Blanche Mae CLARKE, Guardian of the Estate of Larry Ray Coulter, Janis Kay Coulter and Susan Mae Coulter, Minors, Appellant, v. Hazel Delores ORGAN, Administratrix of the Estate of William Dee Organ, Deceased, Respondent.
No. 46731.
Supreme Court of Missouri, En Banc.
Nov. 9, 1959.
Motion for Rehearing Stricken Dec. 14, 1959.
329 S.W.2d 670
The trial court approved the amount of the verdict on each count, and defendant‘s presentation does not disclose error.
The judgment is affirmed.
BARRETT and STOCKARD, CC., concur.
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.
Robert G. Oberlander, Kuraner, Freeman, Kuraner & Oberlander, and Walter A. Raymond, Kansas City, for appellant.
James W. Benjamin, Rogers, Field, Gentry & Jackson, Kansas City, amici curiae.
Harry P. Thomson, Jr., and John R. Caslavka, Kansas City, amici curiae, Shughart & Thomson, Kansas City, of counsel.
EAGER, Judge.
This is a suit for the wrongful deaths of both parents of the plaintiff‘s minor wards; those deaths occurred as the result of the collision of the parents’ motorcycle with a car driven by William Dee Organ, whose administratrix is the defendant here. All three persons died on Sept. 1, 1956, thе date of the collision. Plaintiff is the guardian of the three minor children. Defendant was appointed administratrix of Organ‘s estate on Oct. 8, 1956, and the first publication of the Notice of Letters was made on Oct. 11, 1956. This suit was instituted on Nov. 10, 1956, seeking damages of $50,000 for the death of both parents, and asserting that the deaths were caused by the negligence of decedent Organ. Service of process was had on the defendant on Nov. 23, 1956. On Jan. 5, 1957, defendant filed answer, admitting the appoint-
The only question involved is the correctness of the dismissal, which was based upon the failure to file notice of the institution of the suit (
“2. Except where notice of revival of an action or of institution of an action is filed as required by section
It should first be noted that these statutes are considerably more far reaching than the previous non-claim statutes, sections
The various theories briefed by the appellant may fairly be stated as follows: that the assets of this estate are insignificant, the estate is insolvent, and that the non-claim statutes should be broadly construed as applicable only to suits in which a judgment would be satisfied out of the assets of the estate, as it could not be here; that the liability insurance constitutes a “special trust fund” for the payment of plaintiff‘s damages, that no assets will be impaired, and that the administratrix is a mere formal party, necessary, however, for the institution and maintenance of the suit and “to enforce payment” from the insurer; also, that the administratrix has waived “notice of suit.” The evidence elicited here concerning insurance was most incomplete; at best, it merely indicated that a named insurer was “interested” and that defense counsel represented it, “together with the defendant * * *.” We note here our statutes, sections
Until 1947 a сause of action for wrongful death abated upon the death of the tort-feasor unless action had previously been filed. Haines v. Harrison, supra, where the cause was held to have abated both as to the tort-feasor and his insurer; and see Heil v. Rule, 327 Mo. 84, 34 S.W. 2d 90. See, also, 2 Laws 1947, p. 225, and as since amended in 1949 and 1955 to the present form of
Some analogy may be found in those cases where it has been claimed that the coverage of the defendant by liability insurance should permit a recovery where the defendant would otherwise be immune. Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29 (suit by infant against her father); Dille v. St. Luke‘s Hospital, 355 Mo. 436, 196 S.W.2d 615 (suit against a charitable hospital). Our courts have consistently denied recoveries sought upon that ground. In Stedem v. Jewish Memorial Hospital Association, 239 Mo. App. 38, 187 S.W.2d 469, the court had before it the predecessor sections of our sections
Appellant urges upon us various rules of construction of statutes. The purport of these and of the cited cases is, generally, that all provisions of a statute or of related statutes should be harmonized, that the meaning of words may be broadened or restricted if necessary, and that the ultimate
It may be pertinent here to note that non-claim statutes, even under our former act, were held to be mandatory and in effect jurisdictional. Harrison Machine Works v. Aufderheide, 222 Mo.App. 474, 280 S.W. 711; Montelius & Fuller v. Sarpy, 11 Mo. 237; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015; Beekman v. Richardson, 150 Mo. 430, 51 S.W. 689; Curtis v. LaForce, Mo.App., 29 S.W.2d 191; Helliker v. Bram, Mo., 277 S.W.2d 556, 561. Our courts have applied the non-claim bar, to the exclusion of the general statutes of limitation, to actions of substantially all types, except to those for the recovery of specific property never properly in an estate, or for the enforcement of specific liens or trusts. There has been much discussion in the briefs of the Helliker case, supra. The court there definitely held that tort actions against the estates of deceased tort-feasors were subject to the non-claim provisions of the old Probate Code, and that a suit filed more than one year after the issuance of letters was properly