author: MANFORD, Judge.

text:
    Deborah L. STOUTIMORE, Respondent, v. John R. STOUTIMORE, Appellant.
    No. WD 34446.
    Missouri Court of Appeals, Western District.
    May 1, 1984.
    Motion For Rehearing and/or Transfer to Supreme Court Overruled and Denied July 3, 1984.
    Application to Transfer Denied Aug. 24, 1984.

      Joseph Y. DeCuyper and Hsiang-Lin Lee of Snowden & DeCuyper, Kansas City, F. Joe DeLong III, Jefferson City, amicus curiae for Divorced Dads, Inc.
    Tom B. Kretsinger, Jr. of Kretsinger & Kretsinger, P.C., Liberty, for respondent.
    Before PRITCHARD, P.J., and MAN-FORD, and NUGENT, JJ.
   MANFORD, Judge.

This is an appeal from a judgment of dissolution of marriage. The judgment is affirmed.

Four points are presented, which in summary charge that the trial court erred in its judgment, because (1) that portion of the judgment awarding custody of the minor child was against the weight of the evidence; (2) it denied appellant’s request for joint custody of the minor child; (3) of the sum awarded as attorney’s fees; and (4) it required a deposit for the remainder of attorney’s fees pending disposition of the appeal herein.

Review of this matter is with Rule 73.01 as that rule has been construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The record contains no formal request for findings of fact and conclusions of law, and thus any such request is deemed waived and all fact issues relative to this appeal are deemed found in accordance with the trial court’s judgment. Husky Industries, Inc. v. Craig Industries, Inc., 618 S.W.2d 458 (Mo.App.1981); Rule 73.01. In its judgment order, the trial court did set forth minimum fact findings, but no error lies against the trial court for not making specific findings. McClelland v. Williamson, 627 S.W.2d 94 (Mo.App.1982).

In summary, the record reveals the following pertinent facts:

The parties cohabited prior to their marriage. It was determined that respondent was pregnant and that the parties then solemnized their relationship by a contract of marriage entered on April 5, 1980. The marriage is recorded in Clinton County, Missouri. Both parties testified that the marriage is irretrievably broken with no likelihood of it being preserved. Both parties testified as to verbal and physical abuse to the other. There was one child (male, aged three years) born of the marriage. The parties testified of their interest and concern for the welfare of the minor child. In addition to their own testimony as to claimed parental fitness, both parties offered expert testimony in further support of their claims.

Additional applicable facts are referenced in the disposition of the charged errors. It suffices to state at this point that the trial court dissolved the marriage, awarded custody of the minor child to respondent (wife-mother), divided the marital property, ordered visitation, and directed appellant (husband-father) to pay an appropriate sum as monthly support for the child. The record reveals very liberal visitation awarded to the husband-father. This appeal followed entry of the judgment.

Under his first point, appellant (hereinafter referred to as husband) charges that the trial court erred in awarding custody of the minor child to respondent (hereinafter referred to as wife), because the welfare and best interests of the child would be better served if custody had been awarded to the husband, and the custody portion of the judgment was against the weight of the evidence.

In reality, the contention of the husband under this point (1) is that the court should have ordered joint custody, arguing that as a principle, that form of custody is preferable to sole custody in one parent over the other. The husband postures this argument upon his claim that the evidence revealed both parties to be fit for purposes of parental custody. The only evidentiary challenge he makes under his point (1) is that due to the work schedules of the wife, the minor child is left to remain awake as late as midnight most evenings, whereas his work schedule would not permit or encourage such late hours. However, the record reveals that the husband goes to work at such an early hour in the mornings that the minor child would have to be awakened at 4:00 a.m. to accommodate the husband’s work schedule. On its face, this is an insignificant challenge to the evidence regarding the order of custody. The evidence was substantial to support the trial court’s award of custody to the wife and the court did not err in making that award. It is evident from the husband’s argument under this point (1) that he really makes no challenge to the evidence, but rather, argues for joint custody, which is addressed more in detail under his point (2).

Point (1) is meritless and is ruled against the husband.

Under his point (2), the husband charges that the trial court erred in refusing his request for joint custody of the minor child. The husband premises his argument under his point (2) upon the following that the state laws requiring that the custody of minor children be placed with one parent, as well as the tender years presumption, are unconstitutional and violate § 452.375, RSMo 1978, as amended, Mo. Const. Art. I, § 2, and U.S. Const. Amend XIV, because such laws presumptively deny the husband, relative to his relationship with his minor child, equal rights and opportunity.

In support of his argument under his point (2), the husband again emphasizes his claim that both parties are fit relative to parental custody. The husband then proceeds to direct attention to a legislative amendment to § 452.375. The husband directs specific attention to subsection two of the statute, which by the 1982 amendment reads: “2. As between the parents of a child, no preference may be given to either parent in the awarding of custody for the sole reason that the parent is the mother or father of the child, nor because of the age or sex of the child...” (effective August 13, 1982 as per Mo. Const. Art. Ill, § 29)

Additional amendments to § 452.375 were made, and it is noted that in 1983, the Missouri General Assembly revised the above statutory section still further. Section two became section three, and presently reads:

“3. As between the parents of a child, no preference may be given to either parent in the awarding of custody for the sole reason that the parent is the mother or the father of the child, nor because of the age or sex of the child. The court may award joint custody or sole custody to either parent, or, when the court finds that each parent is unfit or unable, and it is in the best interests of the child, then to a third party.” (effective September 28, 1983 as per Mo. Const. Art. Ill, § 29)

As regards the above amendments to § 452.375, section two, as worded above, was, and section three, as worded above, was not, in effect at the time of the judgment herein (entered December 20, 1982, amended as of December 20, 1982).

Having referenced § 452.375.2, the husband, in summary, then argues that the above statutory revision mandates equality as between parents regarding parental custody. He then re-emphasizes that the trial court, in its decree, made no finding that he was unfit or that he was less fit than the wife as a parent. He then argues that since the trial court did not make any finding of unfitness or less fitness, the trial court must have based its custody award upon two other bases. The first is the “tender years presumption.” The second is the “sole parent doctrine.”

As to the first of these bases, the husband cites to several authorities which in fact did adopt and apply the so-called “tender years presumption.” See In Re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977), In Re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975), S G E v. R L J, 527 S.W.2d 698 (Mo.App.1975), R v. E, 364 S.W.2d 821 (Mo.App.1963), and Clinton v. Clinton, 444 S.W.2d 677 (Mo.App.1969), just to list a few.

After citing to the above authorities and others, the husband points out that the “tender years presumption” has been abrogated or repealed by the enactment of § 452.375.2 above and any decision made pursuant to “tender years presumption” must be vacated and held void. There is no doubt that § 452.375.2 has abolished the “tender years presumption” in our state (as the husband contends). That factor alone, however, is not determinative of the question in this case. The real question is whether the trial court herein applied that presumption as claimed by the husband. The entirety of the husband’s argument on this one “basis” is his repeated assertion that the trial court did not find him unfit or less fit than his wife, and therefore, the court, in its custody award, must have applied the “tender years presumption.” A careful search of the record discloses absolutely no basis to support this assertion by the husband. What the trial court did disclose was its awareness that, at the time this case was heard, it was without authority to enter a joint custody award. There is nothing herein to show, nor has the husband revealed to this court, that the trial court based the award of custody in the wife on any consideration of the “tender age” of the minor child. The husband’s assertion is not supported by the record.

The “alternative basis” or “remaining basis” which the husband asserts the custody award was incorrect was his assumption that the award must have been based upon the rule announced in Cradic v. Cradic, 544 S.W.2d 605 (Mo.App.1976). In Cradic, the court ruled that custody must be given to one parent or the other and that § 452.-375 (prior to the 1982-83 amendments noted above) did not authorize joint custody. The husband then argues that not only is the rule in Cradic incorrect, but it is so in light of the ruling in Baer v. Baer, 51 S.W.2d 873 (Mo.App.1932), which the husband argues was a ruling upholding a decree of joint custody. The Baer decision must be viewed in detail so that the particular, and hence distinguishable, feature of that decision can be considered.

The joint custody decree referenced in Baer arose from an agreement between the parties which they executed prior to trial and which, after consideration thereof, the trial court approved. It is noted from the outset that no appeal from the original decree was ever taken by either party, so in reality the question of “joint custody” was never presented as a question on appeal.

