Wyse v. Miller
| Citation | 2 S.W.2d 806 |
| Decision Date | 13 February 1928 |
| Docket Number | No. 16200.,16200. |
| Court | Court of Appeal of Missouri (US) |
| Parties | HENRY WYSE, RESPONDENT, v. DR. R.P. MILLER, APPELLANT.<SMALL><SUP>*</SUP></SMALL> |
Appeal from the Circuit Court of Jackson County. — Hon. Ben Terte, Judge.
AFFIRMED.
Manard & Schwimmer (Fred E. Bredehoff, of counsel) for respondent.
Watson, Gage & Ess for appellant.
Action to recover damages for breach of contract. This cause originated in the justice court of Jackson county where plaintiff recovered judgment. On appeal to circuit court, plaintiff again recovered judgment against both defendants. Defendant Dr. R.P. Miller appealed.
On October 21, 1921, plaintiff and Kansas City Industrial Hospital Association entered into a written contract by the terms of which plaintiff agreed to pay said hospital association $1 per month, in advance, for which said hospital association agreed to give plaintiff, his wife, and other members of his family, free from all expense, surgical and medical treatment for sickness and accidents requiring hospital treatment including board, bed, nurse, medicine, dressings, operations, laboratory examinations and X-ray.
Plaintiff was a coal miner residing at Camden, Missouri, and a member of a local union of the United Mine Workers of America located at that place. The plan of defendant hospital association was to induce all coal miners in Missouri, who were members of a local union, to enter into a contract with it for free hospital services, similar to the contract made with plaintiff. The evidence shows that defendant had such contracts with members of some twenty or twenty-five different local unions located in various parts of Missouri.
The financial secretary of each local union would collect $1 per month from members having hospital contracts, retain ten per cent of the amount collected for his services in collecting it, and remit the remaining ninety per cent to the hospital association.
The universal custom and practice followed in the collection of these hospital dues was to check them off, that is, hold the amount of the dues out of the miners wages.
When the mines were not operating, the dues would not be paid, but when the mine resumed operation the delinquent dues which accrued while the mine was idle, would be checked off the miners wages on pay day, and remitted to the hospital association. Plaintiff's dues were collected in this manner.
On one occasion, prior to the time in question, plaintiff was delinquent in his dues for a period of seven months. In May, 1923, these delinquent dues amounting to $7 were checked off plaintiff's wages and remitted to the hospital association. The association accepted and retained these dues without objection.
Plaintiff was delinquent in his dues for June, July and August, 1923. On August 17, 1923, these delinquent dues were collected by the secretary of plaintiff's local union, and with other hospital members' dues were remitted to the hospital association on September 17, 1923. The association accepted these dues without objection and still retains them.
Plaintiff's wife had been treated by Mr. Miller in November, 1922. At that time he told her that she needed a surgical operation and requested her to come to the hospital and have the work done as soon as she got strong enough. On August 20, 1923, plaintiff took his wife to the hospital for the purpose of having this operation performed. Dr. Miller refused to perform the operation unless he was paid a cash fee for it. He testified that he refused to do the work because plaintiff was delinquent in his hospital dues, and he so told him at the time. Plaintiff and his wife both testified that plaintiff, at the time, told Dr. Miller that he was a member of the local union at Camden, Missouri, and a member of the hospital association in good standing; that Dr. Miller said nothing about delinquent dues but refused to operate on plaintiff's wife unless he was paid a cash fee therefor.
When Dr. Miller refused to operate on plaintiff's wife, plaintiff took her to the Trinity Lutheran Hospital, where she was operated on by Dr. Norberg. The cost of this operation and the hospital expenses incident thereto was $292.55 which plaintiff paid.
It is not shown that defendant hospital association was a corporation. Plaintiff and his wife testified that they were present at the trial of this cause in the justice court and Dr. Miller there testified that he was the sole owner of the hospital. At the trial in the circuit court, Dr. Miller testified that the United Mine Workers of America did not receive any of the money collected, and was not liable in any event for any cost or expenses incurred in the operation of the hospital; that it was up to him to pay all hospital expenses.
Other facts will be stated in connection with the points discussed.
It is contended by appellant that the court erred in refusing to give his requested instruction in the nature of a demurrer to the evidence.
This contention is predicated on three grounds, the first of which is, that there was no substantial evidence of the reasonable value of the services rendered to plaintiff's wife by Dr. Norberg.
The evidence is that the charge for this service was $292.55 and plaintiff paid it. It is true that there is no direct testimony that this charge was reasonable, but the presentation of the bill and its payment by plaintiff was some evidence that the charge was reasonable. [Abbot v. St. Louis Transit Co., 104 Mo. App. 534, 540; Nelson v. Metropolitan Street Rys. Co., 113 Mo. App. 659, 663; Giblen v. Terminal Railroad Association of St. Louis, 208 Mo. 208, 224, 101 S.W. 37, 42.] An examination of the cases in this State which have been reversed on account of lack of proof of the value of medical services, will show that in all such cases, there was no proof as to what was charged or paid. [Abbot v. St. Louis Transit Co., supra.] "In the absence of other evidence, cost is competent as tending to show value." [Abbot v. St. Louis Transit Co., supra.]
The second and third grounds of defendant's insistence that the demurrer to the evidence should have been sustained are that there was no evidence that plaintiff's hospital dues were paid to Dr. Miller on or before August 20, 1923, or that J.W. Greer, secretary and Robert Walker, treasurer of the local union at Camden, Missouri, were agents of Dr. Miller in collecting hospital dues from plaintiff.
A pamphlet entitled, "Kansas City Industrial Hospital Association," was introduced in evidence by defendant Dr. Miller. This pamphlet contained questions and answers relative to the hospital association calculated to induce members of local unions to become members of the hospital association. Among the questions contained in this pamphlet, we find the following:
On this subject Dr. Miller testified:
While there is no direct evidence of a contract between the hospital association and the local union or any of its officers, as to the collection of these dues, yet the hospital association advertised in its literature that the dues would be collected by the secretary of the local union and such was the universal custom and practice during all the years the hospital operated. Dr. Miller knew this, and with such knowledge, accepted and retained all dues so collected without objection. The dues were collected for the hospital association. The local union had no interest in them. Agency may be established by conduct between the parties. [Central Trust Company v. Bridges, 6 C.C.A. 539, 550; 2 C.J. 435, sec. 32; Roberson v. Clevenger, 111 Mo. App. 622, 625; Mosby et al. v. Commission Company, 91 Mo. App. 500.]
The purpose of members of the hospital association in paying $1 per month was to be in a position to obtain hospital service when needed. The association by its literature invited members to pay their dues to the secretary of the local union, and this was the...
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