Phillips v. St. Louis & San Francisco Railroad Company
| Decision Date | 13 April 1908 |
| Citation | 111 S.W. 109,211 Mo. 419 |
| Parties | IDA PHILLIPS, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Reversed and remanded.
Joseph A. Wright for appellant.
(1) Neither negligence nor contributory negligence can be imputed to an insane person. Williams v. Hays, 157 N.Y. 541 143 N.Y. 442, 2 A.D. 183; Jackson v. Railroad, 157 Mo. 621; Washington v. Railroad, 17 W.Va. 190; Railroad v. Gregory, 58 Ill. 226; Wharton on Negligence (2 Ed.), secs. 87, 88; Campbell v Railroad, 175 Mo. 161; Anderson v. Railroad, 161 Mo. 411; Stern v. Bensieck, 161 Mo. 146. (2) The evidence did not justify the court in declaring as a matter of law that the deceased committed suicide. Laessig v. Travelers' Protective Association, 169 Mo. 272; Royal Arcanum v. Brashears, 89 Md. 624; Stotler v. Railroad, 200 Mo. 107, 146; Home Benefit Association v. Sargent, 142 U.S. 691; Ins. Co. v. Wiswell, 56 Kan. 765; Ins. Co. v. Pogue, 105 F. 172. (3) Suicide, if the deceased was insane, is no defense in an action charging breach of duty to an insane person. Wells v. Railroad, 49 N.Y.S. 510; Railroad v. Parry, 67 Kan. 515; Worthington v. Mencer, 96 Ala. 310; Thompson on Negligence, par. 338; Simpson v. Rhode Island Co., 26 R. I. 200. (4) The injury in the precise form in which it in fact occurred need not have been foreseen; it is sufficient if it now appears to have been a natural and probable consequence. Hoepper v. Southern Hotel Co., 142 Mo. 378; Harrison v. Kansas City Electric Light Co., 195 Mo. 606; Graney v. Railroad, 140 Mo. 89; Miller v. Railroad, 90 Mo. 389; City of Dixon v. Scott, 181 Ill. 116; Hill v. Windsor, 118 Mass. 251; 1 Thompson on Negligence, par. 59. (5) Defendant was negligent as a common carrier of passengers for hire, in not extending to the deceased that degree of care and protection demanded on account of his known and apparent insane condition. Railroad v. Parry, 67 Kan. 515; Wells v. Railroad, 49 N.Y.S. 510; Eidson v. Railroad, 23 So. 369; Foss v. Railroad, 66 N.H. 256; Croom v. Railroad, 52 Minn. 296; Railroad v. Gilmer, 18 Tex. Civ. App. 680; Hutchinson on Carriers (3 Ed.), 992; 3 Thompson on Negligence, par. 2934. (6) Defendant failed and omitted to give deceased the care and protection contracted for. Ward v. St. Vincent's Hospital, 57 N.Y.S. 784; Hewett v. Woman's Hospital, 73 N.H. 556; Texas & Pacific Coal Co. v. Connaughton, 20 Tex. Civ. App. 642; Brown v. LaSociete Francaise, 138 Cal. 475; Glavin v. Rhode Island Hospital, 12 R. I. 411. (7) The hospital association is the general agent of defendant in caring for its sick employees, supported by their contributions, and has none of the essential elements of a charity. Haggerty v. Railroad, 100 Mo.App. 424; Coe v. Washington Mills, 149 Mass. 543; Brown v. LaSociete Francaise, 138 Cal. 475; Miller v. Railroad, 65 F. 305; Texas & Pacific Coal Co. v. Connaughton, 20 Tex. Civ. App. 642. (8) The use made by defendant of the hospital association is not within the provisions of article 2, chapter 12, Revised Statutes 1899, and defendant is liable in the same manner as if operating through a relief department of the company's regular business. Hiatt v. Fraternal Union, 99 Mo.App. 105; In re St. Louis Institute, 27 Mo.App. 633; Franta v. Bohemian Union, 164 Mo. 304; Re Globe Mutual Benefit Association, 135 N.Y. 280, 17 L. R. A. 547; State v. Ohio Central Relief Assn., 29 Ohio St. 399; Bacon on Benefit Societies and Life Insurance (3 Ed.), par. 62; Angell and Ames on Corporations, par. 126. (9) The letter from George W. Cale, Jr., chief surgeon, to W. P. Newton, is admissible in evidence. McDermott v. Railroad, 87 Mo. 287; State ex inf. v. Packing Co., 173 Mo. 356; Mekell v. Ins. Co., 144 Mo. 420; Malecek v. Railroad, 57 Mo. 17; Hill Bros. v. Bank of Seneca, 100 Mo.App. 250; Sisk v. Ins. Co., 95 Mo.App. 710; Kirkstall v. Railroad, L. R. 9 Q. B. 468; McGenness v. Adriatic Mills, 116 Mass. 177; Hall v. Ins. Co., 23 Wash. 610; Railroad v. Closser, 126 Ind. 348; Ins. Co. v. Monarch, 99 Ky. 578; Trust Co. v. Ins. Co., 71 F. 81; 2 Wharton on Evidence, par. 1177.
