Sullivan v. Carlisle, 75023

• Decision Date: 20 April 1993
• Docket Number: No. 75023,75023
• Citation: 851 S.W.2d 510
• Parties: Thomas SULLIVAN, Plaintiff ad Litem, Appellant, v. Susan H. CARLISLE, Respondent.
• Court: Missouri Supreme Court

Page 510

851 S.W.2d 510

Thomas SULLIVAN, Plaintiff ad Litem, Appellant, v. Susan H. CARLISLE, Respondent.

No. 75023.

Supreme Court of Missouri,

En Banc.

April 20, 1993.

Thomas Sullivan and Edward L. Fitzgerald, Kansas City, for appellant.

Lance W. LeFevre, Kansas City, for respondent.

PRICE, Judge.

Thomas Sullivan, plaintiff ad litem, appeals the dismissal of his first amended petition for damages resulting from the death of Mary Catherine McCarty. We affirm and find that plaintiff's claim fails because decedent's estate is not a "person entitled to share in the proceeds of such action" under the wrongful death statute, §§ 537.080 to 537.100, RSMo. ¹

I.

In reviewing the circuit court's dismissal of a petition, the Court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred as true and construe the averments liberally and favorably to the plaintiff. A petition will not be dismissed for failure to state a claim if it asserts any set of facts which, if proved, would entitle the plaintiff to relief. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993).

Viewed in the light most favorable to plaintiff, the petition establishes that on June 27, 1990, decedent Mary Catherine McCarty was walking on the public sidewalk across defendant Susan H. Carlisle's driveway when she was run over by a car driven by defendant. She suffered numerous severe injuries, which led to her death seventeen days later. Decedent was not survived by any spouse, child, parent, sibling, or their descendants, and in fact appears to have no living kin. Her will devises her property to charitable organizations.

Plaintiff, the personal representative of decedent's estate, was appointed plaintiff ad litem on his own motion for the purpose of instituting this action on behalf of the estate. His petition seeks damages for decedent's injuries and suffering prior to her death, hospital and medical expenses, and funeral expenses incurred by the estate. Additional damages are sought for the loss of accumulations that decedent would have made to her estate had she lived out her life expectancy. Plaintiff asks that the proceeds of this action be distributed according to decedent's will or, alternatively, "according to the laws of descent" as provided in § 537.095.

Defendant filed a motion to strike the appointment of the plaintiff ad litem and to dismiss the petition. The court sustained the motion to dismiss, holding that there is no person capable of bringing an action for wrongful death under § 537.080 or entitled to share in the proceeds of such an action under § 537.095. The court also ruled that the statutes make no provision for a decedent's estate to recover the proceeds of a wrongful death action. This appeal followed.

II.

Wrongful death is a statutory cause of action. Powell v. American Motors Corp., 834 S.W.2d 184, 186 (Mo. banc 1992); Hagen v. Celotex Corp., 816 S.W.2d 667, 674 (Mo. banc 1991). Well-settled principles of statutory interpretation require us to ascertain the legislative intent from the language of the act, considering the words used in their plain and ordinary meaning, and to give effect to that intent whenever possible. State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992). If the statute is ambiguous, we attempt to construe it in a manner consistent with the legislative intent, giving meaning to the words used within the broad context of the legislature's purpose in enacting the law. State ex rel. Missouri Hwy. & Transp. Com'n v. Alexian Brothers of St. Louis, Inc., 848 S.W.2d 472, 474 (Mo. banc 1993).

In relevant part, § 537.080.1 defines who may bring a wrongful death action as follows:

(3) If there be no persons in class (1) [spouse, children or their lineal descendants, or parents] or (2) [siblings or their descendants] entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action.... (Emphasis added.)

The persons entitled to share in the proceeds recovered by the plaintiff ad litem are determined by § 537.095.2, which states:

When any settlement is made, or recovery had, by any plaintiff ad litem, the persons entitled to share in the proceeds thereof shall be determined according to the laws of descent, and any settlement or recovery by such plaintiff ad litem shall likewise be distributed according to the laws of descent unless special circumstances indicate that such a distribution would be inequitable, in which case the court shall apportion the settlement or recovery in proportion to the losses suffered by each person or party entitled to share in the proceeds.... (Emphasis added.)

