Gaddy v. State Bd. of Registration for Healing Arts

• Decision Date: 23 November 1965
• Docket Number: No. 8481,8481
• Parties: Henry F. GADDY, Plaintiff-Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 347

397 S.W.2d 347

Henry F. GADDY, Plaintiff-Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS of Missouri, Defendant-Respondent.

No. 8481.

Springfield Court of Appeals, Missouri.

Nov. 23, 1965.

Rehearing Denied Dec. 22, 1965.

William C. Myers, Jr., Garold L. Morlan, Webb City, for plaintiff-appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Asst. Atty. Gen., St. Louis, for defendant-respondent.

STONE, Judge.

This is an appeal from a judgment of the Circuit Court of Jasper County affirming upon judicial review [Sec. 334.100, subsec. 3; Secs. 536.100 to 536.140, incl. ¹ an order of the State Board of Registration for the Healing Arts (hereinafter referred to as the Board) dated November 23, 1963, revoking the license of Henry F. Gaddy, D.O., to practice the healing arts in Missouri.

At the outset, we are confronted with the Board's motion to dismiss Gaddy's appeal because the transcript on appeal was not filed 'within 90 days from the date of filing of the notice of appeal' [Rule 82.18], i. e., within 90 days after July 28, 1964, the date on which Gaddy filed his notice of appeal to the Supreme Court of Missouri, by whom the case subsequently was transferred to this court. It is true that the transcript was filed in the Supreme Court on November 2, 1964, 97 days after the date of filing of the notice of appeal; that the circuit court had not extended the time for filing the transcript and, indeed, would have had no authority to do so by reason of the failure of appellant's counsel to comply with the requirement that 'the transcript on appeal be ordered in writing from the court reporter within 30 days after the filing of such notice of appeal and a duplicate copy of such written order to the reporter be filed in the case within 15 days thereafter' [Rule 82.19]; and that no application was presented to the Suppreme Court or to this court invoking the exercise of the discretionary power of the appellate court under Rule 83.26 to extend the time for filing the transcript. Clader v. City of Neosho, 354 Mo. 1190, 1191, 193 S.W.2d 620, 621; Heard v. Frye's Estate, Mo.App., 319 S.W.2d 685, 687(7). In these circumstances, the appeal properly might be dismissed. School Dist. No. 24 v. Mease, Mo.App., 193 S.W.2d 513.

However, the spirit of our rules of procedure, which finds expression in Rule 83.24, is that they should be construed liberally with a view to disposition of cases on their merits unless the procedural delinquency has been too grave to condone. See Baldwin v. Desgranges, 355 Mo. 959, 199 S.W.2d 353, 355(1); Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935, 937(7). Mindful that it does not appear that the Board or its counsel have been 'injured or inconvenienced in any way' by the tardy filing of the transcript on appeal [Bohannon v. Camden Bend Drainage Dist., 240 Mo.App. 492, 208 S.W.2d 794, 798(1, 2)] and that the case is one of paramount importance to appellant Gaddy, whose license to practice his chosen profession has been revoked, we have concluded that, in the exercise of our discretion, we should treat the transcript as having been filed by leave of court under Rule 83.26. State v. Amsden, Mo., 299 S.W.2d 498, 502(7); City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257(1-3). See Costello v. Goodwin, 240 Mo.App. 538, 210 S.W.2d 375, 377-378. Before proceeding to the merits, we again confess our wonderment that capable counsel so frequently assume such not inconsiderable but wholly unnecessary procedural risks in dealing with the interests of their clients, ² and we emphasize the caveat that our failure to impose the justified penalty of dismissal in the instant case must not be regarded as a precedent or as any indication that the same policy of condonation will be indulged in the future.

