Tice v. Milner

• Citation: 308 S.W.2d 697
• Decision Date: 09 December 1957
• Docket Number: No. 45861,No. 2,45861,2
• Parties: Carolyn TICE and Larry Tice, Minors, by Jack Kelly, Their Guardian and Curator, and Margo Tice and Deborah Kay Tice, Minors, by Henry Tice, Their Guardian and Curator, and James R. Tice, a Minor, by Nadene Kackley, His Next Friend, Appellants, v. Vernon J. MILNER, Respondent
• Court: United States State Supreme Court of Missouri

Page 697

308 S.W.2d 697

Carolyn TICE and Larry Tice, Minors, by Jack Kelly, Their Guardian and Curator, and Margo Tice and Deborah Kay Tice Minors, by Henry Tice, Their Guardian and Curator, and James R. Tice, a Minor, by Nadene Kackley, His Next Friend, Appellants, v. Vernon J. MILNER, Respondent.

No. 45861.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1957.

Motion for Rehearing or for Transfer to Court en Banc Denied

Jan. 13, 1958.

John D. Hasler, St. Louis, Robert W. Hawkins, Caruthersville, McHaney & McHaney, Jones & Jones, Kennett, for appellants.

Blanton & Blanton, Harry C. Blanton, Sikeston, Evans & Dixon, William W. Evans, St. Louis, for respondent.

BARRETT, Commissioner.

On April 2, 1953, James E. Tice and his wife, Maxine, were killed when Mr. Tice's 1940 Ford automobile was involved in a collision with a 1952 Oldsmobile automobile on Highway 84 in Dunklin County. According to the allegations of the petition, the Oldsmobile was being driven by Montrose T. Morrell, who also died as the result of injuries received in the collision, but under the direction and control of its owner, Vernon J. Milner, or, it was charged, was being operated in the pursuit of a 'joint enterprise' upon which Morrell and Milner had embarked. James and Maxine were survived by four minor children, Carolyn, Larry, Margo and Deborah Kay, and upon the deaths of their father and mother Jack Kelly became the duly appointed guardian and curator of Carolyn and Larry and Henry Tice became the guardian and curator of Margo and Deborah Kay. The deceased Morrell was a resident of Tennessee and the guardians, seeking to take advantage of V.A.M.S. Sec. 537.020 (as it was then written and enacted), caused the Probate Court of Dunklin County to appoint W. G. Wicker as Morrell's 'personal representative.' On March 30, 1954, the two guardians, on behalf of their minor wards, instituted an action in the Circuit Court of Dunklin County, in two counts, against Morrell's 'representative' and Milner to recover damages for the negligent, wrongful death of their father and mother. Wicker, Morrell's personal representative, was served with process in Dunklin County and Milner was served with process at the place of his residence, in the City of St. Louis. Morrell's representative and Milner filed separate motions to quash the service of summonses and to dismiss the petition, Morrell's representative alleging that Morrell was a resident of Tennessee at the time of the fatal collision and that service of process upon his alleged representative under V.A.M.S. Sec. 537.020 was unconstitutional. Milner alleged and relied upon Morrell's non-residence and the unconstitutionality of the statute under which he was served and the fact that he (Milner) was a resident of the City of St. Louis, had not been served with process in Dunklin County, and that personal service upon him in St. Louis was unauthorized and invalid. Morrell's representative then took a change of venue from the regular judge of the circuit court and upon the transfer and designation of another judge, the plaintiffs dismissed their action in Dunklin County and accordingly an order of dismissal 'without prejudice' was entered.

Thereafter, on January 30, 1956, the guardians, having instituted the first suit in Dunklin County within one year of the death of James and Maxine and relying upon the suspension or savings clause in the statute limiting the action to one year, 'that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit * * * such plaintiff may commence a new action from time to time within one year after such nonsuit suffered' (V.A.M.S. Sec. 537.100), instituted this second action in the Circuit Court of the City of St. Louis against Vernon J. Milner alone. Morrell's representative was not made a party defendant and there was, of course, no effort to join or serve Morrell's administrator, or anyone else as his representative, with process. Milner was personally served with process in the City of St. Louis, the place of his residence. In addition to the four minors represented by their guardians, James Tice was survived by another son, eleven years of age, by a previous marriage and, being unable initially to secure his mother's consent to join him as a plaintiff, the guardians made him a party defendant as to count one of this suit. Subsequently his natural mother petitioned for leave to join as a plaintiff and prosecute the action on his behalf; accordingly the action was dismissed as to him and an amended petition was filed in which his mother as next friend joined with the guardians of the four other children as to count one for their father's wrongful death.

