In this rather unusual action Wallace Glick, a minor, sues for the death of his father, Marvin Glick, and Bessie McGinty, his mother, sues for the deaths of two other minor sons, Philip Glick and Robert Glick. We shall disregard entirely one unrelated claim against Allstate Insurance Company stated in Count II of the amended petition; that is not shown to have been disposed of, but the judgment was rendered without a jury and it was expressly made a final judgment for the purpose of appeal. See Rule 82.06, V.A.M.R. In Count I the minor plaintiff and his mother seеk recovery, respectively, for the deaths *611 as at common law, the minor praying a recovery of $162,000 damages for his pecuniary loss, and his mother asking $100,-000 for the death of each of her two deceased minor sons. Bessie McGinty, as guardian and curator, was substituted in this count for the next friend who initially sued for Wallace Glick. In Count III Wallace Glick, adopting the facts stated in Count I (to be related), seeks recovery under § 537.080 of our death statute for the death of his father (the widow obviously not having sued within six months) but prays a recovery of $162,000 as compensatory damages and $100,000 as exemplary damages. In Count IV Bessie McGinty, likewise, seeks recovery under that statute for the deaths of each of her deceased minor sons, but prays a recovery of $100,000 plus $100,000 as “exemplary” damages for the death of each son. In each of the last two counts it is alleged that the negligence of the defendants was of an “aggravated nature amounting to wanton disregard for life or limb.”
The appеal has been dismissed by stipulation as to two of the original defendants, Joseph Jones and Miller Chevrolet Company. The claims of Bessie McGinty for the death of her sons, common law and statutory, include Ballentine Produce Incorporated, as a defendant; those of Wallace Glick do not All such claims, however, include defendants Charles James Harris, C. J. Harris, and Alice J. Reed as Admin-istratrix of the estate of William Claire Reed.
The facts alleged in the petition are, as briefly as they may bе recited: that Marvin Glick and his three sons were driving south on U. S. 71 By-Pass on October 14, 1962, at a point about 1.3 miles south pf the Clay-Jackson County line; that their car was struck by a truck of Ballentine Produce Incorporated, driven by one William Riley Mason, and that sundry specified negligence of that driver (primary and humanitarian) “contributed” to the cause of the collision; that as a direct result of this collision the father and two of the sons (now deceased) were thrown to the pavement of the highway being “mortаlly wounded by impact to each and every tissue and cell of their bodies”; that “following in time by a few minutes” the defendant Charles James Harris (as agent for C. J. Harris), defendant Tom Joseph Jones (as agent of Miller Chevrolet Company), and (original) defendant William Claire Reed, all traveling north, collided with the persons of the three Glicks “as they lay on the roadway,” and that the negligence of each such driver, primary and humanitarian, stated in sundry specified particulars, “contributed to the cause of said collisions” and that as a direct result of the collisions by such subsequent (following) drivers with the three persons “each and every tissue and cell of the bodies of said persons sustained injury which contributed to their respective deaths * * *.” It was also alleged that defendant Reed was a resident of Clay County; he subsequently died and his Administratrix was substituted. Ballentine is an Arkansas corporation; the Harrises were residents of Kansas. Reed was served personally, Ballentine and the Harrises under the “Long-Arm” statutes (§§ 506.200-506.320, RSMo 1959, V.A.M.S. 1 ).
