74 S.W. 465 (Mo.App. 1903), Hasler v. Ozark Land & Lumber Company

Citation:74 S.W. 465, 101 Mo.App. 136
Opinion Judge:REYBURN, J.
Party Name:C. R. HASLER, Respondent, v. OZARK LAND & LUMBER COMPANY, Appellant
Attorney:James Orchard and James H. Dorris for appellant. No brief for respondent.
Judge Panel:REYBURN, J. Bland, P. J., and Goode, J., concur. Affirmed. Bland, P. J., and Goode, J., concur.
Case Date:May 12, 1903
Court:Court of Appeals of Missouri
 
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Page 465

74 S.W. 465 (Mo.App. 1903)

101 Mo.App. 136

C. R. HASLER, Respondent,

v.

OZARK LAND & LUMBER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 12, 1903

Appeal from Shannon Circuit Court.--Hon. W. N. Evans, Judge.

AFFIRMED.

Affirmed.

James Orchard and James H. Dorris for appellant.

(1) Our first contention is that the court erred in not striking out plaintiff's amended statement, for the reason that the last count was a new cause of action and different from the one tried in the justice court, which is not tolerated by our statute or the courts. R. S. 1899, sec. 4077; Boughton v. Railway, 25 Mo.App. 10. (2) When an attempt is made to hold a third party for a debt, a promise to pay the credit must be given solely to him and no one else. Gill v. Reed, 55 Mo.App. 246; Price v. Railroad, 40 Mo.App. 189; Hoberle v. O'Day, 61 Mo.App. 390; Penninger v. Reiley, 44 Mo.App. 255.

No brief for respondent.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

Page 466

[101 Mo.App. 137] REYBURN, J.

--This action was begun before a justice of the peace in Shannon county to recover a balance of $ 135 for professional services rendered in medical attendance upon and treatment of Jacob and Robert Hensperker, employees of defendant, during their affliction with smallpox. The complaint filed with the magistrate alleged that the services were performed at the request and upon the sole credit of defendant and that it had promised to pay plaintiff therefor. After appeal to the circuit court an amended statement of the cause of action was filed comprehending, in addition to the first complaint, a count based on the same cause of action, but containing averments that defendant had created a hospital fund by contributions from its employees, including the patients named, for the purpose of employing and paying a physician for medical treatment and attendance for such employees as might require them. A motion filed by defendant to strike out the amended petition was overruled, and the cause proceeded to trial before a jury which returned a verdict for plaintiff. The first error assigned is that the amended pleading stated a new cause of action and constituted [101 Mo.App. 138] a departure from the original complaint. Applying the test of the rule lately established by the Supreme Court, it may be doubted whether the...

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