Edmonsond v. Lakeside Hospital Ass'n, No. 60013

• Court: United States State Supreme Court of Missouri
• Writing for the Court: NORWIN D. HOUSER; MORGAN; BARDGETT; SEILER, J., dissents for reasons stated in dissent of BARDGETT; DONNELLY; BARDGETT
• Citation: 562 S.W.2d 361
• Decision Date: 13 March 1978
• Docket Number: No. 60013
• Parties: Donald EDMONSOND et al., Appellants, v. LAKESIDE HOSPITAL ASSOCIATION et al., Respondents.

Page 361

562 S.W.2d 361 Donald EDMONSOND et al., Appellants,
v.
LAKESIDE HOSPITAL ASSOCIATION et al., Respondents. No. 60013. Supreme Court of Missouri, En Banc. March 13, 1978.

Page 362

Robert VanHorn, Kansas City, for appellants.

Darrell L. Havener, Thomas N. Sterchi, William T. Smith, III, Kansas City, for respondents.

NORWIN D. HOUSER, Special Judge.

Donald and Steven Edmonsond, aged 17 and 14 years, respectively, through their father and next friend, William Edmonsond, brought this action against a hospital association, a clinic, three osteopathic physicians and surgeons and the executrix of a fourth osteopathic physician and surgeon, for $900,000 damages for the death of their mother, Donna P. Edmonsond. Mrs. Edmonsond was admitted to and operated upon in the defendant hospital. She died the same day she was dismissed from the hospital. The petition alleged that her death was caused or contributed to by defendants' negligent abandonment of care and early dismissal from the hospital without advising her or her husband of the risks involved and the care she would require upon dismissal.

Page 363

Defendants filed motions to dismiss or alternatively to render summary judgment for defendants on the basis that (1) the depositions, pleadings and records demonstrated no genuine issue of material fact, and that (2) the minor children of deceased were improper parties plaintiff in that they had "brought an action which no longer vested in them under R.S.Mo. 537.080, and further that any cause of action for wrongful death which might have been brought by any other person whomsoever is now barred by the two-year limitation of actions contained in R.S.Mo. 537.100; therefore, plaintiffs' Petition fails to state a claim upon which relief can be granted." These motions were overruled by Division 4 of the circuit court. At a later term of court, on motion to reconsider, Division 9, presided over by a different judge, sustained these motions and entered judgment for defendants without conducting a hearing. Plaintiffs appeal, claiming denial of due process of law; asserting that Division 9 illegally sat as an appellate judge in reversing the decision of another coequal judge of the same circuit; erred in setting aside the order previously made in Division 4, and erred in not calling for oral arguments and giving plaintiffs an opportunity to be heard before entering summary judgment.

The judgment did not state the basis upon which the court acted, but under the undisputed facts relief cannot be granted these plaintiffs on this petition. Regardless of the charges of procedural error and denial of due process, upon which it is not necessary to pass, the circuit court acted properly in entering summary judgment for defendants and dismissing the petition for the reason that at the time these minor children filed suit they were not the proper parties to maintain an action for the wrongful death of Donna P. Edmonsond.

Donna P. Edmonsond died December 13, 1973. She was survived by her husband, two minor children, and her father and mother, all of whom are still living. Under § 537.080, RSMo 1969, as last interpreted in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976), the claim for Donna's wrongful death accrued on the date of her death, and vested first in the spouse and minor children who, in case (as here) deceased left surviving a father and mother, were obliged to exercise their preferred right by filing suit within one year from the date of death. The minor children did not do so. They filed this action March 13, 1975, fifteen months to the day from the date of death. Having failed to appropriate their cause of action before the expiration of one year from December 13, 1973 the minor children were barred from asserting a cause of action for their mother's wrongful death because they failed to timely perfect an essential element of their claim for relief. On December...