Swarens v. Pfnisel

• Decision Date: 07 April 1930
• Docket Number: 28565
• Citation: 26 S.W.2d 951,324 Mo. 1245
• Parties: John Swarens v. John Pfnisel et al.; Emma Amel, Appellant
• Court: Missouri Supreme Court

26 S.W.2d 951

324 Mo. 1245

John Swarens v. John Pfnisel et al.; Emma Amel, Appellant

No. 28565

Supreme Court of Missouri

April 7, 1930

Transferred from Kansas City Court of Appeals.

Reversed.

Frank Yeoman and L. A. Laughlin for appellant.

(1) The court erred in refusing the declarations of law asked by defendant which were to the effect that the alleged promise of Mrs. Amel to pay plaintiff, not being in writing, was void under the Statute of Frauds. 20 Cyc. 165; 27 C. J. 140, 142; Matson v. Wharam, 2 T. R. 80; Browne on Statute of Frauds (5 Ed.) sec. 197; 27 C. J. 144, sec. 30; McGaughey v. Latham, 63 Ga. 68; Bloom v. McGrath, 53 Miss. 25; Boykin v. Dohlonde, 37 Ala. 583; Reed on Statute of Frauds, sec. 85; Mathews v. Milton, 4 Yerg. 576; Wood on Statute of Frauds, sec. 126; 3 Kent Com. (6 Ed.) 123; Cahill v. Bigelow, 18 Pick. 369; Post v. Yeoghegan, 5 Daly, 216; Rottman v Fix, 25 Mo.App. 571; Osborn v. Emery, 51 Mo.App. 408; Glenn v. Lehnen, 54 Mo. 45; Price v. Ry., 40 Mo.App. 189; Penninger v. Reilley, 44 Mo.App. 225; Gill v. Reed, 55 Mo.App. 246; Frissell v. Williams, 87 Mo.App. 520; Galamba v Foundry Co., 191 S.W. 1084; Mueller v. Woodson, 198 S.W. 1134; Mitchell v. Davis, 190 S.W. 357; Waggoner v. Davidson, 189 Mo.App. 345; McClenahan v. Keyes, 188 Cal. 574, 206 P. 454; Johnson v. Bank, 60 W.Va. 320, 9 A. & E. Ann. Cases 893; Rankin v. Beal, 68 Mo.App. 325. (2) All the evidence obtainable regarding the alleged promise being before the court, the judgment of the lower court should be reversed without remanding. Note in 9 Am. & Eng. Ann. Cas. 893; Waggoner v. Davidson, 189 Mo.App. 345; Rottman v. Pohlmann, 28 Mo.App. 407.

Charles H. Thompson for respondent.

(1) The agreement of A to pay B for services to be rendered C is an original undertaking and need not be in writing and is not a contract within the Statute of Frauds to answer for the debt of another. Mitchell v. Davis, 190 S.W. 357; Powell Lumber Co. v. Dalton (Mo. App.), 185 S.W. 530; Dyer v. Griffith (Mo.), 261 S.W. 100; Sinclair v. Bradley, 52 Mo. 180; Beeler v. Finnel, 85 Mo.App. 438; Haynes v. Johnson, 141 Mo.App. 506; Gainsville Hospital Assn. v. Hobbs, 153 N.C. 188, 69 S.E. 79; 27 C. J. 144, sec. 30. (a) The decisive test applied in such cases is: To whom was the credit given in the first instance? The question is determined by the facts and circumstances surrounding the parties at the time. Stocks v. Mills, 171 Mo.App. 638; Wittenberg v. Fisher, 183 Mo.App. 347; Rottman v. Pohlmann, 28 Mo.App. 399; K. C. Sewer Pipe Co. v. Smith, 36 Mo.App. 608; Rubey Trust Co. v. Weidner, 174 Mo.App. 692. (b) The fact that a book charge is made in the name of the party for whom the services are rendered, is a circumstance bearing on the question, to whom was the credit given, but is not conclusive. Newton Grain Co. v. Pierce, 106 Mo.App. 200; Rubey Trust Co. v. Weidner, 174 Mo.App. 692; 27 C. J. 386, sec. 481; Galamba v. Pump Co. (Mo. App.), 191 S.W. 1084. (c) The fact that the party for whom the services are rendered may be liable therefor, or has been sued therefor, is a circumstance to be considered, but is not conclusive of the question, to whom was the credit given. Powell Lumber Co. v. Dalton (Mo. App.), 185 S.W. 530; Haynes v. Johnson, 141 Mo.App. 506; Mitchell v. Davis, 190 S.W. 357; Hill Bros. v. Bank, 100 Mo.App. 230; Gainsville Hospital Assn. v. Hobbs, 153 N.C. 188, 69 S.E. 79; Chick v. Coal Co., 78 Mo.App. 234; Edwards v. Mfg. Co., 204 S.W. 545; 30 Cyc. 1596. (2) The court did not commit error in refusing to approve appellant's instructions. Kron Livery Co. v. Weaver, 280 S.W. 54; Galamba v. Harrisonville Co., 191 S.W. 1084; Moore v. McHaney, 178 S.W. 258; Martin v. Harrington, 161 S.W. 275; Illinois Fuel Co. v. Railroad Co., 8 S.W.2d 840.

OPINION

White, J.

