*1 Ewell NELSON Thelma
Nelson, Appellants, HALL, Respondent.
David Grant
No. WD 34469. of Appeals,
Missouri Court
Western District.
June 1984.
As Modified Oct. 1984. Rehearing Transfer to
Motion for and/or
Supreme Court Overruled and Denied
Dec.
Application to Denied Transfer 26, 1985.
Feb. Slone, M. Kan- Shirkey, James
Rоbert L. City, appellants. sas Hap- Herbers, Stanley, F. Paul James Y. Herbers, City, py, Cooling & respondent. *2 PRITCHARD, P.J., TURNAGE,
Before trial court sustained the motion and dis- C.J., SHANGLER, J. petition prejudice. missed the without appeal poses: The
SHANGLER, Judge.
action for
death accrues under
parents
The
wrong-
Nelson sued for the
the statute of the forum state to the exclu-
ful death in
daughter.
Colorado of a minor
sion of the state where the defendant acted
petition alleged
27, 1977,
May
that on
merely
to cause death
because the forum
the defendant
negligently
Hall so
operated
enjoys
significant
the more
relation-
his motor vehicle on U.S. Interstate 70 near
ships with the occurrence and the liti-
Colorado,
Burlington,
as to overtake and
gants.1
child,
run
occupied by
into the vehicle
The traditional doctrine that the lex loci
and caused her
petition alleged
death. The
applies
delicti
questions
determine
also that at the time of the tortious conduct
conflicts of
law tort cases was discarded
consequent
casualty, the decedent was
jurisprudence
from our
in Kennedy v. Dix
a resident of Missouri. The answer of the
on,
physical,
defendant admitted
but transito-
strict principle
ques
that all substantive
ry, presence in Missouri for five months of
by
tions were determinable
law the
1977, but without the intent to establish
state where the tort
supplant
occurred was
local residence or
domicile. The
by
pliant
ed
the more
and fair
signifi
most
alleged that Missouri
sovereignty
was the
promulgated
cant contacts standard as
by
with the most
relationships with
of Conflict of Laws
actors,
the occurrence and
and on that ra-
§
(1971).
gives
That standard
effect to
tionale, asserted recovery under the Mis-
general principle
of choice of law that
Wrongful
souri
537.080,
Death Act
et
[§
[§ 145]:
seq., RSMo 1978].
(1)
rights
par-
and liabilities of the
pleaded
The defendant Hall
the effect of
respect
ties with
to an
issue
tort are
the Colorado statute of limitations in
bar
by
determined
the local
law the state
the action and the contributory negligence
which,
respect
mth
to that
has the
and assumption of
by
the risk
the decedent
significant relationship
to the occur-
in defense to the action. The defendant
principles
rence and the
under the
Hall then moved to dismiss for want of
§in
stated
6.2
subject
jurisdiction
matter
by the court to
(2) Contacts to be taken into account in
adjudicate
petition:
ground
on the
§
applying
principles
6 to deter-
a cause of
action for
death was
applicable
mine the law
to an
in-
plaintiff
all,
enabled to the
parents,
if at
clude:
the statutes of the situs of the tortious
(a)
death—Colorado—and not
place
the statutes
where the
oc-
Missouri as the
curred,
asserted. The
plaintiffs unwittingly pose
question
for decision. That is because—as both our dis-
Brief,
enigma [Appellants’
pp.
an
Amended
cussion shows and as the
concede—
must, therefore,
emphasized
"It
6]:
pretends
the Missouri
death statute
appeal
the issue raised on this
is not one of
only by
extraterritorial effect. It is
some choice
law,
subject
jurisdic-
but one of
matter
plain-
of law rationale that the contention of the
tion of Missouri court over the cause of action
And,
fact,
enjoys any
tiffs
сolor.
it is that
petition.
as set forth in Plaintiffs’
In other
very
petition pleads
rationale the
to invoke the
words,
whether,
the issue is
under the facts of
537.080,
remedy
of Missouri §
case,
may
Plaintiffs’ cause of action
seq.
