State Ex Rel. Kansas City Stock Yards Co. of Maine v. Clark

ex rel. of Missouri KANSAS STATE COMPANY

CITY YARDS STOCK Petitioner, MAINE,

OF CLARK, Judge Donald B.

Honorable County,

the Circuit Court of Jackson

Missouri, Respondent.

No. 59217. Missouri,

Supreme Court of

En Banc.

April 1976.

Opinion Modified Court’s Own Motion.

Rehearing May Denied

See also 536 S.W.2d 157. Coleman, O’Neal,

Leonard A. Joe W. Kansas City, petitioner. Arnold,

Albert J. Yonke and Michael C. Kansas City, respondent.

HOLMAN, Judgе. original proceeding This is an in prohibi tion in prevent re relator seeks to spondent judge proceeding further Smith, et a case l. v. Peggy Ann Company Kansas City Yards Stock in the Jackson County pending Maine now seeking relief Circuit Court. Before here to dismiss in relator had filed a motion therefor grounds which it stated as Respon hereinafter discussed. contention Upon petition that motion. dent overruled provisional our rule. of relator we issued rule We have that said should be decided made absolute. dispute.

The facts are not in Roy Ruis 12,1970, injuries died on June as a result of received He employed by while relator. was survived three minor his wife and children. survived his Roy was also father alive at this and mother who are still time. Deceased had not made contri- parents butions of his for the to sue death, death. On within one twenty-five years his 25,1972, (here- May mother, the widow children then the father and plaintiffs) to as filed the inafter referred It is against

aforementioned suit relator. husband, “(3) wife, If there be minor delay in suit suggested filing said children, child or minor natural born or may from the fact that said have resulted indicated, adopted as or herein if the de- dependents unsuccessfully sought to recover ceased be an unmarried minor and there be under the Kansas Workmen’s mother, no father or then in such case suit Law. Compensation may recovery be instituted and by had administrator or executor the deceased It contention plaintiffs is relator’s and the shall amount recovered be distrib- claim have not and cannot state a stated uted laws according to the of descent.” relief and hence court has no the circuit Section also 537.080. It should be noted jurisdiction The proceed the case. provides “Every Section 537.100 that: question basic for our decision is whether action instituted under section 537.080shall plaintiffs can maintain the years be two after the commenced within action which was than commenced more ” accrue; . cause of shall . . action one year but less than years two decedent’s death. Those amendеd and reen- statutes were acted in 1967. The amendments have been At the outset of our consideration of change “There was described as follows: appropriate contention it is to observe in the theory Wrongful basic of the Death that under the circumstances pro indicated Act. first persons The class of who had proper remedy. hibition is a ex rel. State changed, priority the time in to sue Cook, 272, 182 Mo. Henderson v. S.W.2d which ex- permitted were sue was (1944). 292[5] peri- tended and the maximum year, to one right There was no of action wrongful brought be od in suit could which is only by death at common law. It virtue years. to two extended from one of statutory enactments that a Wrongful of the Therefore, the construction may upon be had such a claim. present Our Death the 1967 amendments Act statute reads as follows: “Whenever the applica- Act is present which resulted in the person death of a be shall caused Act, to the subject only ble to present act, neglect another, or default of classes definition of changes made in the act, and neglect or default is such as limi- periods and the lengthening would, ensued, if death had not have enti- 522 S.W.2d Gipfel, tation.” Wessels v. injured tled party to maintain an action 656 (Mo.App.1975). thereof, and recover damages respect construed In an this court early case then, in every case, and such the person in a manner respects statute in certain who or the corporation which would have day. which has been followed if been liable death had not ensued shall be right conferring the that, “In court stated liable to damages, action for notwith- an remedy, in action, providing and in person standing injured, the death of the whom may suits and designating when damages may be sued for and recov- course, was, matter of as a be it brought, ered. provide and legislature competent children, “(1) By spouse or minor nat- might as it deem impose such conditions deceased, ural adopted, or of the either imposed thus proper, conditions and the or . . . jointly severally; provided, right recovery, or modify qualify further, one may think, right rather, part form we brought against any under this subdivision itself, depends. its exercise upon which defendant; or right of In the creates statute which action, in which the “(2) spouse If there section be no minor chil- and in the same or con- remedy if thus spouse dren or or minor children fail statutory right and

