State ex rel. Research Medical Center v. Peters

Decision Date30 March 1982
Docket NumberNo. WD,WD
Citation631 S.W.2d 938
PartiesSTATE ex rel. RESEARCH MEDICAL CENTER, Plaintiff, v. The Honorable William J. PETERS, Judge of the Circuit Court of Jackson County, Missouri, Division Sixteen, Defendant. 33089.
CourtMissouri Court of Appeals

John M. Kilroy, Shugart, Thompson & Kilroy, Kansas City, for relator.

James R. Bartimus, Kansas City, for defendant.



This proceeding in mandamus petitions us to direct the trial court, as a matter of right, to dismiss an action for wrongful death as within the bar of limitations. The precise question the proceeding poses is: whether the 1979 amendment to the wrongful death statutes which enlarges the period of limitations applies to an existent cause of action.

On June 6, 1979, Everett Peace, Jr. died. The statutes then extant (§§ 537.080 and 537.100, RSMo 1969) prescribed that every action for wrongful death be commenced within two years after accrual and that the spouse or minor children vested with the right to sue within one year after the death. On September 28, 1979 -while the right of the Peace spouse and children to sue was still viable-a new comprehensive death statute was enacted which not only enlarged the period of limitation to three years, but also grants to the class entitled to sue the full period of limitations-three years. 1 On April 27, 1981, within three years of the death, the spouse and two children commenced an action for wrongful death. On July 2, 1981, the petition was amended to add the father of the decedent as a party plaintiff. 2

The defendants moved to dismiss the spouse and children of the decedent from the action on the ground that their claims were barred by § 537.080, RSMo 1969 in effect at the time of the death. The motion asserted that under the terms of that statute then extant the spouse or children of a decedent were required to appropriate the cause of action within one year after the death-that since the claims of those survivors were brought more than one year after the death, the court was under a peremptory duty to dismiss them from the action. The plaintiffs resisted dismissal on the premise that the enactment of the new wrongful death act-while their right to sue remained vital-extended the time for suit to three years (§ 537.100, RSMo Supp.1982). The trial court overruled the motion to dismiss, and our writ issued.

In effect, the trial court ruled that Laws 1979, p. 630 § 1 (§ 537.080, RSMo Supp.1982) intends to apply retroactively to extend the limitation period for an existent cause of action for wrongful death to three years.

The constitution (Article 1, § 13) forbids the enactment of a retrospective law which impairs a vested right. Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686, 689(5, 6) (1941). A person owns no vested right in a statute of limitations, however, until the prescribed term has run. Hartvedt v. Maurer, 359 Mo. 16, 220 S.W.2d 55, 58(3) (1949). Thus, it is competent for a legislature to extend or reduce the period of limitation so as to regulate the time for a suit to be brought even as to an existent cause of action. Clarke v. Organ, 329 S.W.2d 670, 679(10) (Mo. banc 1959); Rabin v. Krogsdale, 346 S.W.2d 58, 60(3) (Mo.1961). That assumes, however, that the limitation was enacted as a statute of repose, as a matter of procedure and remedy. In such case, the new statute applies prima facie "to all actions-those which have accrued or are pending, and future actions." Clark v. Kansas City, St. Louis & Chicago Railroad Co., 219 Mo. 524, 118 S.W. 40, 43 (1909); State ex rel. Clay Equipment Corporation v. Jensen, 363 S.W.2d 666, 669(1, 2) (Mo. banc 1963). This yields the principle that a procedural statute operates retrospectively unless a contrary legislative intent appears from the terms of the enactment. State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409, 410(1) (Mo. banc 1974); Darrah v. Foster, 355 S.W.2d 24, 29(3) (Mo.1962). That says no more than that it is the intention of the legislature in every case which determined whether a statute of limitations works only on the remedy and not on the right. Scheidegger v. Greene, 451 S.W.2d 135, 138(4) (Mo.1970). A caveat attends that judicial enterprise, however: "courts should exercise restraint in declaring a construction that the very right itself is extinguished by the lapse of time unless such is the plain statutory intent." Wentz v. Price Candy Company, 352 Mo. 1, 175 S.W.2d 852, l.c. 854(4-6) (1943); Welborn v. Southern Equipment Company, 395 S.W.2d 119, 123(2) (Mo. banc 1965).

