Uber v. Missouri Pac. R. Co., 53956
| Decision Date | 09 June 1969 |
| Docket Number | No. 53956,No. 2,53956,2 |
| Citation | 441 S.W.2d 682 |
| Parties | Birdie UBER, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Respondent |
| Court | Missouri Supreme Court |
A. L. Shortridge, Joplin, Paul Armstrong, Columbus, Kan., for appellant.
Laurence H. Flanigan, George M. Flanigan, McReynolds, Flanigan & Flanigan, Carthage, for defendant-respondent.
Plaintiff widow appeals from a judgment of the trial court sustaining defendant's motion to dismiss petition as to her. We affirm.
This action was instituted on the 21st day of February, 1968, by the filing of original plaintiffs' petition in the Circuit Court of Jasper County, Missouri. Plaintiffs therein were Birdie Uber and Vernon Uber, widow and minor son of Dane Edward Uber. The petition alleged that on February 24, 1967, the defendant, through its employees, was operating a freight train in Jasper County, Missouri, when, as a direct result of the negligence of said employees and the defendant through them, the locomotive of defendant's freight train collided with and struck a pickup truck occupied by Dane Edward Uber, which 'mortally injured and wounded said decedent', causing him to die on February 24, 1967, as a direct result of said collision; that appellant was the widow of said Dane Edward Uber, deceased, having been lawfully married to him at the time of his death on February 24, 1967; that original co-plaintiff Vernon Uber was the only minor son of the decedent; and that said original plaintiffs, by reason of the death of the decedent, were deprived of his support and services to their damage in the sum of $50,000.
Because of the nature of the issues presented, it is unnecessary that we review the acts of negligence alleged or the circumstances attending decedent's death.
Among other motions filed on March 25, 1968, respondent filed a motion to strike from paragraph 6 of original plaintiffs' petition the figures '$50,000.00' for the reason that the limit of recovery in an action for wrongful death applicable in this case is $25,000 and a motion to dismiss the petition as to appellant for the reason that she was barred as a matter of law from maintaining the action for not having sued within six months after the death of said Dane Edward Uber.
On May 23, 1968, the trial court sustained the aforementioned motion to strike and sustained respondent's motion to dismiss the petition as to appellant.
On May 31, 1968, original co-plaintiff Vernon Uber voluntarily dismissed without prejudice the petition as to him only and judgment of dismissal was entered and the respondent discharged as to the petition of original co-plaintiff Vernon Uber only. Thereafter, this appeal by the widow followed.
The point whether $25,000 or $50,000 is the limit of recovery in this case was briefed both by the appellant and the respondent. However, because appellant appealed only from the judgment dismissing her petition and because at the outset of the argument before this court counsel for the appellant announced that by agreement this point was withdrawn, it will not be considered in this opinion.
As respondent contends, in an action under the wrongful death statutes, if it appears from the petition that the statutory period of limitation has expired, the objection may be properly raised by motion to dismiss as was done in this case. Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644.
Respondent also contends (A) that appellant's right to maintain an action for the wrongful death of her husband accrued on February 24, 1967, the date of his death, and must be predicated on the Wrongful Death Act in effect on that date, § 537.080 (); that said section created a single cause of action for the wrongful death of her husband; that it was not a joint right of action in appellant and her minor son, but vested consecutively in them; that appellant lost her right to maintain the action by not filing suit within the sixth-month period following the date of death; and (B) that the six-month limitation contained in said section is a matter of substantive right and not a technical limitation or bar to the remedy; that to permit appellant to prevail would give the 1967 Wrongful Death Act which became effective October 13, 1967, retrospective application as to matters of substantive right, so as to revive a cause of action which had been barred under the limitation as it previously existed.
Appellant contends (A) the 1967 amendment to the Wrongful Death Act was remedial and retrospective as to the period of limitation, there was one cause of action for the death of decedent, suit was brought timely by his only minor child and was not barred by the law in effect at the time the cause of action arose, and the 1967 amendment made appellant a necessary and proper party who could be joined as a plaintiff in the existing cause of action; and that (B) statutes of limitation apply to the remedy only and are retrospective, the cause of action for the wrongful death of decedent existed and no vested right was taken from defendant by enlarging the period of limitation; and that (C) the 1967 amendment providing that suit might be brought by the spouse or minor children and that distribution of the proceeds should be made in accordance with an order of the court is procedural and retrospective and accordingly appellant necessarily had an interest in the cause of action and her joinder in the original petition relates back to the original cause of action and is not barred by limitation.
We are concerned with the following sections of the Wrongful Death Act in effect at the time of decedent's death.
'Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered
(1) By the husband or wife of the deceased; or
(2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; * * *'
'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 twenty-five 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, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in shch death.'
'Every action instituted under section 537.080 shall be commenced within one year after the cause of action shall accrue; * * *'
We are also concerned with those enacted in lieu thereof contemporaneously with their repeal, Laws of 1967, page 663, effective October 13, 1967, as follows:
'Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered
(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; provided, that in any such action the petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under this subdivision; and provided, further, that only one action may be brought under this subdivision against any one defendant; or * * *.'
'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, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death.'
'1. In any action for damages under section 537.080, the trier of the facts shall state the total damages found or the total settlement approved. The court shall then enter a judgment as to such damages, apportioning them among those persons entitled thereto as determined by the court.
2. The court shall order the claimant:
(1) to collect and receipt for the payment of the judgment;
(2) to deduct and pay the attorney's fees as contracted and expenses of recovery and collection of the judgment;
(3) to acknowledge satisfaction in whole or in part for the judgment and costs;
(4) to distribute the net proceeds as ordered by the court; and
(5) to report and account therefore to the court. In its discretion the court may require the claimant to give bond for the collection and distribution.'
'Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; * * *.'
The latter are sometimes referred to as the 1967 amendments.
Appellant's cause of action accrued on February 24, 1967, the date of the death of her spouse. Cummins v. Kansas City Public Service Company, 334 Mo. 672, 66 S.W.2d 920; ...
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