14g wife, upon ferred person husband or is fur- if the so appropriating dies subdivision, provided, ther second as during period having the limitation without seen, we have that if there be no husband completed enforcement the next alternative wife, or he or she fails to sue within six the two may claimant file suit within death, months after the of action (10) period, limitation unless a therefor shall be in the minor chil- vested situation exists the suit must be filed within deceased, dren of the if there be such. This from date of death. think, not, a limita- provision merely we out in the principles we have set wife, tion remedy or bar to the but is supported are preceding paragraph by the itself, a bar to the if there are minor following cases: Barker v. Hannibal & St. children, now be- . So in the case Co., supra, J. R. Gipfel, supra, Wessels v. us, brought by fore where the action is Bohrer, Huss v. 317 Mo. 295 S.W. 95 expiration widow after of the six (1927), Cummins City v. Kansas Public months, her to maintain the same is Co., 672, Service 384 Mo. 66 S.W.2d 920 conditional, depends and on the non-exist- (1933), Co., Chicago Chandler v. & A. R. 251 children, ence of the minor material and —a 592, (1913), Mo. 158 35 S.W. Nelms v. fact, think, necessary as we and which was ” Bright, (Mo.1957), 299 483 S.W.2d Uber v. alleged not or proved. . Barker Missouri Pacific Railroad Company, 441 Co., 86, v. Hannibal & St. J. R. 91 Mo. 14 (Mo.1969), S.W.2d 682 ex State rel. ‍‌​‌​​​‌​‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​‌‌​‍v. Kim (1886). S.W. 281 berlin, (Mo.App.1973), 504 S.W.2d 237 The cases wrongful death decided (Mo. 490 Montemayor Harvey, v. S.W.2d 61 by the appellate this state have courts of Hall, 1973), 355 S.W.2d Forehand v. 940 established principles certain which have (Mo.1962), Pevely v. Dairy Goldschmidt been uniformly followed our courts. 982, 111 Company, (1937), 341 Mo. S.W.2d 1 They (1) are: The provides statute for one Spencer Bradley, and v. 351 S.W.2d 202 indivisible claim for the person death of a (Mo.1961). also, Click Thuron Indus See (2) accrues on the date of death. tries, Inc., (Texas 1972) 475 S.W.2d 715 claim vests spouse first in the and minor which the Texas court construed the Mis children eithеr jointly (8) or severally. If souri statutes and decisions in accord with the deceased left surviving a father or the foregoing. mother the spouse and minor children must preferred exercise their right by filing suit inju Decedent received his fatal within one year from the date (4) of death. ry place at a near the state line between If the spouse and minor children fail to sue Kansas Missouri. While there is some within one passes the claim to and uncertainty concerning the state in which vests in the father and mother or the sur appears parties he was it that all killed now (5) vivor. If there is no father and/or have was a few accepted the fact that he mother spouse and minor children have feet into Kansas. In an the state of effort the full two (6) in which to sue. If foregoing avoid deci the effect of the spouse there is no or minor children the sions respondent’s attorneys have briefed father any and mother at time may sue (partic contention that the Kansas within year period. (7) party the two 60-513, ularly providing Section the statute having to enforce the claim has statute of limitations during absolute the period control over it years) death shall be two should apply to specified may file suit or settle without case. We see no merit that conten suing. (8) There is but one claim for relief tion. and if not enforced one class Ordinarily death statute period specified passes it to another class of (9) appropri injury beneficiaries. When a claim is the state in which the fatal occurred ated one preferential beneficiary apply. plaintiffs com would If desired to recov- pletely rights terminates all they required others er under Kansas law were exception plead mentioned in the statute with the they that statute and if failed to do so we plaintiffs not state a claim for As have indicated would petition Rositzky, Mo. Rositzky v. under the relief. filed claim Kansas Workmen’s However, (1932). Compensation in this Law November 1970. S.W.2d 591[12] concluded that apparently finally That claim was adversely both sides decided casе 9,1971. rule announced in August the choice of law them on It is now under contend Dixon, (Mo. Kennedy v. filing S.W.2d ed that of that claim tolled apply. running Ac 1969) of Missouri should the Missouri the law limita obviously upon relied cordingly, plaintiffs plaintiffs tion file this could respects statutes in all includ August Missouri within one damages sought. say they the amount of Plaintiffs ing could not suit file fact, alleged petition, in their “That Missouri claim was until govern agree. laws of the State Missouri do There concluded. We was no all in this cause be apply matters reason could not have been why case majority timely of the relevant contacts cause filed in Missouri. There could Missouri; to the could herein relate State but both matters signifi Missouri has the most the State of have been at the same time. pending relationship the occurrence and the cant plaintiffs It did not should be noted that parties.” in its answer admitted Relator ac- plead claim filing Furthermore, pre at a allegations. those tion and in order to' is essential parties stipulated, “that trial conferencе Moreover, state a stat- claim. the gov shall the laws of the State Missouri ute, 537.- Section refers to Section by this cause all matters in apply ern and in 080 and that if provides, “. . . significant and relevant con reason of the such commenced action shall have been described, just and that the laws of tacts section, prescribed within the time in Missouri, including, but not the State of and or suffer a plaintiff the take therein to, recovery pro statutory and limited nonsuit, judg- a him the or after verdict for in event of therefor cedure arrested, judgment for ment be or after a death, In this connection it apply.” shall appeal him the or same be reversed be that the Kansas statutes should noted error, may new plaintiff commence a such respects from the differ in a number time within from time to death statute. See Missouri judg- or such nonsuit suffered K.S.A., to Sections 60-1901 60-1905 inclu reversed; . .” A ment arrested sive. was made in somewhat similar contention indicated, respondent pri- As brief Co., Baking Mo.App. King v. Smith marily that the Kansas two requests against (1934) ruled 71 S.W.2d 115 and applied. be This can- limitation a King had filed plaintiff. In the deceased because, heretofore indi- not be done injuries, compensation claim for for governed cated, entirety is case death, subsequently caused his Missouri law. by unsuccessfully after his claim by widow. The continued conclusion his to Moreover, that are be noted we should that, ruling stated court the contention ruling plaintiffs by are barred that contended seriously “. .it be cannot holding Our is that limitation. statute of compensation before complaint they did not file are barred because Commission, Compensation the Workmen’s period provided for in the within the suit had including proceedings thereinafter is an essen- statute which wrongful death respondent although and the appeal by of the claim for relief. tial element — ripened into a claim might the claim have question plaintiffs is—were words the other death, by respon- file and maintain proper parties to contemplated sec- As dent —was the action suit at the time such commenced? indicated, 3262, 3263, 3264 above mentioned adversely is ruled tions this contention the com- before or that the cause of action respondent. to there provided change was no in the theory mission was the cause of action basic sections. contention necessari- death act. said Such ly overruled.” 71 S.W.2d Along respondent says the same line that by respondent

