Parkell v. Fitzporter

• Citation: 256 S.W. 239,301 Mo. 217
• Parties: FRED B. PARKELL, Appellant, v. ALONZO L. FITZPORTER and LOUIS E. PRINTY
• Decision Date: 20 November 1923
• Court: United States State Supreme Court of Missouri

256 S.W. 239

301 Mo. 217

FRED B. PARKELL, Appellant, v. ALONZO L. FITZPORTER and LOUIS E. PRINTY

Supreme Court of Missouri

November 20, 1923

Appeal from St. Louis City Circuit Court; Hon. J. Hugo Grimm, Judge.

Reversed.

Bishop & Claiborne and Albert E. Hausman for appellant.

(1) Persons who act separately, each causing a separate injury cannot be made jointly liable (though the injuries thus inflicted are all committed at one time). 1 Shearman & Redfield (5 Ed.) pars. 122, 123; De Donato v Morrison, 160 Mo. 591. (2) Where tortfeasors act independently of each other and their several wrongs are committed at different times, the tort of each, being several when committed, does not become joint because its consequences united with the consequences of the other. Each is liable, therefore, only to the extent of the injury done by himself. Staehlin v. Hochdoerfer, 235 S.W. 1060. (3) The tortfeasor who negligently injures another by running him down with an automobile, and the physician who subsequently negligently treats the injury, are not joint tortfeasors. Each is liable for the extent of injury done by him only. The causes of action are not identical. Staehlin v. Hochdoerfer, 235 S.W. 1062; Benson v. St. Louis, 219 S.W. 575. (4) Judgment and satisfaction thereof against one independent tortfeasor is no bar to another action, contemporaneous or subsequent, against another independent tortfeasor, unless the independent torts resulted in the same injuries. Staehlin v Hochdoerfer, 235 S.W. 1062. (5) The scope and effect of a judgment must be determined by the allegations of the petition. Charles v. White, 214 Mo. 187. Where the second suit is not upon the identical claim or cause of action, the former judgment operates as an estoppel only as to those matters which were in issue and actually litigated and determined. Dickey v. Heim, 48 Mo.App. 114; LaRue v. Kempf, 186 Mo.App. 57. (6) The judgment in the original case could not embrace damages from gangrene or infection, because gangrene and infection was not pleaded as a result of the injury sustained. Thompson v. Railroad, 111 Mo.App. 465; Smith v. Rys. Co., 227 S.W. 866; Fink v. Rys. Co., 219 S.W. 679; Hall v. Coal & Coke Co., 260 Mo. 351; Johnson v. Ry. Co., 192 Mo.App. 9. (7) A judgment in the first suit is conclusive in a subsequent suit only as to the facts thereby established; for the scope of the estoppel created by the first judgment cannot be extended beyond the points and issues necessarily determined by it. St. Joseph v. Union Ry. Co., 116 Mo. 636.

Anderson, Gilbert & Wolfort for respondents.

Where a party suffers an injury but one satisfaction can be had for that injury, no matter how many people may have caused or contributed to cause the injury. Martin v. Cunningham, 93 Wash. 517; Dulaney v. Buffum, 173 Mo. 1; Almquist v. Wilcox, 115 Minn. 137; State to use v. Railways, 126 Md. 300. Injuries due to the mistakes or want of skill of physicians are regarded as part of the original injury, and the original wrongdoer is liable therefor. Elliott v. Kansas City, 174 Mo. 554. The case of Staehlin v. Hochdoerfer, 235 S.W. 1060, does not sanction a recovery by plaintiff.

OPINION

Brown, C.

The petition was filed September 20, 1919, and states, in substance, that at the times mentioned the defendants were physicians and surgeons engaged in the practice of their profession in the city of St. Louis, representing themselves to be skilled in their profession; that on the 8th day of October, 1917, while plaintiff was on a public street in the city of St. Louis, the defendant Fitzporter, driving an automobile on the same street, carelessly and negligently ran said automobile into and against plaintiff, by which plaintiff was greatly injured and suffered great pain of body and anguish of mind. It then proceeds as follows:

"That his left leg was broken, crushed and shattered, so that the bones thereof were splintered and broken and caused to protrude through the flesh and skin; that a part of a metal clasp from plaintiff's supporter or garter, dirt and cinders from the street and pieces of cloth from the plaintiff's clothing, were driven through and into the skin and flesh and into the wounds caused by the protrusion of said bones and other wounds caused by defendant driving and running said automobile into and against the plaintiff, as above described.