All defendants attacked the petition by motions: Ballentine by motions to dismiss for lack of jurisdiction and improper venue, and because the amended petition failed to state a claim on which relief could be granted to either plaintiff with respect to any of the claims; the Harrises by motions to quash and to dismiss because of lack of jurisdiction and improper venue; defendant Reed, Administratrix, by motion to dismiss for failure to state a claim against her in any count upon which relief could be grаnted. Jones and Miller Chevrolet also filed motions which need not be specifically described. The grounds of the motions attacking jurisdiction and venue were that no valid, joint cause of action was stated *612 against Reed, the only resident defendant, that the claim against him (and his Admin-istratrix) was colorable, and that he was fraudulently joined for the purpose of establishing jurisdiction and venue under § 508.010(3). On October 12, 1964, the court sustained the motions to dismiss of all such defendants and entered an order dismissing the first amended рetition as to each such defendant; it was also provided in the order that it should be deemed a final judgment as to such parties for the purpose of appeal. The order did not state the ground or grounds upon which the motions were sustained, — i. e., whether on the merits for failure to state a cause of action against each defendant, or for lack of jurisdiction and improper venue. Normally, we would thus assume that the order was on the merits, but since the Harrises only raised the questiоns of jurisdiction and venue the contrary seems to be indicated here.
We first inquire therefore whether, on this record, the court had jurisdiction of the persons of the defendants and if the venue was proper under § 508.010(3). In order to establish the venue the plaintiff must, of course, state a cause of action against the resident defendant, but nevertheless if it appears to be clear from the records, pleadings, and facts adduced that the resident defendant cannot be held liable on any reasonable ground or theory, and that plaintiff must be presumed to have known this, the joinder cannot be justified and the cause should be dismissed. Diehr v. Carey,
The real gist of the contention concerning jurisdiction and venue boils dоwn to the effect of the allegation of the amended petition, stated or adopted in all three counts, that after the first collision with Ballentine the father and the two sons, thrown to the pavement by that impact, were “mortally wounded.” This, defendants argue, means that they were
dead
and that Reed, the resident defendant (and presumably the others), could not have been liable even for contributing to cause any of the deaths; also that plaintiffs are bound by the allegations of their petitiоn. Baysinger v. Hanser,
Thus, the amended petition on its face does nоt fail to state a joint cause of action against Reed’s Administratrix. So far as the facts are concerned, counsel for Jones &nd Miller Chevrolet attached to their motions his affidavit verifying all the allegations upon information and belief. In so far as these related to our present inquiry, they were (ignoring obvious conclusions) that plaintiffs had no “proof, witnesses or evidence proving or tending to prove” that the acts of Reed caused or contributed to cause any of the deaths. Plaintiffs’ counsel subsequently filed his affidavit, stating that he had personally undertaken the investigation and that in his opinion there was admissible evidence tending to prove that the negligence of Reed and of Jones and Miller Chevrolet contributed to the deaths; also, that plaintiffs had a photograph, taken by the first law enforcement officer at the fatal scene, “showing the bloody Reed car very.*, shortly after it had been lifted by wrecker from the body of one of the decedents.” These аffidavits are somewhat sketchy and conclusionary; however, on the present record we hold that defendants have not shown that the joinder was pretensive or fraudulent and that plaintiffs did not in good faith join Reed. On this record the jurisdictional motions should have been overruled.