The case relied on 537.100 is the limitation stat- Slater Section 537.080,by ute use City Railway Company, v. Kansas and that Section of the Terminal merely but (Mo.1954) permissive may, 271 S.W.2d 581 we consider it word established a clearly among the distinguishable preferential on the facts. In order classes and that case the therefore had full two plaintiffs years widow filed a suit within six that, He says months but the nature to misconceived of her commence their suit. Cummins, claim and sought analogy, supra, as administra- Almcrantz v. recover (Mo.1973) trix under Carney, support the F.E.L.A. This court ruled 490 S.W.2d since she had that timely suggestion. filed a suit for In Cummins the widow death of her should permit- husband she filed suit months then within six died ted seeking that, amend under the court shortly thereafter. The held situation, the year statute after had children the minor could sue elapsed and that such would relate back to the second six months since the wid- original date filing petition. pursue remedy ow had not been able simply to a conclusion. Almcrantz followed We rule the compensation the well rule established that where no claim did not the operation appli toll survived, parent surviving widow had cable statutes. the entire in which to sue. We Respondent next legisla- asserts that the do not think or the wording these cases in amending ture Section 537.080 in 1967 respondent’s the statute support contention. clearly scope broadened the thereof and The may 1967 statute used the word that the amended Act should therefore be precisely the same manner as the stat- liberally construed. It is stated in the brief nothing ute and hence we see the legislative was, intent “. finding of intent legislative change to simply give the surviving wife or hus- law in respect. or

band minor preference during childrеn Wessels,supra, Both sides have discussed the first year prevent any but not to of says it supports at some length. Relator them from maintaining any an action time says it is respondent contentions and distin- before the the of the expiration year second decedent, guishable. In age that case provided surviving parents there be no unmarried, 24 and with and supported lived provided surviving parents, any, if his widowed After her mother. son’s death have not instituted or are not entitled to 24, 1971, on October the mother filed a suit judicial institute proceedings. The one- on November it was settled year provision limitation is not a on the April Probably dismissed on 1973. right persons of the described subsection unknown to the mother decedent was the sue, 1 to but rather limitation is a on the illegitimate daughter father of an born preference given the persons described in 16, 1972, posthumously May who filed a persons subsection over those described in wrongful August 28,1973. death suit on In is, therefore, provision subsection This ruling that court properly trial dis- a plaintiffs’ limitation on cаuse of ac- petition missed daughter’s said the court tion does not bar from maintain- them pointed out that was not filed with- the suit ing their action case.” in the instant year in the within a year first or even wording We see nothing plaintiff in the of the was further stated was born. It that, a amended Act conclusion that “. . to warrant . the mother of the de- ceased, legislative respondent out, as intent was prematurely as it turned filed Wessels, supra, following contends. As stated in suit year the first which to period Act extended the time in sue and death of was the her son. That changed have, given priority the class first but within could appellant but did action. At the loss. But such is not the case

not, the cause of where the appropriate referred to in year’ (1) ‘one statute, subparagraphs (2) termination of the such as in of limitations ran 2 the statute subsection grants right a of Section action action, cause and the cause appellant’s We are im directly to certain classes. appropriation subject son, that an adult pressеd with the view already pending, the mother. ‍‌​‌​​​‌​‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​‌‌​‍Her suit might pecuniary “. value to be of toit prosecute privilege and it was her future, although previous his mother in the stipula- judgment pursuant or to settle nothing at all but ly he had had contributed the facts are 656. While tion.” 522 S.W.2d Talbert v. expense been an to her.” case at bar we not the same as those in the Co., Ry. 1080, 15 321 Mo. Chicago,R. I. & P. relator’s con- clearly supports think Wessels It is not at all (1929). S.W.2d tentions. money to their parents give unusual for are en while the children respondent, The final contention of adult children that, in life with the brief, parents get “The a start deavoring stated his loss or pecuniary if, they, years, the deceased suffered in later thought that son’sdeath and damages as a result of their help children will parents, are in need the against Re proceedings could not institute comfort and parents receive Many them. death. years within of decedent’s lator thought their from the reassurance Therefore, 537.080of the Re under Section needs if to their child will contribute Missouri, the Plаintiffs vised Statutes This, necessary. how should ever become than one right to sue more but had the a decisionas to ever, case for proper is not a death.” less than two after decedent’s for the recover parents may the amount has, course, relator’s contention It been children and we death of adult parents existence that since deceased had This, we are con will not do because so. of one passage that after the event, are enti vinced parents, and vested in passed plaintiffs to sue damages and that is tled to recover nominal cases such as cites parents. Relator filing and main sufficient to authorize “in using Almcr antz words Wessels and is suffi of a suit. And tenance describing that situation. Re existence” in plaintiffs in ruling that require cient to is not an accurate ex spondent says that sue were not entitled to the case before us not exist says person He does pression. year. expiration of after the statute, unless he meaning within the Masek, (Mo. 262 S.W.2d Stroud damagеs. Re is entitled to sue and recover 1953) a widow sued for that the deceased had spondent points out failed to her husband and apparently par of his not contributed to the this court appeal prove pecuniary loss. On and therefore contends many years ents for to recover entitled that she would be ruled damage by reason of that suffered no opinion In that at least. damages nominal He his not maintain suit. could “ general to the that, ‘According we stated that the situa premise reasons from that authority, where it current of American where in Almcrantz tion is the same as for death that statutory action appears in a it surviving parents and deceased had no negli by defendant’s was caused the death any sue time could was held that the widow recovered, damages may be gence, nominal years. within two damage has pecuniary although no actual unwilling agree to We are 96, page Death § been shown.’ 25 C.J.S. damage by rea suffered Roy’s parents 1238. true, ruled in our his death. It son of Shavеr, 350 Mo. Wente v. “The case of Gardner, 530 v. case of Pittock recent 954, 947, 145 loc. cit. 1143, 169 S.W.2d (Mo.1975), that where S.W.2d 217[5] 1176, death case. A.L.R. was of the collater for the benefit executor sues the fol approval quoted that case we prove allege required al heirs he is City of St. King pecuniary lowing quotation suffered the beneficiaries Louis, 537.080) legislature 250 Mo. loc. cit. S.W. did not include 498, loc. provision cit. 501: an intent which indicated therein “ ‘ change the rule in those cases. Accord- every “The rule actionable is that for imprudent to over- ingly, we would deem injury corresponding there is a long rule that line of cases in order to hold damages, injury an and such arises whenev maintain their action plaintiffs could legal er a plaintiff is violated. ‘If heretofore de- under the circumstances inquiry damages, there is no as to actual tailed. appears inquiry, legal none on implica * * * remains; tion of damages there provisional It follows that the rule should fore damages given.’ nominal are Suth. on be made absolute. 9; (3rd Ed.)

