Marx v. Parks

• Decision Date: 16 June 1931
• Docket Number: No. 21474.,21474.
• Citation: 39 S.W.2d 570
• Parties: MARX v. PARKS.
• Court: Missouri Court of Appeals

39 S.W.2d 570

MARX v. PARKS.

No. 21474.

St. Louis Court of Appeals. Missouri.

June 16, 1931.

Rehearing Denied June 26, 1931.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Dorothy Boyd Marx against Della Unger Parks. From a judgment for plaintiff, defendant appeals.

Judgment in accordance with opinion.

William E. Rundle and Bishop & Claiborne, all of St. Louis, for appellant.

Charles E. Morrow, Wilbur C. Schwartz, and N. Murry Edwards, all of St. Louis, for respondent.

BECKER, J.

This is an appeal from a judgment for $7,500, being $5,000 actual and $2,500 punitive damages, rendered in a suit for damages for loss of services caused by the death of plaintiff's minor daughter, claimed to have been the result of an illegal operation performed on her by defendant.

The petition is conventional and the answer a general denial.

It appears that the plaintiff has been twice married; that there were born of her first marriage to Edward S. Boyd three children, one of whom was Ruth Boyd, who was born October 19, 1908. The father of Ruth died in 1915, and plaintiff thereafter married a man by the name of Marx.

Ruth Boyd at all times during her life lived with plaintiff, and in February of 1926 she was employed at the Union House Furnishing Company, earning $13 per week, having been in its employ for 6 weeks. Previous to that time Ruth was working at the Liggett & Myers Tobacco Company, earning $18 per week, and had been with the latter company about 2 years. Ruth gave her salary to her mother, who in turn furnished the daughter with clothing, food, and care, which were estimated to cost about $5 per week.

Plaintiff adduced testimony tending to prove that the defendant was a midwife, and that on or about the 22d day of February, 1926, defendant performed an illegal operation and abortion upon said Ruth Boyd; that Ruth was taken to the City Hospital in St. Louis on March 7, 1926, and died there on March 30, 1926, as a direct result of said illegal operation.

Plaintiff testified that she had been compelled to incur liability for Ruth and expended for nurses, physicians, medicines, and medical attendance in the necessary treatment of her daughter the sum of $100, and expended $385.25 for the funeral and burial of her said daughter.

Dr. Seabaugh, a witness adduced on behalf of the plaintiff, testified, without objection on the part of the defendant, that he had been connected with the City Hospital of St. Louis during 1925 and 1926, and that he was the attending physician of the deceased Ruth Boyd while she was in the hospital; that he found her suffering from miscarriage caused by an abortion; that he treated her from the time she was taken to the hospital until she died; and that the cause of her death was peritonitis, septicæmia, and terminal pneumonia. He further testified that her condition could have been caused by an abortion being performed on her on the 22d day of February, 1926. Dr. Seabaugh identified the records of the City Hospital made on the examination and treatment of Ruth Boyd, and testified that a portion of the record was in his own handwriting; that he recorded the history which appeared on the first and second pages of said record, and that the same was made in the regular course of his treatment of the patient; that the record also constitutes the history and physical examination and tentative diagnosis and progress notes daily, beginning March 8th to March 30th, the date of her death, followed by a summary of the case.

This record was offered in evidence, and a general objection thereto was made by the defendant. The grounds of objection were that the record had not been sufficiently identified; that it was in the nature of a confidential communication, and that such privilege had not been waived; that it was hearsay; and that the history is not part of the res gestæ. This objection was overruled by the court, the court stating that, if the defendant desired to make specific objections to parts of the record, she might do so. The defendant then made a specific objection to a portion of the record which was sustained by the court. Dr. Seabaugh, who was on the stand at the time, then read the rest of the record to the jury.

As to the identification of the hospital record, Otto Ehlert testified for plaintiff that he was the clerk in the record room department of the City Hospital, and that he had in his custody and control all the records of patients that are taken to the City Hospital, and that the exhibit offered by plaintiff was the history and record kept by the City Hospital of a patient named Ruth Boyd, who entered March 7, 1926, and that the same was the regular record of that patient kept in the regular way at the City Hospital.

