*1 1923. Fitzporter. Parkell v. remanded,
The judgment is the cause reversed, for judgment with directions to the trial court to enter up Ann the defendants Cassie as well against Wombles, James T. All except her co-plaintiff. concur, Blair, who dissents. J., B. FITZ-
FRED v. ALONZO PARKELL, Appellant, L. PORTER and E. PRINTY. LOUIS Banc,
In November 1923. Identity PLEADING: Former of Action. 1. Suit: Causes identity of action in the the cause instant case and cause a former the fácts of action in suit rests answer, they upon the naked and not mere statement identical. Identity Adjudication: BAR TO of Causes: Same
2. ACTION: Former Injury. can satisfaction for the same demand. There he hut one damages present defendants for So that where sued the satisfied, judgment, personal which was for recovered plead and satisfaction in bar and defendants injury case, question is whether for'determination instant case is instant the same for he seeks damages in the case. former he recovered for which Injuries: Malpractice: Collision. -: Different -: -: 3. physician against' Judgment for in an action satisfaction causing negligently break strike malprac- subsequent for to a action crush his are not bar physician tice the same buckle, sewing up cinders dressing his broken causing mangled parts, parts in the wounds of his develop. gangrene inflammation, infection and acts; negligent same; they different not were were plaintiff and they grow between relation out of did separable. defendant; be un- It would action the causes contributory say illogical just malpractice. action would defeat collision -; -; Parties. If Different Evidence: -: Different action, required the two causes to sustain different evidence law, a new in an action they if Likewise the same. are not OF COURT severally, jointly intervened, a new party has either of. respect created. to satisfaction has been action Physician. who A chauffeur --(cid:127): Chauffeur: 5. -: -: *2 thereby upon plaintiff inflicts carelessly runs his guilty garter is" driven is buckle into which a metal a wound capacity wrong as independent wrong in his him done of the sewing ignorantly buckle physician inflammation, inducing. wound, thereby infection into the gangrene. City J. Court.—Hon. Circuit Appeal St. Louis Judge. Hugo Grimm, Reversed.
Bishop Albert E. Hcmsman Claiborne and & appellant. causing separately,
(1)
each
act
Persons who
jointly
(though
separate injury,
liable
cannot be made
time).
one
all
committed
thus inflicted
pars.
Ed.)
(5
Donato
De
1
&
122,123;
Redfield
Shearman
(2)
act
591.
Where tortfeasors
160 Mo.
Morrison,
v."
wrongs are
independently
each other
their several
tort
times,
each,
different
committed at
joint because
committed,
when
does not become
several
consequences
consequences
of the
with the
united
its
only
Each
extent
therefore,
other.
is
liable,
injury
235
himself. Staehlin
done
v. Hochdoerfer,
injures
(3)
1060.
The tortfeasor
S. W.
who
by running him
another
down with an
automobile,
physician
subsequently negligently
who
treats
joint
Each
liable
are not
tortfeasors.
for the extent
injury
only.
done
The causes of action are
identical.
v.
Ben-
Hochdoerfer,
Staehlin
235
1062;
S. W.
Judgment
(4)
son v. St.
Anderson, Gilbert &
Wolfort
party
Where a
suffers an
satisfac-
but one
many
tion can be had for that
how
matter
people in-
have caused or contributed to cause the
jury.
Dulaney
Cunningham,
Martin v.
v.
93 Wash. 517;
Almquist
173
Buffum,
137;
Mo.
1;
Wilcox, 1Í5 Minn.
Railways,
Injuries
State to use v:
case of Staehlin v. Hochdoerfer, 1060, S. W. does plaintiff. recovery by sanction a September 20, C. The
BROWN, filed 1919, and states, substance, at the mentioned times physicians surgeons engaged the defendants and practice profession city of their Louis, St. COURT OP MISSOURI, profession; representing in their themselves be shilled plaintiff day October, that on the 8th while city public on a Pitzporter, driving defendant Louis, street St. street, an automobile on the carelessly negligently and ran said automobile into injured plaintiff plaintiff, by greatly pain great anguish body It mind. and suffered proceeds then follows: shattered,
“That his broken, splintered so that the bones thereof were and broken part protrude through caused to the flesh and skin; plaintiff’s supporter garter, dirt of a metal pieces street and cloth from cinders plaintiff’s clothing,'were skin into driven protrusion and flesh and into the wounds caused driving said bones and other wounds caused defendant against plain- running said into and tiff, as above described.