Dam. Cyc. 14.” § HENLEY, MORGAN, FINCH, “Judgment and DON- damages nominal is a sub NELLY, JJ., stantial right since such a judgment decides concur.

the incident of costs.” 262 S.W.2d See BARDGETT, J., in separate dissents dis- also, Shields, Acton v. 386 S.W.2d 363[7] senting opinion filed. (Mo.1965). It is interesting to note that in cases such as the one ap before us the SEILER, J., dissents and concurs in C. proved instructions require do not a finding separate BARDGETT, dissenting opinion plaintiff damage. has suffered See J. MAI 20.01and 20.02. This explained BARDGETT, Judge (dissenting). LaPlant, case of Aubuchon v. I (Mo.1968) S.W.2d respectfully prohibition as follows: “In This is dissent. actions, unlike per prevent respondent suits for and was filed here injuries, sonal the issue of plaintiff judge whether circuit proceeding with the trial proved has pecuniary loss (damages) is not of a wrongful death action. The death hypothesized plaintiff’s verdict directing action was instituted a widow and three instructions. See MAI 20.01 and 20.02. minor children for damages resulting from this, The reason for as set out in Ruiz, Roy Com death of the husband of the mittee’s Comment to MAI is that widow children, and father of minor damages nominal may be against recovered in such relator City Kansas Yards Stock a case as though this even actual damage Company (Stockyards). of Maine Stock- not sustained.” yards was employer Roy Ruiz who Stockyards working killed while recognize We that relator will benefit June 1970. In addition to the widow from the failure plaintiffs to exercise children, and minor deceased was survived diligence and file their suit within the time by his mother and father. specified in the statute and the failure of parents year. sue the second course, In due filed a claim the widow That, course, is the every situation in Compensation under the Kansas Workmen’s case where the claim is by statutory barred law against Stockyards Stockyards. denied concluded, limitation. We have however, it had elected to under the Kansas come that there is no reasonable basis under the Compensation Workmen’s law and also de- granting plaintiffs statute for relief. This nied that in one the engaged was of is a matter of statutory construction. employments hazardous listed in the act When the 1967 amendments were enactеd mandatorily by which is covered that act. legislature presumed the is 1971, have been Hearings May were held in March and long familiar with the line of cases 8, 1971, which and on hearing June the examiner have held that the persons named in the found Stockyards that had not elected to must death statute exercise the come under the Kansas Workmen’s Com- right granted so within the time and man- pensation Stockyards’ law and that business ner by recovery fixed the statute or will be was not one is mandatorily of those which (Section reenacting denied. In that statute and, covered as on that basis hazardous Compensation for men’s law was not Claimant filed mandato- the claim. alone, denied rily applicable. examiner’s determination of the review the division of workmen’s of the director opinion say The does not in so principal 12, 1971, di- August the On compensation. Missouri many that words determina- the examiner’s affirmed rector strictly death act must be construed be- more By this time the claim. denying tion of non- cause it created the deаth of passed since year one had than law, yet, common that is the existent at Ruiz.' Roy many of the earlier theory pervades that 1972, 25, the widow and minor May On Although common cases at cited therein. their suit children filed right of action denominat- law there was no Mis- County, Jackson court of in the circuit action, I am ed a somewhat wrongful death course, This, Stockyards. of souri, against in impressed fact that by the of after the death one was more than wrongful death stat- years first before the within two of Ruiz but was Roy Missouri, court in ute in was enacted death. (1853),upheld Christy, James 18 Mo. v. for the loss of to sue that the widow of a father contends Stockyards wrong- son was fifteen-year-old services who maintain of his children cannot minor wrong- another. That case negligently by killed under Missouri claim ful death because, statute, in of question sec. came on the whether here ful death children, widow and minor survived to the fa- to a father’s cause of action addition by mother and or his died with personal representative was survived ther’s deceаsed held, and minor widow at 164: father and therefore This court Mo. father. to institute suit. children had law, has By property the father our son his mi- of his the services action for the circuit court under guardi- he is his nority, and whilst death, stipulated stipulation Stockyards another, If, “re- misconduct of anship. of the deceased parents 10 that the # services, kind or the son money deprived he is of these ceived no them, the performing 1945 and June Roy Ruiz between from disabled stip- compensation and in in dam- of deceased’s awards him a death]” [date damages, deceased’s that the in such stipulated ages. ulation # 11 The measure circumstances, as a loss parents pecuniary cases, governed by “sustained . .” Roy Ruiz . jury. This weighed of the death result which will be the widow stipulated also the construction of parties controversy involves compensation workmen’s second a claim for of the twenty-fifth filed section with the concerning in accordance executors against Stockyards article of the act Kansas on law оf former- Compensation That section Workmen’s and administrators. court, arose out that the death in this the basis a discussion ly underwent Breen, employment Ruiz’s Roy Mo.Rep. course Higgins case there- hearings were held Stockyards; the principles 497. That case settles 10, 1971, on; the examiner that on June It there this. govern which will claim; her filed that claimant denied the all acts held, extends to August and on review for director’s request is lessened in property personal sustained denial the director entirely de- Here, the father value. claim. his son’sservices. property prived all actual limited will be was not denied the claim supra, noted As they may services, as value of the grounds Stock- on its merits but The administrator jury. by a ascertained Work- the Kansas accepted yards had not any remuneration will not be entitled the busi- law and that Compensation men’s or comforts society for the loss of hazardous was not Stockyards ness of parent. Dam- his to Compen- by afforded a child Kansas Workmen’s in the defined par- with the died аges Work- and, the Kansas of this character therefore sation ent, compen- Ms estate is entitled to ence of such a cause of action unless it did sation, only so far as it has been lessened actually exist. services. The by loss son’s It may speculative guess be to at what longer was no entitled to those father respect the courts would have held to Had the services than his life. right pecuniary to for losses occa- sue alive, father, son been on the of his death parent spouse a or by sioned the death of belonged his services to would not have not had statutes been en- death estate,

his but would have due to been acted, by but it clear 1853 this seems him in the individual who succeeded way allowing state suits was well on the parent, relation of or would have be- However, damages. courts of this longed himself. task of deciding state were relieved of the content, the judges judg- The other later in questions those because the cause re- ment will be reversed and enacted a legislаture manded. effect, which, in death statute mooted the question, adju- and thereafter courts could I Christy Now cite the James v. case in statutory dicate those matters under law. supreme order to show that court of this state was of the loss to cognizant In some instances legislature where the parent by occasioned the death of his minor did specifically grant right to sue and, quotation son as is seen from su- where none existed at common law this pra, the father was 1853 allowed to re- court has In held the exists. Novak v. cover for at least the same items of loss Transit, Inc., City Kansas 365 S.W.2d 539 the subsequently enacted (Mo. 1963), banc this court held a married so, death statute allowed. And James v. woman had a course of action for loss of her Christy, not called a although injury to the husband’s services due hus action, by death was an prior band and overruled decisions to the R_ compensa- contrary. R_, father could recover what is now 431 S.W.2d 152 tory wrongful damages. that, death Additional- (Mo.1968), although court held ly, might damages it be noted that the by cause of at common law action existed Christy the father in James v. included loss an illegitimate child to enforce father, society comfort and there was no such a putative from a must Although limitation on the amount. courts recognized equal protection be under the of this and other have repetitively states clause of Amendment Fourteen of the Unit said there was no action wrongful ed Constitution. States ‍‌​‌​​​‌​‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​‌‌​‍prior to the damage enactment of death general In 1917 the assembly amended statutes, the fact in Missouri there 1.010, sec. which relates to the RSMo available, was a cause of action at least to England being common law of in force in parent negli- when the minor child was adding following, state “but no killed, gently services during loss of assembly act of or general law of this minority damages spoken other invalid, state or shall be held to limited Christy, supra. James v. scope or effect the courts striking