dismissed. Much is made of the parenthetical assertion there that the judgment would be “a debt payable out of the assets of the estate“; the opinion does not indicate whether insurance was or was not present in that case, but that point was not made an issue. We do not construe the statement just quoted as controlling in that decision. The ultimate holding was and is that a judgment against an executor or administrator in a tort action is “subject to the same limitations as any other form of demand allowable against the estate. Such a construction is permissible in view of the broad and all-inclusive language contained in Chapter 464, and is in accord with the public interest which is promoted by the prompt settlement of the estates of deceased persons.” We note also that although there may be liability insurance, an estate would always be subject to a contingent liability upon a tort judgment, which liability might arise upon the insolvency of the insurer or because of the unenforcibility of the policy for violation of its provisions, or otherwise. The mere existence of insurance is not always a complete exoneration of the estate and its assets and heirs. If the courts should presume to say, as we are asked to do here, that the assets of an estate valued at $125 should be disregarded and a recovery permitted directly against the insurance, then what,—may we ask—should we rule on an estate valued at $500, $1,000, $2,500 or $5,000, under otherwise similar circumstances? Where could one possibly draw the line, looking merely at the practical side of the question? The rulings sought here might well introduce a measure of chaos into the administration of estates (and the decisions of the courts), dependent to an extent upon the existence of liability insurance and the running of the five-year tort statute of limitations or the one-year death limitation, with all the contingencies engendered by these factors. We can-
Somewhat out of context we note here the contention that
More than a century ago our court ruled in Montelius & Fuller v. Sarpy, 11 Mo. 237, 238, thаt where one had admittedly lost his right to a judgment in assumpsit against the estate of a decedent by reason of the three-year non-claim statute, he would not be allowed to proceed to a judgment as “the foundation of a collateral proceeding against persons who have become Chouteau‘s voluntary or fraudulent alienees in his life-time.” The court also said there, loc. cit. 241-242: “* * * If a party, by his laches, loses his right to a judgment, he necessarily loses all contingent or collateral benefits which he might have derived from such judgment. And the question at last returns, is the statute a bar to the action? The object which the plaintiff may have in view when he institutes a suit, is of no consequence. If a bar to his recovery is presented, he cannot remove it by disclaiming any wish to use the desired judgment against the defendant. The construction of the statute of limitations must be uniform; the statute cannot be enforced or waived, according to the purposes of the suitor.” Under a statute similar to ours, the Arkansas Supreme Court strictly enforced a requirement of the filing of notice of a circuit court tort suit. Turner v. Meek, 225 Ark. 744, 284 S.W.2d 848.
It is also insisted that the administratrix has waived the requirement of filing notice, especially since
We have decided to refer to one point not briefed, but directly involved, because of its importance to the Bar generally, having in mind also the possibility of remedial legislation, if such should be deemed advisable. We have ruled that ordinary tort actions are barred by a failure to comply with the non-claim statutes. The remaining question is: does the fact that this is a wrongful death action, generally governed by its own period of limitations (
Under our former Probate Code (sections
We have previously noted that a cause of action for death did not survive the death of the tort-feasor until 1947 (Laws 1947, Vol. 2, p. 225) unless suit had been filed. See Mennemeyer v. Hart, 359 Mo. 423, 221 S.W.2d 960. The 1947 Act, amended in 1949 and again in 1955, is now part of
In considering the legislative intent, we note that at the 1957 session
There is no doubt of the legislative power to shorten the time for filing death actions as well as any and all other actions; it granted that right initially, provided later for its survival against a deceased tort-feasor‘s estate, and it may condition or limit the right as it sees fit. We find no intent to exclude death actions from the operation of the non-claim statutes. If the legislative intent is otherwise the statutes may be amended to express it. Incongruities may result, such as the division of the period of nine months between a widow and the surviving minor children, but wе may not legislate here, and that question is not immediately involved. There have always been potential inconsistencies, as noted above. If the limitation of the death act and the non-claim statutes are regarded as conflicting special statutes of limitation dealing with the same subject matter, the non-claim statutes, being the last enacted, would control. State ex rel. Armontrout v. Smith, en Banc, 353 Mo. 486, 182 S.W.2d 571, 574; Collins v. Twellman, 344 Mo. 330, 126 S.W. 2d 231, 233. In any event, we regard them as controlling here.
