Burlison v. Henwood
| Decision Date | 06 December 1943 |
| Docket Number | 38687 |
| Citation | 177 S.W.2d 432,352 Mo. 275 |
| Parties | Clyde Burlison v. Berryman Henwood, Trustee in charge of and operating the St. Louis Southwestern Railway Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied January 3, 1944. Motion to Transfer to Banc Overruled February 7, 1944.
Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.
Reversed.
Langdon R. Jones for appellant.
(1) The petition wholly fails to state a cause of action; defendant could raise the point by objection to the introduction of any evidence and such objection to the petition is not waived. Sec. 926, R.S. 1939; State ex rel. v. First State Bank, 22 S.W.2d 185; State ex rel. v. Southern Surety Co., 19 S.W.2d l.c. 693; Trott v. Ganahl Dairies Co., 158 S.W.2d 247; Snyder v. St. Louis Southwestern Ry. Co., 72 S.W.2d l.c. 511; Louzader v. James, 107 S.W.2d l.c. 981. (2) Plaintiff wholly failed to make a case. And the court should have given the appellant's requested Instruction 2-D in the nature of a demurrer to the evidence and offered at the close of all the evidence in the case. Snyder v. St. Louis Southwestern Ry. Co., 72 S.W.2d 504; Seago v. Railroad Co., 155 S.W.2d 126; State ex rel. Banks v. Hostetter, 125 S.W.2d 835; Louzader v. James, 107 S.W.2d 976.
Bradley & Noble and W. L. Proffer for respondent.
(1) The petition states a cause of action and especially so after verdict for plaintiff. R.S. 1939, secs. 916, 935; 13 C.J 714, sec. 827 (2); Laclede Power Co. v. Nash-Smith Tea & Coffee Co., 85 Mo.App. 321; Bank v. Major, 229 Mo.App. 963, 83 S.W.2d 924; Grindstaff v. J. Goldberg & Son Struc. Steel Co., 328 Mo. 72, 40 S.W.2d 702. (2) Appellant's requested Instruction 2D in the nature of a demurrer to the evidence was properly refused by the court. In passing upon this point all of the evidence favorable to the plaintiff must be accepted as true. Freeman v. Terminal R. Assn. of St. Louis, 78 S.W.2d 559; Graves v. Mo. Pac. Ry. Co., 342 Mo. 542, 118 S.W.2d 787; In re Thomasson's Est., 346 Mo. 911, 144 S.W.2d 79; Fassi v. Schuler, 159 S.W.2d 774; Daniel v. Aetna Life Ins. Co., 225 Mo.App. 357, 36 S.W.2d 688; Spalding v. City of Edina, 122 Mo.App. 65; Toler v. Coover, 335 Mo. 113, 71 S.W.2d 1067; Goldsberry v. Ins. Co., 86 S.W.2d 578. (3) Where a written contract exists and is in force between two parties, and the terms of the contract work a hardship on either party, the law will enforce the contract as it is written and construe it most strongly against the one preparing the written instrument. Sanders v. Sheets, 287 S.W. 1069; Brown v. Houghton Const. Co., 227 S.W. 137; Burrus v. Continental Life Ins. Co., 225 Mo.App. 1129, 40 S.W.2d 493. (4) It is no defense to an action for damages for breach of contract that the party charged acted in good faith, because it is not sufficient that the party shall have exercised ordinary care to perform, but nevertheless failed. So the fact that a party has acted in good faith and exercised due diligence will not excuse delay. 13 C.J. 637, sec. 706 (7); Buchanan v. Louisiana Purchase Exposition Co., 245 Mo. 337, 149 S.W. 26. (5) The delay in getting plaintiff to a hospital constituted a breach of the contract sued upon, for which defendant is liable. Long v. Babcock Lbr. Co., 95 W.Va. 477, 121 S.E. 494, 33 A.L.R. 1187; Phillips v. St. Louis & S.F. Ry. Co., 211 Mo. 419; Liliopoulos v. Oregon-Washington R. & Nav. Co., 87 Wash. 396, 151 P. 818, 33 A.L.R. 1197 (note).
