Briggs v. King

• Decision Date: 17 June 1986
• Citation: 714 S.W.2d 694
• Parties: Anita L. BRIGGS, et al., Appellants, v. Kenneth Kamau KING, Respondent. WD 37272.
• Court: Missouri Court of Appeals

Page 694

714 S.W.2d 694

Anita L. BRIGGS, et al., Appellants, v. Kenneth Kamau KING, Respondent.

WD 37272.

Missouri Court of Appeals Western District.

June 17, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 24, 1986.

Application to Transfer Denied Sept. 16, 1986.

Arthur A. Benson, II, and Martin D. Zehr, Kansas City, for appellants.

Basil L. North, Jr., Kansas City, for respondent.

Before PRITCHARD, P.J., SHANGLER, J., and NORMILE, Special Judge.

PRITCHARD, Judge.

This is a legal negligence case arising out of defendant's alleged failure to file a wrongful death action within the one-year statute of limitations applicable at the time.

On March 4, 1975, Napoleon Briggs died at Menorah Hospital in Kansas City as the result of alleged medical negligence of treating doctors in failing to correctly interpret an abnormal E.K.G. record and diagnose decedent's cardiac condition, and in Menorah Hospital's alleged negligence in failing to provide customary care and treatment, all as contained in a petition filed by defendant on March 3, 1977. That petition was dismissed upon the ground that it was barred by the then applicable statute of limitations of one year after a death for bringing wrongful death actions, § 537.080, RSMo 1969. The dismissal, along with an attempted amendment, held not to relate back, was affirmed in Briggs v. Cohen, 603 S.W.2d 20 (Mo.App.1980).

A few months after decedent's death, Anita L. Briggs consulted Legal Aid of Western Missouri, and was referred by it to defendant whom she contacted on August 26, 1975. Mrs. Briggs then paid defendant $150 to initiate an investigation as to an action for wrongful death, and on October 27, 1975, she signed authorizations for him to obtain all relevant medical records. Defendant did undertake steps necessary to procure the medical records, and for expert interpretation of decedent's E.K.G. record. On July 8, 1976, at defendant's request, Mrs. Briggs went to his office and signed a formal contract, on a contingent fee basis, for his attorney services. At that time the applicable statute of limitations for a wrongful death action for her and her children had already expired. Defendant erroneously believed that the two year statute of limitations applied, and filed a petition on March 3, 1977 for wrongful death against the treating doctor and Menorah Hospital which resulted in the dismissal, referred to above, because of the running of the one-year statute of limitations.

On January 7, 1981, Anita Briggs, as the sole named plaintiff, filed the instant legal negligence action against defendant for failure to file the wrongful death action before the statute of limitations ran. Then, on April 21, 1984, Anita filed a motion for an order joining, or in the alternative, substituting her three minor children as parties plaintiff in the legal negligence action, which motion was sustained, and she was granted leave to file her second amended petition substituting her minor children as parties plaintiff. Defendant's motion for summary judgment was overruled, and the case went to trial to a jury on the second amended petition, which resulted in a verdict against defendant on January 16, 1985, for $125,000 actual and $75,000 punitive damages. Thereafter, the trial court took up defendant's motion for judgment N.O.V. filed under Rule 72.01(b), and sustained it on April 29, 1985 without stating any ground therefor. Plaintiffs thereafter obtained a special order for appeal out of time by this court.

One matter raised by defendant in Point IV of his brief is that the trial court did not err in granting his motion for judgment N.O.V. because the court incorrectly allowed the substitution of the (minor) plaintiffs. It is argued, in part, that the motion for summary judgment adequately demonstrated that plaintiff Anita L. Briggs' marriage to the deceased (Napoleon Briggs) was void and she failed to qualify as a member of any of the classes entitled to sue for his wrongful death, and therefore, it appears to be argued, she was not an injured person entitled to sue for the legal negligence of defendant, as she originally did alone. Defendant argues further that Anita's children did not have a cause of action identical to hers because she never had a cause of action, and therefore there was nothing to which the order for the substituted children could relate back.

The trouble with defendant's argument is that his motion for summary judgment upon the ground that Anita was never the deceased's lawful wife or widow was overruled by the trial court. At the close of all the evidence, defendant filed his motion for directed verdict, which was overruled. The case was then submitted to the jury. Rule 72.01(a) requires that "A motion for a directed verdict shall state the specific grounds therefor." Defendant never did present in his motion for directed verdict any issue as to Anita's status as the wife or widow of deceased so as to renew the allegation in the motion for summary judgment. Thus, there was simply nothing before the trial court on the matter, and nothing is preserved for review in this court. See Christ v. Tice, 578 S.W.2d 319 (Mo.App.1979), where the plaintiff entered an oral motion for directed verdict, the content of the motion nowhere appearing, it being overruled. At page 322, the court said, "However, absent a motion for directed verdict which complies with the requirement of Rule 72.01(a) ('A motion for directed verdict shall state the specific grounds therefor.'), the postverdict motion for judgment n.o.v. is without basis and preserves nothing for appellate review. Milner v. Texas Discount Gas Co., 559 S.W.2d 547, 550[1, 2] (Mo.App.1977)." See also Brandhorst v. Carondelet Savings & Loan Ass'n, 625 S.W.2d 696, 698 (Mo.App.1981); Keller v. Anderson Motor Service, Inc., 652 S.W.2d 735, 736 (Mo.App.1983), where defendant (who was granted a new trial) contended that he was entitled to a directed verdict on an issue of agency, which was not specifically raised in the motion for directed verdict and was not therefore preserved for review; McRaven v. F-Stop Photo Labs, Inc., 660 S.W.2d 459, 460[1-3] (Mo.App.1983); and compare Lee v. Terminal Railroad Ass'n, 669 S.W.2d 564, 566 (Mo.App.1984).

In paragraphs II and III of defendant's motion for judgment N.O.V., it is contended that there was no factual or legal basis for punitive damages, and that an award of damages beyond actual pecuniary loss in a wrongful death case requires some evidence of aggravated conduct. Note that this is a legal negligence case, not a wrongful death case. But in any event, the motion for directed verdict does not specifically allege the insufficiency of the evidence to submit punitive damages, and thus, again, there was no basis for the trial court to consider the matter, nor is it preserved for review. Milner, supra, and other cases cited.

There was no issue raised in the motion for directed verdict as to the trial court's allowing the minor plaintiffs to be added or substituted as parties, and nothing is even mentioned in the motion for judgment N.O.V. on that subject. Thus, like the above matters, there was no basis for the trial court's consideration of the issue, and it is not preserved for review. But even if the matter of substitution of the minor plaintiffs, and the claim asserted only in the motion for judgment N.O.V. that the statute of limitations had run against the plaintiffs at the time they were added or substituted as parties, were properly presented to the trial court and presented for review, those issues would not avail as a basis to enter a judgment N.O.V. against the minor plaintiffs. First, Rule 52.06 provides that " * * * Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms...