State v. Kelly

• Decision Date: 11 September 1940
• Docket Number: No. 25319.,25319.
• Citation: 142 S.W.2d 1091
• Parties: STATE ex rel. COOK v. KELLY et al.
• Court: Missouri Court of Appeals

142 S.W.2d 1091

STATE ex rel. COOK v. KELLY et al.

No. 25319.

St. Louis Court of Appeals. Missouri.

September 11, 1940.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Mandamus proceeding by the State of Missouri, at the relation of Francis G. Cook, against Edward Kelly, as president, Harold Meier, as vice president, Walter Schmidt, as secretary, Clyde Pepper, as secretary, James Nix and others, as trustees, and John H. Glassco and others, all comprising the Executive Committee of the St. Louis Police Hospital Association, a corporation, and the St. Louis Police Hospital Association, a corporation. From a judgment making permanent an alternative writ of mandamus, respondents appeal.

Reversed, and judgment directed in favor of defendants.

McDonald, Bartlett & Muldoon, of St. Louis, for appellants.

Dubinsky & Duggan, of St. Louis, for respondent.

HUGHES, Presiding Judge.

Respondents appeal from a judgment of the circuit court of the City of St. Louis making permanent an alternative writ of mandamus directed to the respondent St. Louis Police Hospital Association, a private benevolent corporation, and its officers. The Association was incorporated in 1932 under the provisions of Article 10 of Chapter 32 of the Revised Statutes of Missouri, 1929, Mo.St.Ann. § 4996 et seq., p. 2288 et seq., entitled, "Benevolent, Religious, Scientific, Fraternal-Beneficial, Educational and Miscellaneous Associations," and the purpose of the Association is set forth in sections 1 and 2 of Article 6 of the by-laws as follows:

"Section 1. The sole purpose for the establishment of this association is to pay the expenses of the hospitalization of its members. This association does not assume responsibility for the payment of the doctor bills of its members, whether they be for office or hospital treatment, with the exception that where a member requires immediate attention this association will defray the emergency expenses not to exceed $10.00; any amount in excess of $10.00 must be borne by the member, who will have the privilege of making application to the Honorable Board of Police Commissioners for reimbursement."

"Section 2. Where members of the Association are injured or become ill while on or off of active duty or where major or minor operations are necessary, if in the opinion of the attending physician it is deemed necessary that the member be sent to a hospital, the Department Physician shall exercise the privilege of diagnosing the case to ascertain the member's condition and if same warrants his hospitalization. This Association will defray the hospital expenses under the provisions of Section No. 1 of this Article."

Membership in the Association is provided for by Sections 1 and 2 of Article 1 of the by-laws, as follows:

"Section 1. Membership in this Association shall be open to all members of the St. Louis Metropolitan Police Department, including all civilian employees thereof, both men and women. Any such member or civilian employee of the said Department may become a member of this Association by filing an application therefor, subscribing to the articles of Association and these by-laws, and paying the initiation fee and dues as hereinafter provided."

"Section 2. Any member of this Association resigning or being dismissed from the said Department or being retired therefrom, by the Police Pension Board, established by law, shall forfeit membership in this Association and all the benefits thereunder, provided that such resignation, dismissal or retirement shall not relieve such member of his liability to this Association for any amounts due this Association at the time of such resignation, dismissal, or retirement; provided further, that in the case of any member who is at the time of such retirement a patient in an Association hospital. Such member shall be entitled to all the benefits of membership herein until discharged from said hospital, upon recommendation of the Association surgeon."

The facts, which are not in dispute, are that the respondent, Francis G. Cook, was appointed to the St. Louis Metropolitan Police Department on October 30, 1933, and at or about the same time applied for membership in the Association, and upon payment of the requisite initiation fee and dues, became a member, and was a member in good standing on April 5, 1937. On the evening of April 5, 1937, while off duty, Cook went to the home of a girl friend, whom he describes as his fiancee. While there he met Thomas, alias "Gudgy" Gunn, whom he had known for some time. The three spent sometime together at the girl's home and then Gunn, who was intoxicated, started to leave for a saloon at about Fifteenth and Cass Avenue. Cook offered to drive Gunn's car to the saloon. Upon arrival there Gunn urged Cook to have some drinks with him, but Cook declined and remained outside while Gunn went in to the bar. Then Cook's fiancee, who had followed the two in her automobile, drove up and Cook left with her. After one or two stops Cook and the girl arrived at her home. After a time Cook started to leave for his home to get some rest and change clothes before going on duty. As he left the girl's house Gunn, who had followed them, confronted him and reproached him for refusing to drink with him and with leaving him. Without further words Gunn shot Cook. There was no evidence that Cook was attempting to arrest Gunn or was otherwise acting in the performance of any duty as a police officer.

As a result of the injuries received, Cook was paralyzed from the waist down, and was thereafter, and will be during the rest of his life, disabled from performing any police duty. At his own request he was taken to the De Paul Hospital, one of the appellant Association's approved hospitals, where all of his expenses of hospitalization were paid by the Association to December 10, 1938.

After Cook had been disabled and confined in the hospital for six months, his captain, pursuant to Rule 19, Section 296, "Police Manual of Rules and Regulations of the Metropolitan Police Department," which was adopted in conformity to Section 7547, R.S.1929, Mo.St.Ann. § 7547, p. 5992, reported that Officer Cook had been absent from duty for a continuous period of six months and recommended that a charge of physical disability be presented against the officer. Thereafter charges alleging that Cook was "physically incapacitated to perform the duties of a police officer" were filed before the Board of Police Commissioners; notice of the charges and of the hearing thereof was given to Cook; a hearing of the charges before the Board was held, at which Cook was not present, but was represented at his own request by Mr. Andrew Powers, a friend of his; Cook was found by the Board to be physically incapacitated as charged, and was ordered by the Board to "be dismissed from the force, he having been unable to perform duty for six consecutive months." These proceedings were all taken in accord with the "Police Manual."

On October 19, 1938, De Paul Hospital notified the Association by letter that it was contrary to the regulations of the hospital to continue indefinite hospitalization for a chronic patient, and calling on it for the removal of Cook.

On November 29, 1938, the Association surgeon recommended to the Association that Cook be discharged from the hospital. On receipt of this recommendation the Association notified the hospital of the recommendation of the Association surgeon, and that on and after December 10,...