Grippe v. Momtazee

696 S.W.2d 797, 1985 Mo. LEXIS 345

• Court: Supreme Court of Missouri
• Decided: September 10, 1985
• Docket: 66703
• Status: Published

Opinions

WELLIVER, Judge.

This is a wrongful death action brought by the deceased’s husband, Joseph Grippe, against defendants-respondents, Dr. Sam Momtazee and St. Louis OB-GYN Group, Inc. Plaintiff-appellant Grippe alleges that defendant-respondent Momtazee committed malpractice by failing to detect the deceased’s breast cancer early enough when her chances of survival were alleged to be greater than when the cancer was finally diagnosed. The jury returned a verdict in favor of defendants-respondents. Plaintiff-appellant’s motion for new trial was denied and the court entered a final judgment upon the verdict.

Plaintiff filed an appeal, alleging four trial errors. Defendants-respondents’ brief argued, inter alia, that regardless of the alleged errors the judgment should be affirmed because the plaintiff-appellant failed to make a submissible case. On appeal, the court of appeals did not address any of appellant’s challenged errors. Rather, the court held that dispositive of the appeal was plaintiff-appellant’s failure to present any evidence establishing a causal connection between the alleged negligence and the deceased’s cause of death. Leave was granted to the Missouri Association of Trial Attorneys to file a brief as amicus curiae on the motion for rehearing. The Association expressed concern with language used by the court of appeals in deciding the proper test and standard of proof on the issue of causation in a medical malpractice case involving an alleged delayed diagnosis. The court of appeals denied the motion for rehearing. This Court ordered transfer believing that we should examine the question of whether the court of appeals correctly treated this issue. We now conclude that the court of appeals should have examined plaintiff-appellant’s four allegations of error prior to considering submissibility. The cause is retrans-ferred.

The submissibility of plaintiff-appellant’s case was not an issue on this appeal. Appellant's case was submitted and no party claims to be aggrieved by the submission of the case. The only issues that are inherent and remain in every appeal are questions concerning subject matter jurisdiction and the sufficiency of the pleadings to state a claim upon which relief can be granted or a legal defense to a claim. Rule 84.18. See also Rule 78.07; § 512.160, RSMo 1978. Submissibility and sufficiency of pleadings are not the same thing. All other errors must be preserved by the aggrieved party, and such errors may then be considered on appeal. See generally Rules 84.13, 81.01, 78.07; § 512.-020, RSMo 1978. It is clear that defendants-respondents in this case are not aggrieved parties; and they are neither entitled to cross-appeal nor raise any allegation of trial error. See generally Baily v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 335 (1949); Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341, 344 (Mo.App.1983). They won at trial and plaintiff-appellant’s motion for new trial was denied. Defendants-respondents, therefore, cannot be heard to complain, in effect, that the trial court committed error by not taking the case from the jury.

The court of appeals, relying upon Robbins, supra, held that it could treat the issue of submissibility prior to considering any of plaintiff-appellant’s allegations of error. In Robbins, the plaintiff won at trial but the trial judge granted defendant’s motion for new trial. The plaintiff appealed from the post-judgment order and the defendant appealed from the court’s denial of defendant’s motion for directed verdict. The court of appeals dismissed the cross-appeal, but then used broad language indicating that it could examine the issue raised in the cross-appeal that the plaintiff failed to make a submissible case. There the issue of submissibility remained in the case because the plaintiff won at trial and the appellate court was required to rule on the propriety of the trial court’s order granting a new trial and whether the plaintiff made a submissible case before reinstating the verdict for plaintiff. It is when the trial court grants a post-trial motion that the issue of submissibility remains in the case.¹ Cf. Rule 72.01. Overly broad language in other cases that might suggest that submissibility of a case may always be considered as an initial matter by the appellate court should not be followed.

Appellant could not raise or preserve the naked question of submissibility because the case had been submitted as appellant had requested. Defendants-respondents could not raise the naked question of sub-missibility because of their favorable jury verdict resulting from the submission. Neither party was aggrieved by the submission and neither party had standing to challenge submissibility. Only after a favorable finding for appellant on one or more of plaintiff-appellant’s alleged errors could the court of appeals reach the question of submissibility — a question inherent in deciding whether the error found by the appellate court merits reversal or remand for new trial. Cf Rule 84.14.

On retransfer, the court of appeals should examine the alleged errors and then, if warranted, address the question of submissibility.

Opinion filed and ordered published and cause ordered retransferred to the court of appeals for further consideration consistent herewith.

HIGGINS, C.J., BILLINGS and DON-NELLY, JJ., and TURNAGE, Special Judge, concur. BLACKMAR, J., concurs in separate opinion filed. RENDLEN, J., concurs in result and concurs in separate opinion of BLACKMAR, J. ROBERTSON, J., not participating because not a member of the Court when cause was submitted.

1 . See Hart v. Midkiff, 321 S.W.2d 500 (Mo.1959); Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73 (1951); Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672 (Mo. banc 1950); Hughes v. St. Louis National League Baseball Club, 224 S.W.2d 989 (Mo. banc 1949); Baily v. Interstate Airmotive, supra; Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365 (1947); Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824 (Mo.1940); Barr v. Missouri Pacific Railroad Co., 37 S.W.2d 928 (Mo.1931). It might be noted, however, that these cases were decided under a different code of civil procedure.