Subsequent to the decree of divorce, the parties became involved in a dispute over the removal of the minor child from Missouri. A motion to modify the decree was filed and it was in that procedural setting that the “joint decree” was discussed by the court. The challenge to the “joint custody” was in regard to the time of year, that is, the months of the year as those months interrelated with the school year of the minor. Thus, in the correct sense, there was not in Baer any direct challenge to the validity of a “joint custody” award absent the previously executed agreement between the parties. What the court did in Baer was to approve the agreement of the parties relative to activities (i.e., care and maintenance of the minor child) which provided for the “joint" participation of the parties regarding the decisions to be made relative to the child's welfare. The ruling in Baer does not, although the husband herein assumes to the contrary, rule the question of the validity thereof or the court’s authority relative to a decree of joint custody absent an agreement of the parties expressing both their desire and willingness to jointly participate in the custody of the minor child. Stated another way, the ruling in Baer is not in conflict with the ruling in Cradic, nor does the Baer ruling run contra to the statute.

Baer has no application to the instant case on the issue of joint custody because unlike Baer, this case does not include an agreement between the parties on joint custody. In effect, what the court in Baer was doing was not entering its decree in contravention of the statutory authority on custody, but rather, the court honored the previously executed agreement of the parties and in so doing, met its responsibility as to the protection of the best interests of the minor child. There is nothing to prohibit our courts, in their judgment of protecting the interest of minor children, from entertaining and even enforcing such agreements between the parties. That is a far cry from concluding, as the husband herein urges, that such decrees were authorized by statute (prior to the 1983 amendment to § 452.375), or that decisions by our courts, which approved such agreements, were issuing decrees in conflict with other decisions which upheld the rule of custody in a “sole parent” case such as Cradic. That this is so is reflected by other decisions wherein such agreements have been discussed, but it has also been ruled that our courts were not bound to adopt, follow, or enforce such agreement. See Matter of W K M, 537 S.W.2d 183 (Mo.App.1976) and cases cited therein. Thus, there is no conflict between the ruling in Cradic and Baer as contended by the husband herein.

As one further note, the husband herein charges that the “tender years presumption” and the “sole parent doctrine” are both unconstitutional because they deny the equal protection to both parents to equally participate in the raising of the minor child. As regards the constitutional challenge under the “tender years presumption”, it suffices to state that this challenge is “moot” under the facts and circumstances of the instant case for two reasons. First, the 1982 amendment to § 452.375, in effect at the time the decree was entered herein, abolished that “presumption.” Second, there is absolutely nothing upon the record in the instant case which even suggests, let alone establishes, that the trial court applied such a presumption in its award of custody to the wife.

The question of constitutional challenge to the “sole parent doctrine”, as declared in Cradic and other cases, is also moot with the enactment of the 1983 amendment to § 452.375 noted above. What the husband is requesting of this court is the determination of a constitutional question premised upon statutory law which has been repealed and superceded by another statute. He also seeks a ruling by this court upon case authority decided upon that previous statutory authority.

This type of proposal was presented to our state Supreme Court in Williams v. Williams, 510 S.W.2d 452 (Mo. banc 1974) wherein an appeal was lodged challenging an award of child support. The challenge was based upon an alleged sexual discrimination (against the father) as it had been held that the father was primarily obligated to support his minor children. Our state Supreme Court noted that the statute to which the constitutional challenge was directed had been repealed. The court declined to rule the constitutional issue, stating at 455 of the opinion:

“We do not deem it prudent to decide important constitutional questions in a case decided under a repealed law purportedly pursuant to earlier case authority which is no longer fully applicable to child support orders entered in marriage dissolution cases because of the change in the statutory law of this state.”

The rule announced in Williams is not only applicable but controlling upon the issue of the husband’s constitutional challenge to the “sole parent doctrine” because of the changes in 1983 to § 452.375.

Such a determination herein does not foreclose the husband from seeking a modification of the decree herein and in such proceeding, attempting to establish the justification for a decree of joint custody. Such an approach, of course, would demand the proper proof, but moreover, such approach would or could be more properly lodged in conformity with the present wording and mandate of § 452.375.

Point (2) is found to be meritless and is ruled against the husband.

The husband’s points (3) and (4) are taken up together because they address the same issue, to wit, a charge that the trial court erred in its award of attorney’s fees to the wife, both for trial and the appeal of this matter.

The husband acknowledges the discretion of the trial court to award said fees, but claims that the evidence did not support the court’s award of $5,000 in fees. A careful reading of the record reveals that the evidence was substantial as in support of the award. The trial court ordered the husband to pay the sum of $2,500 as attorney’s fees relative to the trial of this cause. That sum is supported by the evidence.

Following trial, the husband filed this appeal. That action was followed by the filing of the wife’s motion for attorney’s fees and costs pending appeal. Such action is authorized by § 452.355, RSMo 1978. A hearing on the wife’s motion was held, evidence taken, and on February 10, 1983, the trial court ordered the husband to pay the sum of $2,500 and to make a deposit of that sum as fees for the appeal. Such action by the trial court is authorized, Orth v. Orth, 637 S.W.2d 201 (Mo.App.1982), § 452.355. The record shows that there was no abuse of discretion by the trial court in the award of attorney’s fees under the facts and circumstances of the instant case.

Husband’s points (3) and (4) are meritless and are ruled against him.

The court notes the filing of an Amicus Curiae brief filed by Divorced Dads, Inc.

In conclusion and for the reasons set forth above, the judgment entered by the trial court was not against the weight of the evidence, it was supported by substantial evidence, and it did not erroneously declare or apply the law. Murphy v. Carron, supra.

The judgment is in all respects affirmed.

All concur.

      . Technically, what occurred is that the wife formally and originally requested findings of fact and conclusions of law, but withdrew that request. The husband made no request for either. Hence, the result is that no formal request for either was made by either party herein.


source: Caselaw Access Project

author: SHANGLER, Judge. PRITCHARD, Presiding Judge,

license: Public Domain

text:
    Ewell NELSON and Thelma Nelson, Appellants, v. David Grant HALL, Respondent.
    No. WD 34469.
    Missouri Court of Appeals, Western District.
    June 26, 1984.
    As Modified Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    Robert L. Shirkey, James M. Slone, Kansas City, for appellants.
    Paul Y. Herbers, James F. Stanley, Happy, Cooling & Herbers, Kansas City, for respondent.

      Before PRITCHARD, P.J., TURNAGE, C.J., and SHANGLER, J.
   SHANGLER, Judge.

The parents Nelson sued for the wrongful death in Colorado of a minor daughter. The petition alleged that on May 27, 1977, the defendant Hall so negligently operated his motor vehicle on U.S. Interstate 70 near Burlington, Colorado, as to overtake and run into the vehicle occupied by the child, and caused her death. The petition alleged also that at the time of the tortious conduct and consequent casualty, the decedent was a resident of Missouri. The answer of the defendant admitted physical, but transitory, presence in Missouri for five months of 1977, but without the intent to establish local residence or domicile. The petition alleged that Missouri was the sovereignty with the most significant relationships with the occurrence and actors, and on that rationale, asserted recovery under the Missouri Wrongful Death Act [§ 537.080, et seq., RSMo 1978].

The defendant Hall pleaded the effect of the Colorado statute of limitations in bar to the action and the contributory negligence and assumption of the risk by the decedent in defense to the action. The defendant Hall then moved to dismiss for want of subject matter jurisdiction by the court to adjudicate the petition: on the ground that a cause of action for wrongful death was enabled to the plaintiff parents, if at all, by the statutes of the situs of the tortious death — Colorado—and not by the statutes of Missouri as the petition asserted. The trial court sustained the motion and dismissed the petition without prejudice.

The appeal poses: whether a cause of action for wrongful death accrues under the statute of the forum state to the exclusion of the state where the defendant acted to cause death merely because the forum state enjoys the more significant relationships with the occurrence and the litigants.