“Plaintiff Pitz- further states that the said defendant porter, running after so into put said above into described, to be Hospital, St. automobile and taken to the located John’s city of St. Euclid Avenue and Parkview Place, Pitzporter that defendant Missouri; then called Louis, Printy; pro- said defendánts then plaintiff’s.wounds leg; ceeded to and to dress set that defendants so conducted setting themselves and about the said left dressing wounds that their part supporter unskillfulness buckle, *4 parts of dirt and from cinders and street, were left in or more wounds, one which were of up causing sewed said defendants, inflammation to set gangrene become and said wounds to and infected, to develop causing plaintiff nearly to lose life therefrom, per- causing great pain anguish, and and mental and plaintiff. manently injuring, laming disabling and “Plaintiff reason of said states defendants, and was unskillfulness he aforesaid, hospital period more for a confined to said caused addi chair a wheel for an confined to months, than six period period additional an tional of three months, required eight use crutches he months incapacitated totally he was cane, all of time any performing labor he kind of for which work yet fully competent, leg re has and that his not1 compelled that he was covered. Plaintiff further states spend large pay necessarily sums and did out and money nursing been and has care, medicines, attending occupation, still is disabled from his former permanently injured, that he is lame and disabled.” petition lays plaintiff’s damage $25,000, then judgment. for which 2, 1920, he On December asks joint omitting formal defendants filed a answer, which, parts, is as follows:
“Come now the defendants for answer deny every herein, filed each and al- legation in said contained.
“For further answer, the defendants on state that eighth day plaintiff, up- riding October, 1917, while motorcycle, on a collided with owned and operated by Fitzporter, and that as a result of plaintiff’s such collision broken, splintered shattered so that the bones thereo'f. were protrude broken caused the flesh and skin. plaintiff’s body badly bruised and a metal plaintiff’s supporter garter, dirt and cinders pieces plaintiff’s from the street and cloth cloth- were driven and into the skin flesh and protrusion into the wounds of said bones and other wounds, so that on account was, of said permanently injured as aforesaid, always, weakened and would be weak and stiff re- sult thereof and that on account hospital
was confined to the from October 8, 1917* March 10,1918. July “That plaintiff, through thereafter, 19, 1918, J. B. Parkell, his next friend, instituted a *5 OE SUPREME COURT Fitzporter. Fitzporter, herein, said defendants
Alonzo L. one styled being Parkell, B. J. B. Parkell, suit Fred Fitzporter, defendant, plaintiff, Alonzo L. next friend, in being I, Division No. No. Series B 18, 763, City 1918, October Court, Louis, term, the Circuit St. together copy in aforesaid, a which cause proceedings copy cause, in with said a of the minutes or A,’ ‘Exhibit attached hereto and made marked part charging that the said hereof, Fitzporter by the-negligence Alonzo L. said operating carelessly an automobile city and that result Louis, Missouri, St. as a hospital injuries plaintiff was confined to 8, October to March and that his had 10, 1918, filing petition, at the time of the not, healed, but injured permanently always was and weakened would ’’ be weak stiff. thereupon plaintiff The ont filed motion to strike excepting only all the matter contained answer, general grounds, denial, various be included in the statement that it constituted no defense ac- petition, tion stated because the matter so recovery in the answer as a former satisfaction is separate and distinct cause of action from that stated ' petition. this motion to strike out was overruled, plead plaintiff'declining and further, plaintiff defendants, entered for the from which has taken appeal. this the defend- Fitzporter
ant was referred part to, filed and made the answer, and described the sued follows: greatly injured “The damaged and has great pain anguish body suffered of mind; that plaintiff’s broken, shattered, so (cid:127) splintered bones thereof were and broken and protrude through caused to the flesh skin; that the body badly bruised; that a metal plaintiff’s supporter was driven into the leg, flesh of and that was confined to the OCTOBER, -y. Parkell
