Franklin v. Butcher

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 660,129 S.W. 428
• Parties: FRANKLIN v. BUTCHER.
• Court: Missouri Court of Appeals

129 S.W. 428

144 Mo. App. 660

FRANKLIN v. BUTCHER.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. NEGLIGENCE (§ 111)—PLEADINGS—SUFFICIENCY.

Allegations that defendant negligently communicated smallpox to plaintiff's minor son who became ill with the disease and who was sick for a specified number of weeks, and that plaintiff lost her son's services during that time, sufficiently stated a cause of action as against the objection that it failed to state the manner in which the disease was communicated by defendant to plaintiff's son.

2. DAMAGES (§ 148)—PERSONAL INJURIES— MEDICAL EXPENSES—PLEADINGS.

Generally, a general allegation by one suing for a personal injury of the expenses incurred for medicine and medical attention is sufficient, and whether the allegation should be made more specific on defendant's application so as to allege the names of the nurses, the value of their services, the specific value of medicine and medical attention, depends on whether defendant desires to raise an issue as to such items.

3. APPEAL AND ERROR (§ 960)—DISCRETION OF TRIAL COURT—MOTIONS AS TO PLEADINGS.

Refusal to require plaintiff, suing for a personal injury, to state the details of the expenses incurred for medicine, medical attention and care, by stating the names of the nurses, the value of their services, the specific value of medicine and medical attention, is not reversible error, in the absence of a showing that the court abused its discretion, and that defendant was injured thereby.

4. PARENT AND CHILD (§§ 5, 7)—INJURIES TO CHILD—RIGHT OF ACTION.

The right of a mother after the death of the father to receive her minor son's wages rests on the fact that the relation of master and servant exists between her and the son, but it is not necessary that she should employ the son at fixed wages to establish the relation, and as long as she supports the son she is entitled to his wages, and may sue for loss of services caused by injuries to him.

5. PARENT AND CHILD (§ 7)—INJURIES TO CHILD—RIGHT OF ACTION OF WIDOWED MOTHER—QUESTION FOR JURY.

The wages a minor earned were paid to his widowed mother with whom he lived. He was her only support up to the time of her remarriage. After the remarriage she took most of the wages. He boarded near the place where he worked and bought his own clothes, and paid the balance of his wages to his mother. There was no evidence that her second husband paid anything toward the support of the son. Held sufficient to entitle her to go to the jury on the issue of her right to the son's wages, and of her right to sue for loss of his services caused by a personal injury negligently inflicted on him by another.

6. NEGLIGENCE (§ 10)—COMMUNICATING CONTAGIOUS DISEASES—LIABILITY.

One negligently communicating smallpox to another is liable for the injury sustained, and it is immaterial whether he was guilty of willfully or intentionally communicating the disease and how it was communicated.

7. PARENT AND CHILD (§ 7)—LOSS OF SERVICES OF CHILD—ACTIONS—EVIDENCE—INSTRUCTIONS.

Where, in an action by a mother for loss of services of a minor child occasioned by defendant negligently communicating smallpox to him, the evidence showed without dispute that the wages of the son were expended under the mother's direction, a charge that if defendant negligently communicated the disease to plaintiff's son, and if the son became sick therefrom so as to be unable to perform his usual work, and if plaintiff lost his services by reason thereof, the verdict should be for plaintiff, was sufficient, in the absence of a request to charge on the question that the right of plaintiff to recover rested on the existence of the relation of master and servant between mother and son.

8. DAMAGES (§ 163)—LOSS OF SERVICES OF CHILD—EVIDENCE—EXPENSES INCURRED.

A parent suing for damages occasioned by one negligently inflicting a personal injury on a minor child, to recover for expenses incurred, must show the amount and reasonable value of the medical attention for which the parent may have obligated himself to pay.

9. APPEAL AND ERROR (§ 1140)—DISPOSITION OF CASE ON APPEAL.

Where the evidence sustains a verdict for a specified sum, and the excess of the verdict can be ascertained, the court on appeal will affirm the judgment for the proper amount on condition that plaintiff will remit the excess.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action by Rebecca Franklin against J. M. Butcher. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

L. H. Musgrave, Sam Dickey, and Wright Bros., for appellant. J. H. Mason and O. E. Gorman, for respondent.

COX, J.

This action originated in a justice of the peace court in Greene county, and was tried upon the following amended statement: "Comes now the plaintiff and states that she is the mother of Woodfin Anderson Tice, a minor under the age of 21 years, and that the father of said son (the former husband of plaintiff), died on the __ day of __, 1906, and that on the 5th day of October, 1908, she married E. G. Franklin. Plaintiff states that at all times mentioned in this petition, plaintiff supported and was liable for the support and maintenance of her son, and received and was entitled to receive his wages, and that at all times herein referred to her son was in her services and under her control, and was so in her services and under her control at the time he contracted the smallpox from the defendant as hereinafter stated. Plaintiff states that on the ____ day of October, 1908, the defendant negligently and carelessly communicated to the said Woodfin Tice, the smallpox, a highly contagious disease, and that thereafter the said Woodfin Tice was taken violently ill with said disease, communicated to him by defendant as aforesaid, and was very sick therefrom for a period of five weeks, and that during all that time he was confined to his bed, requiring careful nursing and medicine and medical attention. Plaintiff states that she lost her son's services during the time he was sick as aforesaid, and that she gave him careful nursing and attention, and that he received the care of other nurses and attendants during the time he was sick as aforesaid, and that plaintiff paid and obligated herself to pay large sums of money for said services and for medicine and medical attention, all occasioned by the carelessness and negligence of defendant as aforesaid, and all to plaintiff's damage in the sum of $250. Wherefore plaintiff prays judgment against defendant in the sum of $250 and costs of suit." Trial was had, and verdict in favor of plaintiff for $190, from which defendant appealed.

The case went on change of venue from Greene county to Webster county, where it was again tried in September, 1909, resulting in a verdict in favor of plaintiff for $200, and defendant has appealed. In the circuit court of Webster county defendant filed a motion asking the court to require the plaintiff to make her statement more definite and certain, which was overruled, and exception saved. The objection made to the statement was that it was too indefinite and uncertain to advise defendant of the facts; that it failed to state the date of the pretended communication of the smallpox to Woodfin Tice and how communicated; that it fails to state the date when Woodfin Tice was taken violently ill; that it fails to state the date of the period of the pretended illness; that it fails to state the business or avocation in which Woodfin Tice was engaged and the value thereof; that it fails to state the names of the nurses and attendants from whom Woodfin Tice received care, and the value of such care; that it fails to state the value of medicine and medical attention.

It occurs to us that the statement filed in this case was sufficient. This action was begun before a justice of the peace where formal pleadings are not required, and as to the allegation of negligence, it is as specific as could be asked. Defendant contended that it should have alleged specifically the manner in which the disease called smallpox was claimed to have been communicated by defendant to Woodfin Tice, son of plaintiff. The ultimate fact resulting from the act of defendant was the fact that her son, Woodfin Tice, contracted the disease of smallpox from defendant and was thereby rendered sick and unable to perform labor, and she thereby lost the benefit of his services. If the son was unable to work during that period of time it was from the fact that he was sick, and when the plaintiff alleged that the sickness was smallpox and had been communicated to him by defendant, it was sufficiently definite to inform defendant against what he would be required to defend. As to the...