The traditional doctrine that the lex loci delicti applies to determine questions of conflicts of law in tort cases was discarded from our jurisprudence in Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969). The strict principle that all substantive questions were determinable by the law of the state where the tort occurred was supplanted by the more pliant and fair most significant contacts standard as promulgated by Restatement (Second) of Conflict of Laws § 145 (1971). That standard gives effect to the general principle of choice of law that [§ 145]:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, mth respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue, [emphasis added]

The general principle § 145 enunciates: that the rights and liabilities of the parties with respect to an issue in tort are determined by the law of the state with the most significant relationship to the occurrence and parties is iterated in those terms, and applied to the range of defined torts in separate sections [§§ 146 through 155], and also to the statutory action for wrongful death:

§ 175 Right of Action for Death
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. [emphasis added]

These general principles of significant relationship, by the very terms, are formulated to determine which law governs the rights and liabilities of the parties as to a particular issue of a tort, and not usually the essential cause of action, itself: that is, whether a tort was committed at all. The general principle § 145 promulgates is recognition that a state other than the locus delicti may have a superior interest as to a particular aspect of the cause of action, and as to that issue the lex loci delicti yields to the tort rule of the state with the more significant relationship to the occurrence and parties. Thus, the state where the tort was committed may not be the state with the superior interest in such an issue as the amount of damages a jury may return on the cause of action [Restatement (Second) Conflict of Laws, § 171 (1971); Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983)], or whether the guest statute shall be given effect in favor of a nonresident host driver and against a nonresident guest passenger [Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969)], or whether a claim for damages for a tort survives the death of the tort-feasor or of the injured person [Restatement (Second) Conflict of Laws, § 167 (1971) ], or who could sue upon a claim for wrongful death [Restatement (Second) Conflict of Laws, § 179 (1971); Rotella v. Joseph, 615 S.W.2d 616 (Mo.App.1981) ]. The general principles of significant relationship, therefore, allow a choice of law on these and other such particular issues of a tort cause of action.

That the choice of law principle § 145 promulgates for general application to actions in tort, and § 146 then addresses to tort actions for personal injury, and § 175 then addresses to actions for wrongful death, usually appertains to a particular issue of the cause of action — and only with exception to determine whether the conduct was tortious — is evident from the comments and notes of the reporter:

§ 145 The General Principle

Comment d. The issue involved

Experience and analysis have shown that certain issues that recur in tort cases are most significantly related to states with which they have particular connections or contacts. So, for example, a state has an obvious interest in regulating the conduct of persons within its territory and in providing redress for injuries that occurred there. Thus, subject only to rare exceptions, the local law of the state where conduct and injury occurred will be applied to determine whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor’s conduct was entitled to legal protection.
§ 146 Personal Injuries
Reporter’s Note
Comment d: With respect to issues relating to standards of conduct, the local law of the state of conduct and injury has been invariably applied.
§ 175 Right of Action for Death
Reporter’s Note
The local law of the state of conduct and injury has invariably been applied to determine issues relating to standards of conduct.
[emphases added]

The precept of § 145 that as a general principle the law of the locus delicti governs [to the exclusion of other sovereignty] to define the minimum standard of acceptable conduct of persons within the territory — and hence whether the act which produced the harm was tortious — finds acceptance in court decisions, treatises, and commentaries. See Reporter’s Note to Comment d § 146 Personal Injuries and Reporter’s Note to § 175 Right of Action for Death, Restatement (Second) Conflict of Laws (1971); E. Scoles and P. Hay, Conflict of Laws § 17.1 (Hornbook Series, 1982); W. Reese, Choice of Law. in Torts and Contracts and Directions for the Future, 16 ColumJ.Trans.L. 1, l.c. 13-14 (1977); 1 S. Speiser, Recovery for Wrongful Death 2d § 13.4, p. 351 (Second Edition 1975).

Our choice of law jurisprudence accepts that rationale as an assumption, albeit not as a question presented for determination and adjudicated under the most significant contacts principle. In Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969), a driver and passenger — both Missouri residents— were enroute to New York and return— when a collision occurred in Indiana. The passenger sued the personal representative of the driver in a Missouri court. The question presented was whether Missouri would give effect to the guest statute of Indiana — the locus delicti — to defeat recovery by the plaintiff passenger. The defendant argued the efficacy of the lex loci delicti rule, the law then extant. Our Supreme Court en banc, as we note, discarded the traditional doctrine in favor of the Restatement (Second) choice of law principle. In the course of opinion the court gave emphasis that only a particular issue was there for decision:

[l.c. 181]:
“The issue here presented relates only to which law should govern the host-guest relationship and consequently whether the Indiana Guest Statute is applicable.”
[l.c. 182]:
‘Where the defendant’s exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred will usually have a predominant, if not exclusive, concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction’s interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place.’ ”
[l.c. 185]:
“In a factual situation such as is here presented, a Missouri passenger, starting from Missouri on a trip with a Missouri host, should have a right of recovery if injured by negligence of his or her host regardless of where on that trip the negligence occurs. The question of negligence, as the various cases have indicated, should be determined by the law of the state where the tort occurs because that is the state with the dominant interest concerning that issue

[emphasis added]

The theme that the interest of the state of occurrence predominates under evolved Restatement (Second) principles of choice of law to determine whether conduct committed within its bournes constitutes a tort repeats in Griggs v. Riley, 489 S.W.2d 469 (Mo.App.1972). The particular choice of law issue, as in Kennedy v. Dixon, was the application of the guest statute of the locus delicti [Illinois] or that of policy of the forum state [Missouri] to compensate victims of negligent drivers on the local highways. The court determined that the most significant relations of the parties as to that particular issue under the Restatement (Second) standard was with Missouri and refused effect to the Illinois guest statute to defeat recovery. The court in Griggs v. Riley defined the premises of the choice of law inquiry [1.c. 471[1]]:

The issue we are dealing with here is the relationship of the parties, and the liability to suit of the defendant, as a result of that relationship. It should be emphasized that as was true in Kennedy the substantive law of the place where the accident occurred is to be applied in determining whether defendant’s actions constituted a tort sufficient to permit recovery by plaintiff, [emphasis added]

The petition invokes choice of law principles, not to ameliorate a rule or policy of Colorado [the state of occurrence, injury and death] on a particular issue of the cause of action — such as an expired statute of limitations, a restricted recovery of damages, a local defense, a right to maintain the cause of action, or a guest statute or other immunity to suit — but to enable a wrongful death action on the Colorado occurrence in the Missouri court as a cause of action for wrongful death accrued under Missouri wrongful death §§ 537.080 and 537.090. In effect, the plaintiffs assert the extraterritorial effect of the Missouri wrongful death statutory cause of action under choice of law principles.

The rule that a statute enjoys no extraterritorial effect beyond the state of enactment remains the principle of our adjudicated decisions. Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, 594[5-7] (Mo.1931). At common law death gave rise to no cause of action and terminated any cause of action for a personal tort already accrued. Prosser, Law of Torts § 126 (4th ed. 1971). An action for wrongful death, therefore, accrues — if at all — only by a legislative enactment, and then as a new and different cause than that for the injury from which death resulted. Cummins v. Kansas City Public Service, 334 Mo. 672, 66 S.W.2d 920[1-3] (banc 1933). These premises yield the necessary corollary that a wrongful death cause of action enjoys no extraterritorial effect. Thus, it is the law of the place of the fatal injury which determines whether a death action can be maintained [Rositzky, supra, l.c. 594]:

“An action based on the statutory law of another state must accrue there and can only be maintained in this state when so authorized by the law of this state, and in such cases the courts of this state enforce the laws of the other state as there written and interpreted.”

Another authority gives the usual principle in summary [R. Leflar, American Conflicts Law § 139 (1959)]:

“[N]o cause of action for wrongful death exists save as it was created by the law of the place where the tort occurred, and it is the cause of action there created which must be sued upon at any place where action is brought.”

Our civil procedure [Rule 52.03(a)] prescribes that “[w]henever a claim exists under the law of another state, a civil action thereon may be brought in this state....” The plaintiffs steadfastly refuse that overture, and even shun to assert the Colorado death statute as a basis for recovery — a decorum which preconditions the sufficiency of the pleading and hence jurisdiction to adjudicate. The plaintiffs contend that these prescriptions of the Rositzky era of adjudications are now superseded by the choice of law principles established in Kennedy v. Dixon and most recently applied to actions for wrongful death in State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo. banc 1974) and State ex rel. Kansas City Stock Yards Company of Maine v. Clark, 536 S.W.2d 142 (Mo. banc 1976). They argue that the Rositzky rationale that the Missouri wrongful death statute does not operate beyond the territory of the state represents the now discredited vested rights direction in choice of law determinations, a precept no longer compatible with the most significant relationship standard now in effect. They conclude that the forum which enjoys the most significant relationship with the occurrence and litigants may under our precedents apply its internal law to grant remedy for wrongful death — that is as a cause of action accrued under the law of the state of the forum state, here Missouri, even though the occurrence and death were in another state.