The judgment of dismissal will be affirmed. It is so ordered.
All concur, except STORCKMAN, J., who dissents in opinion filed.
STORCKMAN, Judge (dissenting).
In North v. Hawkinson, Mo., 324 S.W.2d 733, 743, the question presented was whether the nonclaim provisions of the new probate code “were intended to apply to an action in equity filed in the circuit court against the executor of a probate estate more than nine months after the first publication of letters testamentary.” We held that the action filed out of time was barred
William Dee Organ, the defendant‘s intestate, and John Calvert Coulter and Esther Coulter, parents of the plaintiff‘s wards, died on September 1, 1956, as a result of a collision of motor vehicles. The defendant-administratrix was appointed on October 8, 1956, and the first publication of notice of letters was on October 11, 1956. Thirty days thereafter this wrongful death action was instituted in the circuit court and the defendant was served with summons on November 23, 1956, all well within the nine-month period after the first publication of notice of letters. In her answer filed on January 5, 1957, the defendant admitted certain averments of plaintiff‘s petition and denied others; she pleaded affirmatively contributory negligence but said nothing about notice of suit not having been filed in the probate court. The cause remained in this condition until October 16, 1957, more than a year after the first publication of letters, when the defendant filed her motion to dismiss. This was done, so far as it appears from the record, without obtaining leave and without withdrawing the answer on file.
The motion to dismiss alleged that the wrongful death action was barred under the provisions of sections
It appears that the application of the nonclaim provisions to the wrongful death act, which itself contains a special statute of limitations, presents insurmountable difficulties. Assuming, however, the applicability of the nonclaim statutes, I believe that principles of waiver and estoppel prevent the defendant from relying upon the nonclaim provisions in the circumstances of this case. Since this is a dissenting opinion, we will discuss all three of these questions, first the related questions of waiver and estoppel.
The pertinent provisions of the statutes relied on by the defendant need to be carefully noted.
If we assume that the notice consists of “a copy of the process and return of service thereof“, necessary prerequisites are (1) the institution of an action and (2) service of process upon the executor or administrator. These two preliminary elements, as well as the notice, were missing in the North case. The narrower question presently before us is whether this notice can be waived and the defendant be estopped from relying upon the failure to file it.
If the failure to file the notice in probate court had the effect as defendant claims of ripening into a bar under the statute of nonclaim at the end of nine months from the first publication of notice of letters, then its omission must have had some legal effect which the defendant could have taken advantage of during the pendency of the action prior to the expiration of the nine-month period. Otherwise, if the аction had been brought in a jurisdiction where it could have been tried and disposed of within the nine-month period, the defendant would have been unable to use that fact as a defense to the maintenance of the action. We do not think that the defendant was in this situation.
Joyce v. Sauk County, 206 Wis. 202, 239 N.W. 439, involved a statute providing that no action should be brought or maintained against a county unless the claim had first been presented to the county board. It was held that the failure to file a claim in such a situation was a matter that might be taken advantage of by a plea in abatement. 239 N.W. 441–442 [4]. Our inquiry then is whether the failure to file notice in probate court was a matter which the defendant should have pleaded and was waived by her failure to do so.
Since this action was instituted in the circuit court, the pleadings must be in accordance with the Civil Code which requires a party pleading to a preceding pleading to set forth affirmatively, inter alia, the statute of limitations “and any other matter constituting an avoidance or affirmative defense.” Laws 1943, p. 353, §§ 2 and 40; sections
During the nine-month period, the failure to file the notice, considered as a defense to the maintenance of the suit, is similar in principle to lack of jurisdiction over the person or improper venue mentioned in
I would hold that where an action is instituted against an estate in the circuit court and service of process is obtained within nine months after the first publication of notice of letters, but notice thereof is not promptly or timely filed in the probate court, such omission or failure is a matter which the defendant-administrator must raise by motion or plead in his answer and, if he fails to take advantage of his right and duty to plead the matter at the proper time, he will be deemed to have waived it as a ground of defense or objection. Sections
If the right to plead the lack of notice as a defense to the maintenance of the action during the nine-month period was also a duty under our pleading statutes and was waived by defendant‘s failure to raise it at the proper time, then it would appear most unfair and inequitable to permit the defendant to revive the mаtter and use it as a predicate for a plea in bar after the expiration of the nine-month period. This premise leads us into the consideration of estoppel. See 53 C.J.S. Limitations of Actions § 25, p. 962, and 31 C.J.S. Estoppel § 61 b, p. 245.
