Braun v. Riel

• Decision Date: 05 June 1931
• Docket Number: 29662
• Citation: 40 S.W.2d 621
• Parties: BRAUN v. RIEL
• Court: Missouri Supreme Court

40 S.W.2d 621

BRAUN v. RIEL

No. 29662

Supreme Court of Missouri, Second Division

June 5, 1931

Respondents' Motion for Rehearing Overruled July 3, 1931.

Conrad Paeben, Earl G. Broeg, and Henry E. Haas, all of St. Louis for appellant.

W. F Stahlhuth, of St. Louis, for respondent.

OPINION

FITZSIMMONS, C.

Plaintiff, on March 8, 1926, sued defendant for $ 10,000 damages for the death of plaintiff's wife. The death is alleged to have occurred on October 9, 1925. The petition (caption, venue, and signature omitted) is as follows:

'Plaintiff, for cause of action, states:

'That he is the widower and survivor of one Theresa Braun, with whom he lived in lawful wedlock prior to and until the 9th day of October, 1925, on which said day the said Theresa Braun died, in the City of St. Louis, Missouri, in manner as hereinafter averred.

'That on and prior to the 6th day of October, 1925, the defendant held himself out to the general public as being a regular and licensed physician and surgeon and capable of waiting upon women pregnant with child.

'That on the 6th day of October, 1925, plaintiff's wife, the said Theresa Braun, was pregnant and quick with child in the seventh period of gestation, and in connection with said child was in premature labor.

'That on the 6th day of October, 1925, defendant, holding himself out as a physician and surgeon, as aforesaid, to plaintiff, his wife and members of the family, for a consideration undertook and agreed to properly care for and treat plaintiff's wife, and in furtherance of said undertaking and agreement, took charge of her as a patient, and exercised and maintained control over her until her death. Plaintiff further states that, in her then condition, his said wife was helpless and unable to provide for her own wants or to direct for herself proper care and treatment, and that, in order to preserve her life, proper nursing, medical and surgical attention and treatment were necessary. Plaintiff further states that defendant wrongfully, negligently and carelessly failed to administer to the wants and necessities of plaintiff's wife in her then condition, and negligently failed to give her such attention as was necessary to enable her to ascertain what her necessities were, and that in consequence of said careless and negligent conduct on the part of defendant, and by reason thereof, plaintiff's said wife, on the 9th day of October, 1925, died.

'The premises considered, plaintiff prays judgment against defendant in the sum of $ 10,000.'

Defendant demurred to the petition on the ground that it failed to state a cause of action, but was overruled. After a motion to strike out part of the petition had been overruled, defendant filed a motion to make the petition more definite and certain so that defendant might be advised in what respect he was negligent and had failed to give plaintiff's wife such attention as was necessary. This motion also was overruled, and defendant filed an answer, which was a general denial. The demurrer and the several preliminary motions were passed upon by one circuit judge who died afterward, and the case came on for trial before his successor, on June 4, 1928. Defendant at the opening of the trial objected to the introduction of any evidence on behalf of plaintiff for the reason that the petition failed to state any cause of action against defendant. The court sustained the objection, and plaintiff took a nonsuit with leave. After a timely motion to set aside the nonsuit and for a new trial had been overruled, plaintiff appealed.

I. The theory of the defendant in objecting to the introduction of evidence and of the court in sustaining the objection was that that is an action ex contractu and not ex delicto; that the Missouri Wrongful Death Statute (Section 3263, R. S 1929; section 4218, R. S. 1919) contemplates only actions ex delicto and does not apply to actions ex contractu, and therefore that the petition fails to state a cause of action. The flaw in this argument is that it assumes that the petition attempts to state a cause of action founded upon contract. The petition states 'that on the 6th day of October, 1925, defendant, holding himself out as a physician and surgeon, as aforesaid, to plaintiff, his wife and members of the family, for a consideration undertook and agreed to properly care for and treat plaintiff's wife,' etc. The petition does not state with whom defendant agreed or by whom the consideration was paid or promised. The agreement may have been had with plaintiff or with his wife, or with other members of the family, or indeed with outside persons, so far as the petition shows, and the consideration may have passed from any one or more of the same group. The petition does not rely upon the contract, but makes mention of the agreement of defendant, by way of inducement, for the sole purpose of showing how the relation of physician and patient arose between defendant and plaintiff's wife. Whether a physician volunteers his professional services to a suffering person or whether he contracts to render such services, or in whatsoever manner the relation of physician and patient is established, that relation and the manner of its creation should be pleaded and proved before a physician can be held liable as for a...