In State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo. banc 1974), the question the plaintiffs present to us was considered by the court, but refused as not necessary to decision. An action for wrongful death was on review to the court of appeals. The casualty occurred in Texas and the decedent, a Missouri resident, was survived by a widow, also a Missouri resident, among others. Two choice of law issues were presented to the court: whether the Texas or Missouri law applied to the distribution of damages, and which law governed the amount of damages recoverable. The transfer of the court of appeals opinion to the supreme court was prompted by a dissent to the implication of the majority that a Missouri court could entertain a wrongful death action under the local law for a death occasioned by conduct in another state— here, Texas. The supreme court observed: [Broglin, supra, l.c. 701]:

We consider first the concern ... that the majority opinion of the Court of Appeals had assumed that relator had a choice of preceeding under the wrongful death statutes of either Texas or Missouri insofar as her basic cause of action was concerned. We agree that the proposed opinion did make such an assumption without deciding whether or not the relevant statutes of Missouri could be given extraterritorial effect to create a cause of action for alleged negligent conduct in Texas. The parties agree that historically Missouri has not given such effect to a statutory cause of action. For instance, as said in Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, l.c. 593[2] (1931):
“[A]ctions for damages on account of the death of any person are strictly of statutory origin, and exist and can be maintained only when there is a statute in force at the time and place of the injury creating and giving to the person suing such right of action.” ... For at least two reasons, this opinion need not be extended by giving consideration to whether or not such historical precedents are still valid. First, the restatement approach to resolution of interstate problems does not purport to create causes of action where none existed. The “Introduction” to the restatement of “Conflict of Laws 2d” at page 32 states that: “The range of application of a statute, questions of jurisdiction aside, involves a problem of statutory construction and is beyond the scope of the Restatement of this Subject.” Second, the railroad does not contend that relator’s cause of action did arise under the statutes of Missouri, but, to the contrary, concedes that it arose, if at all, under the statutes of Texas....

The range of application of a statute [as Broglin, l.c. 701, observes] continues to be beyond the pale of the choice of law principles the Restatement (Second) promulgates and we now apply, and remains a function of construction by the courts. The solution the plaintiffs propose, however, does not involve a new construction of the wrongful death statute, but a discard of common law assumptions, now outmoded by our adoption of the Restatement (Second) choice of law principles, formerly used to determine the effect of out-of-state facts on the substantive law of a cause of action before the forum. The text, comments and notes in the Restatement (Second) §§ 145, 146, 175 and several others — as our discussion shows — impress the general rule, subject only to rare exceptions, the local law of the state where conduct and injury occur will apply to determine “whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor’s conduct was entitled to legal protection.” Comment d to § 145. The Restatement (Second) does allow for exception — as it must, if the accommodation of multi-state interests in conflict is to be principled. [See Appendix note 8]. The exception is allowed even in a case of wrongful death, invariably an exclusively statutory cause of action. [See 1 S. Speiser, Recovery for Wrongful Death 2d § 1:13 (Second edition 1975).] Thus, the Restatement (Second) Conflict of Laws, comments:

§ 175 Right of Action for Death
Comment e: When conduct and injury occur in same state. ia. the majority of instances, the actor’s conduct, which may consist either of action or nonaction and the resulting injury will occur in the same state. In such instances, the local law of this state will usually be applied to determine most issues involving the tort ... Situations will, however, arise where, although conduct and injury occur in the same state, some other state is that of most significant relationship and therefore the state of the applicable law even with respect to such issues, as those discussed in §§ 156-166 and 172, which would usually be determined by the local law of the state of conduct and injury....

Thus, the Restatement recognizes that on occasion some state other than the place of the conduct and death may enjoy the most significant relationship to the occurrence and the parties, in which event the law of that state will apply to determine whether the conduct and death — albeit done and inflicted beyond its territory — was tortious and the interest invaded entitled to legal protection [§ 156 et seq.].

This qualification to the usual rule augurs — as numerous commentators note— that under Restatement principles “in a proper case the forum may apply its own wrongful death statute, rather than that of the place of the wrong, as the basis of liability.” Kay, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 584, 586 (1968). In Farber v. Smolack, 20 N.Y.2d 198, 282 N.Y.S.2d 248, 229 N.E.2d 36 (1967) New York, that early, adjudicated the choice of law rule [l.c. 282 N.Y.S.2d 253, 229 N.E.2d 40]: “[W]hen a fatal accident occurs out of State and New York is, as here, the jurisdiction having ‘the most significant relationship’ with the issue presented ... our wrongful death statute determines the rights of the victim’s survivors.... To the extent that earlier decisions declined to give extraterritorial effect to the statute, they are overruled.” That judicial attitude may reflect the insistent reality that the remedy for wrongful death, available in every separate state, has by now become part of our general law, and poses no more impediment to extraterritorial application than any other tort cause of action. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 393, 90 S.Ct. 1772, 1783, 26 L.Ed.2d 339 (1970); Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972); 1 S. Speiser, Recovery for Wrongful Death §§ 1:13, 2:1, et seq., (Second ed. 1975).

State ex rel. Kansas City Stock Yards Company of Maine v. Clark, 536 S.W.2d 142 (Mo. banc 1976) stands as ostensible precedent that Missouri, under the Restatement choice of law principles, will apply its wrongful death statute extraterritorially in exceptional circumstances. The question for decision was the effect of the statute of limitations on the claim of the widow and minor children for the wrongful death and which law applied — Kansas or Missouri— on that issue. In that case the act which produced the injury and death was committed in the stockyard area, concededly “a few feet into the state of Kansas” across the state line from Missouri. The situs of conduct, injury and death notwithstanding, the pleading of the litigants concurred that under the Restatement choice of law rule the law of Missouri should apply. The court concluded that the Missouri limitations barred the claim and denied the petition. The opinion reasoned [l.c. 145]:

Ordinarily the wrongful death statute of the state in which the fatal injury occurred would apply ... However, in this case both sides apparently concluded that under the choice of law rule announced in Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969) the law of Missouri should apply ... Furthermore, at a pre-trial conference the parties stipulated, “that the laws of the State of Missouri shall govern and apply in all matters in this cause by reason of the significant and relevant contacts just described, and that the laws of the State of Missouri, including, but not limited to, the statutory recovery and procedure therefor in the event of wrongful death, shall apply.” In this connection it should be noted that the Kansas statutes differ in a number of respects from the Missouri wrongful death statute ... As indicated, the brief of respondent primarily requests that the Kansas two-year statute of limitations be applied. This cannot be done because, as heretofore indicated, this case in its entirety is governed by Missouri law. [emphasis added]

The opinion acknowledged [l.c. 145[9 — 11]] that under the traditional Rositzky rule, the petition was not justiciable as a wrongful death cause of action under the law of Kansas — even though the antecedent conduct and the death occurred there — because the plaintiffs did not plead the statute of that state. The usual consequence for such a lapse under Rositzky is dismissal of the petition for failure to state a cause of action. Rositzky, of course, stands for much more: that the failure to plead the wrongful death statute of the state of occurrence deprives a Missouri forum of any jurisdiction to adjudicate the subject matter of wrongful death. That rests on the common law premise [Rositzky, l.c. 593[2] ]:

“[AJctions for damages on account of the death of any person are strictly of statutory origin, and exist and can be maintained only when there is a statute in force at the time and place of the injury creating and giving to the person suing such right of action.” [emphasis added]

The stricture in Rositzky that only a statute pleaded can suffice to prove the existence of a foreign enactment on which the cause of action rests, however, no longer governs. That rule was grounded on then extant § 806, RSMo 1929, that a court take judicial notice of a public statute of another state where “the pleading states that the law of another state is relied upon.” In contemporary practice, of course, a court takes judicial notice of a foreign statute where the pleading informs “that the law of another state is relied upon or contains allegations which show that the law of another state must be applied.” Rule 55.21(b) [emphasis added]; Robinson v. Gaines, 331 S.W.2d 653, 655[2-4] (Mo.1960). A litigant may also induce the judicial notice of a foreign statute by any other means which imparts to the adversary reasonable notice of that purpose. § 490.110, RSMo 1978; Valleroy v. Southern Railway Company, 403 S.W.2d 553, 556[3] (Mo.1966). The rule in Rosiztky, therefore, reformulates into: where a cause of action exists by virtue of a foreign statute [as for wrongful death], the existence of the statute [and hence the statement of a justiciable claim] may be shown to the court by a pleading, or by other reasonable notice that the litigant relies upon the law of that other state or that such law necessarily appertains to decide the cause of action.

