Browning v. Salem Memorial Dist. Hosp.

Decision Date13 May 1991
Docket NumberNo. 17041,17041
Citation808 S.W.2d 943
PartiesEd BROWNING, Respondent, v. SALEM MEMORIAL DISTRICT HOSPITAL, Appellant.
CourtMissouri Court of Appeals

David G. Neal, Eminence, for appellant.

Daniel N. Bloom, Popkin & Stern, Clayton, for respondent.

CROW, Judge.

Plaintiff Edward E. Browning sued defendant Salem Memorial District Hospital, a hospital district created and existing per "The Hospital District Law," chapter 206, RSMo 1986, as amended. Plaintiff averred defendant hired him as chief executive officer and administrator for a three-year term beginning February 21, 1986, and breached the employment contract by firing him without good cause August 24, 1987.

A jury returned a $63,750 verdict for plaintiff. The trial court entered judgment per the verdict. Defendant appeals.

The first of defendant's three points relied on is:

"This case must be remanded to the trial court with directions to set aside the judgment and dismiss [plaintiff's] suit ... with prejudice, because § 432.070 RSMo 1986 required that the petition state that (1) the hospital, which is a municipal corporation, had the authority to enter into the contract, (2) it was made upon consideration to be performed after the contract became binding, (3) the contract was in writing and dated when made, and (4) it was executed by all members of the hospital's board of trustees or by their agent for them duly authorized in writing to sign on their behalf, and because the initial pleadings did not contain all of those essential allegations it [sic] was not sufficient to confer jurisdiction on the court and the judgment is, therefore, void."

Section 432.070, RSMo 1986, relied on by defendant, states:

"No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."

Although a chapter 206 hospital district is not listed in § 432.070 as an entity subject to that section, the parties to this suit assume the statute applies to the alleged contract. 1 We therefore proceed on that assumption without deciding whether it is correct.

In support of its contention that plaintiff's petition was required to plead facts demonstrating compliance with § 432.070, defendant cites one case, Pfitzinger v. Johnson, 177 S.W.2d 713 (Mo.App.1944). There a mandamus proceeding was brought in circuit court following a final judgment for a plaintiff by a justice of the peace in a suit on an alleged contract under § 432.070 (then § 3349, RSMo 1939). At the plaintiff's behest, the circuit court issued a writ of mandamus commanding the judgment debtor--a school district--to levy a tax to pay the judgment. On appeal from that writ by the school district, the St. Louis Court of Appeals declared the judgment of the justice of the peace void because the justice before whom the suit was commenced acquired no jurisdiction over the subject matter. The jurisdictional flaw, said the appellate court, was that the suing party did not comply with § 2571, RSMo 1939, as such party failed to file the instrument sued on, or a statement of the account, or of the facts constituting the cause of action. 177 S.W.2d at 719-20. After the contract suit was filed, but prior to trial, it was transferred by the justice of the peace to another justice, whereupon the suing party filed an "amended" petition. The appellate court held this was a futile attempt to breathe life into the suit which, because of the failure to comply with § 2571 when instituted, was a nullity. 177 S.W.2d at 720. Consequently, the judgment of the justice of the peace who tried the case was void, as jurisdiction over the subject matter did not affirmatively appear on the face of the records. 177 S.W.2d at 720 and [5, 6].

After reaching that conclusion, Pfitzinger cited Likes v. City of Rolla, 184 Mo.App. 296, 167 S.W. 645 (1914), another case involving § 432.070 (then § 2778, RSMo 1909). Pfitzinger noted the petition in Likes did not allege the materials furnished and work done were under a written contract as required by § 2778. Pfitzinger, 177 S.W.2d at 721. Pfitzinger then observed Likes held no one could recover against a municipal corporation for work done or material furnished except under a valid contract made in the manner authorized by law. Pfitzinger, 177 S.W.2d at 721. Pfitzinger then quoted the following passage from Likes : "The result reached is that the petition does not state a cause of action, and none is shown by the evidence." Pfitzinger, 177 S.W.2d at 713 (emphasis added).