What is also rather about state, derogation for the reason that it is in Christy, supra, opinion of, law, in James v. is that it with, or in common or conflict simply states the situation as existed in parliament; with such acts of statutes or words, here assembly, to 1853. In other but all general acts of the laws, construed, were court who judges practiced of this had as liberally shall be so experience meaning law in Missouri and their effectuate the true intent and going knew what was on at that time sim- thereof.” Carney, In Almcrantz v. ply reciting type (Mo.1973), that this of suit was then principal opin- S.W.2d amended, this state. I being 1.010, applicable entertained courts of ion held sec. hardly judges can believe that the of this to a of sec. construction RSMo acknowledged statute) court would have the exist- (wrongful and held that to spect who can maintain parent no survived the deceased the the action where and that issue in this years two within which is not case. plaintiff widow had Harvey, Montemayor v. to sue. See also Stockyards concerned, Insofar is as it is (Mo.1973). 490 S.W.2d 61 exposed liability to in this case no more if the of the parents than deceased did not specific provision There is in no 537.080 circumstances, survive un- him and in such says there no mother or which that if is decisions, the prior der the widow and mi- the or minor surviving father then widow years nor children had two to sue. to sue nor that the years children have two in years join children two can the said reasonably legisla- be Can two-year the a begun widow’s action before ture intended to absolve defendant from liability this death the expired, surviving statute but the court held to to merely widow and because Montemayor minor children a proper be in Almcrantz and him parent of the deceased survived even agree I these deci- and earlier cases. with and, though by the declined to sue parent they give sions effect to the true because admission, parents’ the sustained no own meaning intent and of our pecuniary loss? which, my opinion, statute in is that these provide laws were to principally intended a I do not a holding believe such to in .be who remedy persons naturally for those accord requires with sec. 1.010 which the greаtest by suffer the loss the to laws be liberally so as to effec- construed are, my opinion, another. persons Those meaning tuate the true intent and thereof the of the man widow and minor children specifically pro- 1.010 when particularly who is killed. the against limiting scope scribes a court effect of a statute is in because the statute case, In the the and chil- instant widow Where, derogation of the common law. as dren seek maintain this action and here, surviving parents the have not sued expiration of the two- prior did sue to the pecuniary and have that declared loss statute, There has been sec. 537.100. sustained, was court I believe the should surviving parents no effort the of the consider the where case the same as one the pending deceased to or intervene in the sue parents did survive the deceased and not years circuit and the two have court case allow the the full widow and children Thus, not expired. we are here confronted provide than to which to sue rathеr a the widow with contest as between derived a windfall defendant with minor and the children on one hand a the statute technical construction surviving parents on the other as to whom baby which in out with effect “throws shall be the action. allowed to maintain the bathwater.” presented That issue when it is can be met premised principal opinion but it is in this case. presented not the cause holdings that court I Montemayor, filed Almcrantz and not death did exist action for at that, I stated concurring in which opinions law; common statute created the my opinion, two-year limi- sue right right and therefore time available only tations limitation recipient exercising conditioned upon defendant, priority to a and within right upon the conditions in 537.080is not available to sue as set forth grant- period provided for in the statute does shorten to a defendant and right; conditions set ing the two-year statute. RSMo 1969. Sec. respect forth in the statute sue if the having only widow case, however, does not re- The instant parent is not deceasеd survived adopted quire that those views order remedy merely a or bar to limitation be maintained to allow the action to the wife itself. but is a bar specific children. That widow and minor there was issue would arise where the decisions underpinning held with re- have country contest between beneficiaries courts of The Harrisburg, overruled 119 U.S. action for Court cause of generally no there was 140, (1886). The 199, 30 L.Ed. 358 opin- is the 7 law S.Ct. at common wrongful death common Harrisburg v. held that there was no in Baker Ellenborough ion of Lord and, interest action for death 493, Eng.Rep. 1033 law Bolton, 170 Camp. 1 supra, Christy, of James v. ingly, our case progeny. (1808), and being of the cases in com was cited as one stated, a civil “In Ellenborough Lord against was that mon-law courts which being could not court, a human the death of Harrisburg held that the state rule. The . .” injury an complained of as statute created the wrongful death may mine.) That statement (Emphasis which the suit action and the time within but, so, it technically correct have been a operates as limitation on brought must be other half is truth. The was a half liability itself and statutorily created paid in was for death that Although remedy alone. Harris not on the in for with or substitution conjunction law, as the burg the maritime discussed event, it was In proceeding. criminal ship death in a collision off there occurred law. general common under obtainable and Massachu Pennsylvania coast of Death”, 17 Wrongful “The Genesis See setts, its decision on com the court based concept This (1965). L.Rev. 1043 Stanford that the common law as holding mon law In the into the colonies. was carried over applicable was also applied on the land Bay Massachusetts Assistants of Court of the sea. charged in 1675 Colony, one Foster stated, Harrisburg As was overruled discharging gun[s] at “accidentally Moragne involved the death by Moragne. wounding thereby neck Samuel ye foules on ship while aboard a longshoreman of a It was ad- djed.” so as he Fflacks son within the state of navigable waters the father of the judged pay that he should provided re- Florida. The maritime no 54-55; 17 1 Mаss.Ct.Assts. boy pounds. ten within a state’s covery death L.Rev., reviewing After Stanford court held territorial waters and the Florida money was in which many early cases act did not that the Florida family, Professor awarded to the deceased’s as that allow for unseaworthiness Malone, “The the author of Genesis law —the in maritime concept is understood Death”, “In conclu- Wrongful concluded. statutory being result there was sion, no observa- the writer has discovered grant the maintenance lending decisions tion in colonial statutes or United damages. The action for death that a death claim any support to a belief Supreme Moragne reviewed States Court our colonial have been denied would At 398 for death. history of actions L.Rev. 1065. ancestors.” 17 Stanford 1779, 384-385, the court stat- U.S. 90 S.Ct. devel- the historical When one considers ed: under the common opment of death claims marshaled justification The historical practice, my opinion, law and colonial never existed in England for the rule in origin help cannot but conclude Ameri- In limited instances country. firmly damage claim is rooted the death felony- adopt vestige of the can law did merely is not of statu- the common law and doctrine, that a civil to the effect merger tory origin. after the crimi- delayed until action was in the United States The first decision However, country the nal trial. in this hold there was no action include forfei- punishment did not felony Carey v. Berkshire R. at common law was therefore, there was ture of property; totally Co., (1848). It relied R. 55 Mass. instances, nothing, even in those limited Bolton, supra, on Baker v. g., suit. E. subsequent to bar a civil conclusion. & West. Delaware, Grosso v. Lackawanna 233, Co., 319-320, Lines, Inc., 317, R. 13 A. 50 N.J.L. Marine Moragne v. States Adams, 180, 16 Mich. 1772, v. (1888); Hyatt 26 L.Ed.2d 339 90 S.Ct. U.S. Prosser, Law of (1867); Supreme 185-188 see W. United States (1970), a unanimous 163 F. 32. Without 1964). Cir.], going into (3d Neverthe- ed. Torts 920-924 less, in which the for the notion that an action early cases the reasons despite some (other “incapable appeal) of vindi- than an does not lie for rejected rule v. Pac. R. causing the a human g., Sullivan Union cation,” being, death оf it is e. Co., (No. 13,599) enough say disap- pp. have 23 Fed.Cas. Yonge, peared. policy 15 Ga. an Shields (C.C.Neb.1874); forbade such Guthery, the action, cf. Cross v. profound 2 Root than (1854); 349 if it was more body gen- a man’s 90, American courts absence of a when (Conn.1794), remedy 92 for rule the confiscated English hanged goods the as and his was erally adopted the to be country as well. has not felony, of the been shown common law this the of adoption, present by of statutes period policy the of Throughout of in United most if not all decision States and of culminating in this Court’s Brame, [Emphasis v. 95 U.S. the Brame Co. States.1 mine.] [Insurance courts failed 754, (1878)], 580 the 24 L.Ed. 398 Pound at U.S. quoted The court Dean satisfactory justification produce any 391-92, be think- “Today 90 we should S.Ct. country. the in this applying for rule part as ing statutes of the death 393, law”, 90 general stated at Mr. Justice and further approvingly quoted The court “However, Pana 1783, it is sufficient at who, at Holmes, in dissent in S.Ct. speaking Rock, 209, 58, conclude, as Justice 45 Mr. ma R. v. point Co. 266 U.S. S.Ct. 391, the work of S.Ct.): years ago, 250, (398 90 Holmes did 45 said U.S. 69 L.Ed. the of allowancе legislatures has made dealing in (I)t to me courts seems general recovery for have been too with statutes sometimes law, its denial rule of American even when recognize that statutes slow to exception.” particular cases covering only in terms Moragne, the Massachu from that of may imply policy a different On the heels of therefore decided Gau law, Supreme common setts Court Judicial [the 60, Webb, a reference to 284 222 may exclude dette v. N.E.2d 362 Mass. courts] limiting Moragne, of purpose law for the and, light overruled common (1972), Berkshire, Carey their Johnson v. United States scope. earlier decision [5 1, Admiralty was 46. The common law person, Baker v. than indictment produce served as an for was a criminal abolished came more and “the ^[1917] as we know cide. pass, Woodbine, COMPROMISE: same 1782footnote 7. tion The obtaining compensation family damages. abolished See “appeal for 33 Yale general “appeal” Though a A.C., and was for a Holdsworth, the death at common cоmpromise” Bolton, monetary recovery, Commissioners common, at 58-59.” 398 and was informal substitute for statute in 1819. Geo. of result L.J. proceeding Over the referred to was Origins murder”, as a means of today. The As deceased successful statute in 1819. Geo. 32 many years more common stated, appeal as L.Q.Rev. compromise The not and the criminal were methods an action “The criminal years, done Origin brought obtained for death existed the Action of Tres v. S. S. (1924). appeal U.S. the threat of “wer and 431, punishing away law. indictment be- not of the Rule in produced 389, 59 as by 435 compensa- would an with damages. a method Amerika, a whereby civil suit 90 S.Ct. private (1916); appeal appeal appeal wite”, homi- c. until 3, one not 46. at c. The Genesis APPEAL: The bly WER: “In the old which was for the there was exacted of the liable to L.Rev. Origins nal and status WITE: person by accused. distributed English ceased’s kin.” 3 Law amount of which deceased’s money, misadventure or in used to exact 803-06 362-64 or rank of breach of his 1043, who slew “The of the Action of maternal Law, the wеr pay clan Holdsworth, (1924). reparation vengeance (3d. 257-58 definite appeal was Wrongful kin. the deceased and which was another, (or capitis monetary payment (July ed. statutory Holdsworth, days bought peace (1909). proportions of murdrum was In the same 1923); to the self-defence, fixed of the members of the Trespass, 1965). A wrongdoer the of wer Death, or mund.” even off History sums oestimatio), King Woodbine, though A terms of the to his 33 Yale an 17 Stanford proceeding History of to the had been award of from the overlord Malone, bot the English proba- it was pater- wite, The L.J. de- which, indicated, was the first other decisions of supra, this court conflict in the United which followed present holding, case States with our those decisions Gaudette, Bolton, supra. Baker v. are longer to be followed. automo was killed in an