W. F. Evans and J. G. Egan for respondent.
(1) Defendant is not liable for negligence, if any, of the physicians of the hospital association. Railroad v. Artist, 9 C. C. A. 14, 60 F. 365; Pierce v. Railroad, 66 F. 44; 15 Am. and Eng. Ency. Law (2 Ed.), 763. (2) One who employs a physician to attend another is bound only to exercise ordinary care in selecting the physician, and where such care is used, is not liable for the negligence of the physician. Railroad v. Artist, 9 C. C. A. 14, 60 F. 365; Pierce v. Railroad (C. C. A.), 66 F. 44; Quinn v. Railroad, 94 Tenn. 713, 28 L. R. A. 552; Haggerty v. Railroad, 100 Mo.App. 451; Railroad v. Sullivan, 141 Ind. 83; Railroad v. Zeiler, 54 Kan. 340; Richardson v. Coal Co., 10 Wash. 648; Railroad v. Price, 32 Fla. 46; Eighmy v. Railroad, 93 Iowa 538; Railroad v. Hanway, 57 S.W. 695; Secord v. Railroad, 18 F. 221; 3 Elliott on Railroads, sec. 1388; Iron Co. v. Ketron, 102 Va. 23; Pearl v. Railroad, 176 Mass. 177. (3) An insane person is liable for his torts. McIntyre v. Sholty, 121 Ill. 600; Krom v. Schoonmaker, 3 Barb. 647; Cross v. Kent, 32 Md. 581; Jewell v. Colby, 66 N.H. 399; Morse v. Crawford, 17 Vt. 499; Ward v. Conatser, 63 Tenn. 64; Morain v. Devlin, 132 Mass. 87; 1 Cooley on Torts (3 Ed.), pp. 171-177; Buswell on Insanity, sec. 355; note 26 L. R. A. 153. (4) Upon the theory on which the plaintiff charges the defendant was negligent, the plaintiff was contributorily negligent, and has no right to recover. Wiese v. Remme, 140 Mo. 289; Bamberger v. Railroad, 95 Tenn. 18; City of Pekin v. McMahon, 159 Ill. 141; Smith v. Railroad, 92 Pa. St. 450. (5) The duty of the defendant was performed when it discharged James B. Phillips safely at his destination. Hendrick v. Railroad, 136 Mo. 548. (6) The burden is upon the plaintiff to prove that some negligence of the defendant was the proximate cause of the death of Phillips. Harper v. Term. Co., 187 Mo. 586; Warner v. Railroad, 178 Mo. 134. (7) The facts as to the death were clear and undisputed, and the question of proximate cause was for the court to determine. Henry v. Railroad, 76 Mo. 288. (8) The liability of a party for his negligence is limited to injuries which he could have foreseen as a probable consequence, and which are the direct consequence of his negligence. Haley v. Railroad, 179 Mo. 30; Henry v. Railroad, 76 Mo. 288; Saxton v. Railroad, 98 Mo.App. 501; Scheffer v. Railroad, 105 U.S. 249; Daniels v. Railroad, 183 Mass. 393; Korn v. Railroad, 125 F. 897; Nash v. Railroad, 136 Ala. 177; Gaukler v. Railroad, 130 Mich. 666; Brown's Admr. v. Railroad, 19 Ky. Law R. 1873; Railroad v. Valleley, 32 Ohio St. 345; Hamilton v. Railroad, 183 Pa. St. 638; Hullinger v. Worrell, 83 Ill. 220; Adkins v. Ins. Co., 70 Mo. 27; Streeter v. Accident Society, 65 Mich. 204. (9) Defendant is not liable for the suicide of Phillips. Scheffer v. Railroad, 105 U.S. 249; Daniels v. Railroad, 183 Mass. 393. (10) The letter from Dr. Cale to Mr. Newton was not authorized by the defendant, was not a part of the res gestae in any transaction by Dr. Cale for the defendant, and was not admissible. Koenig v. Union Depot Co., 173 Mo. 721; Redmon v. Railroad, 185 Mo. 11; Devlin v. Railroad, 87 Mo. 549; Aldridge's Adm. v. Furnace Co., 78 Mo. 559; Rogers v. McCune, 19 Mo. 569.
This is an action by the widow to recover the sum of $ 5,000, for the alleged negligent killing of her husband, James B. Phillips, who died April 11, 1904. The trial court having given a peremptory instruction to find for the defendant, the plaintiff took an involuntary nonsuit, with leave, and after unsuccessful motion to set aside the nonsuit so taken, perfected her appeal to this court.
Phillips, the deceased, was an employee of defendant in its Auditor's department. As such employee there had been taken out of his wages a small monthly hospital fee, which entitled him to be admitted and treated in a certain hospital system alleged upon the one hand to be maintained by the defendant for that purpose, and upon the other hand to be a separate and distinct corporation from the defendant, and maintained by certain employees of defendant, and not by the defendant itself. Shortly prior to his death Phillips had been furnished a pass by the defendant over its line from St. Louis to Springfield and return, and using such employee's pass he went from St. Louis to Springfield to take treatment for his ailments in the hospital there, which was a part of the hospital system above mentioned. For a time he was treated and on a certain morning took passage upon one of defendant's trains at Springfield bound for St. Louis, his home. This train arrived about seven o'clock that evening and deceased left the train unharmed. About nine o'clock of the same evening a man, partially undressed and in condition to retire for the night, was lying across one of the many street car lines of the city and was run over and killed by a passing car. Some two weeks later the body was exhumed and identified as that of James B. Phillips. Plaintiff had no knowledge of the peculiar and untimely death until about the latter date. The claim is that Phillips was mentally unbalanced, which fact was known to defendant, and that defendant was remiss in duty in not notifying his family of his departure from the Springfield hospital before his arrival in St. Louis, and further in turning loose upon the streets of said city, unattended, a man in that known mental and helpless condition.
There are several peculiarly interesting questions, which, together with the incident facts, will be duly noted.
I. Pla...
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