McDaniel v. United Rys. Co. of St. Louis

• Decision Date: 04 June 1912
• Citation: 165 Mo. App. 678,148 S.W. 464
• Parties: McDANIEL v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

148 S.W. 464

165 Mo. App. 678

McDANIEL v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

Rehearing Denied June 15, 1912.

1. EVIDENCE (§ 458) —PAROL EVIDENCE — WRITTEN CONTRACT—COLLATERAL FACTS— INTERPRETATION OF WRITING.

Whether a written contract be ambiguous or not, parol evidence is admissible to show the collateral facts and the circumstances under which it was executed, to enable the court to ascertain the subject-matter and intelligently interpret the writing with reference thereto.

2. EVIDENCE (§§ 460, 461)—PAROL EVIDENCE—WRITTEN CONTRACT—AMBIGUITY.

Where the language of a written contract imports an ambiguity, parol evidence is competent to show the situation of the parties and the subject-matter at the time it was executed, though direct evidence of what the parties intended is inadmissible.

3. EVIDENCE (§§ 419, 408)—PAROL EVIDENCE —WRITTEN CONTRACT.

The rule that parol evidence is inadmissible to show a contemporaneous parol agreement which tends to vary or contradict the terms of a written contract does not obtain with respect to receipts, nor to the consideration clause of a contract or deed, when such clause is nothing more than a recital of fact.

4. EVIDENCE (§ 419) — PAROL EVIDENCE — CONSIDERATION—CONTRACT.

The rule that parol evidence is admissible to explain a mere formal statement of the consideration in a contract or deed is subject to the exceptions that one may not contradict the consideration expressed in a deed executed by him so as to defeat its operative words, and also that, where the statement of the consideration enters into the contract creating and attesting the rights of the parties, it is not open to contradiction by extrinsic evidence.

5. EVIDENCE (§ 419) — PAROL EVIDENCE — CONSIDERATION FOR RELEASE.

Plaintiff, having been injured in the operation of a street car, executed a release, reciting "for and in consideration of the sum of $175, Dr. Brokaw's bills and St. John's Hospital bill" to her in hand paid by defendant, the receipt of which was acknowledged, she released defendant from liability for the injuries. Held, that the consideration clause of the release was not contractual in its nature as distinguished from a mere recital of fact pertaining to the consideration and receipt, and hence parol evidence was admissible to show that the bill of the surgeon referred to had reference to a parol agreement that plaintiff should be personally treated by such physician, who was an expert, at defendant's expense.

6. COMPROMISE AND SETTLEMENT (§ 20)— CONTRACT—PERFORMANCE.

Where an agreement for settlement of a cause of action for injuries to a passenger provided that she should receive at defendant's expense the professional services of a certain expert surgeon, but instead, after she had come to the hospital, such surgeon's assistant, who was a young physician of only three years' practice, set and attended to plaintiff's fractured hip and worked so unskillfully that there was no union of the bones, and the expert specified did nothing except inquire as to how plaintiff felt, and on one occasion passed his hand over plaintiff's hip in the near proximity of the fractured bone, there was no performance of defendant's contract; plaintiff being entitled to the personal services of the expert, which could not be delegated to another.

7. COMPROMISE AND SETTLEMENT (§ 20)— PERFORMANCE OF CONTRACT — ACCEPTANCE.

Plaintiff, having sustained a fracture of the neck of the femur in a street car accident, defendant, as part of a settlement, agreed that she should have the services of an expert surgeon at defendant's expense. Plaintiff was, in fact, however, treated by the surgeon's assistant in a hospital of defendant's choosing during which she suffered intense pain and was entirely helpless. She inquired several times for the expert, but was assured that she was all right and was later discharged from the hospital without any union having been formed, due to unskillful treatment of the assistant. Held, that plaintiff did not accept the services of the assistant as and for the performance of defendant's contract.

8. DAMAGES (§ 6) — CONTRACT — BREACH — UNCERTAINTY.

Where defendant, as part of a settlement for injuries to a passenger, consisting of a fracture of the neck of the femur, agreed that she should have the services of an expert surgeon at defendant's expense, but plaintiff was so unskillfully treated by the surgeon's assistant that she was discharged from the hospital without a union of the bones, which would have occurred if the fracture had been skillfully reduced, the damages sustained by plaintiff as the result of defendant's breach of contract were not so uncertain of ascertainment as to amount to mere conjecture and defeat a recovery.

