State ex rel. Sisters of St. Mary v. Campbell

• Decision Date: 11 June 1974
• Docket Number: No. 35784,35784
• Citation: 511 S.W.2d 141
• Parties: STATE of Missouri ex rel. SISTERS OF ST. MARY, a corporation, Relator, v. Hon. Robert Lee CAMPBELL, Judge of the Circuit Court, County of St. Louis, Division Fifteen, and His Successors as Judges of Said Division, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 141

511 S.W.2d 141

STATE of Missouri ex rel. SISTERS OF ST. MARY, a corporation, Relator, v. Hon. Robert Lee CAMPBELL, Judge of the Circuit Court, County

of St. Louis, Division Fifteen, and His Successors

as Judges of Said Division, Respondent.

No. 35784.

Missouri Court of Appeals, St. Louis District, Division One.

June 11, 1974.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for relator.

Shepherd & Weenick, Clayton, for respondent.

SIMEONE, Judge.

This is an original proceeding in prohibition in which the relator, Sisters of St. Mary, a corporation organized under the provisions of Chapter 352, RSMo, V.A.M.S. seeks to prohibit the respondent-judge 'and his successors in office' from proceeding further in a cause of action for damages filed by Monty Smoot as plaintiff against the relator-defendant. Art. V, § 4, Mo.Const., V.A.M.S.

On July 6, 1973, Monty Smoot, husband of Sally A. Smoot, filed a petition in the circuit court of St. Louis County alleging the following pertinent facts:

1. That on or about January 25, 1968, his wife Sally, then being approximately seven months pregnant, was admitted as a patient to St. Mary's Hospital operated by the Sisters of St. Mary.

2. At the time of her admission, Sally was in convulsions due to 'insulin reactions.'

3. That upon admission to the hospital Sally was 'received . . . and assigned to an intensive care unit . . . where the said hospital had contracted with plaintiff to supply intensive and continuously monitored care. . . .'

4. While in the hospital and on January 27, 1968 Sally 'did begin pre-delivery labor.'

5. That then and thereafter there were 'no nurses or other attendants . . . and no nurse or other attendant was available or in attendance on the hallways or at the nursing stations . . . and that, as a result of the breach of contract by failure to provide nursing attendance or care and the failure to provide interns, residents . . . plaintiff (Monty) was required to push the bed of . . . (Sally) out into the public hallway with . . . the child partially delivered . . . and take . . . (Sally) to the obstetrical department . . . at which place (Monty) and a nurse, without other medical assistance completed the delivery . . . of the child of the plaintiff (Monty).'

'6. That as a result of the breach of contract by the defendant . . . within 24 hours of the birth of the child . . . the . . . child died.'

'7. That the death of the child . . . directly occurred as a result of the breach of contract of defendant in not providing proper medical attendants, proper nursing services and the intensive care and attention . . . and for which service . . . plaintiff and defendant had contracted.'

'8. That as a result of the said breach of contract by the defendant . . .plaintiff has been damaged in the sum of $50,000.00 and has been required to pay moneys to defendant under threat of suit in the amount of $516.00 and further . . . required to hire an attorney to defend the petition of defendant in a separate collection action and pay said attorney therefor the sum of $125.00, all to plaintiff's great damage in the sum of $50,651.00 ($50,641.00?).'

The prayer concluded: 'Wherefore . . . plaintiff prays judgment against defendant for his breach of contract and his consequential damages . . . in the sum of $50,641.00 plus the costs. . . .' (Emphasis added.)

On July 24, 1973, Relator, through counsel, filed its motion for summary judgment under Rule 74.04 alleging, 'Under the law of Missouri, there is no cause of action for wrongful death based on breach of contract,' and alleging that the petition 'although alleging it is a cause of action for breach of contract is in fact and in truth an alleged cause of action for wrongful death and on the face of the petition said cause was not filed within two years of the alleged wrongful act . . . and . . . is barred by . . . Sections 537.080 and 537.100, R.S. Missouri.' The motion also alleged that since relator was and is a charity, it is immune 'from suits . . . for damages for alleged neglect, failures or negligence, which alleged cause of action arose prior to November 10, 1969. . . .'

On October 22, 1973, the respondent overruled the motion for summary judgment.

On October 31, 1973, relator filed its petition for prohibition seeking to restrain respondent from proceeding further in the cause of Monty Smoot v. Sisters of St. Mary. After receiving suggestions, we issued our preliminary writ on December 7, 1973, and the parties filed their return, answer and reply respectively. The return filed by respondent (1) admitted, 'Relator would not be liable for an action grounded in malpractice, tort, wrongful death, or any other root word description of a tort action . . . but Respondent . . . assets (sic) affirmatively that said cause states a cause of action solely in contract;' (2) that he has stated a 'cause of action wherein he has alleged the existence of a good and valid contract, a breach thereof by nonperformance on the part of the Sisters of St. Mary, damages flowing from said breach and thereupon states a cause of action entitling him to be heard . . .;' (3) that 'while the items and amounts of damage allegedly suffered by plaintiff in our Circuit may be subject to proof, he has stated a cause of action sounding in contract. . . .' The cause therefore was 'timely filed' under § 516.120 because Monty Smoot did not attain his majority until December 10, 1970; (4) that relator has the right of appeal from any judgment issued against it and accordingly prohibition should not issue; (5) that relator's action is untimely since respondent has already ruled on the motion for summary judgment against relator; (6) that relator's action is misdirected to respondent because the action is pending in the assignment division under the direction of the presiding judge and not respondent, and (7) relator's remedy at law is adequate, since the cause of action is 'clearly grounded in contract and seeks various damages flowing from the breach alleged thereof. . . . His damages assertion or allegation is subject to proof and Relator will have its day in contravention of such proof. Following that, its rights of appeal will be for such errors as the Circuit Court may have permitted to occur.'

Further refining his objections to the issuance of the writ, respondent states that relator contends:

1. The petition is not really a suit on contract.

2. The motion for summary judgment is really a motion to dismiss.

3. The motion for summary judgment did not admit facts.

4. That although respondent returned the file to the presiding judge, respondent should be considered to be one and the same as the presiding judge.

It appears also that the facts have these additional elements. As stated, it was alleged that Sally Smoot entered the hospital on or about January 25, 1968; on January 27, 1968 she began pre-delivery labor; the child died within twenty-four hours thereafter. On January 12, 1973 (some four years and 352 days later) the relator filed suit in the magistrate's court in the amount of $349.65 for the services rendered. Monty Smoot filed a counterclaim seeking damages in the amount of $50,000 for breach of contract and that he was required to pay $516 under threat of suit and to hire an attorney for $125. Because the counterclaim was in excess of jurisdiction, the cause was certified to the circuit court which dismissed the counterclaim because not filed within 20 days after the return date of the summons. § 517.240, RSMo. Monty Smoot then dismissed the counterclaim and filed his petition stated above in the circuit court.

In 1968 Monty Smoot was a minor; he did not reach his majority until December 10, 1970, hence respondent urges that Smoot's action was brought within the proper time under § 516.120, RSMo, V.A.M.S.--five year statute for breach of contract after he reached his majority.

Relator in its brief makes the following points in urging us to make our preliminary writ permanent:

1. Although the plaintiff-Smoot frames his petition in words alleging a breach of contract, the legal effect of his claim for 'failure to provide nursing attendance or care and the failure to provide interns, residents or other medical doctors' is in reality an action of 'malpractice' (a) which makes relator immune since any such action arose prior to November 10, 1969 (Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599, 606 (Mo. banc 1969); Garnier v. St. Andrew Presbyterian Ch. of St. Louis, 446 S.W.2d 607, 608 (Mo. banc 1969)), and (b) which is barred by the statute of limitations under § 516.140, RSMo, V.A.M.S.;

2. Even though the petition sounds in contract, there is no valid cause of action for wrongful death based on a breach of contract; and

3. Prohibition is the proper remedy to restrain respondent.

Respondent on the other hand contends that (1) prohibition is not the proper remedy under § 530.010, RSMo, V.A.M.S. and Rule 97 because prohibition is to prevent usurpation of power; respondent has jurisdiction to entertain the merits of the cause, and relator's remedy at law is adequate and effective; (2) that the entire argument of relator that the petition is in reality one of malpractice or one for wrongful death is 'inapplicable' and (3) fundamental fairness 'demands that the writ of prohibition herein should be denied.'

We are required to construe the petition filed by the plaintiff favorably to him and give him the benefit of every reasonable and fair intendment in view of the facts alleged, and if the pleader's allegations invoke principles of substantive law which may entitle him to relief, the petition is not to be dismissed, and if the facts pleaded and the reasonable inferences to be drawn therefrom looked at most favorably from the plaintiff's standpoint show any ground for relief, the plaintiff has the right to proceed. Ingalls v. Neufeld, 487 S.W.2d 52, 54 (Mo.App.1972); Young v....