Plaintiff's first point asserts that the estate of decedent is, in effect, a "person" entitled to share in the proceeds of an action for her wrongful death and to request the appointment of a plaintiff ad litem to prosecute the action on its behalf. But the statute restricts class (3) residual beneficiaries to those persons who may take under the laws of descent. § 537.095. The word "descent" refers to hereditary succession by intestacy and not to devise by will. Cook v. Daniels, 306 S.W.2d 573, 576 (Mo.1957), citing 26A C.J.S. p. 502; Black's Law Dictionary 445 (6th ed. 1990). Thus, by definition, a deceased person's estate is not a taker under the laws of descent. Accordingly, the estate of decedent can neither share in the proceeds of this action nor request the appointment of a guardian ad litem to prosecute it.

Numerous Missouri decisions are in accord. Our courts have consistently denied a cause of action for wrongful death to the decedent's estate, even when there is no surviving heir. See Pittock v. Gardner, 530 S.W.2d 217, 221 (Mo. banc 1975); Acton v. Shields, 386 S.W.2d 363, 366 (Mo.1965); Caen v. Feld, 371 S.W.2d 209, 212 (Mo.1963); Demattei v. Missouri-Kansas-Texas R.R., 345 Mo. 1136, 139 S.W.2d 504, 505-6 (1940); Martin v. Southwestern Bell Tel. Co., 344 Mo. 83, 125 S.W.2d 19, 19 (1939); Johnson v. Dixie Mining & Dev. Co., 187 S.W. 1, 1 (Mo.1916); Kirk v. Wabash R.R., 265 Mo. 341, 177 S.W. 592, 593 (1915); Troll v. Laclede Gaslight Co., 182 Mo.App. 600, 169 S.W. 337, 339 (1914).

The wrongful death action was designed to compensate specifically designated relatives for the loss of the decedent's economic support. See Troll, 169 S.W. at 339-40. Wrongful death statutes generally follow one of two approaches. The most common type is the "Lord Campbell" statute, ² which permits the recovery of what has been termed "relational" damages by a specified class of survivors of the decedent. These damages are measured by the economic and emotional losses arising out of the disruption of the survivors' relationship with the deceased. The second, and less prevalent, type is the "loss to the estate" statute, which determines the economic loss sustained by the decedent's estate by reason of the premature death. This type is also known as a "survivorship" statute, because it transmits to the estate the decedent's right to the economic value of his own projected life-span. Most statutes allow either relational or survivorship damages, but not both. Powell, 834 S.W.2d at 186.

From the adoption in 1855 of our earliest wrongful death statute ³ until 1979, Missouri had a classic "Lord Campbell" type of action. Recovery was limited to the reasonably ascertainable pecuniary losses suffered by the statutory beneficiaries because of the death. See O'Grady v. Brown, 654 S.W.2d 904, 907 (Mo. banc 1983); Acton, 386 S.W.2d at 366. The right to sue was originally granted only to the spouse and minor children, or to the parents if the decedent was an unmarried minor. ⁴ Beginning in 1907, the executor or administrator of the estate was given the right to sue in the absence of a surviving spouse, child, or parent, and to distribute the amount recovered "according to the laws of descent". ⁵ The executor or administrator was deemed to act as a trustee for the benefit of the persons described in the statute. Pittock, 530 S.W.2d at 220-1; Demattei 139 S.W.2d at 506; Troll, 169 S.W. at 339.

In 1979, the General Assembly substantially altered our wrongful death statute by expanding the range of recoverable damages. In addition to pecuniary losses suffered because of the death, beneficiaries may now recover funeral expenses and "the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support" of the deceased. They may also recover the damages incurred by the deceased between the time of injury and the time of death. § 537.090. These changes resulted in a combined "death and survival" statute. ⁶ Powell, 834 S.W.2d at 186; Stiffelman v. Abrams, 655 S.W.2d 522, 531 (Mo. banc 1983).

But nothing in the 1979 amendment extends the cause of action to the decedent's estate. The statute still directs that the residual beneficiaries be determined "according to the laws of descent," as it has since 1907. § 537.095.2. Recovery is still denied for certain significant types of damages caused by the death itself to the deceased, such as the loss of future earnings and deprivation of the pleasures of life. Powell, 834 S.W.2d at 186. In fact, the amendment severed the only potential link with the decedent's estate, by transferring the right to sue on behalf of the residual beneficiaries from the administrator or executor to the more generic plaintiff ad litem. § 537.080.1(3); Stiffelman, 655 S.W.2d at 532.

III.

Nonetheless, plaintiff urges that our statute is no longer to be considered as restricting the...