9. DAMAGES (§ 6) — CONTRACT — BREACH — CERTAINTY.

In an action for breach of contract, damages are sufficiently certain if there is sufficient certainty to satisfy the mind of a prudent and impartial person that the damages sued for can be traced as a reasonable probability from a breach of contract within the rule that the law never insists on a higher degree of certainty than the nature of the case admits.

10. DAMAGES (§ 218)—BREACH OF CONTRACT —INSTRUCTIONS.

In an action for damages for breach of a contract to furnish expert surgical treatment for the reduction of a fracture of plaintiff's femur, she having been unsuccessfully treated by the expert's assistant, an instruction that the jury should assess plaintiff's damage in case they found for her at such sum as they believed from all the evidence in the case would fairly compensate her for the injury, if any, which she had sustained by defendant's failure to furnish her the personal care and services of the expert, was sufficiently specific as to the elements of damage to be considered, and not objectionable as allowing the jury to find such damages as it might choose.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Minnie McDaniel against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, T. M. Pierce, and T. E. Francis, all of St. Louis, for appellant. Percy Werner and Everett W. Pattison, both of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of a breach of contract. Plaintiff recovered, and defendant prosecutes the appeal. The contract declared upon and of which the breach is assigned lies in parol, and obligates defendant to furnish plaintiff the services of a surgeon possessing peculiar skill and ability for the treatment of her injury which was received through the negligence of defendant street car company.

The first question for consideration relates to the propriety of showing this agreement by parol notwithstanding a contemporaneous writing between the parties remotely touching upon the subject-matter. The case concedes the full force and effect of the written instrument, but proceeds as though the parol agreement declared upon is parcel of the consideration for which the written release was given, and to this extent affirms the obligation vouchsafed in the writing.

Defendant owns and operates a street railroad in the city of St. Louis, and it appears that plaintiff was seriously and permanently injured while a passenger on one of its cars. The injury received is said to be an intracapsular fracture of the surgical neck of the femur. The morning after the injury, defendant's chief claim agent called upon plaintiff to negotiate a settlement of her claim for damages against defendant company. Plaintiff was confined to her bed at the time. Considerable conversation ensued between her, her friend, Mr. Henry, and defendant's claim agent, touching the matter. Among other things, it is said that defendant's claim agent proposed, as terms of a settlement, that plaintiff should be removed from her boarding house to St. John's Hospital and there receive the treatment of Dr. A. V. L. Brokaw, a very distinguished surgeon, at defendant's expense. It was explained to plaintiff that Dr. Brokaw was a noted and skilled surgeon, employed by defendant to treat serious injuries, and that the special skill available through him would largely compensate the damage suffered. After the negotiations had continued for a couple of hours, plaintiff agreed to accept defendant's offer of $175 in cash, the services of Dr. Brokaw, and accommodations of St. John's Hospital at defendant's expense, and release it from further claim for damages touching her injury. Upon such agreement being reached between the parties, defendant's claim agent prepared the release by filling in certain blanks therein, and plaintiff executed the same by affixing her signature thereto. It should be said in this connection, however, that the words, "Dr. Brokaw's bill and St. John Hospital bill," immediately after the numerals, "$175," were interlined at the time by the claim agent in the release, which was as follows: "For and in consideration of the sum of one hundred

Dr. Brokaw's bill and St. John's Hospital bill, and seventy-five dollars ($175no) /\ to me in hand paid by the United Railways Company of St. Louis, the receipt of which is hereby acknowledged, I, the undersigned, hereby fully and forever release, acquit and discharge the said United Railways Company of St. Louis, its successors and assigns, from any and all liability, now accrued or hereafter to accrue, on account of any and all claims or causes of action which I now or may hereafter have against said company, its successors or assigns, in any way arising from any and all injuries, losses and damages by me or my property sustained or received on or about May 4, 1906, through me being severely injured while alighting from a car of said company at or near Finney and Krum avenues, city of St. Louis, Mo., and I here declare that I fully understand the terms of this settlement and that I...