Pillow v. General American Life Ins. Co.

• Decision Date: 21 February 1978
• Docket Number: No. 38104,38104
• Citation: 564 S.W.2d 276
• Parties: Thomas M. PILLOW, Plaintiff-Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, a corporation, Defendant-Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 276

564 S.W.2d 276

Thomas M. PILLOW, Plaintiff-Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, a corporation,

Defendant-Respondent.

No. 38104.

Missouri Court of Appeals, St. Louis District, Division Three.

Feb. 21, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 10, 1978.

Application to Transfer Denied May 9, 1978.

Dallas W. Cox, Jr., St. Louis, for plaintiff-appellant.

Kortenhof & Ely, Frank Strzelec, St. Louis, for defendant-respondent.

KELLY, Judge.

Plaintiff-appellant, Thomas M. Pillow, a practicing Doctor of Chiropractic, brings this appeal from a judgment of the Circuit Court of the City of St. Louis entered upon an order of the court sustaining the motion of defendant-respondent, General American Life Insurance Company, ¹ to dismiss Count II of his Second Amended Petition for failure to state a claim or cause of action upon which relief could be granted, and dismissing Count II of plaintiff-appellant's petition with prejudice. The trial court made this order dismissing Count II of plaintiff's petition with prejudice a final judgment for purposes of appeal and this appeal followed.

The sole issue on appeal is whether the trial court erred in dismissing this Second Amended Petition. Because we conclude that the trial court did not err, we affirm.

Count II of Plaintiff's Second Amended Petition reads as follows:

"COUNT II

Comes now plaintiff and for his claim under COUNT II states and alleges:

I

Plaintiff repleads Paragraph I of COUNT I as fully as if herein set out in full.

(I. That defendant General American Life Insurance Company, a corporation, is and at all times mentioned herein was a Missouri corporation, duly organized and existing under law, engaged in the insurance

business in the City of St. Louis, Missouri, and elsewhere and that said defendant corporation was duly registered in the Department of Insurance of the State of Missouri under the laws of the State of Missouri applying to insurance companies and has duly authorized Stanley M. Richman to act as registered agent and that the office for service of process is 1501 Locust Street, St. Louis, Missouri 63166.)

II

Plaintiff repleads Paragraph II of COUNT I as fully as if herein set out in full.

(II. That the plaintiff is a duly licensed and practicing chiropractor in the County of St. Charles, State of Missouri, and had always maintained and enjoyed a good reputation in such profession.)

III

A. That plaintiff rendered chiropractic treatment to Charles Collier, Robert Linhardt, Henry Boster, Winifred Boster, Russell Browne, Samuel Cropper, Darren Hampton, Jr., Tina Linhardt, Sharlene Swinford, Glenda Upton, William D. Upton, Pamela Upton, Robert Merz, Mark Bohn, Deborah Damke, Bruce Bohn, John T. Day, Betty Damke, Virginia Bohn, Roger R. Hollandsworth, Robert Alsop, Joseph W. Rinabarger, Thomas Edinger, James Chumney, Joyce L. Rhodes, William Wichern, Dennis Cowdrick, Cathy L. Allen, Victor Edinger, Bonnie DeLorez, Nancy Sue Young, Dorothy Claxton, William Lee Richards and Esther Edinger and that there was a contract implied in law and in fact between said plaintiff and said persons that plaintiff would exercise skill in the care and treatment of said patients in consideration of said patient's payment to said plaintiff of reasonable sums as and for their care and treatment.

B. That there were then and there existing contracts of assignments as per plaintiff's Exhibits 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 attached herewith and made a part hereof between plaintiff and his patients, insureds of defendant, wherein plaintiff was assignee on any claim made by plaintiff of his said patients to defendant for plaintiff's chiropractic treatment and professional services and bills rendered.

IV

A. That said contracts implied in law and in fact between plaintiff and his said patients were tortiously breached and terminated by defendant and said defendant by and through its agents, servants and employees then and there engaged upon the business of said defendant within the course and scope of their employment with said defendant by writing to plaintiff's said patients said letters attached herewith and made a part hereof as plaintiff's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42, and that all of said actions were done maliciously, intentionally and without legal justification or legal excuse to induce, to cause and to procure said parties to terminate their contracts with plaintiff as plaintiff's patients.

