Christy v. Butcher

• Decision Date: 06 February 1911
• Citation: 134 S.W. 1058,153 Mo. App. 397
• Parties: CHRISTY v. BUTCHER.
• Court: Missouri Court of Appeals

134 S.W. 1058

153 Mo. A. 397

CHRISTY v. BUTCHER.

Springfield Court of Appeals, Missouri.

February 6, 1911.

1. PLEADING (§ 193)—DEMURRER—GROUNDS —FAILURE TO SEPARATELY STATE CAUSES OF ACTION.

A petition in one count, alleging that the injury sued for was caused by negligence and by willful act, is properly attacked by demurrer, and not by motion to compel an election, nor to make more definite and certain.

2. NEGLIGENCE (§ 11)—ORDINARY NEGLIGENCE AND INTENTIONAL WRONGDOING.

A distinction exists between ordinary negligence and intentional wrongdoing, in that when there is willfulness, negligence cannot exist; the former being characterized by advertence, and the latter by inadvertence.

3. NEGLIGENCE (§§ 111, 112)—PETITION— CONSTRUCTION.

A petition in one count, which alleges that defendant, knowing he had smallpox and that it would be communicated to plaintiff, continued to stay in her house without apprising her of his condition, and in so doing was willfully and intentionally neglectful of her rights, charges willfulness, and not mere negligence; and where it further alleges that defendant failed to observe a city ordinance and that such act was negligence, and also failed to observe a custom, whereby plaintiff's injuries were sustained, the count charges both negligence and willfulness.

Appeal from Circuit Court, Greene County; Alfred Page, Judge,

Action by L. A. Christy against J. M. Butcher. From a judgment for plaintiff, defendant appeals. Reversed.

A. H. Wear, L. H. Musgrave, and Wright Bros., for appellant. Val Mason and Addison Brown, for respondent.

GRAY, J.

This is an appeal by the defendant from a judgment of the circuit court of Greene county, in an action instituted by plaintiff to recover damages from the defendant for communicating smallpox to plaintiff and her family. The defendant filed a demurrer to the petition, and the court overruled the same.

The only issue on this appeal is the action of the court on the demurrer. The petition contains much surplusage and immaterial matter, and would not be attractive to a pleader searching for "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition," as required by the statute. The petition is in one count, and the appellant charges that it alleges the injury incurred was caused by the negligence of the defendant, and also by the willful act of the defendant. If appellant is correct, then the demurrer should have been sustained. Waechter v. Railroad, 113 Mo. App. 270, 88 S. W. 147; O'Brien v. Transit Co., 212 Mo. 59, 110 S. W. 705; Raming v. Railroad, 157 Mo., loc. cit. 508, 57 S. W. 268; Rideout v. Winnebago Traction Co., 123 Wis. 297, 101 N. W. 672, 69 L. R. A. 601.

The petition alleges: "That defendant thereafter, well knowing that he was afflicted with said above-mentioned disease and that the same would be communicated to plaintiff and her family and her boarders, and would destroy her business and endanger the health and lives of herself and family, continued for several days to abide in said house without apprising her of the character of the disease, to wit, smallpox, with which he was afflicted, but kept the nature of his ailment a secret; that doing so in such condition and under such circumstances, defendant was willfully and intentionally neglectful of the rights of the plaintiff herein, and was acting in utter disregard of his duty towards her, her family, and members of the community generally."

The petition then alleges that a certain ordinance was in force in the city of Springfield, requiring persons to make immediate report to the mayor of contagious or infectious disease of persons, and making it a misdemeanor for a person who has knowledge of the existence of such disease to fail to give such notice; that said defendant well knowing he had the disease, and its contagious character, negligently failed to observe the ordinance, but negligently continued to remain in plaintiff's house and to mingle with plaintiff and the other occupants thereof, without notifying them of the nature of his malady; "that he failed to observe the general and usual custom or precaution exercised under similar circumstances, thereby negligently subjecting them to said disease, in violation of said ordinance and general custom, and of his duty to the plaintiff therein; that plaintiff and her three children, solely on account of the said negligence of defendant in failing to observe said ordinance and custom and duty towards plaintiff on account of his condition, which he well knew, contracted from the said defendant the said disease, and that she and her children were taken to the `Pest Camp,' which was a place in the outskirts of the city, supplied with none of the conveniences and scarcely any of the necessaries of life; that by reason of said premises, and on account of the said willful acts of the defendant in so knowingly and intentionally communicating said infectious and contagious disease to plaintiff and her family and her boarders, the plaintiff has been to great trouble and expense," etc.

It will be noticed the petition first alleges that the defendant, knowing he was afflicted with smallpox, and...