A litigant has a vested right that a statute shall not revive a cause of action expired by the lapse of limitations. Uber v. Missouri Pacific Railroad Company, 441 S.W.2d 682, 687(1) (Mo.1969). A litigant has a right also that a repeal and new enactment shall not by retrospective application impair a substantive right vested by the prior statute. Darrah v. Foster, 355 S.W.2d 24, 30(4) (Mo.1962); Mo.Const.Art. I, § 13 (1945); §§ 1.150 and 1.170 (RSMo 1978). The mandamus plaintiffs (defendants in the original action) argue that the cause of action of the Peace mother or children accrued on June 6, 1979, when Everett Peace died and that the provisions of §§ 537.080 and 537.100, RSMo 1969 then in effect which limited the commencement of suit to one year as to those survivors was a definition of substantive right and not merely a bar to the remedy, so that the rule of the trial court that the 1979 repeal and reenactment of those sections retrospectively enlarges the period of limitations on the cause of action to three years, impairs a substantive right contrary to law.

A wrongful death statute was enacted for the first time in Missouri in year 1855. 3 That statute-as all other successive amendments, repealers and reenactments until the comprehensive 1979 revision-nominated those entitled to sue (the spouse, then the minor children, then the parents) and prescribed the time for suit (within six months of the death, or one year, respectively). The earliest consideration of that statute yielded the intent (Coover v. Moore, 31 Mo. 574, l.c. 576 (1862) ): that "only such persons can recover in such time and in such manner as is set forth in the statute." The court found that the right of the spouse to sue lapsed absolutely after six months and that the cause of action was vested in the minor children. That construction of the wrongful death statute in Barker v. Hannibal & St. Joseph R. Co., 91 Mo. 86, 14 S.W. 280 (1886) was formulated into the doctrine the courts have iterated since as the paradigm of the legislative intent (l.c. 281):

(D)amages for a tort to the person, resulting in death, were not recoverable at common law, nor could husband or wife, parent or child, recover any pecuniary compensation therefor against the wrong-doer. Our statute on this subject both gives the right of action, and provides the remedy for the death, where none existed at common law, and where an action is brought, under the statute, it can only be maintained subject to the limitation and conditions imposed thereby. 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 (the 1879 enactment) 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. (parenthetical comment and emphasis added)

The rationale of Barker -that the proviso of the enactment which couples the designation of a party entitled to sue with a priority of successive suitors and fixes the time to enforce the right so that the lapse of limitations bars not only the remedy but also the right-continues as the dominant and recurrent discernment of the legislative intent of the wrongful death statute. 4 The statute (Aley v. Missouri Pac. R. Co., 211 Mo. 460, 111 S.W. 102, 107 (1908) explains) "reserves to itself the exclusive power of naming those who could maintain the action, and of fixing the time in which each of the enumerated persons could sue ...." State ex rel. Slibowski v. Kimberlin, 504 S.W.2d 237, 239(2) (Mo.App.1973); Nelms v. Bright, 299 S.W.2d 483, 487(2-4) (Mo. banc 1957). The proviso that the person vested with the cause of action must enforce the right within the time allocated that class of suitor becomes "an inherent part of the cause of action" (Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 646(2-4) (1947) ) and imposes "a built-in limitation period of a substantive nature" (Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 5(8) (Mo.App.1975) ).

The discerned statutory purpose to conjoin both the right of the designated person to sue and the remedy to enforce the right within the time allowed into a substantive condition precedent to recovery imposes the duty not only to prove, but also to plead, the right to maintain the action. Thus, Barker reversed a recovery for the widow who sued after the six months the statute allotted to that class because the petition did not allege the nonexistence of minor children-the class (if in being) the statute nominated as entitled to appropriate the cause of action upon lapse of the...

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