Snyder v. St. Louis Southwestern Ry. Co., 5284.

• Decision Date: 18 June 1934
• Docket Number: No. 5284.,5284.
• Citation: 72 S.W.2d 504
• Parties: MAY SNYDER, RESPONDENT, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

72 S.W.2d 504

MAY SNYDER, RESPONDENT, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, APPELLANT.

No. 5284.

Springfield Court of Appeals. Missouri.

June 18, 1934.

Appeal from Dunklin County Circuit Court. — Hon. John A. McAnnally, Judge.

REVERSED AND REMANDED.

Langdon R. Jones and Orville Zimmerman for appellant.

T.R.R. Ely, Bradley & Bradley and Tom Ely for respondent.

BAILEY, J.

This is a suit by an only surviving parent to recover damages for the death of her infant daughter, based upon the alleged failure of defendant to provide transportation and hospital service for said child. The petition states that defendant railroad runs through the town of Malden in Dunklin County; that when the cause was originally filed plaintiff's husband, Otto Snyder, was a party plaintiff, but that her husband has since died and that plaintiff is the surviving parent; that Fannie Snyder, at the time of her death, was two years of age, and a dependent member of the family of plaintiff and her said husband; that Otto Snyder, the father of Fannie, was, on the 26th day of March, 1930, and for a long time prior thereto had been, an employee of defendant railroad company working as a member of the section crew out of Malden, Missouri; that, under the rules of defendant, its employees were required to pay defendant a certain portion of their monthly wages for hospital purposes, which deductions were regularly made from the wages of said Otto Snyder; that by reason thereof defendant was obligated to extend hospital services and medical attention to said Otto Snyder and to furnish surgical treatment when necessary to members of the family of said Otto Snyder; that defendant had in its employ one Dr. Homer Beall, as district surgeon at Malden, whose duty it was to provide for surgical treatment for dependent members of the employees of defendant railroad; that about March 28, 1930, while Otto Snyder was an employee and paying his dues, as aforesaid, Fannie Snyder, his infant daughter, become stricken with a disease or infection known as "noma;" that plaintiff immediately called said Dr. Beall, defendant's district physician, and that Dr. Beall undertook to diagnose the affliction of Fannie Snyder in consideration of the duty defendant owed its employees as aforesaid; that plaintiff and her husband Otto Snyder relied upon defendant through its said district surgeon to diagnose the ailment of Fannie Snyder and determine if surgical treatment was necessary; that defendant, through its agent and servant Dr. Beall, failed to exercise ordinary care in making the diagnosis of the disease with which Fannie Snyder was suffering and neglected, failed and refused to send the said Fannie Snyder to the hospital for surgical treatment, so that, because of such negligence, the said Fannie Snyder died on the 23rd day of December, 1930.

It is further alleged that the station agent at Malden refused transportation to send the child Fannie Snyder to a hospital upon the refusal of Dr. Beall to approve the issuance of such transportation; that because of the negligent acts of defendant there was a delay in getting Fannie Snyder to a hospital and plaintiff and her husband were compelled to send her to a private hospital where she died, as aforesaid, because of said acts of negligence on the part of defendant's said agents. Judgment was asked in the sum of $10,000. On trial to a jury the issues were found for plaintiff and the jury returned a verdict in the sum of $1000. From the judgment entered thereon defendant has appealed.

Error is assigned first because the trial court overruled defendant's demurrer to the petition. This point was abandoned by the subsequent filing of an answer on the part of defendant. [Binswanger v. Employers, etc., Corporation, 224 Mo. App. 1025, 28 S.W. (2d) 448.] We are of the opinion, however, that the petition is good, particularly after verdict. It has been held that an association or trust, such as we have in this case, though having a separate charter, is the alter ego of the railroad company, or at least its agent, and that the railroad company is liable for the negligence of said association or trust. [Phillips v. Railroad, 211 Mo. 419.] After the demurrer was overruled, defendant filed an answer consisting of a general denial; and it was further pleaded that Dr. Beall was not in its employ on the dates alleged in the petition; that defendant owed no duty to plaintiff or her daughter Fannie Snyder, because Otto Snyder was, on the dates alleged, an employee of defendant as a section workman; that Dr. Beall was an employee of the staff of a hospital trust of which defendant is trustee without compensation; that under the terms of said trust agreement defendant as trustee and as a railroad corporation is not responsible for the negligence of any employee thereof.