Preliminary to our factual review, it may be well for us to remind ourselves that, since the Board is an administrative body, ³ and since Section 334.100, subsec. 3 expressly provides that '[a]ny person whose license is revoked or suspended by the board shall have the right to have the proceedings reviewed as provided by law for the review of decisions, rules and regulations of administrative officers and bodies existing under the constitution and laws of this state,' the scope of judicial review in the instant case is that provided by Article V, Section 22, Const. of 1945, as implemented by Section 536.140. Cf. Burrows v. County Court of Carter County, Mo.App., 308 S.W.2d 299, 301. Although the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Board reasonably could have made the findings and order under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Board; and the reviewing court may set aside the findings and order of the Board only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and order. ⁴

On March 9, 1963, the Sheriff of Jackson County served on appellant, then practicing at Lee's Summit, Missouri, written notice that the Board would, on March 30, 1963, hold a hearing to inquire into the charge 'that on or about 1958 through on or about February 24, 1961, you were addicted to the habitual use of a narcotic drug or drugs' and that, 'if, upon the evidence, the Board finds that such charge is true, the Board will determine whether your license to practice medicine should be revoked.' See Section 334.100, subsec. 1, subd. (5), and subsec. 2. At the hearing, two witnesses were called by the attorney general and appellant, represented by counsel, voluntarily testified. After the oral arguments of counsel, the Board took the matter under advisement and thereafter, to wit, on November 23, 1963, handed down its written findings of fact, conclusions of law, and order [Sec. 536.090], in which, inter alia, it found 'that through and during the years 1959 and 1960 [appellant] was addicted to habitual use of narcotic drugs,' held 'that addiction to a drug habit constitutes unprofessional and dishonorable conduct within the meaning of Section 334.100,' and 'by unanimous vote of all members' revoked License No. 7188 theretofore issued to appellant.

Although the transcript does not reveal when appellant first was licensed to practice in Missouri, his counsel inform us, dehors the record, that appellant graduated from an osteopathic school in 1940 and interned in a Tulsa hospital. The period covered by the evidence begins in October 1958, when, as the result of an automobile accident, appellant sustained severe personal injuries, including fractures of the pelvis and of the shaft and neck of the right (?) femur. Following the accident, appellant was taken to a hospital at Claremore, Oklahoma. About 24 hours later he was moved to the Tulsa General Hospital, a 25-bed osteopathic hospital located 'in a poor part of town' and owned by appellant. For about five weeks, he remained in his hospital at Tulsa under treatment, 'extension mostly and sedation,' by Dr. Frank Gaddy, his brother, and Dr. Frank Wolf. In November 1958, he was transported to the Mayo Clinic where Dr. F. L. Peterson did an arthrodiesis, 'put a pin through the neck [of the femur] and into the pelvis and then did a bone graft with two screws to hold the bone graft in place.' Some eight to ten days later, appellant, then in a body cast, was returned to his hospital in Tulsa, where he remained in the cast until April 1959. Thereafter he was on crutches until 'sometime during the Summer of 1959.' With his hospital 'in bad financial shape,' he returned 'to practice as soon as possible; I am sure it was in May or June' 1959. His practice included 'major surgery' and 'abdominal surgery' but 'not much fracture work.'

One of the witnesses called at the hearing conducted by the Board was Ted Hagrstrom, a state narcotic agent attached to the office of the Attorney General of Oklahoma. In company with Charles Casey, a Federal narcotic agent, Hagrstrom had interviewed appellant at his hospital in Tulsa on February 24, 1961, and on that occasion had questioned appellant about his use of narcotic drugs. According to Hagrstrom, appellant had said 'that he had been using both methadone and dolophine [identified as synthetic narcotic drugs], about four cc. four times a day' and again that, 'since his release from the hospital [following the automobile accident], he had been using narcotics off and on, and finally he was using as much as four cc. four times a day.' When asked specifically whether he was addicted to the use of methadone or dolophine, appellant's reply (as given by witness Hagrstrom) was that 'he didn't think he was actually addicted but he said, 'I presume the amount that I have been taking would indicate that I had been addicted, but I don't think I will have any trouble relieving myself from the use of it.' And [he] did not want to take treatment.'

The agents checked appellant's narcotic records for the period from May 30, 1960, 'at which time he [had] reported a burglary and all narcotics . . . taken,' to February 24, 1961. During that period of less than nine months, appellant had purchased and had 'an accountability' for 5,860 cc. of methadone, 10 mg. per cc., but had a shortage of 5,187 cc. of that narcotic drug; and, during the same period, he had purchased and had can accountability' for 5,960 cc. of dolophine, 10 mg. per cc., but had a shortage of 5,520 cc. of that narcotic drug. During the same period, he also had purchased 100 ampules of dolophine, 100 mg. per cc., and was short the entire amount. The only 'overage' found by the agents was sixty-nine 1/3 gr. tablets of some narcotic drug not identified in the record. Appellant's narcotic license was revoked...