Bloss v. Woodson Sanitarium Co.

• Decision Date: 11 April 1928
• Docket Number: No. 26674.,26674.
• Citation: 5 S.W.2d 367
• Parties: ADELPHA M. BLOSS, Appellant, v. DR. C.R. WOODSON SANITARIUM COMPANY and C.R. WOODSON.
• Court: Missouri Supreme Court

5 S.W.2d 367

ADELPHA M. BLOSS, Appellant, v. DR. C.R. WOODSON SANITARIUM COMPANY and C.R. WOODSON.

No. 26674.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Buchanan Circuit Court. — Hon. Samuel Wilcox, Judge.

AFFIRMED.

Dort & Witte and Eastin & McNeely for appellant.

(1) There is no ancient principle of law prohibiting, under all circumstances, a civil action for the death of a human being. Grotius Lit. 2, C. 17; Ruth. Inst. Nat. Law, Book 17-19; Poffendorf, Law of Nations 3, C.I. sec. 7. (2) Under the early common law there could be no recovery for death through murder; but this was not because such an action grew out of the death of a human being. It was because in every wrong resulting from crime, the private wrong was drowned in the offense against the crown. Higgins v. Butcher Yelve, 90 Reprint 61 (4th Year of King James, 1607); See also 1 Bacon's Abridgment, p. 663 (6 London Ed.) "Actions on the Case." Also, Baron Comyns's Digest under the head, "Actions on the Case." (3) There was also a principle of common law, summarized in the maxim, "Actio personalis moritur cum persona," under which a personal action of, or against, a person, died with the person, and could not be brought by or against his representatives; but this was held not to apply to a deceased party to a breached contract. Bacon's Abridgment under the head of Executors and Administrators — "Of personal torts which are said to die with the party," Lord Coke and associates in Pinshon's Case (1612) in which is cited many ancient precedents, 3 Bacon's Abridgment, supra, pp. 98, 99; Pinchon's Case (9th Year James 1st B.R.); Sir Edward Coke's Reports, Part 8, p. 86; 5 Wilson's Ed. 86.; 13 Am. & Eng. Ency. Law, 668, note 2. This rule of actio personalis moritur cum persona having been held not to apply to a deceased party to a breached contract, Lord ELLENBOROUGH, in the early part of the last century (1800) in the case of Baker v. Boulton (a tort action by a husband for the killing of his wife in an overturned stage coach) called attention to the fact that this ancient principle still applied in tort cases. Baker v. Boulton, 1 Camp. 495. The English and American Courts followed the case of Baker v. Boulton, which became a leading case, and towards the middle of the last century the British Parliament (and afterwards most of the American states) passed what is known as the Lord Campbell Act, ameliorating the harshness of the rule "Actio personalis moritur cum persona" as thus applied to tort actions for death. Lord Campbell Act, 9 & 10 Victoria, 93; R.S. 1919, sec. 4218. (4) Secs. 4218-21, R.S. 1919 (Missouri's Lord Campbell Act), creates no new cause of action, but is merely designed to continue and transmit the cause of action of deceased; that is, the statute merely continues or transmits the cause of action which the deceased had. These sections and their limitations are not applicable to the case at bar. Strode v. Transit Co., 197 Mo. 616; Hennessy v. Brewing Co., 145 Mo. 112. (5) The New York view is otherwise, i.e. that the statute (Lord Campbell Act) gives the cause of action and fixes its limitations. Hagerick v. Kiddie, 99 N.Y. 258; Duncan v. St. Luke's Hospital, 98 N.Y. Supp. 867; Affirmed on Appeal, 192 N.Y. 580, 85 N.E. 1109. (6) This action is for breach of an express agreement between two living parties, and moreover, sounds in contract, and not in tort. The confusion that sometimes exists as to whether an action sounds in contract or tort is due to the fact that at common law actions on the case sometimes invaded the field of assumpsit (an action for the breach of a simple or parole contract) through the fiction of an implied contract, as in the case of actions based upon a relation imposing particular duties. 1 C.J. 994. (7) The Code provides for but one form of action, and the question of whether an action sounds in contract or in tort depends upon its substance, under the clear distinction of the common law between actions on the case and ex delicto actions, on the one hand, and assumpsit and actions ex contractu on the other. Regardless of common-law forms the test still lies in the query, Was the agreement express or implied? 1 R.C.L. 332; Bliss on Code Pleading, (3 Ed.) sec. 14; Chitty's Pleading (16 Am. Ed.) 152; Stanley v. Burcher, 78 Mo. 245; Baker v. Crandall, 78 Mo. 588; Glenn v. Hill, 210 Mo. 291. See also Finch v. Bursheim, 122 Minn. 152, Burns v. Barrenfield, 84 Ind. 43; Long v. Morrison, 14 Ind. 595. (8) "The action should ordinarily be so construed as to sustain the complaint if the allegations are sufficient to state a good cause of action in contract, but not in tort, or vice versa; and so as to sustain the jurisdiction if the court would have jurisdiction in one form but not in the other." 1 C.J. 1015. (9) The New York case of Duncan v. St. Lukes Hospital, 98 N.Y. Supp., relied upon by respondents, is at variance with the basic principles and the Missouri view in another respect, i.e., it is based upon the theory that the action sounds in tort. Duncan v. St. Lukes Hospital, 98 N.Y. Supp. 867.