hospital to March 8,1917, 10,1918, October *6 injured permanently leg yet but is was not healed, ’ ’ always stiff. will be weak and and weakened and presented only question record is the I. The plaintiff injuries collision whether the suffered Fitzporter operated by of defendant the plaintiff motorcycle upon was which the with the Pleading. injuries wer,e riding, for which he the same joint tortfeasors. suing defendants as both these now prosecuted judgment, was which final suit, The first up- plaintiff still a was founded minor, satisfied while op- Fitzporter on the defendant of upon founded suit is automobile. This eration of his Fitzporter Printy, physicians joint malpractice and of surgical surgeons, medical and treatment and complications injuries and the same having arising Printy been from such thereof treatment, picked plaintiff by Fitzporter, up and who had called purpose. hospital for that taken to a pe- pleading answer, after the statements of the relating tition in the first suit to the character and extent part makes the same injuries generally pleading, that and avers these are the injuries recovery for which and satisfaction were plea say had that suit. The their defendants now that may charge, notwithstanding on stand alone that fact nothing, pleaded there either in the so or in the statement of its terms in their show- answer, identity pleaded action both .in They authority, they any suits. cite no nor do rea- state support son in of this it statement, bet- on no stands prayer ter foundation than would the assertion that a upon would cure omission facts predicated. might orwas have been We will, therefore, identity assume that the of the cause of action at issue upon these two suits rest the facts in this answer, upon and not they the naked statement that were identical. day
The answer that states “on the 8th of October, riding plaintiff, motorcycle, collided while OF COURT Par.kell operated owned (cid:127)with an automobile Fitzporter, plain- collision such as a result shattered, so broken, tiff’s splintered caused broken thereof were the bones plaintiff’s protrude the flesh skin. plaintiff’s badly body a metal bruised, and garter, from the street supporter and cinders dirt pieces plaintiff’s were driven of cloth into wounds flesh and skin and into the protrusion wounds, bones and other of said account of was, on so that injured permanently would and weakened aforesaid, always thereof, and stiff result be weak confined account *7 hospital 10, March 1918.” 1917, October'8, petition comparison suit
A the plaintiff careful the by against Fitzporter July instituted on 19,1918, any allegation relating the fails show injury charged, other is and extent of than character already quoted, so contained confining the answer and inquiry our to those statements of at issue fact previous by injustice suit as shown this answer, repetition unnecessary can result and will be avoided. We presented question by will therefore recur to the real appeal, presents which is whether case this presented by agreement same cause of action and tried Judge jury before Gfaresehewithout a in. the former by Fitzporter. plaintiff against the defendant question
II. The ease, raised record this injury to its lowest terms, reduced whether the damages sought now which is the same damages pleaded were recovered in the former case joint
in answer of defendants. is, If it Different by liquidated' then the amount has been Injuries and paid fully in that been case, and has Causes: One Satisfaction. by its liability satisfaction; otherwise, the as- by
serted in any suit remains this unaffected proceeding prop- one. the former We this understand OCTOBEE TEEM, parties. bnt osition to be admitted all There can one satisfaction exacted for the demand. Before question proceeding further in the discussion this can we do no harm to with some to what refer, detail, have alreadv said the late case of Staehlin Hochdoer- fer, S. W. 1060. employee plaintiff,
In that Fox case the injured Manufacturing Company, February Brothers wagon by being premises 10, on 1912, thrown September company 19, its fault. On company, alleging he 1912, sued the in his negligent right leg reason of its acts his was broken near mangled ankle, the flesh that while crushed; poisoning in; treated set blood necessary that in am- order to save it became his life putate amputated upper part and it was at the thigh. alleged, for the includ- January loss were laid limb, at $30,000. On 16, Fox instituted another suit Manufacturing Company Brothers in addition in which, original negligence, to the he took charge and control of treat- care and injuries. ment of his “That because account the unskillful and careless acts and omissions defend- surgeons ant and the selected defendant in about injured leg, care and treatment of his said be- poison cause of the brought blood and infection that were negligent about acts and *8 the said omissions, decomposed, became inflamed and because of all of which, amputation leg, suffering the of said the from the original greatly augmented, was intensified, prolonged, plaintiff thereby suffer caused to endure, and did suffer and endure, and will while he lives great pain physical continue to suffer and endure, anguish, compelled mental pay and has been to out large money, become'liable for the care of sums to-wit, $1,000, leg, and treatment of his said and will hereafter compelled pay out and become liable for additional large money sums of in the care and treatment of his said
302 Mo—15 ' COURT OE repair purchase
