Summary
In Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1, the Supreme Court of Missouri held an employer's statutory action, as subrogee, for wrongful death of employee, accrued upon the death of the employee, rather than when the compensation commission made the award, and was subject to the one-year limitation imposed by the death statute, V.A.M.S. § 537.070 et seq., rather than to the five-year limitation, V.A.M.S. § 516.120.
Summary of this case from State Insurance Fund v. TaronOpinion
December 14, 1937.
1. PLEADINGS: Filing Petition. The court may look to the filing date to determine when a petition was filed.
2. WORKMEN'S COMPENSATION: Death Claim: Time of Filing. A widow seeking compensation under the Workmen's Compensation Act for the death of her husband who left minor children must file suit within six months after the death. [Sec. 3262, R.S. 1929.]
Where such widow filed suit alone after the expiration of the six months from the death, her petition stated no cause of action because there was no cause of action to state.
In such case where the widow filed an amended petition making the minor children, the employer and the insurer parties plaintiff, more than one year and two months after the death, the cause of action was barred by the lapse of one year. [Sec. 3266, R.S. 1929.]
3. WORKMEN'S COMPENSATION: Limitation of Actions. Where the widow filed a petition for the death of her husband under the Workmen's Compensation Act after six months and within a year, the filing of an amended petition after the expiration of a year making the minor children, employer and insurer parties plaintiff, did not relate back to the filing of the original petition so as to give it life because the original petition stated no cause of action and there was nothing to relate back to.
The widow having no cause of action when her petition was filed it could not be amended.
The minor children had no cause of action when the amended petition was filed after the expiration of one year. If such amended petition had been filed within a year after the death, it would have been considered a petition on behalf of the minors, independent of the widow.
The minor children did not sue within the year, hence any cause of action in them was barred by the lapse of one year.
4. WRONGFUL DEATH STATUTE: Statute of Limitations: Survival: Subrogation. The Wrongful Death Statute (Sec. 3262 et seq., R.S. 1929) created in the dependents of the killed a new cause of action, and was not a provision for the survival of any action the party injured may have had.
Section 3309 of the Workmen's Compensation Act did not create in the employer a new cause of action for the wrongful death of the employee, but merely subrogates to the employer the rights, if any, which the dependents of the employee have against third parties under the statutes.
The Workmen's Compensation Act neither creates a new cause of action apart from or independent of that provided in the original death statute, nor does it enlarge upon the identity of the beneficiaries, save only as it subrogates the employer.
Any cause of action which anyone has for the wrongful death of an employee accrued upon such death, and the time within which suit could be brought for his death is governed by that statute.
Appeal from Circuit Court of City of St. Louis. — Hon. Julius R. Nolte, Judge.
AFFIRMED.
Wilton D. Chapman for appellants.
(1) The court erred in sustaining defendants' demurrer to plaintiffs' second amended petition, over the timely objections and exceptions of plaintiffs. (a) The second amended petition shows upon its face that each of the plaintiffs named therein has a substantial interest in any recovery had, therefore they are proper parties plaintiff in said cause. Norton v. Reed, 161 S.W. 847; State ex rel. Gardiner v. Dickmann, 157 S.W. 1014; Scott v. Alton Banking Trust Co., 175 S.W. 923. (b) Though there be a plaintiff having no interest, everyone who had any interest in the cause of action attempted to be pleaded, being joined as plaintiff, there is not a defect of parties plaintiff. (c) The demurrer reaches only to the four corners of the petition, and matters elsewhere of record in the action cannot be considered on demurrer. Clark v. Grand Lodge of