State ex rel. Tiffany v. Ellison

• Decision Date: 09 February 1916
• Parties: THE STATE ex rel. FLAVEL B. TIFFANY et al. v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

182 S.W. 996

266 Mo. 604

THE STATE ex rel. FLAVEL B. TIFFANY et al. v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

February 9, 1916

Record quashed.

Fred A Boxley, Denton Dunn and Scarritt, Scarritt, Jones & Miller for relators.

(1) The legal relation of Dr. Howard to plaintiff, as well as to Dr Tiffany, upon this record was that of an independent contractor and therefore, the demurrer of Dr. Tiffany should have been sustained on that ground. Plaintiff's evidence shows Dr. Tiffany never treated her nor was he present at such treatments. Hillsdorf v. St. Louis, 45 Mo. 95; Myers v. Holborn, 58 N. J. 193; Keller v Lewis, 65 Ark. 578; Pearl v. Railroad, 176 Mass. 177; Hagarty v. Railroad, 100 Mo.App. 424. (2) The ruling of the Court of Appeals justifying the admission of the testimony of the deputy sheriff as to Dr. Howard's momentary silence, his lack of an instantaneous and smart repartee, to the remark of a young girl upstairs, and giving to it the probative effect of an admission on the part of Dr Howard that he put iodine in plaintiff's eye and thereby put it out, is grievous error and runs counter to the decisions of this court. State v. Hamilton, 55 Mo. 520; Phillips v. Towler, 23 Mo. 401; State v. Young, 99 Mo. 666; Bank v. Nichols, 43 Mo.App. 385; Adams v. Railroad, 74 Mo. 553; Wojtylak v. Coal Co., 188 Mo. 260; Greenleaf on Evidence (16 Ed.), sec. 198; Larry v. Sherburne, 2 Allen (Mass.), 34; Whitney v. Holton, 127 Mass. 527; Carter v. Buchannon, 3 Ga. 513; Newman v. Commonwealth, 28 Ky. L. Rep. 81.

W. M. Williams, Atwood & Hill and Park & Brown for respondents.

(1) We are confronted with a proposition which the Court of Appeals was not called upon to decide, and as to which there is no ground of conflict between the decisions of the Court of Appeals and this court. In the brief filed in the Court of Appeals the point was not raised that Dr. Howard was an independent contractor or that Dr. Tiffany was not plaintiff's physician. We will allow the defendants to answer this question themselves. Dr. Tiffany told plaintiff that plaintiff was in fact his patient. Dr. Howard testified that he assisted Dr. Tiffany when the latter was in the city and attended to his practice when he was out of the city. At the time of these occurrences in February, 1909, he says he was employed upon a salary by Dr. Tiffany and acted for him in his stead during his absence. Dr. Tiffany says: "My assistant, Dr. Howard, and the office girl gave me a little history of the case." The Court of Appeals finds that Dr. Howard was merely the agent of Dr. Tiffany, and this is strictly in accord with Logan v. Weltmer, 180 Mo. 332, where it is held that a physician is liable for the negligence of his salaried assistant. (2) The testimony of deputy sheriff Wofford was admissible. There is no conflict whatever between the ruling of the Court of Appeals and either of the cases cited by defendant. The Court of Appeals could not have ruled otherwise in view of rulings in similar cases, viz., State v. Lovell, 235 Mo. 353; State v. Burk, 234 Mo. 578; State v. Walker, 78 Mo. 388; Nelson v. Nelson, 90 Mo. 463. This court has never in similar circumstances excluded the implied admission, but has always held that where a declaration affecting a party's interest has been made to such party by one immediately concerned upon a matter of which the party has personal knowledge the party's silence is an acquiescence implying an admission of the truth of the declaration. It is no objection that the admission may be in the form of a conclusion of fact. Sparr v. Wellman, 11 Mo. 230; Brookfield v. Drury College, 139 Mo.App. 339. Where a party is charged with a wrong, under circumstances which would naturally require an innocent man to speak, his silence is taken as an implied admission. There are no decisions of this court distinctly on the point, but we call attention to the following decisions of courts of high authority: Cross Lake Logging Co. v. Joyce, 83 F. 991; Given v. Railroad, 24 Ky. L. R. 1796; Sumner v. Gardiner, 184 Mass. 433; Va. Chem. Co. v. Kirven, 130 N.C. 161; In re Snowball's Estate, 157 Cal. 310. Implied admissions in the nature of conclusions were received in Puett v. Beard, 86 Ind. 107; Oliver v. Railroad, 43 La. Ann. 804; Holston v. Railroad, 116 Ga. 658; Smith v. Duncan, 181 Mass. 435. The declaration of Rose McAllen was made in the ordinary course of her business and duty to defendant Tiffany and was receivable against him. Miss McAllen, the declarant, was in charge of the office of defendants. She was the medium of communication between plaintiff and Dr. Tiffany. She received the plaintiff, introduced her to Dr. Howard, made the notations in the book, and kept the records of the office. In other words, she was the recording officer of defendants' business. Defendant Tiffany, the owner of the business and the prospective recipient of a healthy fee, was not personally attending to his practice but was off on a pleasure trip, leaving Dr. Howard to attend to the professional work, and Miss McAllen to keep the records and attend to the business. On Dr. Tiffany's return and the consultation which occurred February 16, 1909, it was Miss McAllen's record which was examined. After a prima-facie agency has been shown, declarations of the agent made in the prosecution of the agency are admissible against the principal. Peck v. Ritchey, 66 Mo. 114; Northrup v. Insurance Co., 47 Mo. 435; Phillips v. Railroad, 211 Mo. 419; Hilbert v. Railroad, 20 Idaho 54; Railway Co. v. Rhodes, 121 P. 769; Anvil Mfg. Co. v. Humble, 153 U.S. 540; Hall v. Herter Bros., 90 Hun, 280, 35 N.Y.S. 769; Express Co. v. Harris, 120 Ind. 73; Transportation Co. v. Leyson, 89 Ill. 43; McGowan v. Supreme Court, 104 Wis. 173, 185.