Many of the elements noted in the discussion of waiver enter into the consideration of estoppel and will not be repeated. However, there are additional facts, developed at the hearing on the motion to dismiss, which should be noted in connection
In Sugent v. Arnold‘s Estate, 340 Mo. 603, 101 S.W.2d 715, the contention was made that the respondent was estopped from invoking the statute of limitations and this court stated at loc. cit. 718 [10]: “The rule of law by which this contention should be determined is well stated in 9 Ann.Cas. 755, as follows: ‘It is a well settled rule that a defendant who has not expressly waived the defense of the Statute of Limitations may be estopped by his conduct from setting up the statute where, his conduct, though not fraudulent, has nevertheless induced the plaintiff to delay bringing suit until after the expiration of the statutory period.‘” The doctrine of estoppel, in avoidance of a statute of limitations, is generally recognized although it is applied with caution. 53 C.J.S. Limitations of Actions § 25, p. 962.
The Supreme Court of the United States had occasion to consider this subject matter recently in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 762, 3 L.Ed.2d 770. This was an action under the Federal Employers’ Liability Act to recover damages for an industrial disease. The act provided a period of limitation of three years from the day the cause of action accrued, but the plaintiff claimed that the defendant was estopped from raising this limitation because it had induced the delay by representing to the petitioner that he had seven years within which to sue. The court held that the question of estoppel was sufficiently pleaded and reversed the judgment dismissing the action. In the course of the opinion, it is stated: “To decide the case we need look no further than the maxim that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar inequitable reliance on statutes of limitations.” And then again: “We have been shown nothing in the language or history of the Federal Employers’ Liability Act to indicate that this principle of law, older than the country itself, was not to apply in suits arising under that statute. * * *” Despite the delay in filing his suit petitioner is entitled to have his cause tried on the merits if he can prove that respondent‘s responsible agents, agents with some authority in the particular matter, conducted themselves in such a way that petitioner was justifiably misled into a good-faith belief that he could begin his action at any time within seven years after it had accrued.”
Albert v. Patterson, 172 Mich. 635, 138 N.W. 220, 222, involved a petition for leave to issue an execution on a judgment about to be barred by a ten-year statute of limitation. The matter was argued and taken under advisement and the trial court would
The case of In re Fitzgerald‘s Estate, 252 Pa. 568, 97 A. 935, was one in which a judgment for personal injuries was rendered against a publishing company which had never completed its incorporation so that the publishing plant in fact belonged to the estate of a decedent. The true fact of the defendant‘s status, however, was unknown to the plaintiff until after the statute of limitations had run in favor of the estate. The court held the estate was estopped to take advantage of the bar of the statute stating, 97 A. at page 937: “In the present case the Fitzgerald Estate, the sole owner of the business of the Item Publishing Company, defended against appellants’ claim on its merits, sued the casualty company to recover the judgment obtained against it, transacted business at all times in the name of the Item Publishing Company, under which it was sued, and made no objection for want of proper party during the trial and until after the statute of limitations had run. Under the circumstances it would be gross injustice to permit such defense to be raised at this time in order to escape liability.”
I agree with the majority opinion that the fact there was insurance on the liability of William Dee Organ (or Warren Dee Organ as the name appears in most places in the probate court files) does not warrant our treating this case as one in legal effect against the insurance company and thereby disregarding the statutory requirements with respect to the institution and maintenance of an action against the estate of a decedent. However, we are not required to “stick in the bark” and ignore the underlying facts connected with the appointment of the administratrix and the handling of the affairs of the estate and the heirs and distributees if they have a bearing on the failure to plead the lack of notice and hence on the issue of estoppel. We believe some of these record facts do have an important bearing.