The judgment in this case, rendered in favor of plaintiff in the Circuit Court of Jackson County, on appeal to the Kansas City Court of Appeals was reversed and the cause was certified to this court on the ground that the ruling was in conflict with Mitchell v. Davis, 190 S.W. 357, by the Springfield Court of Appeals. We adopt the statement of the facts and the conclusions reached by the Kansas City Court of Appeals, as follows:

"This is a suit in two counts, arising in a justice court, for the reasonable value of medical services rendered to the defendant, John Pfnisel, from February 15, 1924, to June 14 1924. The first count prays judgment in the sum of $ 377 for medical services rendered by plaintiff, and the second count prays judgment in the sum of $ 50 for surgical services rendered to Pfnisel by Dr. J. F. Mackey on April 30, 1924, at the request of the defendants, Dr. Mackey's account being assigned to plaintiff. The justice rendered judgment against both defendants for the full amount prayed, and the defendant Mrs. Amel alone appealed to the circuit court. The case was tried in the latter court without the aid of a jury, resulting in a judgment against Mrs. Amel on both counts for the full amount prayed, and she has appealed.

"The facts show that plaintiff is a physician residing in Kansas City, Missouri, and that Dr. Mackey is a surgeon of that city; that defendant Emma Amel is a widow and cousin of John Pfnisel who boarded with her; that on February 15, 1924, Pfnisel was severely burned in a gasoline explosion occurring at the cleaning establishment where he worked; that he was taken to the City Hospital and Mrs. Amel, upon learning of the accident, called at the residence and office of plaintiff and finding plaintiff away told his wife that she desired plaintiff to accompany her to the City Hospital for the purpose of bringing Pfnisel home; that she wanted plaintiff to treat him, stating that she would pay the bill. When plaintiff returned home his wife told him of Mrs. Amel's call and request, and he went to her house. Plaintiff testified that he found 'that the insurance company' had taken or sent Pfnisel to the Research Hospital and that he was too ill to be removed. Later, plaintiff testified that he did not know that Pfnisel 'had insurance until some time after he was in the hospital.' Plaintiff further testified that during the next week or two he made other trips to the hospital at Mrs. Amel's request and reported to her that Pfnisel's condition prevented his being taken home; that later Mrs. Amel went to plaintiff and stated that Pfnisel was likely to die and she wanted him removed to St. Mary's Hospital and there cared for by plaintiff, and stated again that she would pay plaintiff; that plaintiff and Mrs. Amel went to St. Mary's Hospital, at which place she made arrangements to have Pfnisel transferred, and for care and treatment by plaintiff, but Pfnisel refused to be moved.

"Plaintiff further testified that on March 18, 1924, Mrs. Amel went to plaintiff and stated that Pfnisel was able to be moved and that she wanted him taken to her home where she could take care of him and plaintiff could attend him, stating that she would pay plaintiff; that on that day Pfnisel was taken by plaintiff and Mrs. Amel to the latter's home where he treated him every day for about three months; that plaintiff did not attend Pfnisel at the Hospital, but that he was treated there by an 'insurance doctor;' that it became necessary to amputate Pfnisel's thumb and finger, and Mrs. Amel authorized plaintiff to employ Dr. Mackey, a surgeon, to perform the operation and agreed to pay the sum of $ 50 for Dr. Mackey's services; that Mackey performed this service, and before this suit was brought Dr. Mackey assigned his account to plaintiff.

"Plaintiff further testified that Pfnisel did not employ him on February 15, 1924, because when he and Mrs. Amel went to the hospital Pfnisel was unconscious, and that Pfnisel did not at any other time say anything to plaintiff about employing him; that he did not charge Mrs. Amel on his books for these services, but made the charge solely against Pfnisel, and he explained this by saying that he was employed by several companies to treat their employees and that he always made the charge on his books against the employee treated, although he intended to charge the companies themselves for his services. The evidence shows that Pfnisel's employer carried liability insurance, and Pfnisel engaged an attorney to proceed against the employer for the damage that he had suffered. Plaintiff testified that he never rendered a bill to Mrs. Amel at any time, but about the time his attentions to Pfnisel ceased he asked her for the money and she told plaintiff 'that there was some insurance, some way or other;' that at her request he delivered jhis bill made out to Pfnisel to Pfnisel's attorney for payment. Pfnisel testified that he regarded the bill as too large, and offered to pay $ 100 in settlement thereof, which offer was refused by plaintiff. The insurance company settled with Pfnisel, but the doctor's bill was never paid either by Pfnisel or Mrs. Amel. Plaintiff testified that Mrs. Amel told him to take his bill to an attorney, who the testimony shows was Pfnisel's attorney, stating that a settlement was likely to be made 'on the insurance.' Plaintiff stated in sursurrebuttal that 'I didn't know who had the insurance -- who it was for.' Pfnisel testified that plaintiff never asked him to pay the bill. We take his testimony as meaning that plaintiff did not request him personally to pay it. Of course, all the testimony shows that plaintiff requested Pfnisel's attorney to pay it.

"While Mrs. Amel admitted that she showed a great interest in Pfnisel after the accident, and in fact that she did most of the things testified to by plaintiff that she did, she denied that she promised to pay plaintiff for his or Dr. Mackey's services to be rendered to Pfnisel.

"While no claim is...