Wrongful Death's Comm Antecedents in Missouri

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1 Wrongful Death's Comm Antecedents in Missouri BY DANIEL J. SHEFFNER 1 Daniel J. Sheffner Two years before Missouri enacted its first wrongful death act in 1855, the Supreme Court of Missouri in James v. Christy recognized a parent s right to sue in tort for the death of a child. This decision casts a shadow of doubt over the formalistic belief that wrongful death was absent at common law, and so suggests that deeper investigation into wrongful death s common law antecedents in Missouri is necessary in order to fully recognize Missourians common law rights. Introduction In 1853, the Supreme Court of Missouri recognized a parent s right to recover in tort for the loss of society or comforts associated with the wrongful death of a child in James v. Christy. 2 Decided two years before enactment of the state s first wrongful death act, James is a glimpse into wrongful death s pre-statutory origins in Missouri. Causes of action that existed at common law are protected from the imposition of certain legislative limitations, such as caps on damages, and are amenable to judicial application of common law principles, whereas actions that were nonexistent before their codification are subject to limitations and elimination by the General Assembly. 3 James indicates that wrongful death was a recognized common law right before its codification in 1855; however, despite such implications, the case has been disregarded as contrary to the prevailing belief that wrongful death was absent at common law. 4 This essay hopes to promote deeper investigation into wrongful death s origins in Missouri, as well as circumspection concerning the commonly repeated, although glaringly unsupported, belief that the right to sue in tort for the wrongful death of a loved one is wholly dependent on legislative grace. Part I discusses the origins of the rule that no action for death existed at common law. Part II examines the James case, explaining that James indicates that Missouri law may be incorrect in its formalistic conceptions of the history of wrongful death in the state. Lastly, Part III implores Missouri attorneys and courts to reexamine the history of wrongful death in Missouri in order to more fully realize Missourians common law rights as originally conceived. Wrongful Death s Statutory Antecedents Prevailing wisdom dictates that wrongful death is a purely statutory cause of action. 5 Iterations of this oft-repeated shibboleth line the pages of the reporters and provide a starting point for any given court s wrongful death analysis. The origin of this socalled common law rule lies not in Missouri, nor in any other American jurisdiction; rather, the judicially constructed denial of Missourians common law right of action for the wrongful death of a loved one 194 / Journal of the MISSOURI BAR

2 on Law stems from the little-known 19th century English decision of Baker v. Bolton. 6 That case, and Parliament s reaction to it, formed the basis for the near universal acceptance by American jurisdictions that early Americans lacked the right to bring a death action at common law, and provided the impetus for the universal enactment of wrongful death statutes by the states, the purpose of which were to ameliorate the alleged barbarity of the common law. 7 In Baker v. Bolton, a husband brought suit for the injury, and subsequent death, of his wife due to a tragic stagecoach accident. 8 The English court denied the husband recovery for the damages associated with his wife s death, holding that [i]n a civil Court, the death of a human being could not be complained of as an injury... 9 Lord Ellenborough, the presiding judge in Baker, unfortunately supplied no reasoning for this pithy statement; however, research has shown that it was inconsistent with ancient Anglo- Saxon custom, which mandated reparations to families of persons wrongfully killed. 10 As time passed, courts in England came to accept Baker, perhaps finding ex post justification of the rule in the felony merger doctrine, a principle mandating that the property of one convicted of murder be confiscated by the Crown, and so not reachable by claimants in private litigation. 11 Either way, the Baker rule became a fixture in English law, so much so that nearly 30 years after Lord Ellenborough issued his fateful statement, Parliament enacted Lord Campbell s Act in 1846, the first modern wrongful death act. The act provided a right of action in tort for the death of a loved one, and so acknowledged Parliament s belief that no death action was available absent legislative enactment. 12 As in England, courts in America gradually accepted the Baker rule, even though many American courts pre-baker had entertained common law death actions. 13 For example, in Cross v. Guthery, 14 a 1794 Connecticut case, the court awarded relief to the husband of a victim of fatal medical negligence, despite the fact that there was no statute providing a basis for such a right. 