First the assets of the estate were worth at most $125. After payment of expenses of administration, especially if attorney fees were charged, there would be hardly anything left as an incentive for an heir or distributee to conduct the administration. On the alternative order appointing Helen Delores Organ as administratrix, which was signed by the probate judge, there was this handwritten notation: “No letters here, or like it, to issue unless $25.00 cost deposit paid.” Except for the wrongful death action in the offing, there was no occasion for a complete administration. The meager assets of the estate might have been more readily and economically applied to the expenses of Mr. Organ‘s death and burial under an order of refusal of letters,
Instead, the prior petition of the public administrator was sidetracked and letters were granted to Helen Delores Organ. On her original application for letters, the attorneys for the estate are shown as the same firm that are of record in this case and who represent the insurance interest. One of the members of the firm signed as surety on her bond of $100 as administratrix. As previously stated there are no creditors of the estate, other than this plaintiff, and the defendant is the sole heir and distributee by reason of the assignments executed by her brothers and sisters. The conclusion is in-
The justice of holding the defendant in this case to be estopped becomes more apparent when the nature of the act omitted is considered. The action had been instituted and the defendant served. The process and service upon the defendant were then public records. The defendant had no control over the institution of the action or directing service, but she did have access to the records of process and service. She had all the information that filing of the notice in probate court could have given her. If the notice required by sections
Actually there was no other person interested in the estate. There were no creditors and the heirs and distributees had all assigned their interests to the administratrix, the defendant herein. Fairness and justice demand that the doctrine of estoppel be applied in the circumstances of this case and I would so hold. A more fitting case for its application can hardly be imagined.
Going to the question of whether the limitation provisions of the wrongful death act,
Unlike the form of statute in some states, where the personal representative has the sole right to bring the action,
As we have previously noted,
Moore v. Stephens, 264 Ala. 86, 84 So.2d 752, held that the six months statute of nonclaim applied to a wrongful death action brought against the estate of a decedent. However, the only person authorized to sue under the Alabama Wrongful Death Act, § 123, Title 7, Code of Alabama 1940, is the personal representative. The Alabama Act has nothing similar to the provision of the Missouri Act authorizing the action for wrongful death to be brought within six months by the surviving sрouse and, if the action is not appropriated by the spouse during such time, then the minor children
It is true that we are not here faced with a case in the category mentioned since the parents of the plaintiff‘s wards were both killed at the same time. However, the statute of nonclaim should have a uniform application. I do not think that we can say that it applies to all plaintiffs in wrongful death actions against an estate except where there is a surviving spouse and minor children.
We are concerned with determining the legislative intent but this is obviously a situation in which the General Assembly has not spoken. I cannot believe that this court has the right to say that three months shall be pared from the six months allotted to the surviving spouse, or the six months allowed the minor children for bringing suit, or that a month and a half should be taken from each in order to make thе nine months nonclaim period applicable to the wrongful death act which carries its own special limitation of one year.
In State ex rel. Wright v. Carter, Mo., 319 S.W.2d 596, 599 [4], this court en banc stated: “We do not think it is a judicial function to read such an alteration or exception into a statute, especially one which is also ambiguous in other respects.” The courts are prohibited by the constitution from usurping the lawmakers’ function. Our construction of statutes should be reasonable and avoid unjust and absurd results. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832, 835 [3]. Macon County v. Farmers’ Trust Co., 325 Mo. 784, 29 S.W.2d 1096, involved the short statute of limitation for the institution of suits against the commissioner of finance on an unproved claim against a bank of which the commissioner had taken possession. This court held that the cases to which the shortened period of limitation applied will not be extended by construction, stating at loc. cit. 1098 [3] of 29 S.W.2d: “While the rule in this state is that statutes of limitation are looked upon with favor, unless clearly unreasonable (Faris v. Moore, 256 Mo. 123, loc. cit. 132, 165 S.W. 311), yet it is also a well-known rule that a statute of limitations should not be applied to cases not clearly within its provisions and its application should not be extended by construction.” In dealing with the limitation on а will contest, in the case of Gresham v. Talbott, 326 Mo. 517, 31 S.W.2d 766, 767 [1], this court stated: “The law favors the right of action rather than the right of limitation.”
In Turner v. Meek, 225 Ark. 744, 284 S.W.2d 848, the plaintiff sued an estate for wilful assault committed by the testator during his lifetime. The court held that the action was barred by the nonclaim statutes because a notice, similar to that required in Missouri, was not filed in probate court. However, the facts were not comparable to those in the present case and the Supreme Court of Arkansas did not consider the question of waiver or estoppel. It appears from the opinion, however, that the plaintiff suffered a nonsuit and was permitted to refile her complaint, a thing which apparently would not be permitted in this state if the nonclaim statute supersedes the special limitation provisions of the wrongful death act.
While I have serious doubts with respect to the application of the nonclaim statute of limitations to an action brought under the wrongful death act, I do not think this needs to be expressly decided in this case. To me this factual situation presents a strong and compelling case for equitable estoppel and I would put the decision on that ground buttressed by the elements of waiver discussed.