State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, LOUIS-SAN

• Citation: 515 S.W.2d 409
• Decision Date: 12 November 1974
• Docket Number: LOUIS-SAN,No. 58663,58663
• Parties: STATE ex rel. ST.FRANCISCO RAILWAY COMPANY, Relator, v. The Honorable William E. BUDER, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

Page 409

515 S.W.2d 409

STATE ex rel. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Relator, v. The Honorable William E. BUDER, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent.

No. 58663.

Supreme Court of Missouri, En Banc.

Nov. 12, 1974.

Gerald D. Morris, Gerald J. Harvath, St. Louis, for relator.

George R. Gerhard, St. Louis, for respondent.

SEILER, Judge.

The sole question for our consideration is whether or not Sec. 537.090, RSMo 1973 Supp., V.A.M.S., which removes the $50,000 recovery limitation in wrongful death actions, is to be applied retrospectively.

Plaintiff's decedent was killed in a train-automobile collision on September 13, 1972 in Missouri. At that time Sec. 537.090, RSMo 1969, V.A.M.S., was in effect as follows:

'In every action brought under section 537.080, the jury may give to the surviving party or parties who may be entitled to sue such damages, not exceeding fifty thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death . . .'

Suit for damages for the wrongful death of decedent was filed by the decedent's widow and four minor children on September 1, 1973. On September 28, 1973, new Sec. 537.090 became effective, reading in part, as follows:

'In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as will fairly and justly compensate such party or parties for any damages he or they have sustained and are reasonably certain to sustain in the future as a direct result of such death . . .'

Subsequent to the effective date of the new section, plaintiffs, by leave, amended the damage paragraph and prayer of their petition from $50,000 to $273,750. Relator-defendant then filed a motion to strike the amended figure; on presentation and argument of the motion, the circuit court, respondent, entered an order denying and overruling relator's motion at a future date to allow relator an opportunity to petition for a writ of prohibition in the Missouri court of appeals, St. Louis district. This petition was denied without opinion. Relator then filed its application for writ of prohibition in this court, which issued a preliminary writ to which respondent made return, and relator now seeks to make the writ absolute.

Article I, Sec. 13 of the 1945 Missouri Constitution, V.A.M.S., provides that no ex post facto law, nor law impairing the obligations of contracts nor retrospective in its operation shall be enacted. There are, however, two recognized exceptions to the rule that a statute shall not be applied retrospectively: (1) where the legislature manifests a clear intent that it do so, and (2) where the statute is procedural only and does not affect any substantive right of the parties. See Clark v. Kansas City, St. Louis & Chicago Railroad Co., 219 Mo. 524, 118 S.W. 40 (1909); Darrah v. Foster, 355 S.W.2d 24 (Mo.1962).

As to the first of these exceptions, we can find no clear indication that the legislature intended the statute to apply retrospectively. The respondent contends that the use of the past tense in the statute, which allows compensation for damages 'he or they have sustained' or may sustain in the future, provides such an indication of legislative intent. This language, however, may also be reasonably construed to provide for damages which accrue between the time of death and judgment, an interpretation entirely consistent with prospective application. We cannot say that the legislature has clearly expressed its intention to the contrary.

As to the second exception, that laws which are procedural only may be applied retrospectively, we are...