15 Despite Cross and other similar cases, however, states began to accept without much scrutiny the Baker rule, and state legislatures responded by enacting wrongful death acts to remedy the inequity in the law, many of which were modeled on Lord Campbell s Act. 16 Missouri enacted its first wrongful death act in Two years before that, however, the Supreme Court of Missouri handed down its opinion in James, a decision that seems to indicate that, prior to the enactment of Missouri s wrongful death act, Missourians were able to bring suits at common law for the death of a loved one contrary to the rule imposed by Baker. 18 Wrongful Death s Common Law Antecedents in Missouri: James v. Christy In James v. Christy, the Supreme Court of Missouri was tasked with determining whether a claim for the loss of services of a deceased son survived to the administrator of the decedent s father upon the father s death. 19 A unanimous Court held that the action did survive to the administrator. 20 However, the decision s importance lies not in the Court s ultimate holding, but in its discussion of the apportionment of damages associated with the death of the child. The discussion suggests that Missouri courts recognized a cause of action at common law for wrongful death by at least 1853, two years prior to the enactment of Missouri s wrongful death statute. 21 July-August 2014 / 195

3 James, plaintiff in the original action and father of the decedent, sued a ferry company s owners for the death of his son. The 15-year-old had been a passenger on a steam ferry boat used in crossing the Mississippi river from St. Louis to Illinois. 22 Tragically, by reason of the imperfection of the machinery of the boat... and [the ferry boat owners ] negligence and carelessness, an explosion occurred which caused [the son s] death... whilst he was a passenger on the boat The father himself died before resolution of the case. 24 Upon the father s death, his administrator entered appearance as plaintiff. 25 At issue was whether, pursuant to the twenty-fifth section of the second article of the act concerning executors and administrators, a cause of action survived to a deceased plaintiff s administrator and thus entitled the administrator to a damage award upon successful litigation of the case. 26 James administrator argued that the statute allowed for the recovery of intangible property rights. 27 Such a construction would permit the loss of services of a deceased son to be included within the broader definition of property rights, thus providing a damage remedy for the deprivation of such services. The ferry owners attorneys argued that an administrator was only allowed to recover for loss to tangible property rights rights of property as opposed to mere personal rights, of which they denominated the loss of services of a deceased child. 28 The Court agreed with the administrator s interpretation, holding that a deceased plaintiff s representative was able to recover for all acts by which personal property is lessened in value. 29 Such property rights included a father s rights in the services of his son during his minority, and whilst he is under his guardianship. 30 The Court limited such recovery rights to injury resulting from the loss of services, excluding any apportionment of damages due to non-pecuniary losses. 31 In so holding, however, the Court stated, in unmistakable terms, that a parent suing for the death of a child was able to recover non-pecuniary damages. Said the Court: The recovery will be limited to the actual value of the services, as they may be ascertained by the jury. The administrator will not be entitled to any remuneration for the loss of the society or comforts afforded by a child to his parent. Damages of this character died with the parent, and his estate is entitled to compensation, only so far as it has been lessened by the loss of the son s services. The father was no longer entitled to those services than during his life. 32 The Court, therefore, explicitly stated that non-economic damages damages for the loss of society or comforts of the child as well as damages for pecuniary losses were recoverable in 1853 by a parent in a common law suit seeking damages due to the negligent killing of a child. Missouri courts gradually explained James away, adopting the majority rule handed down by Baker. 33 James, however, has not lost significance. In 1976, Judge Bardgett of the Supreme Court of Missouri discussed James at length in his dissent in State ex rel. Kansas City Stock Yards Co. of Maine v. Clark. 34 Judget Bardgett wrote that James indicated that [a]lthough courts of this and other states have repetitively said there was no action for wrongful death prior to the enactment of death damage statutes, the fact is that in Missouri there was [such] a cause of action available, at least to the parent when the minor child was negligently killed Judge Bardgett believed that James simply states the situation as it existed in and prior to I can hardly believe that the judges of this court would have acknowledged the existence of such a cause of action unless it did actually exist. 