Plaintiff also introduced in evidence certain sections of the charter of the city of St. Louis which required the superintendent of the City Hospital to keep modern and complete individual records of patients, concerning their history, condition on admission, all examinations made, all treatments and operations, condition from time to time, and at the time of discharge, and the reasons for such discharge. These provisions of the charter further provide that copies of such record, when certified, shall be prima facie evidence in any court of the facts therein contained.

A witness, Mary Kamm, testified that on February 22, 1926, she had accompanied Ruth Boyd to the home of the defendant, and that the defendant had taken Ruth Boyd alone into an adjoining room; that, when Ruth Boyd came out of the room about a half hour later, defendant, Mrs. Parks, came out with her; that Ruth was pale and her hair was all mussed; and that she complained of being sick. This witness further testified that she noticed a sign, "downstairs on which appeared the word, `Midwife.'"

According to Margaret Fuchs, Ruth Boyd came to her house on the morning of February 22d; that she was very sick and looked "very bad"; that she started to moan, and, upon her insisting on knowing what was the matter, Ruth told her what she had done, and gave her a slip of paper on which the name of the defendant was written; that she called defendant's telephone number, and asked for defendant. The party who answered the phone said she was the maid, and that she would call Mrs. Unger. A party then came to the phone and said, "This is Mrs. Unger," and the witness asked: "Did you perform an operation on Ruth Boyd?" to which she received the reply: "I did." The witness then said, "Well, she is in awful misery; something has got to be done." She was then told to go to a drug store and get some three grain quinine pills, and instructed how to give them to Ruth, and instructed further to bathe her legs in hot water. The witness did as she was told, and Ruth stayed long enough to feel a little more comfortable, and she then sent her home in a taxi.

According to plaintiff's own testimony, Ruth arrived home at 6:30 in the evening on February 22d, and was very pale. During the following week she was sick, but she left the house every morning. On the following Thursday plaintiff called in Dr. Sheets, who called again on Friday and Saturday. Ruth did not disclose to the doctor the fact that she had had an operation performed on her, and the doctor diagnosed Ruth's trouble as appendicitis. On the doctor's advice she had Ruth sent to the City Hospital on March 7, 1926, where she remained over 3 weeks, and died on March 30, 1926.

We do not set out any of the data, which appeared in the hospital record, as, in our view, it is not necessary for a proper determination of the questions before us on this appeal.

The defendant herself was a witness in the case, and testified that she was a licensed midwife, and had practiced her profession for a number of years in St. Louis county, and that she had ceased practicing some 10 or 12 years ago; that she lived on Bartmer avenue in December, 1925, and has lived there ever since, and has never practiced midwifery at that location; that she did, however, have a sign "Midwife" on the building. She denied that she had ever met Ruth Boyd or that she had ever come to her home for any purpose, and testified that she did not perform an operation on her at any time or at any place. She denied having seen the witness, Mary Kamm, or that the witness had come to her house; also denied having a telephone conversation with Mrs. Fuchs, or that any one had ever called her at any time about an operation on Ruth Boyd.

Defendant introduced several witnesses who testified that they had known defendant for a number of years, and that, so far as they knew, she had carried on no business at the Bartmer avenue address, and stated that they had never seen women coming out of defendant's home during any of the times they had called on defendant.

We are met at the threshold of the case with the contention that plaintiff's petition seeks to state a cause of action under our wrongful death statutes, sections 3262-3264, Rev. St. Mo. 1929, and that, since there is no allegation in plaintiff's petition that plaintiff's daughter was unmarried and childless at the time of her death, plaintiff's petition fails to state a cause of action.

We have examined plaintiff's petition, and construe it as an action at common law to recover damages for the loss of the services of plaintiff's said daughter during her minority.

Were this a proceeding to recover damages for the death of plaintiff's minor daughter aged 17, the omission to allege that the daughter was unmarried and childless at the time of her death might well present a serious question. However, in common-law actions to recover for the services of minor children, the right of action is presumptively in the parents of the child, and a showing to the contrary, such as emancipation or marriage of the child, is a matter of defense.

Section 375, Rev. Stat. of Mo. 1929, provides that the parents of a...