Rositzky, in any event, was irrelevant to the decision in Kansas City Stock Yards. The court en banc there dealt not with a claim for recovery under a foreign statute, but adjudicated the petition as a cause of action accrued under the Missouri wrongful death statute. The court concurred with the litigants that the State of Missouri enjoyed the most significant relationship to the occurrence and death on all issues — the question whether the death was wrongful included — under the Restatement (Second) choice of law rule adopted into our jurisprudence by Kennedy v. Dixon, supra.

The decision in Kansas City Stock Yards, however, is altogether compatible with the Restatement (Second) § 175 Right of Action for Death rationale, as well as the rationale for tort actions in general [§ 145], that in exceptional cases, a law other than that of the state of occurrence and injury [or death] will have the most significant relationship and so will apply to determine whether the conduct was tor-tious. The text of the opinion does not detail the factual basis for the Missouri choice of law to determine the wrongful death event in Kansas — no doubt, because the issue, after intense analysis and discussion among counsel and the court, was no longer contested. The record of the trial proceedings [retrieved from the archives] discloses the stipulation and agreement between the litigants that, among other facts, at the time of the occurrence and death: (1) the plaintiffs-survivors were Missouri domi-ciliaries; (2) the decedent was a Missouri domiciliary; (3) the defendant Stock Yards had as its principal place of business in Kansas City, Missouri; (4) the decedent was employed by the Stock Yards as a labor foreman; (5) the place of work — the Stock Yards premises — straddled the state line, between Kansas and Missouri; (6) the decedent reported to work regularly on the Missouri side of the premises; and (7) the work of the decedent involved movement throughout the Stock Yards every day, both on the Kansas and on the Missouri sides of the state line. The record of the proceedings also shows that on pretrial conference, counsel for the litigants argued to the court the effect of the Kennedy v. Dixon choice of law principles on the stipulated facts, and after intensive discussion and analysis, there was concurrence that under the Kennedy v. Dixon most significant relationship precedent, the law of Missouri controlled as to all issues — even as to the accrual of a cause of action.

The basis for the trial court decision— and that of the Supreme Court en banc — to apply the law of Missouri rather than that of Kansas to determine whether the occurrence and death in Kansas constituted a wrongful death under Missouri law, therefore, was that the contacts between the parties and the forum state Missouri were so predominant as to supervene even the usual interest of the state of occurrence to regulate conduct within its borders. Restatement (Second) § 175 (1971) Right of Action for Death, as well as the General (Tort) Principle § 145, foresees that possibility and makes provision for such “rare exceptions.” [See Appendix note 3]. It is evident from the trial record in Kansas City Stock Yards that the employment activity of the labor foreman at any given time of the day took him to Missouri or Kansas so that his location, should injury or death befall, would be entirely adventitious. That the decedent was killed in Kansas rather than in Missouri, then, was entirely fortuitous. Thus, Kansas could claim no more interest to regulate the conduct which brought on the death than could Missouri. In this exceptional circumstance of equipoise of interest between the two states, the basic question of liability — or whether a cause of action accrued at all from the conduct — is determined by the law of the state with the most significant relationship to the parties. Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 70[6], 286 N.E.2d 454 (1972).

We conclude that our Supreme Court en banc has given effect to the Restatement (Second) choice of law principles to apply the Missouri wrongful death statute as the basis to determine liability for a death occasioned in Kansas.

The plaintiffs here, however, may not claim the benefit of that authority. The petition [and exhibits in support] assert only the collision on a Colorado highway between the vehicle operated by the defendant and the vehicle occupied by the decedent as a passenger, and that all the principals at that time — the plaintiff-parents, the defendant and the decedent— were residents of Missouri. The petition asserts no unusual circumstance to supervene the basic tenet of choice of law that where both the occurrence and injury [or death] conjoin to happen in the same state, the law of that sovereignty will apply to determine whether the actor complied with the minimum standards of acceptable conduct or was tortious. Kennedy v. Dixon, supra, l.c. 181; Griggs v. Riley, supra, l.c. 471; W. Reese, 16 Colum.J.Transnat'l L. 1, 12 (1977). The presence of the principals on the Colorado highway was not the fortuitous, moment-to-moment movement between two state lines as in Kansas City Stock Yards, but a purposeful use of the Colorado facility. The plaintiffs give no reason why the standard of conduct Colorado imposed on persons employed in that activity should not govern their rights and liabilities. They give no reason how that law disadvantages them. They do not contend that the Missouri law of damages favors a claimant more than does the Colorado wrongful death statute and, so, for that reason should apply to advance the interest of the state of domicile of the decedent and the suitors to full compensation [as in Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983) ]; or that the Colorado law allows a defendant an immunity to recovery inimical to the basic policy of the Missouri domicile and forum [as in Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969)]; or that the law of Colorado disallows the plaintiffs as suitors for the remedy [see State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo. banc 1974) ]—and so as to any such particular issue the law of the domicile of the parties enjoys the most significant relationship and should apply. The plaintiffs insist, rather, that the law of the domicile of the parties, Missouri, governs to determine whether a cause of action accrued at all from the conduct and casualty on the Colorado highway. They do not contend that Colorado does not afford remedy.

The insistence of the plaintiffs that the Missouri wrongful death remedy apply to the Colorado occurrence and casualty rests on the premise, simply, that the contacts of Missouri with the occurrence and parties are numerically superior to those of Colorado. That is: that the operators of the two vehicles, the decedent, and the plaintiffs-survivors are all Missouri domiciliaries, and that the only interest Colorado can claim to determine the cause of action is the incidence of the occurrence there. The choice of law analysis the Restatement (Second) promulgates and our jurisprudence adopts weighs not a tally of contacts simpliciter, but “their relative importance with respect to the particular issue” [§ 145] — according to the principles stated in Restatement (Second) § 6. Kennedy v. Dixon, supra, l.c. 181; Broglin v. Nangle, supra, l.c. 702; Carver v. Schafer, supra, l.c. 576. Thus, it is not the number of contacts which determines the choice of law but which state — when those contacts are considered in the perspective of Restatement (Second) § 6 choice of law principles [among them: the needs of the interstate system, the relevant policies of the forum, the relevant policies of other interested states and the relative interest of those states in the determination of the particular issue] — has the most significant relationship to the occurrence and parties, and so is entitled to have its law determine the particular issue. This method involves an accommodation of state interests in conflict, and not an accession to a perfunctory comparison of numbers of contacts. The choice of law derives from “precisely formulating the issue presented, determining which states have legitimate interests in that issue, identifying each of those interests, deciding which state’s interests are paramount, and applying the dipositive law of that state to resolve the specific issue presented.” Seidelson, The Wrongful Death Action, 10 Duq.L.Rev. 525, 526 (1972). See also Restatement (Second) Conflict of Laws, § 5 Nature and Development of Conflict of Laws, comment d Underlying Policies (1971); State ex rel. Broglin v. Nangle, supra, l.c. 702[1]; Carver v. Schafer, supra, l.c. 576[7].

The plaintiffs plead that the child was killed as the result of negligent operation by the defendant of his motor vehicle on the Colorado highway. Whether that conduct was tortious — in the absence of an exceptional circumstance — depends upon whether the defendant failed to meet the standard of care imposed by Colorado. Kennedy v. Dixon, supra, l.c. 182; Griggs v. Riley, supra, l.c. 471[1]; Restatement (Second) § 145, comment d; § 146, Reporter’s Note, comment d; § 175, Reporter’s Note (1971). The plaintiffs neither plead, nor argue, nor assert, nor even intimate any circumstance which invokes a governmental interest of Missouri so cogent as to entitle its law to supervene that of Colorado to determine whether a cause of action for wrongful death occurred on account of the highway conduct.

The petition, however, does allege a death by negligence on the Colorado highway, and so informs that the law of that state necessarily applies to the adjudication of the petition — and thus, by the express direction of Rule 55.21(b) invokes judicial notice of that public law. The petition, therefore, states a cause of action for wrongful death under the Colorado statute, and the dismissal was erroneous. That dismissal without prejudice is set aside, and the petition is ordered reinstated. On remand, the plaintiffs may amend the pleading to assert that as to any particular issue — such as damages, or other — the state of Missouri enjoys the most significant contacts and relationship with the occurrence and the parties and therefore should determine that issue. The rest depends upon a sufficient proof.

The judgment of dismissal of the petition without prejudice is set aside, the cause is remanded with directions that the petition be reinstated.

TURNAGE, C.J., concurs.

PRITCHARD, P.J., concurs in separate concurring opinion filed.

PRITCHARD, Presiding Judge,

concurring in result.

The original opinion in this case affirmed the dismissal of appellants’ action for the wrongful death of their 15 year old daughter which was alleged to have occurred as a result of respondent’s negligence in running into the rear of the vehicle in which decedent was riding on 1-70 near Burlington, Colorado. On the receipt of the motion for rehearing, as to the original opinion this writer changed his concurrence to a dissent, and the opinion was thereafter modified to its present form setting the judgment of dismissal aside and remanding the case with directions that the petition be reinstated.

This is a simple case of the application of the fact pleading requirements of Rule 55.-21(b), which the petition adequately does, and to permit appellants to pursue their transitory tort action in this state under the choice of law precepts of Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969). It is my view that appellants have adequately pleaded facts showing that the choice of law of this state governs their cause. On trial, the court may employ judicial notice to inform itself of Colorado statutes on the limitation of the amount of recovery (§ 13-21-203, Colo.R.S.) for the comparison with § 537.090, RSMo 1978, which has no limitation on the amount of recovery for wrongful death. See and compare Carver v. Shafer, 647 S.W.2d 570, 577 (Mo.App.1983). I do not agree with the suggestion in the modified opinion that appellants might amend the pleading to assert that as to any particular issue — such as damages, or other — the State of Missouri enjoys the most significant contacts and relationship with the occurrence and the parties. The pleading is sufficient in those respects for a determination, and there is no necessity for an amendment. For that reason, I concur in the result of the modified opinion only.

      . The plaintiffs unwittingly pose the question as an enigma [Appellants’ Amended Brief, pp. 5 and 6]: "It must, therefore, be emphasized that the issue raised on this appeal is not one of choice of law, but one of subject matter jurisdiction of a Missouri court over the cause of action as set forth in Plaintiffs’ petition. In other words, the issue is whether, under the facts of this case, Plaintiffs’ cause of action may be deemed to have accrued under the Missouri wrongful death statute such that Plaintiffs could properly plead that the action was brought under Section 537.080, et seq., RSMo. and the trial court could have jurisdiction over the subject matter of the action on that basis.” That poses an antinomy and dilemma, not a defined issue for decision. That is because — as both our discussion shows and as the plaintiffs concede— the Missouri wrongful death statute pretends no extraterritorial effect. It is only by some choice of law rationale that the contention of the plaintiffs enjoys any color. And, in fact, it is that very rationale the petition pleads to invoke the wrongful death remedy of Missouri § 537.080, et seq.

      . The calculus of principles § 6 delineates to come to a choice of law on a given issue does not bear on the question for decision, and so does not require rescript.

      . The “rare exception” to the rule that the local law of the state where the acts took place and injury ensued will determine whether a tort was committed at all may be an instance during an air transportation [see § 146, comment d] or train transportation [see § 145, comment e] from one state to another when the negligence and injury occurred while in passage over or through the territory of intervening state. In such case, the relationship of the state to the conduct and injury to the parties may be too fortuitous and insubstantial — and in that sense "nonterritoriar — so that the general principles of § 145 and the calculus of significant relationships of § 6 appertain to determine the culpability of the conduct and the issue of a protectible interest. The predisposition of general principle § 145 [see comment d] that, subject to rare exception, the law of the locus of the conduct and injury determines culpability or not, colors §§ 156-160. These sections delineate the choice of law principles to determine whether the conduct of the actor was tortious [§ 156], and the subsumed components — the standard of care to judge the conduct [§ 157], the interest entitled to legal protection [§ 158], the duty owed plaintiff [§ 159], and the question whether the conduct was the legal cause of the injury [§ 160]. Each of these determinations, in turn, are reverted to § 145, and hence to the qualification of comment d, that the interest of state where the conduct and injury occur predominates to determine whether the actor committed a tort.

      . E. Scoles and P. Hays [with allusion to the W. Reese law review compendium cited in the opinion and with reference to another preeminent authority, R. Leflar, American Conflicts Law (Third edition) ], concludes: "[W]ith respect to the question whether the defendant’s conduct was tortious, the ‘applicable law will, almost surely, be that of the state where the defendant acted if either (a) this law would [so] hold the conduct, or (b) the plaintiffs injury also occurred in the state.’” We note that Restatement (Second) § 145 requires the more stringent conjunction of both acts and injury within the state to preempt the determination of tortious conduct to the locus delicti.

      . That peremptory rule has since been tempered by a decisional selectiveness more nearly in accord with Restatement principles. See Nenmeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972), e.g.

      . Neither the petition nor the brief of plaintiffs-appellants [nor the answer or brief of the defendant-respondent, for that matter] refers to the Colorado statute by citation or for legal effect. The plaintiffs insistently refuse to say why they seek to avoid the operation of the Colorado wrongful death remedy.

      . The case law discloses one decision, aberrant from the otherwise uniform recognition that— except in the most unusual circumstances [see State ex rel. Kansas City Stock Yards Company of Maine v. Clark, supra, and § 145 of the Restatement (Second) of Conflict of Laws (1971)] the law of the situs determines whether or not a cause of action for wrongful death accrues. Malone v. Jackson, 652 S.W.2d 170 (Mo.App.1983) was a claim for the wrongful death of a Missouri resident on the Tennessee highways. The suit was in Missouri and the question was whether the Tennessee one-year statute of limitations applied or the three-year Missouri statute. The court responded:
      “Respondents have never contended that it was improper for appellants to proceed under the Missouri Wrongful Death Statute, and a review of the record clearly establishes the statute’s applicability in this case under the ‘most significant relationship test’ of Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969). See Restatement (Second) of Conflicts of Laws § 145 (1971).’’
      Thus, the response was to a question never asked — that is, whether the Missouri wrongful death statute invested the cause of action — and so was dictum. The decision has no support in either authority cited—Kennedy v. Dixon, supra, or in § 145 of the Restatement. These sources preclude resort to choice of law principles to create a cause of action. Rather, whether a defendant acted in violation of due care, and so gave rise to a cause of action in favor of a plaintiff is determined by the law of the situs.


author: KAROHL, Judge. REINHARD, Judge,

text:
    STATE of Missouri, Respondent, v. Earl LONG, Appellant.
    No. 46536.
    Missouri Court of Appeals, Eastern District, En Banc.
    June 29, 1984.
    Case Transferred to Supreme Court Sept. 11, 1984.
    Case Retransferred to Court of Appeals Feb. 1, 1985.
    Original Opinion Reinstated Feb. 13, 1985.

      Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.
    Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for respondent.
   KAROHL, Judge.

Defendant was convicted of forcible rape, § 566.030, RSMo 1978. In accordance with the punishment assessed by the jury, he was sentenced to 48 years’ imprisonment. He appeals. We reverse.

The victim was employed as a waitress in the 6th floor restaurant of the Stix, Baer & Fuller department store in downtown St. Louis. She completed work at 2:30 p.m. on August 8,. 1982. To reach her automobile, parked in the Stix parking garage, she took the department store elevator up to the skywalk, which in turn led to the garage. She observed a man dressed in a white uniform seated at the end of the skywalk. She walked across the skywalk, past the man later identified as defendant, and entered a second elevator for access to the garage. The man followed her into the elevator. As she attempted to exit the elevator at her floor, the defendant stepped off with her. He placed one hand over her mouth, the other around her arms. Defendant demanded her wallet and at the same time hit his victim in the stomach. As she was lying on the floor in front of the elevator door, she reached for her wallet; the man stomped on her hand with his foot. After leafing through her wallet, he threw it back and proclaimed, “I don’t want your money, bitch.” He then kicked her again, she tried to get up, but he again knocked her down. As she fell, she noticed him covering his name tag. She then saw him take off the name tag and put it in his uniform pocket. He punched her several more times and undid her pants as she tried to escape. He then had intercourse with her.

At that point, the elevator door opened; defendant jumped up and walked away. A woman in the elevator screamed when she saw the events taking place and went to summon help.

The victim gave a description of her assailant to police, which was immediately broadcast over the radio. This description, reiterated with some inconsistencies, was roughly, a negro male in his twenties, five feet ten inches tall, stocky or heavy build, white clothing including a cook’s hat, and light facial hair. According to two witnesses, the broadcast also stated that the suspect was last seen running toward the Cochran Housing Project.