Joseph Gaudette stat- Consequently, our 15, 1967, and left April collision on bile utes longer regarded will no as “creat- and minor children. His surviving a widow ing right” of his appointed administratrix widow They death. will be viewed rather as: estate on March (d) requiring ... that the action be 6, 1970. The death action ‍‌​‌​​​‌​‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​‌‌​‍was filed March specified period commenced within statute of wrongful death Massachusetts time, upon remedy as a limitation 15, 1969. If expired April limitations upon right. We further hold of the Massachusetts provisions limiting period bringing statutes then respect applied, to minors actions for death are be construed in the action even the minors could maintain the same manner as the limitations con- expired. had though two-year statute 260, general tained in c. G.L. statute “has The court noted that Massachusetts limitations, appropriate of and that that there long subscribed to the rule is they cases may be tolled various recovery to civil for right common law provisions [Emphasis of c. 260. G.L. death, right recovery to such any and that mine.] such, As solely is a creation of the statutes. Gaudette did not allow the widow to appearing in our period of limitation two-year maintain the action because wrongful has been held to be death statute statute of expired limitations had to upon right upon ‘a as well as limitation suit, upon but holding right its when remedy, right and the was lost recover for wrongful death was a common period of [the limitation] origin law wrongful the court ” treated expired.’ law general as one of which allowed The Massachusetts court then overruled general apply statutes to and Berkshire, Carey v. and the other supra, resulted the statute of limitations as to holding cases there was no common law wrongful any death actions to be tolled as wrongful cause of action for death and other statute is per- limitation tolled. This quoted extensively Moragne, saying at mitted the minor children to maintain the 229: though action even instituted more than upon recovery Based its view that for after their father’s death. wrongful part death had now become a significance Moragne The and Gau law, our common the court in the Mo that, time, dette for the first perhaps is ragne there case held that was a common fully country recognized courts of this have law reсovery for origin there was a common law for general under maritime law. court’s damage crude it recovery, however large part upon decision was founded in been; may have that the combined effect general of nonmaritime prevalence having been en wrongful death statutes statutes, it wrongful death is thus acted in all of the states the Con applicable equal force to nonmari- gress of the is to establish United States time actions for death. beyond a that it is and has been the doubt Moragne de- Upon consideration of policy country in this to allow such actions upon reasoning cision and the sound where, point Moragne, to a as stated in based, which it is we are convinced that “ ‘may courts exclude a reference to the the law in this Commonwealth has also purpose limiting common law for the point may evolved to the it now be where U.S., 391, scope.’” their at 90 at S.Ct. wrong- held that the for 1782. origin, ful death is of common law Carey purpose

