Wilkens v. Drummon, WD

Decision Date15 June 1982
Docket NumberNo. WD,WD
Citation637 S.W.2d 273
PartiesAnn B. WILKENS, Plaintiff-Appellant, v. Samuel H. DRUMMON, Defendant-Respondent. 32624.
CourtMissouri Court of Appeals

James H. Ensz, Kansas City, for plaintiff-appellant.

Gary M. Cupples, Kansas City, for defendant-respondent.

Before KENNEDY, P. J., and CLARK and MANFORD, JJ.

KENNEDY, Presiding Judge.

Plaintiff Ann Wilkens' petition for damages for the wrongful death of her daughter, Cara, was dismissed upon defendant's motion, because deemed by the trial court to be barred by the statute of limitations, § 537.100, RSMo 1978, which was in effect at the time plaintiff's cause of action accrued.

Cara's death occurred on October 31, 1978, as the result of a vehicular collision. At that time the wrongful death limitation period was two years, § 537.100, RSMo 1978 (since amended Cum.Supp.1981).

On September 28, 1979, the statute amendment became effective which made the limitations period three years. It is important to note that at the effective date of the new statute the previous statute of limitations had not run on plaintiff's claim.

Plaintiff's suit was filed November 3, 1980-after two years from the accrual of the cause of action, but within three years.

If the two-year statute of limitations applies, the statute in effect when the cause of action accrued, the claim was barred October 31, 1980, and the judgment of dismissal must be affirmed. If on the other hand the three-year limitations period applies, the judgment of dismissal must be reversed and the cause remanded to the trial court.

The case is ruled by State ex rel. Medical Research Center v. Peters, 631 S.W.2d 938 (Mo.App.1982), in which Judge Shangler taught us that where the plaintiff's cause of action for wrongful death was still viable when the three-year limitations period became effective, September 28, 1979, the extended limitation period applied. 1 That was the case here. On September 28, 1979, plaintiff's claim for her daughter's wrongful death had not been barred by the statute of limitations. In filing her lawsuit within the three-year period granted by the amended statute, the cause was not barred by the statute of limitations.

Defendant undertakes in oral argument to distinguish the facts of the present case from Research Center, on the ground that Research Center was dealing with a situation where the internal limitation period was the one which would have barred the plaintiff's claim (i.e., the one-year period...

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2 cases
  • Gaines v. Monsanto Co., 46216
    • United States
    • Missouri Court of Appeals
    • May 24, 1983
    ...barred on the effective date of the amendment, September 28, 1979, the three year statute of limitations applies. Wilkens v. Drummon, 637 S.W.2d 273, 274 (Mo.App.1982). Plaintiffs' cause of action is not barred and defendant's first ground In the second ground for dismissal, defendant conte......
  • Keller v. Crown Pest Control Supplies
    • United States
    • Missouri Court of Appeals
    • December 21, 1982
    ...of the lawsuit on February 13, 1981, was timely under the three year limitations period of the 1979 amendment. See also Wilkens v. Drummon, 637 S.W.2d 273 (Mo.App.1982). The trial court's decision is reversed as to the spouse's It is a different matter, though as to the adult children's cla......

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