Westhues, C. Bohling and Barrett, CC., concur.
Plaintiff obtained a judgment in the sum of $ 3,000.00 against appellant railway company for an alleged breach of contract to provide medical care. An appeal was taken to the Springfield Court of Appeals where the judgment was affirmed. One of the judges dissented, and, deeming the majority opinion to be in conflict with controlling decisions of the Supreme Court, asked that the case be certified to this court for adjudication. See Burlison v Henwood, 171 S.W.2d 313.
Appellant earnestly insists that the evidence was insufficient to sustain a verdict for plaintiff. This requires an examination of the record. We will relate the facts as favorably to plaintiff as the evidence warrants. Plaintiff lived in Hornersville, Missouri, and had been employed by the railway company for many years. He paid a stipulated sum, i.e., $ 1.25 monthly, to a hospital trust established by the defendant for the benefit of its employees. The details of this trust may be learned by reading the opinion of the court of appeals. The trust agreement provided in substance that in case of injury an employee was entitled to medical and hospital services. In his brief, plaintiff states, "Plaintiff's cause of action was founded on the failure of defendant to render him prompt and necessary medical and surgical treatment under its contract and obligation which resulted in infection and loss of use of his right hand." On the night of October 26, 1940, plaintiff and a man named Roberts had some difficulty. Roberts went to the home of plaintiff, and when plaintiff opened the door, both Roberts and plaintiff fired shots. Roberts had a shot gun and plaintiff was shot in both hands and seriously injured. Dr. Cope, who was the company's district surgeon, could not be reached so plaintiff called a Mr. Kershon, who was either a doctor or druggist [the evidence not being certain on this point], and he treated and dressed plaintiff's hands. He advised plaintiff that since his hands were badly injured and he had lost so much blood to drink some liquor as a stimulant and to reduce the pain. Thereafter plaintiff sent Walter Lomack to Sharpmack, who was plaintiff's foreman, for a pass over defendant's morning train out of Paragould, Arkansas, to Texarkana, Arkansas, the location of the company's hospital. About 3:30 a.m. on the 27th, Edward Snider and his brother, Walter Snider, took plaintiff to Paragould. They had received an order for a pass from Sharpmack at a filling station in Hornersville. The Sniders and plaintiff were in a car when Sharpmack delivered the order and he had an opportunity to observe that plaintiff had his hands bandaged and was unable to use them. At the depot in Paragould the Sniders presented the order for a pass to the agent, and later the agent went out to where plaintiff was, noticed his condition, and made the statement that plaintiff ought to have a helper to go with him because he was in no condition to travel alone. The agent asked Edward Snider if he could go with Burlison and we quote his testimony as to what the agent said at that time:
After the agent made that statement plaintiff informed the Snider boys that if he had to die he wanted to die at home, and asked them to take him home. This occurred about an hour or so before the train arrived. Thereafter, and before the train reached the depot, the Sniders took plaintiff back to Hornersville. There another call was made for Dr. Cope, who responded promptly to the call and treated plaintiff at about 9:30 or 10 o'clock that morning. Dr. Cope found the bone of plaintiff's finger (which was later amputated) had been shot in two and much soft tissue was gone, and three or four fingers were fractured. He gave plaintiff a tetanus shot, cleansed his wounds thoroughly with alcohol, and put antiseptic dressings on both hands. The doctor stated that he made a careful examination of the wounds and thought it best not to remove the shot at that time. He visited plaintiff again in the afternoon and also in the evening, and arranged for a helper to go with Burlison to Texarkana the next morning at 5:58, there being only one train a day. Plaintiff testified that when he arrived at the hospital the chief surgeon informed him that he had gotten there just twenty-four hours too late for infection had set in. Plaintiff was treated at the hospital, where later one of his fingers was amputated. His right hand was disfigured and the use thereof permanently impaired.
It was incumbent on plaintiff to show that the contract sued upon was breached, i.e., that the defendant's agents and servants were negligent, and further that such negligence caused plaintiff injury. To sustain this burden plaintiff in his brief states, It will be remembered that plaintiff and the Snider boys were in Paragould a few hours after plaintiff had been shot,...
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