36 James, therefore, provides compelling evidence that there was a common law rule that, instead of barring death actions, bestowed upon individuals a right in tort to sue for the loss of a loved one a son in the case of James. While subsequent Missouri decisions fell in line with the majority rule, James may suggest that this move is actually contrary to the common law of Missouri. James should, therefore, prod lawyers and judges to closely reexamine Missouri s legal traditions and common law antecedents. Rediscovering Our Common Law Roots: A Modest Plea for Evolution One may be asking oneself, So what? Why does it matter whether or not some old antebellum case recognized a common law right of action at wrongful death? The tort of wrongful death, after all, is presently codified and available for use in this state by the loved ones of victims of wrongful death. 37 What use is there in quibbling over the origins of a right presently enjoyed by Missourians? James is primarily important for two reasons. First, and more generally, a law that owes its existence entirely to statute may in turn be eliminated by repeal of that statute. Were any rights that modify the common law 196 / Journal of the MISSOURI BAR

4 rule of negligence to be repealed by the legislature today, tomorrow an individual could still bring forth a claim for garden variety negligence simply based on Missouri decisional law. However, if, for example, Missouri s wrongful death act were repealed by the legislature, the entire right to bring a death action would be erased due to the fact that courts feel bound by precedent to declare that the right to bring such an action only exists due to legislative enactment. 38 Therefore, under our state s modern conception of wrongful death, what the General Assembly giveth, the General Assembly may taketh away. For that reason, the James Court s apparent belief in a contrary proposition should not be discarded without more serious examination. Second, the rule that wrongful death is not a common law right of action affects litigants in farreaching and not immediately obvious ways. The most striking example of the modern-day inequity of Baker is exemplified by the issue of legislative caps on damages in medical malpractice cases in Missouri. Recent developments in Missouri have unwittingly created a perverse incentive for health care providers such that a negligent health care provider may owe potentially less in tort if his or her patient dies as opposed to merely being injured. 39 In Watts v. Lester E. Cox Medical Centers, the Supreme Court of Missouri held that legislative limitations on personal injury medical malpractice actions violate Missouri s right to trial by jury, codified at Article I, 22(a) of the Missouri Constitution, which protects from impermissible legislative interference actions in existence at common law. 40 However, in an earlier decision the same year, Sanders v. Ahmed, the Court held that the caps were not unconstitutional as applied to wrongful death medical malpractice actions, because wrongful death was allegedly absent at common law. 41 These discordant results are directly attributable to our adherence to the Baker rule, for if the tort of wrongful death was determined to be a common law action, the results in Sanders and Watts would have been in equipoise, and health care providers and patients would not be subject to the perverse incentive currently imposed upon them by the law. Missouri, however, need not continue its somnambulistic attitude towards wrongful death. 42 The Massachusetts Supreme Judicial Court, recognizing the inequities imposed by blind adherence to Baker, overruled its precedent to the contrary in Gaudette v. Webb. 43 The court held that Massachusetts law had evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin The Gaudette court s rejection of Baker allowed it to disregard the state s wrongful death statute of limitations tolling provisions in favor of its more lenient general tolling provisions. 45 Gaudette was heavily influenced by persuasive dicta in an earlier U.S. Supreme Court decision, Moragne v. States Marine Lines, Inc., in which the Court wrote that the universal enactment of state wrongful death acts, as well as Baker s failure to supply a reason for its rule, has made the allowance of recovery for wrongful death the general rule of American law, and its denial the exception. 46 There is, therefore, persuasive authority for the proposition that wrongful death is not merely a product of legislative grace. This essay, however, does not suggest completely discarding the wrongful death jurisprudence that has arisen in July-August 2014 / 197

