State ex rel. v. Mueller, 22789.

• Decision Date: 28 April 1933
• Docket Number: No. 22789.,22789.
• Citation: 59 S.W.2d 719
• Court: Missouri Court of Appeals
• Parties: STATE EX REL. EDWARD H. PIEPER, RELATOR, v. HONORABLE FRED E. MUELLER, JUDGE OF THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI, RESPONDENT.

59 S.W.2d 719

STATE EX REL. EDWARD H. PIEPER, RELATOR, v. HONORABLE FRED E. MUELLER, JUDGE OF THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI, RESPONDENT.

No. 22789.

St. Louis Court of Appeals. Missouri.

Opinion filed April 28, 1933.

Original proceedings by State at the relation of Edward H. Pieper against Honorable Fred E. Mueller, Judge of the Circuit Court of St. Louis, County, Missouri.

ALTERNATIVE WRIT OF MANDAMUS MADE PEREMPTORY.

BENNICK, C.

This is a proceeding in mandamus which presents the issue of whether the circuit court in which a cause is pending has jurisdiction, prior to the return day of the writ of summons, to rule upon a motion to require the defendant to produce his papers and records for the plaintiff's inspection.

Relator is Edward H. Pieper, the plaintiff in a cause now pending in the Circuit Court of St. Louis County against Dr. Francis William Kirsch, while respondent, Hon. Fred E. Mueller, is the judge presiding over Division 3 of the court.

On January 20, 1933, relator filed his petition in the cause, alleging that within two years prior thereto he had been injured while employed by the Koenig Floral Company, and while acting within the scope of his employment; that thereupon the employer or its insurance carrier employed the defendant, Dr. Kirsch, to treat him for the injuries he had received; and that the defendant thereafter entered upon and undertook such treatment.

The general purport of the petition is to state a cause of action for damages alleged to have been sustained by plaintiff as the result of the negligent and unskillful manner in which the defendant diagnosed and treated his injuries, as a consequence of which his said injuries were greatly aggravated and their cure and relief hindered and prevented. Damages are prayed in the sum of $15,000.

Immediately following the filing of the petition, and on the same day, summons was ordered to issue for the defendant, returnable to the May, 1933, term of court; and on January 21, 1933, the writ was returned by the sheriff, duly served upon the defendant.

Thereafter, on January 31, 1933, relator filed in said cause his verified motion to inspect, pursuant to the provisions of Sections 924-928, Revised Statutes 1929 (2 Mo. St. Ann., secs. 924-928, pp. 1203-1205). In said motion he set up, in substance, that the material issue in the case was the manner and character of the diagnosis and treatment of his injuries by the defendant; that the details and manner of such diagnosis and treatment were largely within the knowledge of the defendant, so that relator was unable to prove the same as well by any other witness as by the defendant himself and his records and memoranda; that theretofore, on January 27, 1933, relator, after notice duly given, had sought to discover such facts, but that defendant, having been duly sworn, had testified that he had no independent recollection of his diagnosis and treatment of relator's injuries without reference to his records; that the defendant refused to examine his records and give testimony concerning their contents; and that all of such records were in the custody of the defendant, and constituted competent, relevant, and material evidence in the case.

The prayer of the motion was that the court make an order directed to the defendant, commanding him to produce, at a time to be fixed by the court, all of his said records and memoranda constituting the record of his diagnosis and treatment of relator's injuries, and that relator and his counsel be authorized to examine said records and make copies thereof.

On the day of its filing, relator served notice of the motion upon the defendant, advising that the same would be called up for a hearing before the court on February 3, 1933. On the day set the motion was argued and submitted to the court; and on February 27, 1933, the court entered its order, holding, in effect, that it was without jurisdiction, prior to the return day of the writ of summons (the first Monday of May, 1933), to rule on said motion, but that the same should be permitted to remain on file in the cause until such time as a ruling thereon would not be premature.

On April 3, 1933, relator's petition for mandamus was filed in this court, representing that respondent, the said judge of the lower court, by ruling as indicated had refused to exercise the jurisdiction reposed in him by the statutes heretofore referred to; that except for the intervention of this court, respondent will continue to refuse to exercise his jurisdiction to rule on the motion until the convening of the May term of court; and that as a result of such refusal relator will be deprived of his right under the statute to inspect and take copies of said records and memoranda, the same may be lost or destroyed so that relator will be prejudiced in making proof of his cause of action, and the trial of the cause will be unnecessarily delayed.

Following the filing of the said petition, our alternative writ was ordered to issue; and in due course respondent filed his return, moving that our writ be dissolved and quashed for the reasons (1) that respondent is without jurisdiction over the subject-matter of the action, in that it appears from the petition filed therein that exclusive jurisdiction is vested in the Missouri Workmen's Compensation Commission to compensate relator for the injuries he received; (2) that respondent is without jurisdiction over the person...