Trout v. Watkins Livery and Undertaking Company

• Decision Date: 31 May 1910
• Citation: 130 S.W. 136,148 Mo.App. 621
• Parties: EUGENIA V. TROUT, Appellant, v. WATKINS LIVERY AND UNDERTAKING COMPANY, Respondent
• Court: Missouri Court of Appeals

130 S.W. 136

148 Mo.App. 621

EUGENIA V. TROUT, Appellant, v. WATKINS LIVERY AND UNDERTAKING COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

May 31, 1910

Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Williams Judge.

Judgment reversed and cause remanded.

John E Turner and Joseph A. Wright for appellant.

(1) The cause of action was properly pleaded, it being in tort and arising from a breach of a contractual obligation. Everett v. Railroad, 214 Mo. 54; O'Brien v Transit Company, 212 Mo. 59. (2) Without the contractual relation existing between the parties, the critical condition of the appellant's health, of itself, imposed an obligation on respondent commensurate with the dangers to which she was exposed. Depue v. Flateau (Minn.), 111 N.W. 1; Ploof v. Putnam (Vt.), 71 A. 189. (3) Although a livery stable keeper is not a common carrier for hire, he is nevertheless liable for his negligence. Siegrist v. Arnot, 10 Mo.App. 197; Siegrist v. Arnot, 86 Mo. 200; Lemon v. Chanslor, 68 Mo. 340; Jaminet v. Storage and Moving Company, 109 Mo.App. 257; Livery and Undertaking Co. v. Busson, 58 Ill.App. 1; Fisher v. Tyron, 15 Ohio C. C. 541; Lewark v. Parkinson, 73 Kas. 533, 5 L. R. A. (N. S.) 1069. (4) The appellant is also entitled to recover the amount paid by her for the carriage. Lewark v. Parkinson, 73 Kas. 553, 5 L. R. A. (N. S.) 1069; Gatzow v. Buening, 106 Wis. 1, 49 L. R. A.; Norrington v. Wright, 115 U.S. 188. (5) The court erred in refusing to admit evidence as to the plaintiff's illness, and prior and subsequent health. Walsh v. Railroad, 102 Mo. 582; Weisse v. Remme, 140 Mo. 289; Railroad v. Hyatt, 12 Tex. Civ. App. 435, 34 S.W. 677; Looran v. Railroad, 6 N.Y.S. 504; State v. Main, 69 Conn. 123; Boucher v. Larachelle, 68 A. (N. H.) 870.

S. T. G. Smith for respondent.

OPINION

NORTONI, J.

--This is an action for damages alleged to have accrued through a breach of a contract of carriage. At the conclusion of the evidence for plaintiff the court instructed a verdict for defendant and plaintiff prosecutes the appeal.

For the information of those who may care to examine it, we set forth the petition, which, omitting caption, is as follows:

"Plaintiff for her cause of action against defendant, states:

"That defendant is now and was at all times hereinafter mentioned, a corporation, duly organized and existing under the laws of the State of Missouri and engaged in the livery business and of supplying carriages for hire, in the city of St. Louis, State of Missouri.

"That on our about the 12th day of February, 1908, and while plaintiff was at the Evangelical Deaconess Hospital, at the northwest corner of Sarah street and West Bell avenue, in the city of St. Louis, Missouri, where she had been under treatment for sickness, plaintiff and defendant entered into a contract by the terms of which defendant agreed in consideration of $ 2, then and there paid by her to defendant to convey her in a carriage from the said hospital to her home, at No. 5551 Greer avenue, in the city of St. Louis, Missouri.

"That on said date the plaintiff entered defendant's carriage thus contracted for, and defendant, by its agent and servant, the driver thereof, undertook and started to take and convey the plaintiff to her said home, and that at or near the corner of Terry and Clara avenues, in the said city of St. Louis, Missouri, the said defendant, through its agent and servant, the said driver, and while acting within the scope of his duties, stopped the horses and then and there willfully and wantonly, and in breach of its said contract, stopped said carriage and abandoned its said contract, and refused to convey plaintiff any further, and left the plaintiff at said point. That at the time of making of said contract and while the plaintiff was being driven to her home, and at the time of the abandonment of said journey, defendant knew that the plaintiff was sick, was incapable of caring for herself, on account of her illness and of the dangers to which she would be exposed by reason of the abandonment of said contract.

