Spradley v. St. Mary's Hospital

• Decision Date: 05 April 1971
• Docket Number: No. 25633,25633
• Citation: 469 S.W.2d 855
• Parties: Bithey Ann SPRADLEY and Harry Spradley, Plaintiffs-Appellants, v. ST. MARY'S HOSPITAL, a Corporation, and William Q. Wu, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 855

469 S.W.2d 855

Bithey Ann SPRADLEY and Harry Spradley, Plaintiffs-Appellants, v. ST. MARY'S HOSPITAL, a Corporation, and William Q. Wu Defendants-Respondents.

No. 25633.

Kansas City Court of Appeals, Missouri.

April 5, 1971.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 7, 1971.

Application to Transfer Denied Sept. 13, 1971.

Elwyn L. Cady, Jr., Independence, for plaintiffs-appellants.

Roy F. Carter, Kansas City, for respondent, Wu, Sprinkle, Carter, Larson & Hanna, Kansas City, of counsel.

David R. Odegard, Robert L. Wehrman, James & McCanse, Kansas City, for respondent, St. Mary's Hospital.

DIXON, Commissioner.

This appeal by the plaintiffs from the trial court's ruling sustaining a motion for summary judgment by one defendant and a motion to dismiss by another defendant, is dismissed for failure to comply with the rules relating to the filing of briefs in this court.

Reluctant as we are to dispose of cases upon procedural error in connection with the filing of briefs in this court, the brief of the appellants in this case is so wholly deficient in the necessary ingredients for successful examination of the issues presented that we deem it necessary to take this action.

The case comes to us by order of transfer from the Supreme Court where the appeal was originally lodged. The jurisdictional statement contained in appellants' brief is as follows:

'This appeal is from adverse disposition of plaintiffs' causes of action for negligence wherein $15,000 is sought against each defendant (1).

Consequently, jurisdiction is vested in the Supreme Court of Missouri by virtue of the amount in dispute, to-wit, $30,000.'

This jurisdictional statement does not comply with Rule 83.05(b), V.A.M.R. Note that in order to determine the question of jurisdiction upon this statement of such jurisdiction, some assumption of facts or pleading is required by the reader. In fact, an examination of the transcript discloses that the petition contains the following prayer:

'WHEREFORE, plaintiffs pray for judgment against defendants and each of them in the sum of $15,000, and costs.'

This could not, by any stretch of the imagination, constitute a demand for $30,000. The Supreme Court, by its order and apparently after examination of the transcript, remanded the case to this court.

Appellants' statement of facts is likewise as abbreviated and erroneous as the jurisdictional statement. It is set forth here in its entirety:

'STATEMENT OF FACTS

This action is a classical 'sponge case' in which both the defendant surgeon and the hospital are sued for negligence in leaving a surgical sponge within the body of plaintiff Mrs. Spradley during surgery on or about September 8, 1964(1).

The sponge was discovered on August 13, 1966 when it extruded itself (47A) and suit was filed on August 13, 1968(1).

Defendant hospital's motion for summary judgment was sustained on February 28, 1969 and defendant surgeon's motion to dismiss was sustained (47A--48) September 5, 1969. Plaintiffs' appeal was timely perfected (48 et seq.).'

Examination of this statement of facts gives absolutely no information concerning the pleadings in the court below other than their dates of filing, nor the facts upon which the pleader claims the trial court erred in its ruling. It is completely erroneous in that it does not contain an accurate statement of the court below's rulings which were specific in both instances. To demonstrate the fallacy of this statement of facts, we shall provide a short statement of the facts prepared from an examination of the transcript.

On August 13, 1968, the plaintiffs, Bithey Ann Spradley and Harry Spradley, filed a petition alleging that on September 8, 1964 a physician-patient and a hospital-patient relationship existed between the plaintiff, Mrs. Spradley, and the defendants in respect to certain surgery; that surgical sponges were introduced into the surgical wound and that the surgical material was left within the body of Mrs. Spradley and that on or about August 13, 1966, the surgical material extruded itself; that as a result of this, the plaintiff sustained 'serious pain and mental anguish, loss of earning capacity, and damage to tissues and organs of her body' and that the plaintiff, Mr. Spradley, sustained loss of consortium and incurred substantial expense for the rehabilitative treatment of his wife. On September 12, 1968, St. Mary's Hospital filed an answer admitting that plaintiff was a patient, that surgery was performed and denying all the other allegations of the petition. The answer pleaded that the petition failed to state a cause of action; that the two year statute of limitations against the defendant had run and that the hospital was a charitable institution and immune from liability. On January 29, 1969, the defendant, St. Mary's Hospital, filed a motion for summary judgment upon the same grounds set out in the answer and attaching the corporate papers and an affidavit of the administrator of the hospital concerning the charitable nature of the organization. On February 28, the court entered an order which is as follows:

'Motion of defendant St. Mary's Hospital for summary judgment is sustained for the reason that the two-year statute of limitations has run before the filing of said petition.'

For some reason not apparent from the record, the individual defendant was not served until much later in 1969. Upon his being served, and apparently within time, on June 18, 1969, the individual defendant filed a ...