Diehr v. Carey

• Decision Date: 18 December 1945
• Citation: 191 S.W.2d 296,238 Mo.App. 889
• Parties: Dr. A. H. Diehr, Respondent, v. Albert Carey and the Fidelity and Casualty Company of New York, a Corporation, Appellants
• Court: Missouri Court of Appeals

191 S.W.2d 296

238 Mo.App. 889

Dr. A. H. Diehr, Respondent, v. Albert Carey and the Fidelity and Casualty Company of New York, a Corporation, Appellants

Court of Appeals of Missouri, St. Louis District

December 18, 1945

Appeal from the Circuit Court of the City of St. Louis; Hon. Eugene J. Sartorius, Judge.

Reversed and remanded (with directions).

George A. Hodgman for appellants.

(1) Where medical attendance is necessary to preserve the health of a minor child, the parent is liable for such service as a matter of law. Des Mond v. Kelly, 163 Mo.App. 205 146 S.W. 99; French v. Burlingame, 155 Mo.App. 548 134 S.W. 1100; Brosius v. Barker, 154 Mo.App. 657 136 S.W. 18. There being no limitation to the extent of the employment contracted for by the father, the bill covered the entire treatment to be rendered by the plaintiff. Reed v. Laughlin, 332 Mo. 424, 58 S.W.2d 440. (2) Having admitted by his pleading his liabilty for a reasonable bill, the father was the party against whom plaintiff's charges were made and who was billed by plaintiff for the sum total of the account. Plaintiff asserted in his pleadings that the father contracted with him, was liable to him for professional services to the minor son, and demanded judgment accordingly; hence, as a matter of law, plaintiff cannot contend that credit was not given to the father. There was no liability on the part of the insurance company to pay plaintiff's bill for medical services to the minor for it owed no legal duty to do so. Transcript, pp. 9, 10, 19 and 20; Hunicke v. Meramec Quarry Co., 262 Mo. 560, 172 S.W. 43; Greensfelder v. Witte Hdw. Co., 189 Mo.App. 576, 175 S.W. 275; Swarens v. Pfnisel, 324 Mo. 1245, 26 S.W.2d 951; Brosius v. Barker, 154 Mo.App. 657, 135 S.W. 18; Gronoway v. Markham et al., 232 Mo.App. 1118, 115 S.W.2d 136. (3) Plaintiff having first contracted with the father, and the insurance company not being liable for medical services as a matter of law, any arrangement by the insurance company would be one to answer for the debt of another. There being no contract in writing, the insurance company should have been discharged by the court at the close of the plaintiff's case, for the Statute of Frauds had been pleaded as a defense and plaintiff admitted there was no written contract. Plaintiff did nothing he had not previously contracted with the father to do, hence there was no consideration for any alleged oral contract with the insurance company. The law requires that proof to sustain a claim in the face of the Statute of Frauds, based on the performance of an unwritten contract, must be overwhelming in its probative force, leaving no room for reasonable doubt. Wales v. Holden, 209 Mo. 552, 108 S.W. 89; Swarens v. Pfnisel, 324 Mo. 1245, 26 S.W.2d 951. (4) Since there was no joint contract between appellants and plaintiff, and since the insurance company should have been discharged at the close of the plaintiff's case, the trial court had no jurisdiction over the cause as to appellant Carey since he was not sued in the county where either he or the plaintiff resided, nor was he found and served in the jurisdiction where the trial was had. He had made timely objections by (1) pleas in abatement and to quash the service of summons upon him, (2) by written motion filed in the trial division when the case was assigned for trial asking that the question of jurisdiction be decided before trial on the merits, (3) by special motions at the close of the plaintiff's case, and (4) at the close of the entire case, all raising the same issue. The question of jurisdiction was for the court to decide and not for the jury. Secs. 852, 854, 871, R. S. Mo. 1939; State ex rel. C. H. Atkinson Paving Co. v. Aronson, 345 Mo. 937, 138 S.W.2d 1; Ussery v. Haynes, 344 Mo. 530, 127 S.W.2d 410; In re Buckles et al., 331 Mo. 405, 53 S.W.2d 1055. A court must have authority to render the particular judgment in the particular case and cannot exceed its jurisdiction, notwithstanding that it has jurisdiction of the subject matter of an action and of the parties. A determination by a court which it had no power to hear and determine is an absolute nullity. Cases cited just above; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3; State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W.2d 713; State ex rel. Missouri Gravel Co. v. Workmen's Compensation Commission, 234 Mo.App. 232, 113 S.W.2d 1034; Metzger v. Metzger, 153 S.W.2d 118; Salisbury v. Salisbury, 274 Mo. 180, 202 S.W. 529; Hockaday v. Gilham, 206 Mo.App. 132, 226 S.W. 991; State ex rel. Jackson v. Bradley, 193 Mo. 33, 91 S.W. 483; State ex rel. Dutcher v. Shelton, 249 Mo. 660, 156 S.W. 955; Graham v. Ringo, 67 Mo. 324.

