State ex rel. Jewish Hospital of St. Louis v. Buder

• Decision Date: 06 July 1976
• Docket Number: No. 37541,37541
• Citation: 540 S.W.2d 100
• Parties: STATE ex rel. the JEWISH HOSPITAL OF ST. LOUIS, a corporation, Relator, v. Honorable William E. BUDER, Judge of the Twenty-Second Judicial Circuit, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 100

540 S.W.2d 100

STATE ex rel. the JEWISH HOSPITAL OF ST. LOUIS, a corporation, Relator, v. Honorable William E. BUDER, Judge of the Twenty-Second

Judicial Circuit, Respondent.

No. 37541.

Missouri Court of Appeals, St. Louis District, Division Three.

July 6, 1976.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Parks G. Carpenter, Robert S. Rosenthal, J. C. Jaeckel, St. Louis, for relator.

Bernard J. Cuddihee, St. Louis, for respondent.

SIMEONE, Presiding Judge.

This is an original proceeding in mandamus in which the relator, Jewish Hospital of St. Louis, a corporation, seeks to compel the respondent, Judge, ¹ to sustain its motion to dismiss a petition filed in a wrongful death action. The petition was filed by Sara Peters, administratrix of the estate of Ida Peters, deceased, against Jewish Hospital, claiming damages for the wrongful death of Sara's mother. Sara is the adult daughter of Mrs. Ida Peters. We have jurisdiction. Art. V, § 4, Mo.Const. For reasons hereinafter stated, we make our alternative writ, heretofore issued, absolute.

The issue which we must resolve is whether an amended petition seeking damages for wrongful death, filed after the expiration of the two-year statute of limitations by a proper party, relates back to an original petition filed prior to the expiration of the statute of limitations, in the name of a party who had no standing to sue.

Or, stated somewhat differently, if a petition for damages is filed in the name of the adult child for the wrongful death of her mother within two years of death, does an amended petition, substituting the administratrix for the adult child, relate back to the original petition filed within two years so that the action is not barred by the statute of limitations?

The facts are not particularly complicated, but the legal issues are not easily resolved. They involve the underlying policies of the wrongful death statute, the capacity of individuals to maintain an action for wrongful death, the construction of the wrongful death statute, the doctrine of 'relation back' in pleading and other matters.

On February 24, 1973, Mrs. Ida Peters, mother of adult children Sara and Gus Peters, was admitted to the emergency room of Jewish Hospital and there died. On February 21, 1975, almost two years later, Sara Peters, in her capacity as an adult child, filed her pro se petition against the hospital and a physician alleging that she 'is the surviving natural legitimate child and heir at law of Ida Peters, deceased. . . .' She alleged that her mother was referred to the hospital for emergency treatment, alleged certain acts of negligence on the part of the hospital and its personnel, and requested damages 'for the manner in which her mother was treated.' To this first petition, relator, Jewish Hospital, filed a motion to dismiss alleging that the petition 'contains no allegations sufficient to establish her capacity to sue,' fails to state specifically that the action is one for wrongful death, and that the petition is barred by the statute of limitations. At the time of a hearing on the motion, plaintiff did not have counsel and was given thirty days to file an amended petition.

Then, on July 24, 1975, over two years after the death of Mrs. Ida Peters, a 'first amended petition' was filed. That petition, unlike the first one, alleged that Sara Peters 'is the duly appointed administratrix of the estate of Ida Peters, deceased, who died . . . on February 24, 1973.' ² The petition alleged facts similar to the first one and alleged the acts of negligence in greater detail, and prayed damages because Sara and her brother 'have been deprived of her support, comfort, society, counsel, and services . . ..' To this 'first amended petition' relator again filed a motion to dismiss, identical in all respects to the first one, except that it referred to the first amended petition. The motion was heard and argued, and the petition was dismissed without prejudice. Plaintiff, Sara Peters, was given another thirty days to file an amended petition.