B. That said contracts implied in law and in fact between plaintiff and his said patients were tortiously breached and terminated by defendant and said defendant by and through its agents, servants and employees then and there engaged upon the business of said defendant within the course and scope of their employment with said defendant by defendant breaching its legal obligation to pay plaintiff under its insurance contract with plaintiff's said patients, when plaintiff had legal rights to receive such benefits as assignee of defendant's insurance benefits to its insured and plaintiff's said patients, said assignments signed by Robert Linhardt, Willis J. Rhodes, Harvel Hampton, Jr., Robert J. Alsop, Joseph W. Rinabarger, Robert Linhardt, Betty Damke, Pearl Allen, Victor Edinger, Bonnie DeLorez, Sue Young, Dorothy Claxton, William Lee Richards, Dennis Cowdrick and Victor Edinger, as per plaintiff's Exhibits 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 attached herewith and made a part hereof, and that all of said actions were done maliciously, intentionally and without legal justification or legal excuse to induce, to cause and to procure said parties to terminate their contracts with plaintiff as plaintiff's patients.

V

That Glenda Spencer, Donna Rawley, Roy Caulk, Darlene Sherman, Catherine Reagan, Darren Hampton, Henry Boster, Cathy Allen, Marie Bruers, Rhea Alliston, Charles Collier, Samuel Cropper, Leroy Cruts, Robert Linhardt, Robert Merz, Gerrand Mellenger, Sharlene Swinford, Randy Kleischute, Collen Kleischute, Tina Linhardt, Byron Miller, Sue Young, Dorothy Claxton, Dennis Cowdrich, Norma J. Browne, Russell Browne, Harvel Hampton, Margaret Bradbury, Roger Hollandsworth, Calvin Grannemann, Kenneth Hebb, Winfred Boster, Opal Richards, Betty Damke, Deborah (sic) Damke, Bonnie DeLorez, Joseph Rinabarger, Dorothy Rinabarger, William Richards, did so terminate their contracts with plaintiff as plaintiff's patients as a direct and proximate result thereof thereby damaging plaintiff.

VI

WHEREFORE, plaintiff prays judgment under COUNT II against defendant in the sum of One Hundred Thousand Dollars ($100,000.00) compensatory damages and One Hundred Fifty Thousand Dollars ($150,000.00) punitive damages, together with his costs."

It is apparent from a reading of Plaintiff's Second Amended Petition that to ascertain whether plaintiff stated a claim for relief pursuant to Rule 55.05 V.A.M.R., which provides what a pleading setting forth a claim for relief shall contain, reference must be made to the contents of the Exhibits 1 through 57 attached to and made a part of said Petition pursuant to authority of Rules 55.12 and 55.22 V.A.M.R. ²

It is plaintiff's position that Count II of his Second Amended Petition pleaded a cause of action for tortious interference with contract. In ruling this Point, the averments of the petition must be construed liberally and favorably to the plaintiff, giving him the benefit of all inferences fairly deducible from the facts stated therein. The facts stated in the petition are to be taken as true, and if the facts pleaded and the reasonable inferences to be drawn therefrom, viewed most favorably from the plaintiff's vantage point, show any ground for relief, the petition may not be dismissed. All pleadings are to be construed so as to do substantial justice, Rule 55.24 V.A.M.R., and exhibits attached to the pleading are a part thereof "for all purposes." Rule 55.12 V.A.M.R. In reviewing the judgment of a trial court dismissing a petition for failure to state a claim or cause of action, the reviewing court will consider all of the facts set out in the petition together with the exhibits attached thereto to ascertain whether the judgment of the trial court was erroneous. Burckhardt v. General American Life Insurance Company, 534 S.W.2d 57, 63(4, 5, 6, 8 & 9) (Mo.App.1975). A petition is not to be held insufficient merely because of a lack of definiteness or because of informality in the statement of an essential fact, and under modern pleading principles, a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629-30(4) (Mo.App.1975); Watson v. Franklin Finance, 540 S.W.2d 186, 188(3, 4) (Mo.App.1976).

In a claim for tortious interference with contract plaintiff must allege facts showing (1) that a contract was in existence; (2) that the defendant had knowledge of the contract; (3) that the defendant induced or caused the breach of the contract; (4) that the defendant's acts were without legal justification; and (5) that plaintiff was thereby damaged. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210, 212(3) (Mo.App.1976); Cady v. Hartford Accident and Indemnity Company, 439 S.W.2d 483, 485-6(8) (Mo.App.1969). The office of pleadings is to present, define and isolate controverted issues so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of the cause on the merits. Walker v. Kansas City Star Company, 406 S.W.2d 44, 54(9) (Mo.1966); In re Estate of Youngblood, 447 S.W.2d 824, 827 (Mo.App.1969). The issue then, is whether Plaintiff's Second Amended Petition...