we so hold. To the extent that I bеlieve the of the 1917 amend- 475, R., supra Berkshire R. ment to sec. 1.010 was to tell Cush. noted compensa- should Claims under this state that workmen’s the courts of law for to the common “exclude reference tion law have been held to constitute a limiting scope.” their That purpose complete for substitute the common law when it states really Produce, what 1.010 means remedies. v. Ballentine Glick In- “ assem- general .. .no act of the (Mo.1965), corporated, ap- 396 S.W.2d 609 . limited in . shall be bly peal 385 U.S. dismissed S.Ct. by the courts scope or effect 5; L.Ed.2d v. Hill Brothers Sheets Distribu- state, derogation that it is for the reason tors, Inc., (Mo.1964). 379 S.W.2d 514 with, of, the common law or in conflict so, then the claim filed being This under mine.) (Emphasis . .” compensation law workmen’s should be court my opinion, is time it for considered the action to in sec. as referred recognize compensation 537.100, complete because RSMo death, form, in some existed at common law death) (wrongful substitute for the action and, therefore, such are of common actions provided simply therein. “Substitute” origin. law, statutory, exclusively and not “put of”. Webster’s Third place means Dictionary, p. that com- recognizes New Whether the court International put common existed at law claim pensation for death workmen’s 1.010, the claim place sec. as amended under gives effect that act in scope of to limit the our RSMo 1969. so death under alleged because of wrongful death statutes under the work- Here the claim was filed the same conflict with the common men’s law. The claimants compensation two-year the That result is result obtains. they prevail could not whether would know 537.100, of found in sec. statute limitations or not until the decision on that claim was pe- limitation becomes RSMo prevailed handed down. If claimants then interpose so as can riod a defendant they of action in would have cause would, in my This remedy. to bar award wrongful courts for death. The was wrongful death statute to allow the opinion, but not on the merits. It Stockyards for purpose intent and and its true be afforded аccepted Stockyards had not was held that and minor chil- widow the instant permit act and compensation the workmen’s that what the law allows —a cause dren have hazardous type its not of the business was resulting damages from of action for the it took mandating acceptance but over and father. the death the husband year for determined. this to be is, my opinion, In the there in instant case wrongful a suit for Had filed the widow action to allow the another sound reason proceed- in court death and if initially 537.100, 1969, provides RSMo proceed. Sec. ing it was the deceased an .determined [wrongful part, if such action in “that employer and employee and defendant an commenced within shall have been death] law, subject compensation to the .workmen’s section, and prescribed time nonsuited, the for time and that reason or a nonsuit take suffer plaintiff therein compen- filing for claim for workmen’s commence a plaintiff may . sation would have been tolled under 287.430 within one action timе time new had one and the would have addi- widow or such after such nonsuit suffered year ultimate determination tional from the reversed; . .” judgment arrested to file workmen’s court action compensation no workmen’s If there were compensation claim. Sec. RSMo law, and children could the instant widow in a proceeded have to a verdict section, 287.440, is considered When this case, and, the action death action 537.100, it seems clear pari materia with Stockyards, against would have been policy has established compen- the legislature whom the against same defendant wrong— same of limitations filed to toll sation claim was pending period the same basic claim death of Ruiz. when Roy believe, This, provides I forum. another holding that the ter- Langford substantial SELSOR and Shawn Deborah in 537.100 appearing friend, “such action” minology minor, by Langford, a next Olen scope within substituted Selsor, includes Langford Plaintiffs-Ap Deborah under the work- claim for death benefits pellants, compensation law. men’s v. claim compensation involved Because CORPORATION ZENITH RADIO parties as same Third-Party Missouri, Defendant involves, giv- the event because Plaintiff-Respondent, (death the same ing to both claims is use Roy Ruiz), because v. claim is a substitute for the INC., DeWITT-NEWTON, Third-Party defendant, suit I believe against same Third-Party Plaintiff, Defendant and 537.100 allowed provisions sec. to institute the widow and minor children action within one instant COMPANY, MANUFACTURING A-ONE “nonsuited” the workmen’s com- were Third-Party Defendant. pensation claim. No. 59289. fact that the statute was not not, in pleaded my opinion, any signifi- Missouri, Supreme Court In Lynch cant moment. v. St. Louis Public Banc. En Co., 261 (Mo.App.1953), Service S.W.2d 521 the administratrix of the deceased’s estate 14, 1976. April filed suit for death but did not plead necessary dependen- “the elements

cy pecuniary loss”. After verdict and plaintiff,

judgment appealed. defendant jurisdictionally court held the petition

defective and because of the insuf- reversed petition held that

ficiency of but “since may bring amended to petition be upon

within the statute relied the case

should be remanded.” same is If true in instant case.

pleading necessary statute is sufficient, petition

make then leave granted.

do be so should instant case year after the within one workmen’s

filed claim was terminated not ‍‌​‌​​​‌​‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​‌‌​‍on the merits of action and

decision proceed. should allowed to

therefore

Sec. RSMo quash I would

For the reasons foregoing prohibition

our preliminary rule in

therefore I dissent.

Case Details

Case Name: State Ex Rel. Kansas City Stock Yards Co. of Maine v. Clark

Court Name: Supreme Court of Missouri

Date Published: Apr 14, 1976

Citation: 536 S.W.2d 142

Docket Number: 59217

Court Abbreviation: Mo.