"That by reason of the said willful and wanton acts of the defendant, plaintiff became seriously sick and ill; that she has suffered, and will in the future suffer great pain of body and mind; she has incurred and become obligated for and will in the future incur and become obligated for large expense for medical services, medicines and nursing, all to her damage in the sum of $ 2200.

"Wherefore, premises considered, plaintiff prays judgment against defendant for the sum of $ 2200 actual damages, and for the said sum of Two ($ 2) Dollars, which plaintiff alleges defendant has not refunded and is still due her and unpaid, and for the sum of $ 2200 as punitive or exemplary damages, to serve as a warning to others against the perpetration of like or similar acts."

It appears plaintiff, who is a widow, had recently undergone an operation for appendicitis in the Evangelical Deaconess Hospital and, having recuperated sufficiently, engaged defendant, who is a liveryman, to convey her to her home in the northwest part of the city. We gather from the testimony that plaintiff resided about fifty-six hundred west and thirty hundred north in the city of St. Louis. At the time in question, the streets in that part of the city were not sufficiently improved to prevent an accumulation of mud and pools of water during the wet season. Plaintiff underwent the operation for appendicitis in the latter part of January and had been confined in the hospital about three weeks as a result thereof when the physician in charge advised she was sufficiently recovered to return home. Upon being so advised, she caused an attendant at the hospital to communicate to the defendant livery company that she desired to be conveyed by them in a carriage to her home. At the time appointed, defendant sent one of its carriages in charge of a colored driver to the hospital and plaintiff paid him two dollars in advance for the transportation to her residence, giving the number. Plaintiff was assisted down the steps of the hospital and to the carriage by a nurse and her sister. Upon entering the carriage she personally paid the driver and he was instructed as to her destination. After having progressed to within five or six blocks of plaintiff's residence the driver stopped the carriage and notified her that it would be impossible for him to complete the journey in view of the muddy condition of the streets. It appears the carriage employed was inclosed and had swinging doors on either side. Furthermore, it was a heavy vehicle the bottom of which approached to within fourteen inches of the ground. For a considerable distance, and indeed all of the way, except the last few blocks, the streets were solid enough but, as stated, the streets were unmade and muddy for probably six or eight blocks of the road next to plaintiff's residence. The carriage had passed through several mud holes of considerable proportions when the driver notified plaintiff and her sister that he would not complete the journey.

Having reached a point five or six blocks distant from plaintiff's home, the driver opened the door of the carriage and notified both plaintiff and her sister that because of the condition of the streets he would not further proceed and inquired if plaintiff could not walk the remainder of the way. At this time both plaintiff and her sister informed him that it was utterly impossible for her to walk in view of the enfeebled condition entailed by her sickness and the operation which had theretofore been performed. Besides so informing the driver, they suggested that he might procure another conveyance and complete the transit. On this suggestion being made, the driver left them in the carriage and repaired to a telephone where, as he said, he communicated the situation to his employer, the defendant. After having communicated with defendant over the telephone, the driver returned to the carriage and informed plaintiff and her sister that the "boss" said for him to return them to the hospital and not attempt to proceed further through the mud. This alternative being presented, both plaintiff and her sister objected and said that in view of plaintiff's sick and enfeebled condition she was not able to take the long drive back to the starting point. It seems plaintiff was suffering more or less at the time from the frequent jars and jerks received in the transit. Plaintiff and her sister again requested the driver to procure a lighter conveyance and continue the journey as it would be impossible for plaintiff in her condition to return to the hospital. At the conclusion of the conversation, the driver repaired a second time to the telephone and consulted his employer as to what should be done in the premises. He returned in a few minutes and informed plaintiff that the "boss" said for him to bring plaintiff to defendant's livery barn and there transfer her into a storm buggy by means of which she would be conveyed to her home. Plaintiff and her sister again told the driver that the same reasons would prevent her from returning with him to the livery barn that prevailed against returning to the hospital; that is to say, that her condition was such she was unable to withstand the strain of the trip. It was insisted the driver should complete the conveyance from that point to plaintiff's home by some other means but the driver answered he couldn't do anything but take the parties back to the livery barn as suggested.

There is testimony to the effect as well that the driver slammed the door of the carriage and addressed the ladies rather roughly in closing these negotiations. It appears after having thus twice insisted that some conveyance should be...