Bartley & Bartley for respondent.

(1) Suit was properly brought in the circuit court of the city of St. Louis, Missouri. (a) There being several defendants, plaintiff could sue in the county where any defendant resided. Sec. 871, R. S. 1939. (b) The corporation defendant was a resident of the city of St. Louis, Missouri, where it had and maintained an office for the transaction of its usual and customary business. Sec. 874, R. S. 1939. (c) Plaintiff could sue such corporate defendant either in the "county" where cause of action accrued or in the "county" where it maintained an office for the transaction of its usual and customary business. Plaintiff did not have to prove both maintenance of office and an accrual of cause of action in such "county" to have proper venue. Sec. 874, R. S. 1939; McNabb v. Nat'l Lib. Ins. Co. of Am., 188 S.W.2d 523, points 2, 4, and 5; State ex rel. v. Davis, 314 Mo. 373, 284 S.W. 464; State ex rel. v. Gantt, 274 Mo. 490, 203 S.W. 964; Darby v. Weber Imp. Co., 208 S.W. 116; Mikel v. Ry. Co., 54 Mo. 145. (d) The corporate defendant was a "resident" of the city of St. Louis, Missouri, at the time of the filing of this suit. Slavens v. South Pac. R. Co., 51 Mo. 308. (2) The services rendered by Dr. Diehr were given under such circumstances as to render either or both the father of the minor and the Fidelity and Casualty Company of New York, as the insurer of the person injuring such minor, liable for such services. Morrell v. Lawrence, 203 Mo. 363, 370; Ghio v. Merc. Co., 180 Mo.App. 686; Gronoway v. Markham, 115 S.W.2d 136, points 5, 1, 3, and 9; Greensfelder v. Witte Hdw. Co., 189 Mo.App. 576, 577; Hunicke v. Meramec Quarry Co., 262 Mo. 560; Newberry v. Granite & Constr. Co., 180 Mo.App. 672; Wagner v. Illuminating Co., 141 Mo.App. 51, 70.

Anderson, J. McCullen, J., concurs; Hughes, P. J., not sitting.

OPINION

ANDERSON

This suit was instituted by plaintiff against three defendants, to recover the sum of $ 845 allegedly due plaintiff for professional services rendered by him. From a judgment in favor of plaintiff, two of said defendants, Albert Carey and The Fidelity and Casualty Company of New York, appealed. Defendant Farant Todd was let out of the case on a demurrer to the evidence.

Plaintiff, who is a physician and surgeon, is a resident of St. Louis County. Defendant Albert Carey is a resident of Franklin County. The Fidelity and Casualty Company of New York is a liability insurance company, organized under the laws of New York, and licensed to do business in the State of Missouri; it has agents in the city and county of St. Louis, and also in Franklin County. Defendant Farant Todd, an attorney in charge of claims for said company at its St. Louis office, is a resident of University City, Missouri, which is in St. Louis County.

On May 25, 1943, at Sullivan, Franklin county, Frederick E. Carey, the thirteen-year-old son of defendant Albert Carey, was struck and injured by an automobile truck, owned and operated by an assured protected by a liability insurance policy issued by defendant, The Fidelity & Casualty Company of New York. The boy was taken by a neighbor, Mr. McGruner, to the office of Dr. R. P. Royse at Sullivan, Missouri. Dr. Royse discovered that the boy was badly injured and suffering from shock, possible skull fracture, and fracture of the leg between the knee and hip. Shortly thereafter the father of the injured boy arrived at Dr. Royse's office, where he found his son on a cot, and an ambulance ready to take the boy to St. Louis. The father testified: "So he (Dr. Royse) said that Dr. Diehr will be the doctor, the bone doctor. He got on the phone then and called the doctor down here." Dr. Royse testified that he advised that the boy be removed to the Missouri Baptist Hospital in St. Louis, and put in the care of Dr. Diehr. This was done, and Carey at the time came to St. Louis and talked to Dr. Diehr. Defendant Carey testified that he understood that Dr. Diehr was to be their doctor. Dr. Diehr testified:

"Q. Now, Doctor, you were employed to look after this boy by Mr. Carey, the boy's father; isn't that true? A. Yes, sir.

"Q. And that arrangement was made when you first saw Mr. Carey at the hospital on May 25, 1943; isn't that right? A. I think that is right."

Dr. Diehr took charge of the case upon Frederick Carey's entry in the hospital, and continued in charge during all the time the boy remained there. About four days after his entry, Dr. Diehr performed an open operation on the leg. On June 10, 1943, Frederick was permitted to go home, but returned the latter part of August, when he again was operated on by Dr. Diehr. This second operation was rendered necessary because the bone had bulged a little at the point of fracture. He remained in the hospital until sometime in November, during which time he was under the care of Dr. Diehr.

After Frederick had been taken to the hospital, the defendant Farant Todd talked to Dr. Royse. Dr. Royse's testimony as to what was said appears in the transcript as follows:

"Q. Now tell us what Mr. Todd said, please,...