leg, of an artificial in the defendant’s place he lost of the take the Judgment asked. negligence.” $25,000 for against February the first 20,1914, On disposed Company Manufacturing the Fox Brothers the by payment consideration which of $1300', the liability grow- any way plaintiff from all them released dismissed. ing suit was and the second out of said against day Brothers the Fox the the other suit On stipula- upon Manufacturing Company was dismissed he plaintiff in consideration of $50, tion the filed Company Manufacturing the Fox Brothers released growing any con- wise any out of or in all claims company any or nected act which the said did him, with to be rendered' him, be done to caused to failed charged in the suit, in connection with matter him, Fóx Manufactur- the of the said Brothers release any Company ing be a release doctors should not persons employed by company in connection with charged matters in said suit. . physicians payment
The defendant upon money in satisfaction these two sums of of the claim sign- prosecuted, them which the suit and the stipulations admitted accordingly. judgment held court rendered This court injuries charged although in both suits that, negli- company included gence physicians, of the the different causes action were joint, but nature, several their release company in connection with ex- circumstances hibited intention of to hold the defendant resulting surgeons neg- all liable acts from their own ligence plaintiff, although they in the treatment employed company represented performance duty. of that accordingly
We reversed the circuit court and remanded the to the case trial court further proceedings theory. *9 Fitzporter.
Parkell v. prin- opinion. The a.re still satisfied with We simple well established. ciple which underlies bring amel- duty surgeon skill care to the of a patient, not arise does of his condition ioration of the public considera- foundation but has its contract, inseparable exercise- from the nature and tions which are physician calling. Although relation the his generally, patient may by perhaps con- created and is be, duty physician it is he assumes fixed when the tract, by origin. operate independently He of its rules employed stranger, up take the burden or duty yet purely his humanitarian reasons, treatment for knowledge requisite employ it with the to have the and to patient. necessary by the is to his occasion, care made held in which [21 R. L. know of case it is 379.] C. We against' patient that an action will not lie physician surgeon result- or for violation the duties notwithstanding have relation, others employment. principle intervened in his It is this supra, we held Staehlin v. that the Hochdoerfer, surgeon perform- negligence or misconduct duty patient, plaintiff, gave ance of his toward his independently latter a several cause of action employed respon- person of the fact that he was injury sible for the which called for the service. As injured plaintiff might that case we that the held release employer liability negli- from all for misconduct gence surgeon employed injury, he had to treat the prejudice right proceed against without to his sur- geon augmenting damage, his own we now, for the same reasons, hold that this had right wrongdoer sue who inflicted the improper management op- damage eration of his necessarily automobile, re- sulting surgeon aggravated from such who injury by negligent unskillful treatment, and recover resulting from each the amount of separate prejudice own act or omission without to his right of action the other. COURT OF *10 separable dis- action no less causes
These person by wrongs are committed when both tinct dallying justice to with It would be to the same victim. physician should say that the who kind, in a case of this running against slightly, by injure ever so another, injury, should assume to treat automobile, with his permanent dis- capacity inflict and in that serious and ability malpractice, mal- by could defeat an action for the practice patient guilty by showing that his had been yet original negligence contributing to the mal- conclusion that effect would seem to follow the practice merged part in and became a of the wrong. dressing malpractice in
III. This ais suit for injuries' and treatment of received upon by run an automobile driven owned one practic defendants, both whom were surgeons ing physicians time. The at the causes^and hospital by Printy defendant was called injuries. Fitzporter in the defendant who inflicted jury, al him in that work, to assist which the pleaded performed leges is1 both. The defense a Fitzporter recovery injury in for the same former upon opera him founded in the question tion of automobile. The case turns malpractice charged whether caused now recovery were included had the former suit. We restate facts we have them in mind in question upon consideration which turns. case petition the former case as this eighth day that “on answer, states 1917, of October, plaintiff, riding upon motorcycle, while collided with operated by Fitzporter automobile owned and defendant plaintiff’s and that as a result such collision was broken, shattered so that the bones splintered pro- thereof were broken and caused to plaintiff’s trude badly body the flesh and skin. The plaintiff’s supporter