et
deemed to have accrued under the Missouri
wrongful death statute such that Plaintiffs could
2. The calculus of
6 delineates to
properly plead
brought
that the action was
un-
come to a choice of law
aon
issue does
537.080,
seq.,
der Section
et
RSMo. and the trial
decision,
bear on
and so
jurisdiction
subject
court could have
over the
rescript.
require
does not
poses
matter of the action on that basis.” That
dilemma,
antinomy
an
not a defined issue
(b)
place
parties.
conduct caus-
the state where the tort
occurred,
ing the injury
may
was committed
not be
domicil,
superior
an
(c)
residence,
interest in such
issue as the
nationality,
damages
incorporation
jury
amount of
return on
business
the cause of action [Restatement
*3
Laws,
(1971);
(d)
Conflict of
171
relationship,
Carver
if
)],
any,
parties
Schafer,
(Mo.App.1983
applied.”
[emphasis
discloses the
and
be-
Rule
Gaines,
that,
facts,
v.
litigants
among
Robinson
the
tween
other
(Mo.1960).
litigant may
A
also
(1)
time
and
655[2-4]
at the
of the occurrence
death:
judicial
foreign
the
of a
stat-
induce
notice
plaintiffs-survivors
the
were Missouri domi-
any
imparts
by
other
ute
means
ciliaries; (2)
a
the decedent was Missouri
adversary
the
reasonable notice of that
(3)
domiciliary;
the defendant Stock Yards
§ 490.110,
1978;
purpose.
Valleroy
RSMo
in
principal
had as its
of business
Railway
v.
Company,
Southern
Missouri; (4)
City,
the
Kansas
decedent
(Mo.1966). The
in
S.W.2d
rule
556[3]
employed
the
a
by
Stock Yards as
was
therefore,
Rosiztky,
reformulates
into:
(5)
foreman;
the
work—the
labor
by
a
action
cause of
exists
virtue
premises
Yards
the state
Stock
—straddled
foreign
wrongful death],
[as
line,
Missouri; (6)
Kansas and
the
between
existence of the statute
hence the
the
[and
reported
the
regularly
decedent
to work
on
justiciable
statement
claim]
premises;
(7)
the
Missouri side
pleading,
shown
the court
or
work of the decedent involved movement
litigant
other
notice that
the
reasonable
throughout
every day,
the Stock Yards
upon
relies
the law of that other state or
the
on the Kansas and on
Missouri
both
appertains to de-
necessarily
that such law
line. The
sides of
record
cide the cause of action.
proceedings
on pretrial
shows that
also
event,
Rositzky,
any
irrelevant to
was
conference,
litigants argued
for the
counsel
decision in
Yards.
City
Kansas
Stock
Kennedy
effect of the
to the court the
en
dealt not
The court
banc there
stipu-
on
choice of law
Dixon
statute,
foreign
under a
claim
facts, and after intensive discussion
lated
as a
adjudicated
but
analysis,
concurrence that
there was
accrued
the Missouri
signifi-
under the
v. Dixon most
The court con
wrongful death statute.
relationship
Mis-
precedent,
cant
the law of
litigants
curred with
State
controlled as to all issues—even as
souri
significant
rela
enjoyed
Missouri
the accrual of a cause of action.
tionship to
occurrence and death
all
The basis for
trial court decision—
the death
issues—the
whether
en
Supreme
that of
Court
banc—to
included—under
Restate
apply the
of Missouri rather than
adopted
rule
choice of law
ment
Kansas
determine
the occur-
Kennedy Dix
jurisprudence by
into our
constitutеd
rence
Kansas
on, supra.
law,
there-
death under Missouri
City
The decision
Kansas
Stock
fore,
was that
the contacts between
Yards, however,
compatible
altogether
is
Missouri were
parties and the forum state
Right
with the Restatement
supervene
as to
even
predominant
so
rationale, as well as
of Action for Death
of the state of occurrence
usual interest
in general
the rationale for tort actions
Re-
regulate conduct within its borders.
cases,
145],
exceptional
a law
[§
(1971) Right of
statement
of occurrence
than that of
other
Death,
as the
Action
as well
General
have the most
[or death]
§ 145,
(Tort)
possi-
Principle
foresees that
apply
so will
provision for such “rare
bility and makes
tor-
whether the conduct was
determine
Appendix note
It
exceptions.”