Since the case is thus to be remanded, we proceed to the other points. Plaintiffs have attempted to allege common law actions for the deaths in Count I of the amended petition. The defendants, nаturally, assert that there is no such existing right and we agree. Plaintiffs’ counsel attacks vigorously the validity of the English nisi prius decision in Baker v. Bolton (1808), 1 Camp. 493, 170 English Reports 1033. In that case the court said in part (the action
*614
. being one for the death of plaintiff’s wife) : “ * * * the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife’s society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.” Counsel now insists that this was dicta; however, the courts of England admittedly followed the decision, and Lord Campbell’s Act was enacted in 1846, with a preamble which recited that there was then no cause of action at law for death by wrongful act. That act has generally been accepted as a parliamentary recognition of the prе-existing rule, and it has also served as the model for all subsequent statutory rights of recovery for death by wrongful act. We do not intend to be led into the fruitless task of attempting to upset all the law on this subject, English and American, since 1808. Counsel cite textwriters, Bar Journal articles and even a speech by a judge to the general effect that the rule of Baker v. Bolton was “barbarous,” that no satisfactory reasons were given or authority cited, and that the whole rule is simply wrong. Origin of Rule in Baker v. Bolton, 32 L.Q.Rev. 431, by W. S. Hоldsworth; 48 ABA Journal 877, Arthur John Keeffe; Tiffany, Death by Wrongful Act, 2nd Ed., Ch. 1; Burdick, Law of Torts, 4th Ed., 290 et seq., speech of Judge Frantz of Colorado on May 8, 1963. The only Missouri case cited, James v. Christy (1853),
To the effect that there is no common law right of action in Missouri for wrongful death see the following: Barker v. Hannibal & St. Joseph R. Co.,
The next point is whether Counts III and IV stated causes of action under the death statute. The position of plaintiff’s counsel here brings to mind the statement of the court in the companion case of Glick v. Ballentine Produce, CA 8,
Counsel deals in the utmost generality with this point, relying on the principle of the right to a remedy for every injury (Art. I, § 14, Mo.Const.), due process (§ 10) and the equality of rights under the law (§ 2). We find nothing in plaintiffs’ citations or arguments which indicate any constitutional infirmity in a limitation on the amount of recovery in a death action. The legislature
created
the right of action where none existed before, and it may condition the right as it sees fit. It is worthy of note that we have not been сited to a single case, nor have we found any, where this limitation on the recovery has ever been questioned in Missouri as unconstitutional. We note that § 537.070, sometimes called the “penalty” section, also carries its own limitation. The amounts so provided in the two sections have been increased from time to time since our first enactment in 1855 (R.S.Mo.1855, Vol. 1, pp. 647-649). The legislature has thus indicated a specific intent that the pecuniary limitations included should be an integral part of the act, and it has never evidenced any intent that such limitations were separable and could be held invalid without destroying the entire act. Our Workmen’s Compensation Act has been held constitutional against sundry attacks; it has been held not to constitute a special law or an arbitrary classification, not a denial of equal protection, and not violative of due process. Waterman v. Chicago Bridge & Iron Works,
Finding thus that the pecuniary limitations are constitutional, we must still determine whether plaintiffs have stated causes of action in Counts III and IV. The defendants insist that by refusing to abide by the damage limitations of the act and by claiming exemplary damages as separate items, they have failed to bring themselves within the act and do not state a cause of action in either count. Various Missouri authorities hold that in order to recover under the act one must bring himself strictly within its provisions. Nelms v. Bright, Mo.,
There is no recovery in a death case for punitive damages, as such. Such a petition may plead, and appropriate instructions may submit, the question of “mitigating or aggravating circumstances,” if the evidence justifies it. Williams v. Excavating & Foundation Co.,
The judgment of dismissal as to defendants Ballentine Produce Incorporated, Charles James Harris, C. J. Harris, and Alice J. Reed, Administratrix of the Estate of William C. Reed, deceased, is reversed. That judgment had no reference to Count II against Allstate Insurance Company, and the present appeal was dismissed as to defendants Jones and Miller Chevrolet Company. The reversal of the judgment leavеs pending the motions of defendants Ballentine, Harris and Reed. On the record as it now stands those motions should all be overruled as to Counts III and IV, and the trial court is directed to so order, unless in its discretion it determines to hold a factual hearing before or at trial on the questions raised concerning the alleged fraudulent joinder of the defendant Reed; in that event, an appropriate order may follow the hearing. We have discussed that question sufficiently to state our views rather clearly. Assuming a determination of the foregoing questions, and if the court retains jurisdiction, all motions to dismiss should be sustained as to Count I which properly raise the point that such count does not state a claim on which relief can be granted. If proper application is made for leave to amend Counts III and IV, as it is indicated herein that they should be, such leave should be granted, within reasonable limits.
The judgment is reversed and the cause remanded for further action in accordance with this opinion.
Notes
. All statutory references will be to that revision, unless otherwise stated.