5 this state since the late 19 th century; rather, it merely suggests that our attitudes toward wrongful death may be constrained by a formalistic rule that has no bearing in history or reason and that our own state s highest court seems to have rejected before the rule became effectively memorialized by statute. If lawyers and judges took James more seriously, perhaps like Massachusetts Missouri law could eventually be viewed to have evolved to the point where it [could] be held that the right to recovery for wrongful death is of common law origin, 47 and, therefore, the inequitable results possible due to continued adherence to the Baker rule would be minimized or eliminated. Conclusion In 1808, a little-remembered English case produced a rule based neither in history or reason that would reverberate across the Atlantic Ocean and forever alter the rights of wrongful death litigants. 48 States responded to the inequities caused by the rule barring death actions by codifying such a right in statute. In Missouri, however, before codification of the state s first wrongful death act, this state s highest court disregarded the Baker rule, holding that a parent could recover modern-day noneconomic and economic damages in an action stemming from the death of a child. 49 Other courts have acknowledged the illogicality of the Baker rule or even ceased to adhere to it. If Missouri lawyers and courts took James more seriously, perhaps our legal community could entertain a more honest discussion of, and examination into, wrongful death s history and common law antecedents in this state, and therefore fully realize Missourians common law rights as originally conceived. Endnotes 1 Law Clerk, Hon. Kenneth J. Meyers, U.S. Bankruptcy Court, Southern District of Illinois. The views expressed in this article are not necessarily the views of any judge of the Southern District of Illinois. 2 James v. Christy, 18 Mo. 162, 164 (1853). 3 See Watts v. Lester E. Cox Med.Ctrs., 376 S.W.3d 633, (Mo. banc 2012); Sanders v. Ahmed, 364 S.W.3d 195, 205 (Mo. banc 2012). 4 See Cummins v. Kansas City Pub. Serv. Co., 66 S.W.2d 920, 922 (Mo. banc 1933). 5 See, e.g., Sanders, 364 S.W.3d at 203; Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993); Jackson v. The St. Louis, Iron Mountain & S. Ry. Co., 87 Mo. 422, 429 (1885). 6 Baker v. Bolton & Ors, EWHC KB J92 (1808), 1 Camp 493; 170 ER 1033; available at KB/1808/J92.html. 7 See Moragne v. States Marine Lines, Inc., 398 U.S. 375, (1970). 8 Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1058 (1965). 9 Id. (internal citations omitted). Baker v. Bolton & Ors [1808] EWHC KB J92 (1808) 1 Camp 493; 170 ER 1033; available at J92.html. 10 See Malone at See Moragne, 398 U.S. at ; Malone at See Malone at Moragne, 398 U.S. at ; Malone at Root 90, 1 Am. Dec. 61 (Conn. 1794). 15 Malone at Moragne, 398 U.S. at 389; Jay W. Elston, State Wrongful Death Acts and Maritime Torts, 39 Tex. L. Rev. 643, (1961). 17 RSMo, ch. LI, 3 (1855), p.648; State ex rel. Kansas City Stock Yards Co. of Maine v. Clark, 536 S.W.2d 142, 150 (Mo. banc 1976) (Bardgett, J., dissenting). 18 James v. Christy, 18 Mo. 162 (1853). 19 Id. at Id. 21 Clark, 536 S.W.2d at (Bardgett, J., dissenting). 22 James, 18 Mo. at Id. 24 Id. at Id. at State ex rel. Kansas City Stock Yards Co. of Maine v. Clark, 536 S.W.2d 142, 150 (Mo. banc 1976); James, 18 Mo. at James, 18 Mo. at Id. at Id. at Id. 31 Id. 32 Id. (emphasis added). 33 See Cummins, 66 S.W.2d at S.W.2d at (Bardgett, J., dissenting). 35 Id. at Id. 37 Sections , RSMo See Daniel J. Sheffner, Taking Wrongful Death Seriously: Dworkinian Interpretivism and the Common Law Right of Action at Wrongful Death, 5 Faulkner L. Rev. (forthcoming 2014) [hereinafter Sheffner, Taking Wrongful Death Seriously]. 39 See Daniel J. Sheffner, Note, Fatal Medical Negligence and Missouri s Perverse Incentive, 7 St. Louis U. J. Health L. & Pol y 147 (2013); Daniel J. Sheffner, Cheaper to Kill: Medical Malpractice and the Sanders-Watts Imbalance, St. Louis Lawyer, March 2014, at 10; Sheffner, Taking Wrongful Death Seriously. 40 Watts, 376 S.W.3d at ; Mo. Const. art. I, 22(a). 41 Sanders, 364 S.W.3d at Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 364 (Tex. 1990) (Dogget, J., dissenting). 43 Gaudette v. Webb, 284 N.E.2d 222, 229 (Mass. 1972). 44 Id. 45 Id. 46 Moragne, 398 U.S. at , 393. Moragne influenced this line of reasoning, and found support in the Restatement (Second) of Torts. Comment k to 925 of the Restatement states: The prevalence of the wrongful death statutes, which are to be found in all jurisdictions, and their existence for substantially more than a hundred years have given rise to some decisions holding that the principle of a right of action for wrongful death has now become a part of the common law itself. In view of the lack of any discernible basis for the 1808 holding in Baker v. Bolton and its harsh result and of the scholarly criticism of the holding, it has been concluded that there is no present public policy against allowing recovery for wrongful death, so that the right of action can now be regarded as arising under the common law. Restatement (Second) of Torts 925 cmt. k (1979) (internal quotations omitted). 47 Gaudette v. Webb, 284 N.E.2d 222, 229 (Mass. 1972). 48 Baker v. Bolton & Ors, EWHC KB J92 (1808), 1 Camp 493; 170 ER James v. Christy, 18. Mo. 162 (Mo. 1853). 198 / Journal of the MISSOURI BAR

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