Crenshaw v. U.S. Fidelity & Guar. Co.

• Citation: 193 S.W.2d 343
• Decision Date: 19 March 1946
• Docket Number: 26958
• Parties: CRENSHAW v. UNITED STATES FIDELITY & GUARANTY CO
• Court: Court of Appeal of Missouri (US)

193 S.W.2d 343

CRENSHAW v. UNITED STATES FIDELITY & GUARANTY CO

No. 26958

Court of Appeals of Missouri, St. Louis

March 19, 1946

'Not to be reported in State Reports.'

Hay & Flanagan, S.D. Flanagan, and Claudio Delitala, all of St Louis, for appellant.

Carter Bull, Garstang & McNulty and James E. Garstang, all of St Louis, for respondent.

OPINION

HUGHES

This appeal is from a judgment in favor of the garnishee in a garnishment proceeding upon an execution for $ 1,500, plus interest and costs, issued on January 11, 1943, in the case of Jo Madeline Crenshaw, plaintiff, v. Dr. John O'Connell, defendant. See: Crenshaw v. O'Connell, 235 Mo.App. 1085, 150 S.W.2d 489.

Plaintiff had recovered the judgment against Dr. O'Connell in an action prosecuted against him as Coroner of St. Louis County, for an unlawful autopsy on the body of plaintiff's husband, Oliver Albert Crenshaw, on January 14, 1939. Dr. O'Connell, who is a licensed and practicing physician and surgeon, was Coroner of St. Louis County. At the time of the unlawful autopsy there had been issued to him, and was in full force and effect, a Physician's Liability Policy by the United States Fidelity and Guaranty Company, the coverage of which policy being as follows:

'* * * for professional services rendered, or which should have been rendered by him, and/or any assistant to him, including any partner, physician, dentist, anesthetist, technician, nurse, or any other person, during the term of the policy, and resulting from any claim or suit based upon malpractice, error, negligence or mistake, breach of implied contract, loss of service, property damage, autopsies, inquests, personal restraint, the dispensing of drugs or medicine, assault, slander, libel, undue familiarity, anesthesia hallucination, malicious prosecution, replevin of property or arising from any counterclaims and suits brought by the assured for the collection of fees under certain provisions.'

The case was tried before the court without a jury and upon agreed facts, which among other provisions contained the following paragraph:

'Following the death of Oliver Albert Crenshaw his body was taken at the direction of said Dr. John O'Connell, as Coroner of St. Louis County, Missouri, to the morgue at St. Louis County Hospital; that at said time an arrangement existed between the said Dr. John O'Connell, as such Coroner and the pathological department of the Medical School of Washington University. Under said arrangement physicians and surgeons in said pathological department performed autopsies on bodies of deceased persons for and in behalf of said Coroner. After the death of the said Oliver Albert Crenshaw the said Dr. John O'Connell, acting as such Coroner, directed the head of the pathological department of the Medical School of Washington University to perform an autopsy or post mortem examination upon the body of the said Oliver Albert Crenshaw, deceased. Thereafter, and upon such direction of said Dr. John O'Connell, as such Coroner, Dr. Harry E. Mantz, an instructor in the pathological department of the said Medical School of Washington University, was assigned to perform and did perform such autopsy on January 14, 1939.'

The garnishee denied liability for the reason that its policy covered Dr. O'Connell as a physician and surgeon, and did not cover him for liability arising out of his conduct as Coroner, and that the cause of action culminating in the judgment in the case grew out of Dr. O'Connell's conduct as Coroner, for which he might be personally liable and liable on his official bond as Coroner, but for which he would not be liable as a physician...