Cochran security guard Safford saw someone matching the description several minutes after he monitored the broadcast. He summoned police after seeing the suspect receive a cigarette from a man he knew by the name of Long.

Police, accompanied by Safford, proceeded to the apartment of Virginia Long (defendant’s mother). There they arrested William Long and questioned Frederick Long. As they were preparing to leave, Earl Long arrived. Although not in uniform, he was arrested on the strength of Safford’s identification and advised of his rights both at the scene and at the office of the sex crimes division. He gave police a statement to the effect that he got off work at 2:30, went straight home and changed clothes. In his job, he wore a cook’s uniform but no name tag.

Defendant also consented in writing to a search. His uniform was found in the closet as he had indicated. A name tag bearing his name was found in the shirt pocket. Seminal fluid was present on defendant’s underwear, one of his two pairs of uniform pants and his uniform shirt.

After the attack, the victim was taken to both the police station and the hospital. At the hospital she was examined and treated for lacerations on her chin and elbows, as well as a swollen hand. Seminal fluid was found on the victim’s vaginal smear, panties and pantyhose. Thereafter, she viewed a lineup containing defendant, his brother and three others. She positively identified defendant the following day, she identified his clothes. At trial, her identification of defendant as her attacker was unequivocal.

An opinion was written and adopted in Division Three affirming the conviction. A motion for rehearing was sustained. The case was reheard by the Court En Banc, where after reargument the divisional opinion was not adopted and the case was reassigned for preparation of a new opinion. In writing this opinion portions of the prior opinion are utilized without the use of quotation marks.

On appeal defendant alleges error in the prosecutor’s closing argument, contending that the prosecutor personalized to the jury and argued matters not in evidence. This he contends denied him a fair trial. During the closing argument the following occurred:

[PROSECUTOR]: Now, rape is an awful thing. [Defense attorney named] said at some point that you gentlemen perhaps do not understand it because of wives and daughters. Well, I’m going to give you a graphic, gentlemen, because that’s just not personal enough I feel when you’re on the jury. I want the ladies to bear with me for a minute because I want you gentlemen to imagine if you would yourself at—
[DEFENSE ATTORNEY]: Your Honor, this is improper, personalizing to the jury.
THE COURT: Yes, you should not personalize the argument to the jury. Sustained.
[DEFENSE ATTORNEY]: May the jury—
THE COURT: Jury instructed to disregard the personalization comment of counsel.
[PROSECUTOR]: Any man, any man, you are come upon, he’s come upon by someone of superior strength grabs you around the throat, spins you around just to get your attention, gives you an uppercut in the solar plexus just to get your attention, someone far superior to you in strength throws you to the ground and to make sure you understand who is the boss kicks you a couple of times in the head and stomach and takes off your pants, he doesn’t fondle you, he grabs you, twists you, squeezes to hurt you. This isn’t an act of love. It’s to humiliate you, but above all, to expose hatred, to hurt you.
[DEFENSE ATTORNEY]: Your Honor, improper argument is the personalization of the jury again and it’s going beyond the scope of the evidence.
THE COURT: Overruled.
[PROSECUTOR]: That’s what happened to [the victim named]. Doesn’t stop there for the victim of a rape. The next thing that happened — This applies to everybody on the jury as well as anybody in the world. The next thing that [the victim named] goes through is having to relate this story time after time after time first to the security guard, then maybe another one, then a police officer, then to the hospital and just after that terrifying experience — and what would presumably be a rather safe place in the world — broad, open daylight, 2:30, 3:00 o’clock in the afternoon, you go through this.
Well, get up on the table and spread your legs. And after you have just been through this experience someone quite more gently probes into the various areas of your body to remove samples, get a couple of shots to prevent venereal disease—
[DEFENSE ATTORNEY]: You know, I don’t think any of this is in the evidence. No facts. I know it’s not. It’s a deliberate misstatement of what he knows the truth—
[PROSECUTOR]: May my—
[DEFENSE ATTORNEY]: He wants to bias the jury. None of that is in evidence. I would — Some of it is in evidence but the venereal disease, that’s not. That’s not in evidence.
THE COURT: I’ll rule it. I don’t recall any evidence. The jury will be guided by what they recall the evidence to be on that score.
[PROSECUTOR]: Will my time be totaled?
During this couple of hours that you’re at the hospital you hear laughter, you feel that they’re laughing about your situation. It’s not true but you feel it.
[DEFENSE ATTORNEY]: Objection to the making of facts to support some hypothesis.
THE COURT: Overruled.
[DEFENSE ATTORNEY]: This isn’t in evidence.
THE COURT: This is closing argument. Overruled.
[PROSECUTOR]: Again, at the police station every time you hear somebody laugh, people are out, don’t know about your situation, there’s a feeling they’re laughing at you.
[DEFENSE ATTORNEY]: Closing argument is directed to the evidence and the reasonable inferences. This is not a reasonable inference. It’s not relevant.
[PROSECUTOR]: They saw this woman here.
THE COURT: Overruled.
[PROSECUTOR]: They saw what this lady had to go through. The next thing — It’s not in evidence but it happened about a year later when it’s almost hopefully put somewhat behind you, you have to come in here and in a fishbowl situation not only tell the people who have to hear but it’s an open and public courtroom with people coming in and describe that incident. That, ladies and gentlemen, is the crime that was put upon [the victim named], (emphasis added).

It will be noted that defendant’s original objection to personalization was sustained and that subsequent objections were overruled. In addition, objection was made to part of the argument as not being supported by the evidence. This too was overruled. These matters were preserved in defendant’s motion for new trial.

Here the jury was told, “rape is an awful thing” and “I’m going to give you a graphic.” Defendant’s original objection was sustained. The prosecutor persisted, however, to personalize with his graphic. The argument was not supported by the evidence. In fact the prosecutor acknowledged that some of the facts being argued were unsupported by the evidence. Armed with the trial court’s subsequent contrary ruling which erroneously permitted such personalization, the prosecutor set sail on a graphic description of post-rape matters. In the beginning of the argument the prosecutor announced to the male members of the jury that rape was not personal enough. He invited them to become the victim and addressed the jury as “you” and “your” throughout the remainder of the argument.

Appellant’s contention was considered by our Supreme Court in, State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (banc 1947). In the Tiedt case, the details of the crime, a murder in the first degree, were, as here, savagely brutal. The Tiedt opinion emphasized that as emotions were already inflamed, all the more restraint was required by the prosecutor. The trial court originally sustained an objection to argument that “everyone in this courtroom is a potential victim of his murderous desire.” The prosecutor persisted in arguing the same point and the trial court sustained all but the last defense objection. The court found reversible error in the prosecutor’s repeated inflammatory appeals to arouse bias and hostility toward defendant, and granted a new trial. The court there said,

It is a fundamental concept of the criminal law that an accused whether guilty or innocent, is entitled to a fair trial, and so it is the duty of the trial court, and of the prosecuting counsel as well, to see that he gets one, and there must be no conduct by argument, or otherwise, the effect of which is to inflame the prejudices or excite the passions of the jury against him. Witness these precedents: A prosecuting attorney occupies a quasi-judicial position. It is his duty to conduct the trial in such manner as will be fair and impartial to the rights of the accused, [citation omitted] It is his duty ‘not to lay aside the impartiality that should characterize his official actions in order to become a heated partisan,’ _ [citation omitted] ... Prosecuting ‘officers should ... avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.’ ... [citation omitted] ‘It makes no difference how regular the proceedings at the trial are, if prejudice finds its way into the verdict, the verdict cannot stand.’ [citations omitted] 206 S.W.2d at 526-527. (emphasis added).

See also State v. Heinrich, 492 S.W.2d 109, 114 (Mo.App.1973).

The objectionable argument not supported by the evidence was made in the opening phase of the state’s closing argument. It was not in response to defendant’s theory of misidentification nor did it relate to the role of the jury in determining guilt or innocence. It was improper as solely an effort to personalize and prejudice the jury. State v. Paxton, 453 S.W.2d 923, 926 (Mo.1970). It must be considered an argument calculated to inflame the passions or prejudices of the jury and cannot be disassociated from their role in assessing punishment. On no legitimate basis can the argument referring to venereal disease or laughter at the victim, neither of which were part of the evidence, be justified.