On September 15, 1975, more than two years after the death of Ida, a second amended petition, entitled 'Petition,' was filed alleging that Sara was the duly appointed administratrix of the estate of Ida Peters and that Mrs. Ida Peters died leaving no husband or minor children and that her heirs at law are Sara and Gus Peters. Other allegations were substantially the same as in the first amended petition. Damages in the amount of $40,000 were prayed. Again, relator filed its motion to dismiss alleging, inter alia, that (1) the petition, 'as all previous pleadings, contains a contention that one Ida Peters died on February 24, 1973, allegedly as the result of acts or omissions on that same date by, or chargeable to, defendant hospital,' (2) '(t)he original petition was filed on February 21, 1975 by a surviving adult child and alleged heir of decedent, who was not an authorized party to sue for alleged wrongful death, and defendant hospital filed a motion to dismiss . . ..', (3) on July 24, 1975, a first amended petition was filed 'not by the original plaintiff, but by an administratrix of the estate of the deceased,' (4) '(t)he fact remains that the first pleading filed on behalf of the administratrix, a party who might have standing to press a claim for wrongful death of decedent under such circumstances, was filed on or about July 24, 1975, two years and five months after the death of decedent . . ..' and (5) under § 538.100 (537.100?) 'all such claims as here attempted to be pleaded are barred unless filed within two years . . ..' The motion was argued, and respondent indicated he would overrule the motion unless Jewish Hospital obtained a writ from an appellate court.

Relator filed its petition for a writ of mandamus, and we issued our alternative writ. Pleadings were filed. The return addressed itself to the issues to be resolved: '(a) did the petition filed . . . on February 21, 1975, by Sara Peters, pro se, state a cause of action under the Wrongful Death Statute . . ., and (b) if (it) did . . ., was the suit brought and can it be maintained by the proper party plaintiff.'

The return alleged that the law in Missouri is well settled in this regard. ³

Relator in its reply insists that the original petition was defective in two critical respects: (a) it failed to state a cause of action for wrongful death because the petition failed unequivocally to allege that the death resulted from the acts of the defendant-relator, and (b) it was brought by a party not entitled to sue; hence, the statute of limitations was not tolled by the filing of the original petition.

In its brief in this proceeding, Jewish Hospital makes similar points. It contends that the writ should be made absolute because (1) the action was commenced by Sara in her individual capacity as the surviving adult daughter of Ida Peters and as such she was not a member of any class mentioned in § 537.080 qualified to maintain in action for wrongful death, hence the filing of the original petition did not toll the two-year statute of limitations, and the amended petitions filed as administratrix after the statute had run constituted a new cause of action and did not relate back to the original petition; and (2) the 'second amended petition' does not state a claim for wrongful death because it 'does not contain any specific averment directly and proximately attributing the death of Ida Peters to any of the alleged charges . . ..'

In its brief respondent contends that the original petition did contain sufficient allegations to state a claim and that the amended petitions did not state 'new causes of action,' so that the amended petitions related back to the original petition filed within the two years. Respondent insists that the substitution of Sara as administratrix of the estate for Sara in her individual capacity was a proper and valid substitution so that the action is not barred by the statute of limitations.

There are certain basic principles relating to actions for wrongful death ⁴ which aid in the resolution of the issues presented in this proceeding: (1) it is generally recognized in Missouri that no cause of action for wrongful death existed at common law. Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808); Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 924 (banc 1933); State v. Daues, 314 Mo. 13, 283 S.W. 51, 56, 45 A.L.R. 1466 (banc 1926); Glick v. Ballentine Produce Incorporated, 396 S.W.2d 609, 614 (Mo.1965); Davis, Wrongful Death, supra; ⁵ (2) the wrongful death act creates a new cause of action where none existed at common law and did not revive a cause of action theretofore belonging to the deceased. State v. Daues, supra, 283 S.W. at 56; Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); (3) since no cause of action existed at common law and the wrongful death statute created one, the various provisions of the statute are deemed to be substantive law and must be strictly construed. Cummins v. Kansas City Public Service Co., supra, 66 S.W.2d at 925; (4) under the wrongful death statute,

"A party suing . . . 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 . . .. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. . . ." Wessels v. Gipfel, 522 S.W.2d 653, 654 (Mo.App.1975), quoting from Chandler v. Chicago & A.R. Co., 251 Mo. 592, 158 S.W. 35, 37 (1913); Klein v. Abramson, 513 S.W.2d 714, 716 (Mo.App.1974); Harris v. Goggins, 363 S.W.2d 717, 724 (Mo.App.1962), appeal trfd. 374 S.W.2d 6 (Mo. banc 1963);

(5) the well established principle is that where a cause of action is created by legislative enactment, where none theretofore existed, such right may be conditioned as the legislative body sees fit. Klein v. Abramson, ...