It is trenuously urged that the demurrer to the evidence offered at the close of the whole cause should have been sustained. This requires a review of the evidence and in passing on the demurrer this court will follow the well-settled rule that plaintiff's evidence is to be accepted as true and she is entitled to the benefit of all evidence in her favor together with such inferences as may reasonably be drawn therefrom. [Clower v. Fidelity-Phoenix Fire Ins. Co., 296 S.W. 257, 220 Mo. App. 1112.]

At the time of the trial Otto Snyder was dead, but his deposition was offered and read to the jury. He testified that he was the father of Fannie Snyder; that she took sick on the 28th day of March, 1930; that he was employed by the Cotton Belt (which is defendant railroad); that he belonged to the hospital association and paid his dues; that on the 28th day of March, Dr. Beall was the railroad physician at Malden; that Fannie was a little over two years old; that he called Dr. Beall on March 28th; that he came to see the little girl twice and that he took her three times to Dr. Beall's office; that she was home from the 28th day of March to the 12th day of April, (1930). He further testified as follows:

"I went down after Dr. Beall; he shook his head, said he didn't see as he could do any more for that child, and I went back and got Dr. Van Cleve; he come down and said the only thing to do any good in the world would be an operation to cut that out, and I went back to Dr. Beall and he told me to get ready and he would send her that night to the hospital, and when night come I met Mr. Stroup at the carhouse; Mr. Stroup met me and he said `Now, I haven't got my book here' but he says `I'll be up there at 8 o'clock,' and he was, and I think he missed it about two minutes; and when I went in, why Mr. Beall set there with his head down — He set there with his head down and said `I've sent them down there and they send them back therefore I won't send her down there, for they have given orders — I don't know why.' He said he wouldn't send her down because it would give him a black eye. After he refused to send her to the hospital I went back to Dr. Van Cleve. I did not get her into the hospital until the 12th of April, and my wife and I went with her. She stayed in the hospital about three weeks. Old Dr. Bartlett and Dr. Weber waited on her. They operated on her three times — I'm going to be honest and frank with the world — they didn't cut much at the time for they couldn't, she was so sick; they had to use my blood to build her up; they gave her five transfusions of my blood. Dave Baby furnished me my transportation to the hospital."

He further testified that he personally paid Dr. Beall for one of the calls but not for the others, but intended to do so.

Mrs. Snyder, the plaintiff, testified that Fannie took sick on the 26th of March but that Dr. Beall did not come to see the child until the 28th; that in the meantime they called a Doctor Mitchell, who pronounced her trouble as "flu" and a little sore throat; that when Dr. Beall came he, "looked at the baby he said, `Well, I am certain that will have to be removed.' He said it was an abscess of the gland and the quicker we could poultice that and bring it to a head the better it would be for the baby. And that is what I did. He told us to get antiphlogestine and keep a plaster on her face and that is what we done. Dr. Beall didn't stay very long. He refused to return to see the baby. I went with our baby to his office, on Wednesday after the 28th of the month. He didn't say what was the matter with the baby at that time. He taken a solution and fixed some cotton on a swab stick and mopped out her throat; just mopped out a mouthful of corruption with a bad odor. That infection was on the inside of the mouth and on the outside too before it was over with; of course the jaw swelled up but the corruption and blood came from the inside first. We taken the baby five times to the office but of course I didn't make all the trips myself.

"The doctor told us to swab her throat every three hours; I taken her on Wednesday, and on Thursday morning to see if we were getting along all right in cleaning that out, and he didn't mop her throat out that morning at all but of course he gave a solution for us to use in her mouth."

She further testified that afterwards, on April 12th, they took the child to the Baptist Hospital in St. Louis and she stayed there with the child until April 28th; that on the day they arrived in St. Louis the doctors at the hospital either, "burned it out or cut it out; they had done away with the rotten flesh." She returned home to Malden and thereafter went back to St. Louis on May 19th. At that time, she testified, that the face of the child had healed considerably and better than she had thought it would be. Plaintiff saw her child no more until after its death, which occurred December 23, 1930.

Dr. John Van Cleve, who was called to examine the child after Dr. Beall had decided he could do no more, lived at Malden and was a regular practicing physician. It is upon his testimony plaintiff largely...