The conduct of the prosecutor is directly condemned by the ABA standards for criminal justice, § 3-5.8(c) (1980). ABA standards for criminal justice, § 3-5.8(d) and § 3-5.9 further condemn the argument, describing intentional references or argument of facts outside the record as unprofessional conduct. A prosecuting attorney does not represent an ordinary party to a controversy, but represents the sovereign,

whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interests, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use very legitimate means to bring about a just one. (emphasis added).

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).

It is distasteful to retry a case where the evidence supporting guilt is so strong. It is not contended, nor could it be, that the verdict of guilt is not supported by the evidence. However, it is for that very reason that the case should be properly tried free of the poisonous argument which has consistently been condemned by our case law and by accepted ABA standards for criminal justice. The integrity of the criminal justice system measured by the standard of constitutionally guaranteed rights overrides the hardship of retrial. The protection of the rights of every citizen as guaranteed by the constitution is more precious than the conviction of a defendant by acts of a prosecutor who knowingly and intentionally, by his own words, ignores such guarantees. Such conduct creates a hardship on the courts and the victims of criminal conduct. It is however the actions of the prosecutor which require a new trial. A prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”

We need not reach defendant’s challenges to the failure of the trial court to strike two veniremen for cause.

We hold that the prosecutor’s closing argument was knowingly, intentionally and blatantly an effort to bias and prejudice the jury, that it substituted the jurors for the victim and thus disqualified the jury from performing its proper duty. It was further erroneous to permit the argument where it was founded, in part, on matters admittedly not in evidence. It cannot be said as a matter of law that this argument was not prejudicial to the defendant in the jury’s deliberations, verdict and assessment of punishment where the assessment was adopted by the court in sentencing.

We reverse and remand for a new trial.

SMITH, KELLY, STEPHAN and GA-ERTNER, JJ., concur.

REINHARD, J., dissents in separate opinion.

DOWD, C.J., and CRIST and CRAN-DALL, JJ., dissent and join in the dissenting opinion of REINHARD, J.

REINHARD, Judge,

dissenting.

I respectfully dissent.

The principal point that defendant raises on appeal, for which the majority reverses, is prosecutorial misconduct during closing argument. The state contends that defendant neither properly objected nor preserved his objections in his motion for new trial. Defendant’s objections leave much to be desired and there is a debatable issue as to whether or not they were properly preserved in the motion for new trial. However, I agree with the majority to treat defendant’s complaints as if they were properly preserved.

The law is clear that it is improper to personalize to the jury, State v. Paxton, 453 S.W.2d 923, 926 (Mo.1970), or argue matters not in evidence during closing argument, State v. Connell, 523 S.W.2d 132, 137 (Mo.App.1975). I agree with the majority that the prosecutor’s argument went too far and constituted error.

However, it is not every improper remark or every instance of a prosecutor exceeding the limits of proper argument that will constitute ground for reversal. State v. Williams, 588 S.W.2d 70, 74 (Mo.App.1979); State v. Knapp, 534 S.W.2d 465, 469 (Mo.App.1976). In order for such arguments to constitute reversible error, they must be plainly unwarranted and clearly injurious. State v. Kimmins, 514 S.W.2d 381, 382 (Mo.App.1974); State v. Hoskins, 569 S.W.2d 235, 236 (Mo.App.1978); State v. Williams, 588 S.W.2d 70, 74 (Mo.App.1979) (erroneously prejudicial).

Consequently, the principle espoused in State v. Degraffenreid, 477 S.W.2d 57, 65 (Mo. banc 1972) by Judge Bardgett is controlling, “[e]rror, which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong.” This principle was recently reaffirmed by Judge Rendlen, speaking for the Supreme Court, in State v. Ford, 639 S.W.2d 573, 576 (Mo.1982).

I believe that the majority opinion conflicts with Degraffenreid and Ford when it acknowledges that “[i]t is distasteful to retry a case where the evidence supporting guilt is so strong.” (emphasis added). Indeed it was a strong case. The evidence of the victim’s identification, the circumstances of defendant’s arrest, the location of his name tag in his uniform pocket precisely where the victim stated he placed it, and the finding of semen on his underclothes, pants, and shirt along with all the other facts and circumstances, created an extremely strong case against defendant. Moreover, while not excusing the prosecuting attorney’s statements to the jury, comments directed to the jury by the defense attorney had already “personalized” this case to some extent. During voir dire, the defendant’s attorney stated:

I think that rape cases have a lot of emotional appeal for all of us. But I think maybe women such as myself react to the charge of rape very, very much whether in anger or whether in frustration that it goes on. I don’t know but I think that men react in anger to the extent their wives, their girlfriends, or sisters or someone they know is concerned but how do you feel about sitting on a jury where that is the charge.

The majority opinion cites State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (banc 1947) as authority for reversing this case. I do not find Tiedt controlling. In Tiedt, defendant was convicted of first degree murder and sentenced to death. Besides that matter quoted by the majority, the Court explained its decision by stating:

in a matter so grave as urging in argument considerations affecting the exercise of the jury’s discretion to choose between punishing capitally or imposing a life sentence, inflammatory appeals to arouse bias and hostility toward defendant, ... cannot be sanctioned.

206 S.W.2d at 529.

This was not a capital case. Nonetheless, the majority opinion asserts that the prosecutor’s closing argument affected the assessment of punishment. I disagree. Defendant was charged with an offense that carried with it a maximum punishment of life and a minimum punishment of five years. The prosecuting attorney asked that the jury assess a punishment of ninety nine years. Apart from any remarks of the prosecuting attorney, the jury was well aware of the viciousness of the crime and the terrible ordeal which the victim underwent. The victim was violently assaulted by a total stranger in broad daylight in a downtown St. Louis parking garage. Defendant’s own attorney acknowledged in closing argument that the victim “went through a terrible affair” and that was a matter for the jury to consider in assessing punishment. Defendant’s attorney never spoke in her closing argument to the length of sentence or mitigation of sentence. Forty eight years in the penitentiary does not establish under the facts and circumstances of this case that the sentence assessed by the jury was the result of passion and prejudice induced by the prosecuting attorney’s argument.

Much of the majority’s opinion appears directed at sending the prosecutor a “message” because of his misconduct. In State v. Smothers, 605 S.W.2d 128, 132 (Mo. banc 1980), the Supreme Court, with Judge Higgins speaking for the Court, held that a criminal case should not be reversed for the purposes of discipling and deterring prosecutors. The issue in this case “is not whether the prosecuting attorney should be disciplined for improper conduct” but whether defendant received a fair trial. Id. As I have already stated, considering the entire record, he did so. The mechanism for discipline of attorneys is provided for elsewhere in our system. This case involves a conflict between two messages. On the one hand the majority wants to send a message to the prosecutor that he has hit a “foul blow.” On the other hand, society must send a message to those such as defendant who violate the bodies of women against their will. I do not believe that we should send the prosecutor a message at the expense of society’s message to rapists.

In summary, I do not find that the prose-cutorial argument was prejudicially erroneous to the defendant; that when weighed against the entire record it was prejudicial and tipped the scales as to a fair trial against the defendant; that in light of the strength of the state’s case against defendant under Supreme Court guidelines any error was harmless. I would affirm the judgment.

      . As to one of the veniremen the state relies upon State v. Butler, 660 S.W.2d 222 (Mo.App.1983) which upholds the refusal to strike a venireman expressing a bias in favor of the testimony of police officers upon the basis that police officer testimony was a minor or routine part of the evidence as it was merely cumulative to other evidence. We are unable to accept such a rationale. The law provides that a defendant is entitled to a full panel of qualified veniremen before exercising his peremptory challenges. State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974); State v. Land, 478 S.W.2d 290, 292 (Mo.1972). That the testimony subsequently introduced establishes that the defendant would not have been prejudiced had the juror been allowed to remain does not eliminate the prejudice suffered by him in having to utilize a peremptory challenge on an unqualified venireman.

      . I do not believe defendant’s other point on appeal has merit. He contends the trial court erred in failing to strike a juror who stated that he would give more weight to a police officer’s testimony than another witness. The court should have stricken the prospective juror. However, this is not grounds for reversal because the police testimony in this case did not prove any of the elements of the state’s case. This position is supported by a recent Western District case, State v. Butler, 660 S.W.2d 225 (Mo.App.1983), transfer denied, December 20, 1983. It appears from footnote one that the majority would rule contrary to Butler.