State ex rel. Stephens v. Henson

• Decision Date: 21 April 1989
• Docket Number: No. 16038,16038
• Citation: 772 S.W.2d 706
• Parties: STATE ex rel. Norma STEPHENS, Michael Noble Stephens, Donald Glen Stephens, John Alan Stephens, and Patricia Gray Stephens, Relators, v. The Honorable Rex HENSON, Judge of the Circuit Court of Butler County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 706

772 S.W.2d 706

STATE ex rel. Norma STEPHENS, Michael Noble Stephens, Donald Glen Stephens, John Alan Stephens, and Patricia Gray Stephens, Relators, v. The Honorable Rex HENSON, Judge of the Circuit Court of Butler County, Missouri, Respondent.

No. 16038.

Missouri Court of Appeals,

Southern District,

Division Two.

April 21, 1989.

Motion for Rehearing or to Transfer

Denied May 16, 1989.

Application to Transfer Denied Aug. 1, 1989.

C.H. Parsons, Jr., Dennis P. Wilson, Parsons, Mitchell, Wilson & Satterfield, P.C., Dexter, for relators.

John R. Musgrave, Bruce D. Ryder, Christian A. Bourgeacq, Coburn, Croft & Putzell, Clinton D. Summers, Summers, Cope & Walsh, P.C., St. Louis, for respondent.

FLANIGAN, Presiding Judge.

Relators in this mandamus action (Rule 94) ¹ are the widow and four surviving children of Noble Stephens, who died on August 20, 1980, allegedly as a result of a collision between a vehicle driven by him and a train operated by St. Louis Southwestern Railway Company. In May 1981 Norma Stephens, the widow, brought a wrongful death action ("the first action") against the railroad. On August 1, 1985, she voluntarily dismissed that action without prejudice.

On July 11, 1986, Norma Stephens filed a new action ("the second action") against the railroad in which she again sought damages for the wrongful death. That action, which is the underlying action, is pending before The Honorable Rex Henson, Judge of the Circuit Court of Butler County, respondent here.

On August 22, 1988, the widow filed in the second action a motion for leave to file an amended petition alleging that the second action was brought by the widow in her own behalf and on behalf of the four children for damages suffered by her and the children resulting from the death of Noble Stephens. Also on August 22, 1988, the four children filed an application for leave to intervene in the second action as co-plaintiffs. On October 27, 1988, respondent entered his order, denying the widow's motion and the children's application. Relators thereafter instituted this mandamus action in this court.

The basic issue is whether respondent exceeded his jurisdiction in denying the motion of the four children to intervene in the second action as co-plaintiffs and in denying the motion of the widow which in effect also sought the addition of the four children as co-plaintiffs.

In general it is the position of relators that under § 537.080(1), ² the widow and the children were entitled to sue for the wrongful death of decedent; that the first action was commenced within the three-year period prescribed by § 537.100; ³ that the second action was commenced by the widow within the one-year period prescribed by § 537.100 for commencing a new action after taking a nonsuit; that the children had a right to intervene in the second action or that the widow should have been given leave, pursuant to Rule 55.33(a), ⁴ to amend the petition so as to join the children as her co-plaintiffs; and that the wrongful death claim asserted in the proposed amended pleading would, under Rule 55.33(c), ⁵ relate back to the date "of the original pleading."

In general, it is the position of respondent that he properly denied the widow's motion to amend the petition and the children's application to intervene because "the new claims" sought to be asserted by the children are barred by the three-year limitation contained in § 537.100; that "by its own language" § 537.100 precludes the children from intervening in the second action; that the children are not afforded, under § 537.080 or § 537.095, ⁶ an unconditional right to intervene in the second action; and that this mandamus action should be dismissed "because relators are guilty of laches."

For the reasons which follow, this court holds that the first action was timely instituted by the widow; that the second action was timely filed by her after the voluntary dismissal, without prejudice, of the first action; that the children have a right to intervene in the second action; that the addition of the children as co-plaintiffs with the widow will not constitute the assertion of "new claims"; that under the circumstances here the addition of the children as co-plaintiffs should be effected by amendment of the petition as requested by the widow; that there is no merit in respondent's defense of laches; and that respondent exceeded his jurisdiction in refusing to permit the joinder of the children as co-plaintiffs with the widow.

In 1967 § 537.080 and § 537.100 were amended and reenacted. In 1976, in a wrongful death action involving a death which occurred in 1970, our supreme court said:

"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."

State ex rel. Kan. City Stock Yards v. Clark, 536 S.W.2d 142, 145 (Mo. banc 1976).

Referring to the 1967 amendments, the Court also said:

"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."

State ex rel. Kan. City Stock Yards v. Clark, supra, 536 S.W.2d at 144.

In 1979 § 537.080 and § 537.100 were amended and reenacted, and some of the principles set forth in the foregoing case were affected. Referring to the 1979 amendments, the Western District of this court has said:

"The new act [§ 537.080, RSMo Supp.1979] makes no provision that the cause of action passes to a lesser class of suitor when a more favored class neglects to appropriate the right. It makes no provision at all for suit by a less favored class when a more favored class is in being at the time of the death. The new act, rather, vests the cause of action without condition in the most favored class in being [in this case, the writ plaintiffs--the spouse, children and parent of the decedent Peace] and exclusively for the full period of limitations --three years. Thus, § 537.100, RSMo Supp.1979, merely counts time. Its operation as a bar depends upon nothing else than the mere passage of time--the mark of a general statute of limitations." (Emphasis in original.)

State ex rel. Research Med. Center v. Peters, 631 S.W.2d 938, 946 (Mo.App.1982).

In Schiles v. Gaertner, 659 S.W.2d 791 (Mo.App.1983), the Eastern District of this court dealt with a wrongful death claim arising after the 1979 amendments and involving a decedent who was survived by his widow, two children and his mother. All four joined as plaintiffs and the defendant obtained an order from the trial court declaring the court's intention to compel the plaintiffs to elect one of their number to act as sole plaintiff. The court of appeals, in a prohibition proceeding, held that the trial court exceeded its jurisdiction in making that order. The court held that § 537.080(1) "places a spouse, children and parents of decedent on equal footing." Referring to § 537.080(1), the court said:

"[N]owhere in this provision does it distinguish between persons within a particular class; it neither states that one party may bring the action nor that all must be parties to the suit. Rather, it is an entitlement statute, setting forth that group of persons--spouse, children and parents--whose relationship to the decedent makes their interest paramount; should there be any members of this class, § 537.080 gives them priority in bringing suit to the exclusion of other classes."

The court pointed out that § 537.095, as amended in 1979, addresses the issue of which persons within a particular class may or must bring suit. Referring to § 537.095.1 the court said:

"[T]his provision indicates that plaintiff election is not required to maintain a wrongful death action. Specifically, this section provides that 'if two or more persons are entitled to sue ... then any one or more of them ... may maintain such suit ... without joinder therein by any other person, provided that the claimant ... shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under section 537.080.' Significantly, § 537.095 further provides that any 'recovery by suit shall be for the use and benefit of those who sue or join, or who are entitled to sue or join.' ... [I]t is clear that the legislature intended to ensure that all persons...