State ex rel. Hamilton v. Dalton, 46853

Decision Date26 April 1983
Docket NumberNo. 46853,46853
Citation652 S.W.2d 237
PartiesSTATE of Missouri ex rel. Mary Lou HAMILTON, Plaintiff-Relator, v. The Honorable Donald DALTON, Judge of the Circuit Court For the County of St. Charles, Defendant-Respondent.
CourtMissouri Court of Appeals

Thomas M. Kendrick, St. Louis, for plaintiff-relator.

Wayne Schoeneberg, St. Charles, for James A. Mussmann.

KAROHL, Judge.

This is an original proceeding in prohibition to prohibit the respondent circuit judge from proceeding in the cause entitled, James A. Mussmann, and George Mussmann and Jean Mussmann v. Mary Lou Hamilton, defendant, and relator, Cause No. CV182-351CC, now pending in the circuit court of St. Charles County, Missouri.

The underlying suit was filed on February 4, 1982. Essentially the same suit was filed in St. Charles County, Missouri on November 10, 1971, stating a cause of action on behalf of James A. Mussmann, a minor, by his father and next friend, against Mary Lou Hamilton, his school teacher, Ivan Taylor, a school principal, and Fort Zumwalt School District. The complaint alleged serious personal injuries to James' right foot and toes resulting from the collapse of a piano on September 21, 1970. The original petition asked damages from relator Mary Lou Hamilton for her negligence in ordering James to move a piano she should have known was dangerous because of a defect in the rear wheel in that she failed to inspect and discover the defect and to repair or remove the piano from the classroom. Each defendant in the first action filed separate motions to dismiss alleging: (1) that the petition failed to state a cause of action; (2) that the defendants were protected by the doctrine of sovereign immunity; and, (3) the doctrine of in loco parentis. The trial court sustained these motions on July 12, 1972, without indicating the grounds for dismissal. The case was dismissed with prejudice and was not appealed.

The present action, by James, now an adult, relates to the same incident, for the same injuries and charges defendant Mary Lou Hamilton with the same acts of negligence. In Count II, James' parents are co-plaintiffs, asking damages for medical bills, loss of services and their pain and suffering with respect to their son's injuries. Defendant Mary Lou Hamilton filed an answer and pleaded affirmative defenses of res judicata as to both counts and the statute of limitations as to the parents' claim.

Relator Mary Lou Hamilton filed a motion for summary judgment, arguing that the allegations in both petitions stated the identical cause of action and that the dismissal with prejudice in the first action was a final determination on the merits of all of the issues raised in the second action. Therefore, plaintiff's cause of action has been fully adjudicated in her favor. The trial judge denied the motion for summary judgment and this court granted a preliminary writ of prohibition.

In substance, relator Mary Lou Hamilton contends that as a matter of law she is entitled to a declaratory judgment in her favor and for that reason respondent judge has no jurisdiction to proceed, that she has no adequate remedy at law and that further proceedings would violate the general rule of res judicata.

Prohibition is a means of restraint on judicial personnel to prevent usurpation of judicial power, and its essential function is to confine inferior courts to their proper jurisdiction and to prevent them from acting without or in excess of their jurisdiction. State ex rel. Allen v. Yeaman, 440 S.W.2d 138, 145 (Mo.App.1969). It is preventive in nature rather than corrective. The writ issues to restrain the commission of a future act and not to undo one that has already been committed. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 375 (banc 1953). It is generally allowed to avoid useless suits and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT