McDaniel v. United Railways Company of St. Louis
| Decision Date | 04 June 1912 |
| Parties | MINNIE McDANIEL, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
Boyle & Priest, T. M. Pierce and T. E. Francis for appellant.
(1) There was no ambiguity in the contract of release sued upon the consideration clause was not a mere receipt but inter alia was a contract to pay the bill of Dr. Brokaw; and the court therefore erred in admitting parol evidence to very and extend its terms so as to include an agreement to furnish the services of Dr. Brokaw. Jackson v. Railroad, 54 Mo.App. 636; Tate v. Railroad, 131 Mo.App. 107; Koons v. Car Co., 203 Mo. 227; Catalogue Co. v Weber, 130 Mo.App. 646. (2) The court erred in refusing to direct a verdict, for the reason the contract of release was merely a contract to pay the surgeon's bill, and an action thereon would not lie for failing to furnish the services of the surgeon. See authorities cited under point 1. (3) Even though evidence to extend the terms of the release was competent, the court nevertheless erred in refusing to direct a verdict for defendant, for the reasons: (a) Because plaintiff admitted that Dr. Brokaw had, from time to time, visited and treated her at the hospital, and that his assistant treated her until she was discharged from the hospital, and the contract, even as varied and extended by parol evidence, did not stipulate for exclusive and continuous personal attention by Dr. Brokaw. (b) Because defendant would fully discharge its obligation under the alleged contract by merely employing Dr. Brokaw to treat plaintiff, which the case concedes was done; and if he thereafter failed to treat her, personally or at all, or improperly treated her, defendant would not be liable therefor. Haggerty v. Railroad, 100 Mo.App. 424. (c) Because plaintiff accepted the services of Dr. Brokaw's assistant as a compliance with the alleged contract, and such services, therefore, constituted performance, since what the parties to a contract accept as compliance is compliance, in the eye of the law, although different from the requirements of the contract. Bean v. Miller, 69 Mo. 384; Joplin v. Waterworks Co., 177 Mo. 496; Water & Light Co. v. Lamar, 140 Mo. 145; Wells v. Coal Co., 114 N.W. 1081; Lumber Co. v. Warner, 93 Mo. 374; Armstrong v. School Dist., 19 Mo.App. 462; Crawford v. Elliot, 76 Mo. 497; Estel v. Railroad, 56 Mo. 282. (d) Because plaintiff accepted the services of such assistant without complaint to defendant or demand made that it furnish the services of Dr. Brokaw, and plaintiff is, therefore, estopped to claim a breach of the contract, since if she had refused to accept, or notified defendant she was dissatisfied with, the assistant's treatment, defendant might have arranged to have Dr. Brokaw give her his personal and undivided attention. Authorities cited under subdivision c, supra. (e) Because, in order for the breach of the alleged contract to furnish Dr. Brokaw's services to be actionable, it was necessary for plaintiff to prove, either directly or inferentially, that she would have received a better result if such services had been furnished, and there was no evidence tending to prove or from which the triers could infer that this was a fact. The verdict affirming this to be true rests, therefore, upon guess-work, speculation and conjecture. Graefe v. Transit Co., 224 Mo. 252; Morgan v. Mining Co., 136 Mo.App. 241; Goransson v. Mfg. Co., 186 Mo. 300; Warner v. Railroad, 178 Mo. 125; 8 Am. & Eng. Ency. Law, p. 614, par. b. (4) Instruction No. 1, given at the request of plaintiff, is erroneous, (a) Because it submits as the predicate of liability the question as to whether plaintiff was damaged by reason of Dr. Brokaw not having personally treated her, when there was no evidence warranting an inference that the result would have been any other or different had he done so. Authorities cited under point 3e, supra. (b) Because it does not state or define the elements of recovery, but allowed the jury to award plaintiff any damages they believed she had sustained and is, therefore, a "roving commission." Rhodes v. Lumber Co., 105 Mo.App. 279; Matney v. Grain Co., 19 Mo.App. 107; Hawes v. Stock Yards Co., 103 Mo. 60; Badgley v. St. Louis, 149 Mo. 122; Camp v. Railroad, 94 Mo.App. 272; Graefe v. Transit Co., 224 Mo. 273. (c) Because it allows a recovery for personal injuries, and damages for such injuries are too remote to be recoverable for the breach of a contract to furnish the services of a surgeon. Fontaine v. Lumber Co., 109 Mo. 55; Ijams v. Insurance Co., 185 Mo. 477; Wilson v. Weil, 67 Mo. 399; Turner v. Gibbs, 50 Mo. 556. (5) Instruction No. 2, given on the court's own motion, is erroneous, (a) Because it submits as the predicate of liability the question as to whether plaintiff was damaged by reason of Dr. Brokaw not having personally treated her, when there was no evidence warranting an inference that the result would have been any other or different had he done so. Authorities cited under point 3e, supra. (b) Because it permits a recovery if plaintiff would have received a better result had Dr. Brokaw treated her, thereby enlarging the issues, since the petition states that a fibrous union resulted and asks for damages because the union was not a bony one, while the instruction permits a recovery in the event the jury believed there was no union and that a fibrous union might have resulted from Dr. Brokaw's treatment. Roscoe v. Railroad, 202 Mo. 576; Gardner v. Railroad, 223 Mo. 289; Beave v. Railroad, 212 Mo. 331; Hesselbach v. City, 179 Mo. 505; Yall v. Gillham, 187 Mo. 393. (c) Because the direction to return a verdict if a better result might have obtained from Dr. Brokaw's treatment is so indefinite as to amount to a misdirection. Graefe v. Transit Co., 224 Mo. 273; Dalton v. Redemeyer, 154 Mo.App. 196.
Percy Werner and Everett W. Pattison for respondent.
(1) It is a universal rule, often recognized by the courts of Missouri and other courts, that parol evidence is admissible to explain a writing, to show the mutual intention of the parties who made it, to show the facts and circumstances that gave it birth and the surrounding circumstances in the light of which it is to be read and the intent and meaning of the parties arrived at. Wheless v. Grocer Co., 140 Mo.App. 572; Strother v. Lumber Co., 200 Mo. 647; Wilson v. Wilson, 115 Mo.App. 641; Construction Co. v. Tie Co., 185 Mo. 25; Davis v. Tandy, 107 Mo.App. 437; Carney v. Water & Light Co., 76 Mo.App 532; Viernow v. Carthage, 139 Mo.App. 276; Buster Brown Co. v. Furniture Co., 140 Mo.App. 707; Wilcox v. Baer, 85 Mo.App. 587; Matthews v. Westbrough, 134 Mass. 555; Caley v. Railroad, 80 Pa. St. 363; Indiana & V. R. Co. v. Reynolds, 116 Ind. 356; French v. Hayes, 43 N.H. 30; Smith v. Piano Co., 194 Mass. 193; Harten v. Loeffler, 212 U.S. 397. (2) Inasmuch as the release was wholly prepared by the defendant, and plaintiff had nothing to do with choosing the language in which it was clothed, the plaintiff should have all the right which the law gives her to prove what its real meaning is. And the release is to be, therefore, construed in accordance with the rule contra proferentem. Renshaw v. Insurance Co., 103 Mo. 595; Nelson v. Brodhock, 44 Mo. 596. (3) (a) If Dr. Brokaw had accepted employment from plaintiff personally, he would have been bound to give her the benefit of his personal skill and judgment, to give her his personal services. (b) The same rule must apply in this case where defendant agreed to furnish plaintiff the professional services of Dr. Brokaw; so that it likewise became bound to furnish her his personal skill and judgment, his personal services. And even if Dr. Brokaw had absolutely refused to perform the services, this would not have released defendant from its obligation. These propositions are fully supported by the following authorities. Paul v. Edwards, 1 Mo. 30; Leahy v. Dugdale, 27 Mo. 437; Lansden v. McCarthy, 45 Mo. 106; Boykin v. Campbell, 9 Mo.App. 495; Imp. Co. v. Iron Works, 129 Mo. 222; Brown v. Railway Pass. Assn. Co., 45 Mo. 221; McClure v. Insurance Co., 4 Mo.App. 148; Hariston v. Sale, 6 Sm. & M. (Miss.) 634; Francois v. Ocks, 2 E. D. Smith (N.Y.) 417; Lathrope v. Flood, 63 P. 1007; Becker v. Jaminski, 15 N.Y.S. 675; Potter v. Virgil, 67 Barb. 578; Dale v. Lumber Co., 48 Ark. 188; Ballon v. Prescott, 64 Me. 305; Lathrop v. Mayor, 85 Mo.App. 355; Attee v. Fink, 75 Mo. 100; Smith v. Bank, 120 Mo.App. 527; Wilson v. Railroad, 11 Gill. & J. 58; Crozier v. Reins, 4 Ill.App. 564; Spalding v. Rosa, 71 N.Y. 40. (4) There was no acquiescence on plaintiff's part. Her testimony is that she asked for Dr. Brokaw and made efforts to have him attend her. It was for the jury to say whether her testimony was to be believed, and whether or not she acquiesced in the defendant's breach of its contract. And the jury have found that she did not. On this point of plaintiff's acquiescence, there is meat in that part of the opinion of Judge Christiancy which will be found on pages 132 and 134 of 22 Michigan (Gilbert v. Kennedy). (5) A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. Wakerron v. Mfg. Co., 101 N.Y. 205; Brennan v. Mfg. Co., 162 F. 472; Docker v. Somes, 2 Myl. & Keene, 674; Salinger v. Salinger, 69 N.H. 589; Taylor v. Bradley, 39 N.Y. 129; Stowell v. Ins. Co., 20 A.D. 188; Myers v. Railroad, 43 A.D. 573; Shoemaker v. Acker, 116 Cal. 239; Railroad v. Staub, 7 Lea, 397; Pierce v. Coal Co. , 173 U.S. 1; Gilbert v. Kennedy, 22 Mich. 117; Dunn v. Railroad, 81 Mo.App. 42; Schmitz v. Railroad,...
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