In his answer and motion to dismiss the action in St. Louis Milner set forth or admitted the facts of the Dunklin County action but charged that the action was of no legal effect as far as he was concerned and specifically charged that it was wholly insufficient to suspend the running of the statute of limitations. He charged that the service of process upon him in that suit was unauthorized and invalid and that the Circuit Court of Dunklin County did not acquire jurisdiction of his person. He set forth the facts concerning the appointment and service of process upon Morrell's representative and alleged that the statute under which the appointment was made and process served was unconstitutional and that, therefore, there was no venue and no jurisdiction over the persons of either of the defendants in Dunklin County. For these reasons he asserted that the action in Dunklin County was 'void, illegal, invalid, and of no effect,' the consequence being that the action in St. Louis was barred by the one-year statute of limitations. In addition, Milner charged that the plaintiffs knew and were informed as to the fact of his St. Louis residence and for that reason the plaintiffs were guilty of the grossest kind of negligence in filing their original action in Dunklin County and for that reason the statute of limitations was not suspended so as to authorize the filing of the second suit in St. Louis. In his motion to dismiss the plaintiffs' petition he set forth the fact that James R. Tice was not a party to the first suit and, therefore, claimed that all the parties were barred by limitation as to the first count for their father's wrongful death. The trial court sustained the defendant Milner's motion for the reason that 'the claims are barred by limitations,' and the plaintiffs have appealed from the ensuing order and judgment.

The appellant plaintiffs contend, since the original action was instituted within the required year of its accrual and a voluntary nonsuit taken, that they were within the savings clause of the statute and entitled to 'commence a new action * * * within one year after such nonsuit suffered' (V.A.M.S. Sec. 537.100), and that the first count of their petition was not barred by their belatedly adding James R. Tice as a party. In his brief here the respondent Milner again asserts that the Circuit Court of Dunklin County did not acquire jurisdiction of his person by service of process upon him in St. Louis, and hence, it is said, 'never acquired venue.' It is again urged that the statute under which Morrell's representative was appointed and served was unconstitutional and did not permit the Circuit Court of Dunklin County to 'acquire venue or jurisdiction' over his person. It is argued, in all the circumstances, that as to him the Dunklin County action was negligently brought and, therefore, could not be relied upon as suspending the running of the statute of limitations. And, finally, it is contended that the adding of James R. Tice in the St. Louis suit was fatal to his rights and to that of his codefendant half sisters and half brother under count one.

As a preliminary matter certain distinctions must be carefully noted and kept in mind. Neither the plaintiffs nor the trial court insisted upon the Circuit Court of Dunklin County's retaining jurisdiction of the cause. The question here is not whether prohibition should issue to confine a court to a cause within its jurisdiction, or to a cause in which it had properly acquired jurisdiction of the persons of the parties; it is assumed that the action in Dunklin County was subject to being abated for lack of proper service of process and, therefore, for lack of proper venue. State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393; State ex rel. O'Keefe v. Brown, 361 Mo. 618, 235 S.W.2d 304; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404. On the other hand, this is a transitory tort action, the alleged negligent accident occurred in Dunklin County, and the Circuit Court of Dunklin County had jurisdiction of the subject matter of the action and if proper service of process could have been obtained would have had jurisdiction of the parties. Neither are we concerned here with whether the action for wrongful death survived, either by reason of the wrong party's initiating it or for failure of the children to timely appropriate and file it; this action admittedly survived to the Tices' minor children and they, through their guardians and curators, were the proper parties to institute and prosecute it. Compare: Fair v. Agur, 345 Mo. 394, 133 S.W.2d 402; Johnson v. Frank, 354 Mo. 767, 191 S.W.2d 618. If the suit in Dunklin County was 'commenced within one year after the cause of action shall accrue' and thereafter there was a voluntary nonsuit, the fact of the first suit interrupted or suspended the statute of limitations and the plaintiffs could 'commence a new action * * * within one year' after the nonsuit. V.A.M.S. Sec. 537.100; 34 Am.Jur., Sec. 247, p. 202; Martinez v. Missouri Pac. R. Co., Mo., 296 S.W.2d 90. Nor here is there any question as to whether the disposition of the Dunklin...