It is obvious Pfitzinger did not hold the judgment of the justice of the peace void on the sole ground that the suing party failed to plead the existence of a written contract made in compliance with § 3349, RSMo 1939. As we have seen, Pfitzinger held the judgment of the justice of the peace void because the suing party, in commencing the suit, failed to file the instrument sued on, or a statement of the account, or of the facts constituting the cause of action, as required by § 2571, RSMo 1939. Consequently, the justice of the peace never acquired subject matter jurisdiction over the suit.

After deciding that, Pfitzinger stated its second ground for declaring the justice's judgment void, citing the passage from Likes that the petition there did not state a cause of action under § 2778, RSMo 1909, and none was shown by the evidence.

Whether the result in Pfitzinger would have been the same if the only alleged defect in the suit before the justice of the peace had been the failure of the petition to plead facts demonstrating punctilious compliance with § 3349, RSMo 1939, is unknown.

As reported in the first paragraph of this opinion, plaintiff's petition in the instant case averred defendant hired him for a three-year term beginning February 21, 1986. Attached to the petition and incorporated therein by reference was a copy of a three-page document dated "this ___ day of February, 1986," and captioned "EMPLOYMENT CONTRACT." The document was marked Exhibit 2 at trial.

Among other things, the document (a) states plaintiff's compensation shall be $45,000, (b) lists sundry employee benefits he shall receive, (c) enumerates his job responsibilities, and (d) provides the term of employment shall be three years beginning February 21, 1986. The document also states:

"7. This agreement can be terminated by either party for good cause shown. Termination for any other reason by hospital will result in hospital being required to pay employee as payment in full all monies due or payable hereunder."

Defendant concedes its challenge of the sufficiency of plaintiff's petition was not raised in defendant's motion for new trial. 2 However, observes defendant, Rule 78.07 3 provides questions as to the sufficiency of the pleadings to state a claim need not be included in a motion for new trial in order to be preserved for appellate review.

A petition will be found sufficient after verdict if after allowing all reasonable inferences and matters necessarily implied, there are sufficient facts to advise the defendant, with reasonable certainty, as to the cause of action it is called upon to meet and bar another action for the same subject matter. Davis v. City of St. Louis, 612 S.W.2d 812, 813-14 (Mo.App.1981); Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 44 (Mo.App.1971); Richard Brown & Son Contracting Co. v. Bambrick Bros. Const. Co., 150 Mo.App. 505, 131 S.W. 134, 135 (1910).

Plaintiff's petition clearly meets those requirements. Defendant does not argue otherwise. We hold defendant's first point is governed by the three cases cited in the preceding paragraph.

In so deciding, we have not overlooked DeMarr v. Kansas City, Mo., School District, 802 S.W.2d 537 (Mo.App.1991), unmentioned by either party. In DeMarr the Western District of this Court upheld a trial court's denial of a motion for leave to file an amended petition. The moving party sought to plead a cause of action on an alleged contract under § 432.070, RSMo 1986. The Western District noted that in earlier pleadings such party had admitted no written contract existed. The opinion stated a petition seeking recovery under a § 432.070 contract must plead the elements set forth in that statute. 802 S.W.2d at 541. However, the issue in DeMarr was whether the petition was sufficient to survive a motion to dismiss for failure to state a cause of action. DeMarr did not present the situation here, where the sufficiency of plaintiff's petition is challenged only after verdict.

In Davis, 612 S.W.2d at 813-14, a city maintained in the appellate court that the suing party's petition failed to plead a cause of action in tort against the city, as the petition failed to allege the city was acting in a proprietary capacity during the incident whence the claim arose. The Eastern District of this Court noted it is basic that to survive a motion to dismiss for failure to state a claim, the proprietary capacity of the city must be alleged in the petition. Id. at 814. However, the opinion emphasized that the first time the city raised the failure of the petition to plead proprietary function was in the city's motion after verdict. Id. That, said the Eastern District, was too late. Id. Having delayed its attack on the petition until after the verdict was rendered, the city could not avail itself of the rule it sought to invoke. Id. As the petition pled facts sufficient to apprise the city of the cause of action it was required to defend and was amendable to state a proper...

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