Brown, Douglas & Brown for respondents.

(1) The gist of the appellant's action as revealed by her petition is the recovery of damages resulting from the death of her husband. The right to maintain such an action is not recognized at common law, and must be founded upon a statutory counterpart of the English Lord Campbell's Act. El Paso & N.E. Railroad Co. v. Gutierrez, 215 U.S. 87; Clark v. Railroad Co., 219 Mo. 524; Crohn v. Telephone Co., 131 Mo. App. 313; Grunther v. Railroad Co., 1 Fed. (2d) 85; Wells v. Davis, (Mo.), 261 S.W. 58; Robbins v. Minute Tapioca Co., 128 N.E. 417; Putman v. Savage, 138 N.E. 808; Northern Pacific Railroad Co. v. Adams, 192 U.S. 440; Burk v. Railroad, 125 Cal. 364; Western Railroad Co. v. Bass, 104 Ga. 390; Malotte v. Shimmer, 153 Ind. 35; Rodman v. Mo. Pac. Railroad Co., 65 Kan. 645; Behen v. Transit Co., 186 Mo. 430; Strode v. Transit Co., 197 Mo. 616; Railroad v. Young, 58 Neb. 678; Snedeker v. Snedeker, 164 N.Y. 58; Brown v. Railroad Co., 65 S.C. 260; Gilkeson v. Railroad, 222 Mo. 173; McPherson v. Railroad, 97 Mo. 253; Barth v. Elev. Railway Co., 142 Mo. 535; Weber v. Ry. Co., 97 Fed. 140; Gerling v. Railroad Co., 151 U.S. 673; Bates v. Sylvester, 205 Mo. 500; Elliott v. Kansas City, 210 Mo. 581; Handtoffski v. Traction Co., 274 Ill. 282; Weber v. Railroad Co., 109 N.Y. 311; Maxon v. Railway Co., 112 N.Y. 559; Griffin v. Woodhead, 30 R.I. 204; Harding v. Liberty Hospital, 171 Pac. 98; 17 C.J. 1402, par. 54; Glenn v. Hill, 210 Mo. 291. (2) Appellant's only right of action existed under Sec. 4218, R.S. 1919, and that right can only be enforced in an action brought within one year from the time the statutory cause of action accrued. Sec. 4221, R.S. 1919; Clark v. Railroad, 219 Mo. 524; Gerren v. Railroad, 60 Mo. 405; Strottman v. Railroad, 228 Mo. 154. (3) The alleged contract pleaded by appellant in her petition, is not the gist of her cause of action; the contract is merely a matter of inducement, revealing a relationship between the parties, including appellant's deceased husband, and the alleged violation of whatever obligations the law imposes as a result of that relationship is the real matter in controversy. In other words, the petition reveals that whatever obligation the respondents owed under the circumstances stated in the petition, is an obligation imposed by law, which does not inhere in the contract, but exists independently of the provisions of the contract, and damages for the breach of such obligations are recoverable only in a tort action. Stanley v. Bircher, 78 Mo. 245; Duncan v. St. Luke's Hospital, 98 N.Y. Supp. 867; Darks v. Grocery Company, 146 Mo. App. 246; Armenlio v. Whiteman, 127 Mo. App. 698; Hales v. Raines, 163 Mo. App. 46; Reeves v. Lutz, 179 Mo. App. 61; Cooper v. Cooper, 147 Mass. 370; Pillsbury v. Title Ins. Trust Co., 175 Cal. 454; Randolph's Administrator v. Snyder, 129 S.W. 562; Lewis v. Taylor Coal Co., 112 Ky. 845; Harding v. Liberty Hospital, 171 Pac. 98; Marty v. Somers, 169 Pac. 411; Davis v. Springfield Hospital, 196 S.W. 104; Revell v. Trust Co., 322 Ill. 337; Glenn v. Hill, 210 Mo. 291. (4) The duty to pay damages resulting from a tort will not support an implied promise to pay such damages, upon which assumpsit can be maintained. Cooper v. Cooper, 147 Mass. 370; 1 C.J. 1032. (5) Whatever duties respondent owed as a result of their contract to treat and care for appellant's husband are imposed by law, and the extent of those obligations and the question of responsibility therefor are not the subject of contract. If those obligations were merely a matter of contract, as contended by appellant, it would have been competent for appellant by her contract to have relieved respondents from the consequence of failure to discharge that obligation; any such stipulation, however, would be contrary to public policy, and void. Blanton v. Dold, 109 Mo. 64; Brown v. Railroad, 227 S.W. 1069; Shohoney v. Railroad, 231 Mo. 131; Witting v. Railroad, 101 Mo. 631; McFadden v. Railroad, 92 Mo. 343.

ELLISON, C.

The plaintiff widow sues for $20,000 damages for the wrongful death of her husband, who suffered from a nervous malady accompanied by a suicidal tendency or mania. While under treatment in the defendants' sanitarium he hanged himself. The dereliction charged is that the defendants failed to protect the deceased from self-destruction. The trial court sustained a demurrer to the petition and the plaintiff has appealed.

The suit was filed April 2, 1923. The petition alleged that for a consideration of $35 per week the respondents contracted with the appellant to accept custody of her husband as a patient, to provide him with living quarters and accommodations, to treat him and to guard him against the dangers incident to his disease, they then and there well knowing of his condition. The pleading then continued:

"Plaintiff...