E.O. Painter Fertilizer Co. v. Boyd

• Decision Date: 01 March 1927
• Citation: 93 Fla. 354,114 So. 444
• Parties: E. O. PAINTER FERTILIZER CO. v. BOYD et al.
• Court: Florida Supreme Court

114 So. 444

93 Fla. 354

E. O. PAINTER FERTILIZER CO. v. BOYD et al.

Florida Supreme Court

March 1, 1927

En Banc.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by John E. Boyd and another against the E. O. Painter Fertilizer Company. Verdict for plaintiffs, and defendant brings error.

Affirmed on condition of remittitur.

(Syllabus by the Court.)

COUNSEL Williams & Bly and J. Turner Butler, all of Jacksonville, for plaintiff in error.

George M. Powell, of Jacksonville, for defendants in error.

OPINION

LOVE Circuit Judge.

In July, 1914, defendants in error brought suit against plaintiffs in error for damages in the sum of $10,000, their declaration, which was filed in September of that year containing two counts, the first of which was upon an alleged promise to pay plaintiffs on request the sum of $5,600 for medical attendance, advice, and medicine given and provided by plaintiffs to and for defendant at its request. The second count was upon an alleged express promise made on July 1 1913, to pay plaintiffs on request a reasonable sum for certain work and services done and bestowed by them at the defendant's request in and about the business of defendant and for it; the sum of $10,000 being alleged as a reasonable compensation for such work and services. A bill of particulars, attached to the declaration, consisted of the following items:

First Count. 1913. May 22. Attending and performing autopsy upon the remains of E. O. Painter ..... $1,000 00 May 22. Office advice, conference, and consultations from May 22 1913 to June 16, 1913, and from June 25, 1913, to July 1, 1913 .............. 1,000 00 June 25. Services as per agreement during absence on second trip to Baltimore and trip to New York, from June 16 to June 25, 1913 (nine days at $400 per day) .................. 3,600 00 ---------- Total .............................. $5,600 00 Second Count. To services and advice from the 22nd day of May, 1913, to June 25, 1913 ................... $10,000 00

Nothing further appears to have been done in this suit until about three and a half years later, when plaintiffs, obtaining leave of the court therefor, filed an amended declaration on February 4, 1918. This declaration was one of assumpsit, containing three counts based upon an alleged indebtedness from the defendant to the plaintiffs in the sum of $5,600 for money payable by defendant to the plaintiffs, first, for services as physicians and surgeons done and rendered by plaintiffs for defendant at its request; second, for work done and materials provided by plaintiffs for defendant at its request; and, third, for money found to be due from defendant to plaintiffs on account stated between them.

The bill of particulars attached to this amended declaration was identical with that attached to the original, with the exception that the last item of the first was omitted. After various vicissitudes, the case went to trial on issue joined on pleas of never was indebted and payment, resulting in a verdict and judgment for the plaintiffs, which judgment defendants seek to reverse upon writ of error.

Eighty-five errors are assigned, forty-seven of which are argued, presenting a condition, unusual even in this court, which in several cases has been compelled to call attention to the practice of assigning a large number of errors, and criticized it mildly but adversely. See Hoopes v. Crane, 56 Fla. 395, 47 So. 992; Atlantic Coast Line R. Co. v. Whitney, 65 Fla. 72, 61 So. 179; Mitchell v. Mason, 65 Fla. 208, 61 So. 579; Florida East Coast R. Co. v. Knowles, 68 Fla. 400, 67 So. 122; Padgett v. State, 64 Fla. 389, 59 So. 946, Ann. Cas. 1914B, 897; Atlantic Coast Line R. Co. v. Levy, 68 Fla. 234, 67 So. 47.

Zeal of counsel in behalf of their clients is doubtless responsible for this practice; but, however commendable such zeal within reasonable limits may be, and indeed is, it often defeats the very purpose sought to be attained. We again are constrained to criticize such practice, and to sound another warning against it, indorsing the following expression on this subject:

'This practive of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on.' Philips & C. Construction Co. v. Seymour, 91 U.S. 646, 23 L.Ed. 341.

This action is based upon an express promise by the defendant to pay the plaintiffs a certain sum for services as physicians and surgeons for work done and material provided and account stated.

In the light of the evidence in this case, the right of action, if any exists, rests upon the legal obligations of the defendant, a corporation, to pay for the services rendered by plaintiffs in performing an autopsy upon the dead body of Mr. Painter, who in his lifetime was the president of the defendant corporation, for office advice, and for conference and consultations with various persons from May 22 to July 1, 1913, and for services rendered in making a trip to Baltimore and New York.

An autopsy is a post mortem examination, a dissection of a dead body to determine the cause, seat, or nature of the disease; in the case at bar, to determine whether there existed in the stomach or other organs of the deceased any trace of poison. From the evidence presented by the plaintiffs it appears that the autopsy was performed with the knowledge and at the request of D. A. Morrison, Jr., who was then the secretary and cashier of defendant corporation, and W. I. Lyman, its head bookkeeper, who were the business acquaintances of the deceased, associated with him in the business of defendant corporation, and were friends of his family. [2] It is perfectly obvious that, whatever may have been the nature of the services rendered by the plaintiffs in and about the autopsy, such services were neither medicinal nor surgical, because both sciences or arts have for their purposes and objects the healing, curing, or alleviation of diseases, deformities, or injuries; but the labor performed upon the dead body of Mr. Painter was not for the purpose of healing or restoring him to life or health, but to ascertain the cause of his death, and secure evidence, as it is claimed, that would be of benefit to the defendant. Yet, as the declaration was, in part, for physicians' and surgeons' fees, and for labor performed, which the evidence shows was upon a dead body, over which the defendant corporation had no ownership, control, or possession, nor right thereto, the right of action against the defendant must rest upon an express or implied obligation on the part of the defendant to pay therefor. The record discloses no evidence of any express promise on the part of the corporation to pay for such services, and the promise to pay therefor cannot be inferred from the fact that the plaintiffs, who were physicians and surgeons, were called in their professional capacity to render medicinal or surgical assistance or treatment to the person whose body had been recovered from the river into which it had fallen.

At the time the alleged autopsy was performed, none of the parties performing the same, or who it is claimed authorized it, knew or were informed of any interest that defendant corporation had in its results, and it was some time afterwards that such parties learned of the existence of insurance policies on the life of Mr. Painter, in favor of the defendant corporation. As far as they were informed at the time of the autopsy there was no benefit to accrue to defendant or loss to be sustained by it through any developments from such autopsy. It appears from the evidence that such autopsy was first suggested by Dr. Perry, one of the plaintiffs, for the purpose of protecting the interest of the estate of the deceased, with respect to a large amount of insurance at that time reported to have been carried by Mr. Painter. No. motive is shown for Mr. Lyman or Mr. Morrison to attempt to bind the defendant corporation for the performance of such autopsy, and no action on their part as agents of the corporation imposing on it any liability therefor is shown, even if they had the power to bind the defendant in this respect. It further clearly...