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June 30, 1983


From the Circuit Court of Jackson County; Civil Appeal; Judge William F. Mauer.

The opinion of the court was delivered by: Blackmar

The plaintiff's petition seeks damages for the wrongful death of her son, Chris Wright, at the hands of Gregory S. Corley, who had been committed to the St. Joseph State Hospital by order of the Juvenile Court of Jackson County, Missouri. *fn1

The defendants whom the plaintiff presently *fn2 seeks to hold are the State of Missouri; Beverly Wilson, Director of the Division of Mental Health; Nicholas Bartulica, Superintendent of the St. Joseph State Hospital; Richard K. Jacks, D.O., Chief of the Medical Staff of St. Joseph State Hospital; John Doe, a physician employed at the St. Joseph State Hospital whose identity the plaintiff hopes to learn through discovery; and Corley, the alleged killer.

The amended petition charges that Corley was committed to the State Hospital by order of the Juvenile Court of Jackson County; that he was a dangerous person with severe mental illness; that the defendants nevertheless released him on a two-day pass; that the release was contrary to law; that Corley did not return from the leave conferred by the pass; that the defendants did not take proper steps to return him to custody, as by notifying the sheriff of Buchanan County; and that Corley killed Wright on May 4, 1978 by shooting him in the head 11 times with a rifle. The petition charges that the defendants were "grossly negligent," first in releasing Corley on a pass when they knew of his severe mental illness and dangerous proclivities and, second, in failing to take steps to have him returned to custody after his absence was discovered or discoverable.

The defendants, except for Corley, moved to dismiss the action. On October 15, 1980 the trial court sustained the motions and ordered the case dismissed as to all of the moving defendants, without specifying reasons. The plaintiff moved pursuant to Rule 81.06 for the entry of final judgment against the moving defendant so that the order could be appealed. The court on November 10, 1980 sustained this motion and entered an appealable judgment. Notice of appeal was filed on December 3, 1980.

The Court of Appeals affirmed as to all defendants except Jacks and "Doe." It held that the state was not liable because of sovereign immunity, and that the defendants in supervisory positions were not liable because of the discretion attending their offices, characterized by the court as "official immunity." The opinion specifically stated that the discretion of a superior official extended to judgment as to the hiring and retention of subordinates. The court held, however, that Doctors Jacks and Doe did not have positions established by statute and did not possess or exercise any part of the state's sovereign power, but rather were physicians with the duty of rendering the same kind of treatment to Corley that private physicians afford their patients, and that they were not insulated from liability for negligence in the performance of these duties, citing State ex rel. Eli Lilly and Company v. Gaertner, 619 S.W.2d 761 (Mo. App. 1981). The case was therefore remanded for trial as to Jacks, Doe and Corley. We accepted transfer on motion and now decide the case as though it were on original appeal to this Court.

I. Appealability

The defendants seek to pretermit our consideration of the merits by claiming that the notice of appeal filed December 3, 1980 was too late to permit review of the judgment entered November 10, 1980. Rule 81.04(a) provides that notice of appeal must be filed within 10 days after a judgment becomes "final." Rule 81.05(a) states that a judgment becomes final 30 days after entry. Thus the gross period is 40 days from the entry of final judgment, unless after-judgment motions are filed, of which there were none in this case. The notice of December 3 would appear on its face to be timely, if not premature, under these rules. (By Rule 81.05(b) a premature notice of appeal is effective, and is considered as having been filed immediately after the judgment becomes final).

The defendants argue, however, that the direction of finality pursuant to Rule 81.06 is itself the final judgment of Rule 81.04(a), so that the notice of appeal had to be filed within ten days. We do not agree. The judgment of November 10, 1980 was the first appealable judgment entered in the case. The trial court could have set that judgment aside within 30 days, just as any other judgment, and post-judgment motions could have been filed. Woods v. Juvenile Shoe Corp., 361 S.W.2d 694 (Mo. 1962) does not rule the point before us. It simply holds that the court's power to enter an order making a judgment which does not dispose of all parties appealable, as now authorized by Rule 81.06, is not limited to the period of 30 days following the entry of the initial partial and interlocutory judgment.

Cases should be heard on the merits if possible. Statutes and rules should be construed liberally in favor of allowing appeals to proceed. City of Winnebago v. Sharp, 652 S.W.2d 118 (Mo. banc 1983)(No. 64163, decided May 31, 1983). A person securing an 81.06 order should undoubtedly proceed as quickly as possible with the appeal, (see 81.05(a)), inasmuch as the whole point of the order is to permit appeal, but this plaintiff acted within the letter and spirit of the governing rules and should be heard on the merits.

II. The Decision to Release

We turn then to the merits. The question is whether the plaintiff's petition states a claim on which relief can be granted. In testing the petition we must assume that the properly pleaded facts are true and must construe the petition liberally in favor of the pleader. The plaintiff should not be turned out of court through a narrow and technical reading of her petition. But there are limits. The allegation that Corley's release was "contrary to law" is a bald legal Conclusion which is not binding on us. Hardy v. McNary, 351 S.W.2d 17, 21 (Mo. 1961). Nor is there a citation to cases or statutes which would demonstrate that the release on pass violates the law in any respect. The plaintiff, furthermore, has made at least two attempts to amend, and we consider the petition to have been amended in accordance with the latest motion. It is appropriate to impose some responsibility on a pleader, and we are justified in assuming that this plaintiff has set out the facts known to her which she believes will support her claim. If the allegations of the petition, broadly construed, fail to demonstrate a right to relief, then there is no purpose in a remand simply to permit experiment with other possible theories involving additional factual claims which have not even been hinted at up to now. Litigation is burdensome to defendants, regardless of the result. The initiative is with the plaintiff, who was broad freedom of allegation.

(a) The Liability of the Treating Physicians

We deal first with the claims against Doctors Jacks and Doe for allowing Corley to leave the institution on pass. It is alleged that Jacks is "chief of the medical staff," which would indicate that he has supervisory duties, but for present purposes we shall assume that he was active in the care and treatment of Corley. The claim in that Corley was a dangerous person with severe mental illness, that he should have been confined continuously in an institution, that the defendants Jacks and Doe were "grossly" negligent in allowing him to leave on pass, and that his presence in the world at large was dangerous to members of the public including the plaintiff's decedent. We gather from the petition that the fatal attack did not occur until several weeks after Corley was due to return from his pass, but shall assume that the issuance of the pass was an event in the direct chain of causation.

The question, then, is whether the treating physicians owed such a duty to the general public in deciding which involuntary patients should be released on pass, as to give rise to a civil action by a member of the general public for negligent exercise of judgment. The plaintiff gains nothing by branding the negligence "gross." In a line of cases beginning with McPheeters v. Hannibal and St. Jos. R.R. Co., 45 Mo. 22 (1869) and reiterated in Warner v. Southwestern Bell Tel. Co., 428 S.W.2d 596 (Mo. 1968), this Court has held that there are no degrees of ...

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