Blaske v. Smith & Entzeroth, Inc.

BLACKMAR, Judge,

concurring.

I concur in the principal opinion.

The principal opinion distinguishes State ex rel. Cardinal Glennon Mem. Hosp. v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), and Strahler v. St. Luke’s Hospital, 706 S.W.2d 7 (Mo. banc 1986). I believe that both of those holdings are infirm. Cardinal Glennon was decided before I joined the Court. I thought at the time that it unduly circumscribed the discretion of the legislature, which imposed only a modest delaying procedure. Its force has been considerably weakened by Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. banc 1989), and Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503 (Mo. banc 1991).

Strahler shares Cardinal Glennon’s infirmities because it was a 4 to 3 decision in which one member of the Court indicated his concurrence only on the authority of Cardinal Glennon. Strahler, 706 S.W.2d at 12 (Robertson, J., concurring). I would reexamine both of these holdings, if an appropriate case were presented. I agree that they do not inhibit the present decision.

The principal opinion appropriately speaks of the proper relationship between the legislative branch and the judicial branch. We must take the legislature's handiwork as it frames it. I consider it quite improper for counsel to ask us to do otherwise or to make reference to the motivation of the legislature.

Although the plaintiffs’ claim regarding the precise problems of the air conditioner, and how it contributed to the injury, are fragmentary, I believe that the petition may be minimally sufficient to state a claim or, at least, that it may be amended so that it is sufficient. So I concur in the reversal and remand as to SnyderGeneral.

I do not believe that the next to last

paragraph of the principal opinion is necessary to the holding and have reservations about it.

With these observations, I concur,