Brotherhood of Railroad Trainmen, 43 S.W.2d 405; Miss. Valley Life Ins. Co. v. Riddle, 43 S.W.2d 1059; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142, 65 S.W. 1037. (d) Demurrer herein did not raise the question of the capacity of any one or all of the plaintiffs to sue, as that must be raised by special demurrer. Baxter v. St. Louis Transit Co., 95 S.W. 856. (e) Demurrer herein did not raise the point that any one or all of the plaintiffs are barred by a Statute of Limitations. That point to be raised by demurrer must appear upon the face of the petition, and the demurrer must specifically specify that ground. Knisely v. Leathe, 166 S.W. 261; State v. Spencer, 79 Mo. 314; Murphy v. De France, 105 Mo. 53, 15 S.W. 949, 16 S.W. 861; Allison v. Mo. P. L. Co., 59 S.W.2d 771; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Dennig v. Meckfessel, 303 Mo. 525, 261 S.W. 55; Steinbrugge v. Prudential Ins. Co., 196 Mo. App. 194, 190 S.W. 1018; Lorberg v. Jaynes, 298 S.W. 1059. (2) Even if the entire record can be considered and reviewed by this court on this appeal, which is not conceded: (a) The filing of an amended petition relates back to the time of the filing of the original petition, and the joining of additional parties plaintiff or the substitution of a new plaintiff relates back to the filing of the original petition, and the joining of such additional plaintiffs or the substitution of a new plaintiff is not barred even though they were at the time of the amendment barred by limitations from instituting a new action. Drakopulos v. Biddle, 231 S.W. 924; Vaughan v. St. L.-S.F. Ry. Co., 164 S.W. 148; Missouri, etc., Railroad Co. v. Wulf, 226 U.S. 570, 33 Sup. Ct. 135, 57 L.Ed. 355; American Railroad Co. v. Didricksen, 227 U.S. 145, 33 Sup. Ct. 224, 57 L.Ed. 456; Cytron v. Transit Co., 205 Mo. 698; Clark v. Railroad, 219 Mo. 540; Gresham v. Talbot, 31 S.W.2d 766, 326 Mo. 523. (b) Employer's cause of action, under Workmen's Compensation Act, accrues as of the date of the award by the commission against the employer. Tenny v. Lashly, 80 Mo. 668; Burckhardt v. Helfrich, 77 Mo. 381; Burton v. Rutherford, 49 Mo. 255; Thompson v. Brown, 121 Mo. App. 531; Stevens v. Stevens, 172 Mo. 36; Binz v. Hyatt, 200 Mo. 309; State ex rel. v. Tillmann, 134 Mo. 168; Burrus v. Cook, 117 Mo. App. 402, 215 Mo. 496; Elms Realty Co. v. Wood, 285 Mo. 139; Denning v. Meckfessel, 261 S.W. 55; Petty v. Tucker, 166 Mo. App. 98; Bauer v. Gray, 18 Mo. App. 172; Singleton v. Townsend, 45 Mo. 379; Burhong v. Taylor, 82 Mo. 671; Reynolds v. Schade, 131 Mo. App. 13; Superior Mineral Co. v. Mo. Pac. Ry. Co., 45 S.W.2d 912, 59 S.W.2d 690.
Lashly, Lashly Miller and Oliver J. Miller for respondents.
(1) The cause of action being for a death occurring in Missouri from an accident in Missouri is founded upon the wrongful death statutes of Missouri, to-wit, Revised Statutes 1929, Sections 3262-3264 and 3266. King v. Smith Baking Co., 71 S.W.2d 115; Tobin v. Bell Tel. Co., 199 S.W. 952. (a) The widow does not state a good cause of action when she files her petition after six months have elapsed and fails to aver that there are no minor children surviving. Chandler v. Chicago Ry. Co., 251 Mo. 592, 158 S.W. 35; Tiller v. St. Louis Railroad Co., 189 F. 994; King v. Smith Bak. Co., 71 S.W.2d 115. (b) An amended petition filed after the statute has run does not relate back to the time of the filing of the original petition to avoid the bar of the Statute of Limitations where the original petition failed to state a cause of action. A demurrer interposed on a failure to state a cause of action should be sustained. Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; Russel v. Nelson, 295 S.W. 118; Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 266; Burke v. Unger, 88 Okla. 226, 212 P. 993. (c) In considering the demurrer the court is entitled to look and see the filing date on the petition to determine when it was filed. Bright v. Thacher, 215 S.W. 788. (2) Where the original petition is filed by one who has no right to maintain the suit, and an amended petition is subsequently filed bringing in those who have a right of action for the first time, the amendment does not relate back to the filing of the original petition. Meservey v. Pratt-Thompson Const. Co., 291 S.W. 174; Atlanta Ry. Co. v. Hooper, 92 F. 820. (3) The Workmen's Compensation Act of Missouri creates no new cause of action for death in the employer, but merely subrogates to him the rights, if any, which the dependents may have under the wrongful death statute of Missouri. Superior Mineral Co. v. Mo. Pac. Ry. Co., 45 S.W.2d 915; Fidelity Casualty Co. v. St. Paul G.L. Co., 188 N.W. 265. (a) The cause of action for death accrues at the death and the statute runs from that time. Kennedy v. Burrier, 36 Mo. 128. (b) The right of subrogation commences at the time of death. General Box Co. v. Mo. Utilities Co., 55 S.W.2d 442; State ex rel. v. Haid, 59 S.W.2d 690. (4) Where the right of action is originated by the statute its existence depends upon strict compliance with the statutory provisions and a failure to plead those in detail renders the petition nugatory and subject to a demurrer based upon the failure of the petition to state a cause of action. Chandler v. Chicago Ry. Co., 158 S.W. 35.
This is an action by the widow, minor children, the employer and its insurer, against third parties (under the Workmen's Compensation Law) to recover $10,000 for the death of Henry C. Goldschmidt. A demurrer to a second amended petition was sustained and this appeal followed. It appears from the second amended petition that Henry C. Goldschmidt, on April 8, 1934, was in the employ of plaintiff, Donnell Milk Company, as a truck driver, and that he and his employer were under the Workmen's Compensation Act; that plaintiff, United States Casualty Company, was the insurer; that on said date the employee, while on duty, was killed in a collision between the truck he was driving and a truck of defendant, Pevely Dairy Company, being driven at the time by defendant, Juengel, who was at the time in the employ of the Pevely Dairy Company, and on duty. The acts of alleged negligence on the part of defendant Juengel are pleaded.
It further appears from the second amended petition that on May 29, 1934, the Compensation Commission made an award in favor of the widow, Henrietta Goldschmidt, and her two minor children, Earline and Henrietta, all of whom are plaintiffs, in the sum of $8055, and an additional sum of $150 for burial expenses; that a part of this award has been paid and "a part will be paid from time to time in the future."
The demurrer alleges (1) misjoinder of parties plaintiff; (2) misjoinder of causes of action; and (3) that the "second amended petition does not state facts sufficient to constitute a cause of action upon behalf of the plaintiffs against the defendants, or either of them." It will only be necessary to consider the third ground of the demurrer.
The case history is as follows: As appears above, the employee was killed April 8, 1934, and on May 29, 1934, compensation was awarded the widow and minor children. The record discloses that on October 18, 1934, six months and ten days after the death of her husband, the widow filed the original petition against defendants in which petition she was the sole plaintiff. A general denial to this petition was filed by defendants January 16, 1935. June 17, 1935, a year, two months and nine days after the death of Henry C. Goldschmidt, the first amended petition was filed in which the widow, minor children, the employer and insurer were joined as parties plaintiff. Demurrer to the first amended petition was filed June 21, 1935, and was overruled September 16, 1935. Then on September 18th (in same term) the order overruling the demurrer was set aside and an order entered sustaining the demurrer. November 27, 1935, the second amended petition (the one at bar) was filed, in which were the same parties plaintiff as in the first amended petition. December 2, 1935, demurrer was filed to the second amended petition, which demurrer was sustained February 17, 1936, cause was dismissed, and this appeal followed.
It is contended by defendants (respondents here) that any cause of action that plaintiffs or either of them may have had against them for the death of Henry C. Goldschmidt is barred by the limitations prescribed by Sections 3262, 3264, 3266, Revised Statutes 1929 (Mo. Stat. Ann., secs. 3262, 3264, 3266, pp. 3353, 3377, 3385).