"Plaintiff further states that the said defendant Fitzporter, after so running into and against plaintiff as above described, caused plaintiff to be put into his said automobile and taken to the St. John's Hospital, located at Euclid Avenue and Parkview Place, in the city of St. Louis, Missouri; that defendant Fitzporter then called in defendant Printy; that the said defendants then proceeded to dress said plaintiff's wounds and to set his leg; that defendants so negligently and unskillfully conducted themselves in and about the setting of said left leg and dressing said wounds that through their negligence and unskillfulness said part of the supporter or garter buckle, dirt and cinders from the street, and parts of clothing were left in one or more of said wounds, which were sewed up by said defendants, causing inflammation to set in and said wounds to become infected, and gangrene to develop therefrom, causing plaintiff to nearly lose his life and causing him great pain and mental anguish, and permanently injuring, laming and disabling plaintiff.

"Plaintiff states that by reason of said negligence and unskillfulness of defendants, as aforesaid, he was caused to be confined to said hospital for a period of more than six months, confined to a wheel chair for an additional period of three months, and for an additional period of eight months he was required to use crutches and a cane, all of which time he was totally incapacitated from performing any kind of work or labor for which he was competent, and that his said leg has not yet fully recovered. Plaintiff further states that he was compelled and did necessarily pay out and spend large sums of money for medicines, nursing and care, and has been and still is disabled from attending his former occupation, and that he is permanently injured, lame and disabled."

The petition then lays plaintiff's damage at $ 25,000, for which he asks judgment. On December 2, 1920, the defendants filed a joint answer, which, omitting formal parts, is as follows:

"Come now the defendants and for answer to the petition of plaintiff filed herein, deny each and every allegation in said petition contained.

"For further answer, the defendants state that on the eighth day of October, 1917, plaintiff, while riding upon a motorcycle, collided with an automobile owned and operated by defendant Fitzporter, and that as a result of such collision plaintiff's left leg was broken, crushed and shattered so that the bones thereof were splintered and broken and caused to protrude through the flesh and skin. The plaintiff's body was badly bruised and a metal clasp from plaintiff's supporter or garter, dirt and cinders from the street and pieces of cloth from plaintiff's clothing were driven through and into the skin and flesh and into the wounds caused by the protrusion of said bones and other wounds, so that plaintiff's leg was, on account of said injuries as aforesaid, permanently injured and weakened and would always be weak and stiff as the result thereof and that on account of said injuries plaintiff was confined to the hospital from October 8, 1917, to March 10, 1918.

"That thereafter, on July 19, 1918, plaintiff, through J. B. Parkell, his next friend, instituted a suit against Alonzo L. Fitzporter, one of the defendants herein, said suit being styled Fred B. Parkell, by J. B. Parkell, his next friend, plaintiff, v. Alonzo L. Fitzporter, defendant, and being cause No. Series B 18, 763, Division No. I, in the Circuit Court, City of St. Louis, October term, 1918, a copy of the petition in which cause aforesaid, together with a copy of the minutes or proceedings in said cause, being marked 'Exhibit A,' attached hereto and made a part hereof, and charging that the said injuries were caused by the negligence of the said Alonzo L. Fitzporter in negligently and carelessly operating an automobile in the city of St. Louis, Missouri, and that as a result of said injuries plaintiff was confined to the hospital from October 8, 1917, to March 10, 1918, and that his leg had not, at the time of the filing of said petition, healed, but was permanently injured and weakened and would always be weak and stiff."

The plaintiff thereupon filed his motion to strike out all the matter contained in the answer, excepting only the general denial, on various grounds, which may be included in the statement that it constituted no defense to the action stated in the petition, because the matter so pleaded in the answer as a former recovery and satisfaction is a separate and distinct cause of action from that stated in this petition. The motion to strike out was overruled, and the plaintiff declining to plead further, judgment was entered for the defendants, from which plaintiff has taken this appeal.

The petition in the original suit against the defendant Fitzporter was referred to, filed and made a part of the answer, and described the injury sued for as follows "The plaintiff was greatly injured and damaged and has suffered great pain of body and anguish of mind; that plaintiff's left leg was broken, crushed and shattered, so that the bones thereof were splintered and broken and caused to protrude through the flesh and skin; that the plaintiff's body was badly bruised; that a metal clasp from plaintiff's supporter or garter was driven into the flesh of said leg, and that plaintiff was confined to the hospital from ...