3].
[See
does
tious.
text
trial record
Kansas
from the
evident
the factual basis for
detail
employment ac-
Yards
Stock
to determine the
choice of law
any
at
tivity of the labor foreman
doubt,
Kansas —no
death event in
because
day
took him to Missouri
time of
analysis
intense
and discus-
after
location,
should
so
his
court,
among
was no
sion
counsel
befall,
entirely adventi-
would be
or death
The record of the trial
longer contested.
killed in Kan-
That
decedent was
tious.
proceedings
from
archives]
[retrieved
*9
Missouri, then,
in
en
activity
govern
rights
sas rather than
should
their
not
tirely
They give
could
no reason how
fortuitous.
liabilities.
disadvantages
They
not
regulate
claim
con
law
them.
do
con
no more interest to
damages
tend that
the Missouri law of
brought
duct which
on the death than could
than
favors
claimant more
does the Colo
exceptional
Missouri.
circumstance
so,
and,
rado
death statute
equipoise
two
interest between the
apply
that reason should
to advance the
states,
the basic
of liability—or
interest of the state of
of the
domicile
whether a cause of
all
action accrued at
compensa
decedent
the suitors to full
from
the conduct—is determined
Schafer,
tion
Carver v.
[as
law of the state with the most
(Mo.App.1983) or
];
that the Colorado
parties.
to the
Neumeier v.
immunity
law allows a defendant an
to
Kuehner,
31 N.Y.2d
335 N.Y.S.2d
policy
inimical to
basic
of the
70[6],
(1972).
l.c. v. Colorado 702; supra, l.c. 576. Schafer, Carver v. duct tortious—in the absence an was Thus, of contacts it not the number depends upon exceptional circumstance— but which determines the to meet whether the defendant failed those contacts are con which state —when imposed of care Colorado. standard in the perspective sidered Restatement 182; Dixon, supra, Griggs l.c. Kennedy v. § (Second) 6 choice of supra, 471[1]; l.c. Restatement Riley, v. [among them: the needs of interstаte § § d; Report- comment forum, policies of system, the relevant § 175, Note, d; Reporter’s er’s comment policies relevant of other interested plead, (1971).7 plaintiffs The neither Note those states and relative interest of assert, argue, nor nor nor even intimate particu in the of the states determination any govern- a which invokes circumstance significant rela lar the most issue]—has cogent as to mental interest of Missouri so tionship to the and and occurrence supervene law to that of Colora- entitle its is entitled to have its law determine so do determine whether a cause method an particular issue. This involves death occurred on account of in con accommodation of state interests highway conduct. flict, perfunctory to a an aсcession comparison of of contacts. The numbers however, allege petition, does a “precisely for choice of law from derives high by negligence the Colorado on mulating determining presented, the issue way, informs the law that and so that legitimate states interests have applies adjudication necessarily each of inter identifying those thus, express by the of the ests, deciding —and state’s interests are 55.21(b) judicial invokes of Rule direction dipositive applying the paramount, and petition, public notice of law. specific resolve the of that therefore, a of action for states Seidelson, The presented.” Wrongful statute, wrongful death under the Action, Colorado Duq.L.Rev. 526 10 Death (1972). dismissal erroneous. That See Restatement was also § Laws, aside, Develop Nature prejudice Conflict dismissal without is set Laws, comment d ment of Conflict of Un On re is ordered reinstated. (1971); rel. derlying Policies State ex mand, plead may amend the plaintiffs supra, 702[1]; l.c. Broglin Nangle, v. Car is ing any to assert Schafer, l.c. supra, v. ver 576[7]. damages, other—the state sue—such as significant con enjoys the most of Missouri the child was plead the occurrence tacts and negligent operation killed as result should deter- and therefore his motor vehicle by the defendant of decision, clearly establishes the of the record review case law one aberrant 7. The discloses recognition applicability under that— case uniform statute’s in this from otherwise except significant relationship [see circumstances in the most unusual test’ of ‘most Company Stock Yards State ex rel. Kansas S.W.2d 173 v. Clark, supra, Re § Maine (Second) of Conflicts of See of statement (1971)] of Conflict Laws (1971).’’ Laws not a determines whether or the law situs response question never was to a wrongful death accrues. cause of action for is, whether the Missouri asked—that Jackson, (Mo.App. S.W.2d 170 Malone invested cause of action—and death statute 1983) was claim for support has so was dictum. decision highways. Tennessee resident on the Missouri Dixon, supra, authority Kennedy v. either cited — was was The suit in Missouri These sources or in 145 of the Restatement. one-year of limi the Tennessee whether principles to preclude of law resort three-year stat tations or responded: Rather, a cause of action. create The court ute. care, and so in violation of due acted defendant gave “Respondents never that it have contended in favor a cause rise to of action proceed improper appellants to plaintiff law of situs. is determined Statute, Wrongful Death the Missouri *11 upon contacts and depends mine that issue. The rest parties. and the proof. the occurrence sufficient with respects in those pleading is sufficient petition judgment of dismissal of the determination, necessity and there is no aside, prejudice is set cause is without reason, For that con- for an I amendment. petition remanded with directions that the opinion of the modified cur the result reinstated. only. TURNAGE, C.J., concurs.
PRITCHARD, P.J., separate concurs in
concurring opinion filed.
PRITCHARD, Presiding Judge, concur-
ring in result. original opinion in this case affirmed appellants’ the dismissal for the Missouri, Respondent, STATE of year daugh- death of their 15 old alleged ter to have oсcurred as a respondent’s negligence result of run- LONG, Appellant. Earl ning into rear of the vehicle in which riding Burling- decedent was on 1-70 near No. 46536. ton, receipt Colorado. On the the mo- Appeals, Court of rehearing, opin- tion original as to the District, Eastern changed ion this his writer concurrence En Banc. dissent, opinion was thereafter present setting modified to its form 29, June 1984. judgment remanding of dismissal aside and Supreme Case Transferred to Court the case with directions that 11, Sept. 1984. reinstated. to Court Appeals Case Retransferred simple case application This is 1, Feb. 1985. pleading requirements the fact of Rule 55.- 21(b), does, adequately which the Original Opinion Reinstated permit appellants pursue and to their Feb. transitory tort action in this state under precepts choice of lаw v. Dix
on, 1969). It is
my appellants adequately view have
pleaded showing facts governs
law of this their cause. On
trial, may employ judicial court notice itself on the
to inform of Colorado statutes recovery the amount of
limitation 13-21-203,
(§ Colo.R.S.) comparison for the § 537.090, has no
with RSMo on the amount
limitation compare death. See and Carver (Mo.App. Shafer, agree suggestion do not I appellants modified
might
pleading
that as
amend
assert
damages,
any particular
issue—such as
enjoys
State of Missouri
other—the
comments
notes
§§
seq.].
145,
protection
156 et
146,
ment
and several
[§
impress
our
others—as
discussion
qualification
shows—
This
rule au-
usual
rule,
general
subject only to rare
ex
note—
gurs
numerous commentators
—as
local law the state where
ceptions, the
“in a
that under Restatement
apply to
injury occur will
de
conduct and
own
may apply
forum
its
proper case the
mini
the actor satisfied
termine “whether
statute,
that of
rather than
acceptable
conduct and
mum standards
wrong,
as the basis
affected
the actor’s
whether the interest
liability.” Kay,
on Reich
Comments
legal protection.”
conduct was entitled
(1968).
Purcell,
U.C.L.A.L.Rev.
§ 145. The Restatement
Comment d to
Smolack,
20 N.Y.2d
In Farber v.
exception
allow for
it
does
(1967)
New