We first proceed as though the Compensation Law were not involved and as though the widow and minor children were the only parties concerned. That is, we first consider the questions raised as they affect the widow and minor children. Neither of the petitions disclosed on the face thereof when filed, but the court may look to the filing date to determine when a petition is filed. [Bright v. Thatcher et al., 202 Mo. App. 301, 215 S.W. 788, l.c. 790, 791; O'Hara v. Lamb Const. Co., 200 Mo. App. 292, 206 S.W. 253.] [2] The first and second amended petitions disclose that deceased left minor children, and this being so, the widow was required to file suit within six months from the date of death of her husband. otherwise the cause of action passed from her and vested in the minor children. [Sec. 3262, R.S. 1929; Tobin v. Bell Telephone Co. (Mo.), 199 S.W. 952; Chandler v. Chicago Alton Railroad Co. et al., 251 Mo. 592, 158 S.W. 35; King v. Smith Baking Co., 228 Mo. App. 721, 71 S.W.2d 115.] The widow did not sue within six months, therefore, when the first petition was filed by her alone, there was no cause of action in her to state. The first amended petition making the minor children parties plaintiff, along with their mother, the employer and the insurer, was not filed until June 17, 1935, a year, two months and nine days after the death of the deceased. Section 3262 provides that if the wife fails to sue within the six months, then the minor child or children may sue, and Section 3266, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3266, p. 3385), provides that "every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue," except in certain circumstances which are not here involved. And notwithstanding that the cause of action was in the widow for the six months period, the minors were required to file suit within one year from date of death of deceased. [Cummins et al. v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, l.c. 931; Rutter v. Mo. Pac. Ry. Co., 81 Mo. 169.] They did not sue within the year, hence any cause of action in them was barred upon the lapse of the one year.
But it is contended that the filing of the first amended petition, two months and nine days after the lapse of the one year, relates back "to the time of the filing of the original petition, and the joining of additional parties plaintiff or the substitution of a new plaintiff relates back to the filing of the original petition, and the joining of such additional plaintiffs or the substitution of a new plaintiff is not barred even though they were at the time of the amendment barred by limitations from instituting a new action." As supporting these contentions plaintiffs call our attention to Drakopulos v. Biddle et al., 288 Mo. 424, 231 S.W. 924; Vaughan v. St. L. S.F. Railroad Co., 177 Mo. App. 155, 164 S.W. 144, l.c. 148; American Railroad Co. v. Didricksen, 227 U.S. 145, 33 Sup. Ct. 224, 57 L.Ed. 456; Cytron v. St. Louis Transit Co., 205 Mo. 692, l.c. 698 et seq., 104 S.W. 109; Clark v. Kansas City, St. L. Chicago Railroad Co., 219 Mo. l.c. 540, 118 S.W. 40; Gresham v. Talbot, 326 Mo. 517, 31 S.W.2d 766.
There would be merit in the relating back contention if there had been a cause of action vested in the widow when she, as sole plaintiff, filed the original petition, but when the original petition was filed, there was no cause of action in the widow, hence there was nothing to relate back to. There being no cause of action in the widow when the original petition was filed, such petition could not be amended by bringing in the minor children as parties plaintiff, who had no cause of action when the first amended petition was filed, and this because they did not sue within one year from the date of the death of their father. [Meservey v. Pratt-Thompson Const. Co. (Mo. App.), 291 S.W. 174, l.c. 177, and cases there cited.] We do not mean to imply that if the first amended petition, in which the minor children were added as plaintiffs had been filed within the one year, that such would have been an amendment of the original petition. Had that situation obtained, what is called the first amended petition could, we think, have been considered as a petition on behalf of the minor children, independent of the widow. To rule in accordance with the relating back theory, under the facts as appear here, would be to nullify Section 3262 et seq., as to what parties may sue under the wrongful death statute and when they must sue, if at all. We are constrained to rule that the second amended petition, under any theory, stated no cause of action in the widow and minor children.
It is contended on the part of the employer that the cause of action as to it did not accrue until the Compensation Commission made the award on May 29, 1934, and that, as to it, the cause of action was subject only to the five-year Statute of Limitations.