bruised and metal pieces of garter, cinders from the street and dirt and were driven cloth from by the into protrusion and flesh into the wounds the skin plain- so that bones and other wounds, aforesaid, account was, on tiff’s always be permanently injured and weakened and would account stiff thereof and weak and as the result hospital from injuries plaintiff was confined to 1918.” March October 8, 1917, charges malpractice re- in this case accident
lied That at the time of the on as follows: Fitzporter St. took the John’s *11 Printy; Hospital, “called in defendant that where he proceeded said to defendants-then dress negligently leg; that defendants so wounds and set his about and setting in themselves conducted dressing
of said left said wounds part*of their and unsldllfulness said supporter garter or cinders from buckle, dirt and parts were left more street, and in one up by defendants, which were wounds, sewed causing to' in inflammation set and said wounds become gangrene develop therefrom,” infected which nearly permanently caused the lose life, his disabling Condensing injuring him. these state- original petition charges ments, we observe that while the inflicted the automobile that the bones plaintiff’s leg protruded were broken and shattered and flesh and and a metal skin, garter, dirt and cinders from the street, cloth clothing, driven were into the wounds, this charges un- the defendant doctors skillfully things causing in- sewed these into the wound injuries. permanent gangrene fection and These being necessary circumstances, far so results of original petition entirely inde- stated pendent of those and were not even admissible evidence in that Mo. [Hall case. v. 260 Co., Coal & Coke City, 351; Elliott v. Kansas Mo. Fink 174 v. 554; United SUPREME COURT OF MISSOURI, Rys. Rys. 219 S. W. Smith Co., 679; Co., United Harvey, App. rule 866; S. W. Shafer v. 192 Mo. No 502.] firmly only of law is more in this settled State, just the authorities to which we have but also referred, many involving question its others more of one or plea damages general manifold than that forms, only considering a of the character we are now damages necessary includes such wrong pleaded as are the result liability
as the foundation of asserted; damages in other such conclusion words, must as a follow recovery law from the facts stated. such If the special requires support inde of other and pendent place occurring facts at time a different petition, from the facts stated in the is evident they separate amount to a action and distinct cause of respect with constituting wrong, to the facts their legal damage. effect terms inIf a'new suit at law party jointly severally, has new intervened, either cause of respect action has been created with satisfaction cannot be had in the suit. \ Applying principles these to the us we suit before difficulty arriving find no conclusion that the carelessly chauffeur who runs his automobile inflicting another, which a metal wound into wrong guilty buckle is of a driven, pkysSiaS.aS *12 independent wrong done himself surgeon capacity of a in connection with sur another geon carelessly, ignorantly sewing and garter thereby buckle inducing into the wound and infec gangrene, permanent tion and which in turn works dis the'injured party. ability to These two cases, that is say, malpractice sewing suit for buckle into the wound and the suit for producing the" separate same wound are founded on two distinct legal having causes of action necessary connection judgment whatever, and the and satisfaction in malprac the chauffeur does not bar the suit for surgeons., tice these two 23Í 1923. Vol. St. Louis v. EvraifE. duty than to determine extends no further
Our they pleadings accord- ease on the now and we stand, ingly Circuit Court of the St. Louis reverse proceed- further that court for remand the ings parties may as the be advised. foregoing opinion
PER of Brown, CURIAM:—The adopted hereby Banc; inC., Division Court in One, is con- J.,C. Woodson, Graves, White, JJ., Walker cur; T. concurs in the David Blair, J., result; James Ragland, E. Blair and dissent. JJ., MORRIS
CITY LOUIS, Error, OF ST. Plaintiff EVRAIFF et al. Banc,
In November Shop: Regulation: Unlawful In- Junk ZONING ORDINANCE: Police Property. terference An di- With Use of Private ordinance which commercial, city residence, and unrestricted into industrial vides districts, private property prohibits the erection or use of junk storage scrap iron, rags district the industrial district, purposes permits the unrestricted its use for such subjects offender makes its violation a misdemeanor ground penalties, use of that such bare and based severe unlawful, property has makes unlawful because ordinance is welfare, health, safety, public comfort or but is no relation oppressive use of interference with unreasonable and private property, void.- Correction.—How. Court of Criminal Louis Error St. Judge. Krueger, Ghauncey J.
Appirmed. George
Henry Haid F. 8. Caulfield in error.