRINGING A WRONGFUL DEATH ACTION BECAUSE THERE IS AN EXISTING CLASS (1) BENEFICIARY

Relator Griffin seeks a writ of prohibition to prevent Judge Belt from enforcing his order of October 23, 1995, in which he denied Ms. Griffin's motion for partial summary judgment on Mrs. Graves' wrongful death claim against her for the death of relator's mother, Mrs. Huntsman. Relator alleges that Mrs. Graves is not entitled to bring a wrongful death action under the statute because relator, as the deceased's daughter, is an existing class (1) beneficiary, and thus has the sole right to bring the wrongful death action.

In Missouri, wrongful death actions are created by statute, and no cause of action for wrongful death existed at common law. Sullivan v. Carlisle, 851 S.W.2d 510 (Mo. banc 1993); State ex rel. Jewish Hospital v. Buder, 540 S.W.2d 100, 104 (Mo.App.1976). Missouri's Wrongful Death statute provides that when a person dies due to any act that would have entitled that person to recover damages if the person had survived, then the person who would have been liable if death had not resulted may be held liable for damages. § 537.080.1. ²

The statute specifically states that only one action may be brought against any one defendant for the death of any one person. § 537.080.2. It also creates three categories, or classes, of persons who may bring a suit for wrongful death. In class (1) are the deceased's spouse, parents, children, and surviving lineal descendants. In class (2) are the deceased's siblings or their descendants. In class (3) is a plaintiff ad litem. See § 537.080.1.

The statute further provides that a person in class (2) may only sue if no one in class 1 is entitled to bring the action, stating:

(2) If there be no persons in class (1) entitled to bring the action, then [suit may be brought] by the brother or sister of the deceased, or their descendants ...

§ 537.080.1(2). The statute similarly provides that a person in class (3) may sue only if there is no one in classes (1) or (2) entitled to bring the action. See § 537.080.1(3).

Accordingly, to determine who is entitled to sue, one must first determine whether there are any members of a higher priority category who are entitled to bring the action, for "a person in any authorized category may bring a wrongful death suit only if there are no persons in a prior category 'entitled to bring the action.' " Sims v. Arvin Industries 770 S.W.2d 711, 712 (Mo.App.1989) (emphasis added). See also Schiles v. Gaertner, 659 S.W.2d 791, 793 (Mo.App.1983).

Here, all concede that Ms. Griffin is the deceased's daughter, that a daughter is normally a class (1) beneficiary, that a sister such as Mrs. Graves is a class (2) beneficiary, and that as a class 2 beneficiary Mrs. Graves has no right to sue under the statute if Ms. Griffin qualifies as a class (1) beneficiary entitled to bring the action. Our Supreme Court recently reaffirmed this principle in Call v. Heard, 925 S.W.2d at 850.

The dispute in this case centers on whether Judge Belt was correct in ruling that Ms. Griffin is not "entitled to bring the action" because she is wholly or partially responsible for the death of the deceased. ³ In support, Judge Belt cited Strycharz v. Barlow, 904 S.W.2d 419 (Mo.App.1995). In Strycharz, the Eastern District of the Court of Appeals, citing the Wrongful Death statute, affirmed the trial court's dismissal of Mrs. Dudkowski's wrongful death action against the defendant ad litem because the decedent's own negligence caused the accident. Strycharz was simply an application of the settled principle that the fault of the decedent may be assessed against the beneficiaries. Strycharz is not applicable here, however, because there is no allegation that the accident was caused by the negligence of the deceased, Mrs. Huntsman. Instead, Mrs. Graves has alleged that it is the negligence of the class (1) beneficiary, Ms. Griffin, which caused or contributed to cause the accident.

Contrary to Judge Belt's ruling, we find that under Missouri law the fact that a beneficiary is or may be partially at fault for the decedent's death does not preclude that beneficiary from bringing a wrongful death action against others who also may be partially responsible for the decedent's death. The most recent Supreme Court case on point...