GRAVES, J. Woodson, C. J., and Faris and Blair, JJ., concur; Walker, J., dissents in opinion filed; Bond, J., dissents; Revelle, J., not sitting.

OPINION

In Banc.

Certiorari.

GRAVES J.

-- Original action in certiorari, the purpose of which is to have quashed and for naught held, the judgment of the Kansas City Court of Appeals, affirming a judgment of the circuit court of Jackson county in the case of Mary Coffey v. Flavel B. Tiffany and Joseph W. Howard. In the circuit court the judgment was originally for $ 10,000, but for some reason not made clear by the record, the plaintiff voluntarily remitted principal and interest so as to make the judgment after remittitur just $ 7500. The appeal thereupon went to the Kansas City Court of Appeals. This is one of a series of cases in certiorari pending in this court about the time the case of State ex rel. v. Robertson, 264 Mo. 661, 175 S.W. 610, was set for hearing. As a result, in the Robertson case, supra, we were accommodated with a wealth of briefs in an insignificant case, and among these were briefs and arguments from counsel in the case at bar. These of course went largely to the question of the jurisdiction of this court. We state this because we have in this case extended briefs upon the same question. The Court of Appeals affirmed the judgment of the circuit court, and in so doing it is charged that such court has ignored the last rulings of this court upon several questions therein involved. These questions we can take, so far as necessary, in proper order. The facts pertinent to each question had best be stated therewith.

I. Since the case of State ex rel. v. Broaddus, 238 Mo. 189, 142 S.W. 340, it has been the custom of counsel to attack that ruling at each change in the membership of this court. The briefs upon the question of jurisdiction in the case at bar were prepared at a time when a very vigorous attack was being made upon the right of this court to quash the record of the Court of Appeals in a case wherein their pronouncement upon a given question of equity or law was at variance with the last previous rulings of this court. This virulent attack was the occasion of bringing into prominence the very small matter in issue in case of State ex rel. v. Robertson, 264 Mo. 661, 175 S.W. 610. In that case the question of the right of this court to thus superintend the several courts of appeals, was fully, and we trust finally, settled. With the ruling in the Robertson case, supra, we are satisfied, and this question as argued in the briefs and oral arguments in the case at bar is ruled against the respondents. We hold, as we did, in the Robertson case, supra, that this court has the constitutional authority to quash the judgment of the Court of Appeals in any case wherein such judgment has been the result of a refusal by such Court of Appeals to follow the last previous ruling of this court upon any matter of law or equity involved in such case. The members of this court may differ and be divided upon what we will consider in determining whether or not the Court of Appeals has failed to follow our last previous rulings, but we are firmly fixed upon the question of our constitutional authority to act, and in the interest of harmony and unanimity of opinions in this State, it would be almost criminal negligence for this court to decline to use the authority expressly given, and perform the duty thus imposed. We can add nothing upon this question to what was said in the Robertson case, supra, and pass the question with a re-affirmance of the doctrine announced in that case.

II. In the disposition of this case, as I see the law, it will not be necessary to tread upon any disputed grounds. In other words, we can confine ourselves to the facts found by the Court of Appeals in its opinion. By this we mean that where the court has undertaken to state the facts, we can presume that it has stated all the facts of record upon the question in issue. This we can do because...