Section 3309, Revised Statute 1929 (Mo. Stat. Ann., sec. 3309, p. 8244) provides: "Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation."
The wrongful death statute (Sec. 3262 et seq., R.S. 1929) created in the dependents of the one killed a new cause of action, and was not a provision for the survival of any action the party injured may have had. [Cummins v. Kansas City Public Serv. Co., supra, ( 334 Mo. 672, 66 S.W.2d l.c. 923).] However, Section 3309 of the Compensation Act did not create in the employer a new cause of action for the wrongful death of the employee, but merely subrogates to the employer, the rights, if any, which the dependents of the employee have against the third party under the wrongful death statute. [Superior Minerals Company v. Mo. Pac. Railroad Co., 227 Mo. App. 1044, 45 S.W.2d 912, l.c. 915; Fidelity Casualty Co. v. St. Paul Gas Light Co. (Minn.), 188 N.W. 265.]
In the Superior Mineral Company case we find this language, which is plain and to the point: "Now in construing Section 3309, Revised Statute 1929, we are bound to search for, and to give effect to, the true legislative intent expressed therein to the extent that the language used legitimately reveals it; and it is to be presumed that the entire section was designed to have a purpose and an effect, and that no absurd or vain use of words was employed. The section plainly says that, where a third person is liable to the dependents for the death, the employer shall be subrogated to the right of the dependents against such third person, and may recover any amount which the dependents would have been entitled to recover. Whatever liability the third person might have to the dependents would obviously be under our wrongful death statute, and under it alone. . . . In other words, our Compensation Act neither creates a new cause of action for wrongful death apart from or independent of, that provided by the original death statute, nor does it enlarge upon the identity of the beneficiaries who are designed therein, save only as it contemplates the subrogation of the employer in those particular instances where the dependents are such as to have a cause of action under the original statute. Thus the only effect which the enactment of our Compensation Act has had upon the terms of, and the procedure to be followed under, the wrongful death statute, is that it has provided for the employer's right of subrogation in that limited class of death cases where the employer is liable for compensation, and there is a third party liability which is subject to enforcement under the provisions of the latter statute."
In the Minnesota case (Fidelity Casualty Co. v. St. Paul Gas Light Co., supra), it was specifically held (headnote 1, 188 N.W. 265) that "the time within which an employer, who has paid the compensation provided for by the Workmen's Compensation Act for the death of his employee, whose death is caused by the wrongful act of a third person, by which payment the employer becomes subrogated to the rights of the dependents of the deceased employee, may commence an action against such third person is that prescribed by Gen. St. 1913, Sec. 8175." (The wrongful death statute of Minnesota.)
In support of the contention of the employer that the five-year Statute of Limitations is applicable to its situation, the case of Star Brewing Co. v. Cleveland, C., C. St. Louis Ry. Co. (C.C.A. 7th), 275 F. 330, is cited. That case holds that, under the Illinois Workmen's Compensation Act, the cause of action given an employer against a third person for the wrongful death of an employee, is a new cause of action created by the Compensation Act, independent of the wrongful death statute, and that an action by the employer against a third party for the alleged wrongful death of an employee is not governed by the limitation prescribed by the Illinois wrongful death statute, but is governed by the Illinois five-year Statute of Limitations. In Fidelity Casualty Co. v. St. Paul Gas Light Co., supra, the Supreme Court of Minnesota pointed out the difference between the pertinent Minnesota Workmen's Compensation Law and the Compensation Law of Illinois, and did not follow the ruling in the Star Brewing Company case. And without detail, we think it is sufficient to say that our Workmen's Compensation Law on the point is different from that of Illinois. We might further say that there was a dissenting opinion in the Star Brewing Company case, which we think has by far the better of the argument.
Without further discussion, we rule that any cause of action that any one had for the alleged wrongful death of Henry C. Goldschmidt accrued upon his death, and that the time within which suit could be brought for his death is governed by our wrongful death statute.
The order sustaining the demurrer and the judgment dismissing the cause should be affirmed, and it is so ordered. Ferguson and Hyde, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.