State ex rel. Kansas City Stock Yards Co. of Maine v. Clark

• Decision Date: 14 April 1976
• Docket Number: No. 59217,59217
• Citation: 536 S.W.2d 142
• Parties: STATE of Missouri ex rel. KANSAS CITY STOCK YARDS COMPANY OF MAINE, Petitioner, v. Honorable Donald B. CLARK, Judge of the Circuit Court of Jackson County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 142

536 S.W.2d 142

STATE of Missouri ex rel. KANSAS CITY STOCK YARDS COMPANY OF MAINE, Petitioner, v. Honorable Donald B. CLARK, Judge of the Circuit Court of Jackson County, Missouri, Respondent.

No. 59217.

Supreme Court of Missouri, En Banc.

April 14, 1976 Opinion Modified on Court's Own Motion. Rehearing Denied May 5, 1976.

Leonard A. O'Neal, Joe W. Coleman, Kansas City, for petitioner.

Albert J. Yonke and Michael C. Arnold, Kansas City, for respondent.

HOLMAN, Judge.

This is an original proceeding in prohibition in which relator seeks to prevent respondent judge from proceeding further in the case of Peggy Ann Smith, et al. v. Kansas City Stock Yards Company of Maine now pending in the Jackson County Circuit Court. Before seeking relief here relator had filed a motion to dismiss in which it stated as grounds therefor the contention hereinafter discussed. Respondent overruled that motion. Upon petition of relator we issued our provisional rule. We have decided that said rule should be made absolute.

The facts are not in dispute. Roy Ruis died on June 12, 1970, as a result of injuries received while employed by relator. He was survived by his wife and three minor children. Roy was also survived by his father and mother who are still alive at this time. Deceased had not made any contributions for the support of his parents for twenty-five years prior to his death. On May 25, 1972, the widow and children (hereinafter referred to as plaintiffs) filed the aforementioned suit against relator. It is suggested that the delay in filing said suit may have resulted from the fact that said dependents unsuccessfully sought to recover compensation under the Kansas Workmen's Compensation Law.

It is relator's contention that plaintiffs have not stated and cannot state a claim for relief and hence the circuit court has no jurisdiction to proceed with the case. The basic question for our decision is whether plaintiffs can maintain the wrongful death action which was commenced more than one year but less than two years after decedent's death.

At the outset of our consideration of this contention it is appropriate to observe that under the circumstances indicated prohibition is a proper remedy. State ex rel. Henderson v. Cook, 353 Mo. 272, 182 S.W.2d 292(5) (1944).

There was no right of action for wrongful death at common law. It is only by virtue of statutory enactments that a recovery may be had upon such a claim. Our present statute reads as follows: 'Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.

'(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; . . . and provided, further, that only one action may be brought under this subdivision against any one defendant; 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, . . . then by the father and mother, . . .

'(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 537.080. It should also be noted that Section 537.100 provides that: 'Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; . . .'

Those statutes 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).

In an early case this court construed the statute in certain respects in a manner which has been followed to this day. The court stated that, '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. In the statute which creates the right of action, and in the same section in which the statutory right and remedy is thus conferred upon the husband or wife, it is further provided, by the second subdivision, as we have seen, that if there be no husband or wife, or he or she fails to sue within six months after the death, the right of action therefor shall be vested in the minor children of the deceased, if there be such. This provision is not, we think, merely a limitation or bar to the remedy of the wife, but is a bar to the right itself, if there are minor children, . . . So in the case now before us, where the action is brought by the widow after the expiration of the six months, her right to maintain the same is conditional, and depends on the non-existence of the minor children,--a material and necessary fact, as we think, and which was not alleged or proved. . . .' Barker v. Hannibal & St. J. R. Co., 91 Mo. 86, 14 S.W. 280, 281 (1886).

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. (5) If there is no father and/or mother the spouse and minor children have the full two years in which to sue. (6) If there is no spouse or minor children the father and mother may sue at any time within the two year period. (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.

The principles we have set out in the preceding paragraph are supported by the following cases: Barker v. Hannibal & St. J. R. Co., supra, Wessels v. Gipfel, supra, Huss v. Bohrer, 317 Mo. 204, 295 S.W. 95 (1927), Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920 (1933), Chandler v. Chicago & A. R. Co., 251 Mo. 592, 158 S.W. 35 (1913), Nelms v. Bright, 299 S.W.2d 483 (Mo.1957), Uber v. Missouri Pacific Railroad Company, 441 S.W.2d 682 (Mo,1969), State ex rel. v. Kimberlin, 504 S.W.2d 237 (Mo.App.1973), Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973), Forehand v. Hall, 355 S.W.2d 940 (Mo.1962), Goldschmidt v. Pevely Dairy Company, 341 Mo. 982, 111 S.W.2d 1 (1937), and Spencer v. Bradley, 351 S.W.2d 202 (Mo.1961). See also, Click v. Thuron Industries, Inc., 475 S.W.2d 715 (Texas 1972) in which the Texas court construed the Missouri statutes and decisions in accord with the foregoing.

Decedent received his fatal injury at a place near the state line between Kansas and Missouri. While there is some uncertainty concerning the state in which he was killed it now appears that all parties have accepted the fact that he was a few feet into the state of Kansas. In an effort to avoid the effect of the foregoing decisions respondent's attorneys have briefed the contention that the Kansas law (particularly Section 60--513, the statute providing that the statute of limitations for wrongful death shall be two years) should apply to this case. We see no merit in that contention.

Ordinarily the wrongful death statute of the state in which the fatal injury occurred would apply. If plaintiffs desired to recover under Kansas law they were required to plead that statute and if they failed to do so the petition would not state a claim for relief. Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591(12) (1932). However, in this case both sides apparently concluded that under the choice of law rule announced in Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) the law of Missouri should apply. Accordingly, plaintiffs obviously relied upon the Missouri statutes in all respects including the amount...