148 Mo. App. 621 | Mo. Ct. App. | 1910
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,
“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
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 wqs a
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
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 furnished there to complete the transportation and the abrupt or “ill remarks” (as they are termed in the testimony) of the driver, plaintiff and her sister desisted from further efforts in that behalf and employed a boy who conveyed a message to a friend informing him of their predicament and that this friend, the family grocer, came to their relief in the course of an hour with a one-horse surrey. The parties were allowed to sit in defendant’s carriage while waiting for their friend to come with the surrey. After his arrival, plaintiff was assisted into the surrey, which was an open conveyance, and conveyed to the house of her next door neighbor where she was immediately seized with a chill. The date of the occurrence was February 12th, at a season of the year when the weather was cold and moist,
The evidence tends to prove that because of the delay of one hour occasioned by defendant’s breach of its contract, during which time plaintiff sat in the cold carriage, and because of her subsequent exposure in being transported in an open conveyance, plaintiff caught a severe cold which resulted in a protracted illness. There is testimony, too, to the effect that plaintiff was seized with a chill immediately after being taken to the home of her neighbor and that because of her enfeebled condition such chill may have resulted from the exposure and excitement incident to the conduct of defendant’s servant in breaching the contract of carriage.
From what appears in the record and briefs, we believe the court directed a verdict for defendant on the theory that plaintiff voluntarily waived her right to insist upon a completion of the contract of carriage. Indeed, on the argument at bar, we were impressed with this view, for the facts were most ingenuously stated by counsel, but upon looking carefully into the proof, it appears plaintiff insisted fully upon her right to have the contract performed and that defendant utterly refused except upon the condition that she should consent to return to the livery barn from which place a new start would be made in another conveyance. The first alternative submitted to plaintiff by the driver, after having communicated with defendant’s office over the telephone, was to the effect that the driver should return plaintiff to the hospital. Of course, this in no manner would discharge it of its obligation to carry her to her residence within a reasonable time if such were possible by the exercise of ordinary diligence and that such was possible at least by procuring another conveyance is, beyond question, for it appears the groceryman had no difficulty in passing over the identical streets with a one-horse surrey. The second alternative offered to plaintiff after communication between the
The form which the proceeding has assumed and its proper disposition in the future presents several questions so nearly approaching the line of demarcation which is maintained throughout our jurisprudence between actions ex contractu and actions ex delicto for the same wrong, that it will be essential to examine the relevant principles of law to the end the doctrines of liability may not be confused. It is argued by plaintiff that although the petition alleges a breach of the contract of carriage the suit is really in tort. This argument is material in view of the fact the petition contains a prayer for punitive damages and the character of the action presents other questions touching the) measure of recovery. We have examined the authorities relied upon by plaintiff in support of this proposition and they may be put aside in so far as this case is concerned for the reason they are wholly foreign to the issue presented in the present petition. The rule of those cases is that where the suit against the carrier proceeds as for a breach of its obligation imposed by law and charges the act to have been negligently done, the force and effect of the allegation of neglige'nce is not annihilated and destroyed by averring wilfulness and wantonness as well. No such question arises on the record here, for if we are to accept plain English words and accord to them their ordinary meaning and significance, the present petition counts entirely on the breach of a contract of carriage and in no respect upon the obligation of the carrier imposed by law. [3 Ency. PI. and Pr., 821, 822.] Generally speaking, it is true the relation of passenger and carrier arises out of contract either express or implied, and the party suffering injury from a breach of such a contract or of the obligation which the law imposes as a sequence thereto may have his choice of remedies. If he desires he may sue for a breach of the contract of carriage. In those cir
Defendant, in this case, is in no sense' a common or public carrier of passengers but, on the contrary, is the keeper of an ordinary livery stable. It does not hold
“Ordinarily, livery stable keepers, engaged in the business of letting for hire teams and vehicles, either with or without drivers, are not carriers of passengers within the legal meaning of that term. They do not hold themselves out as undertaking for hire to carry indiscriminately any person who may apply. Those who hire their vehicles are not necessarily restricted to vehicles or drivers designated by the proprietor, but may, in a measure, protect themselves by selecting the particular horse or driver they wish to hire. The duties and obligations of carriers of passengers, are, therefore, not applicable to mere livery stable keepers.” [1 Hutchinson on Carriers (3 Ed.), sec. 96].
Although the hackman and stage coach proprietor are regarded as public carriers and answerable for high care as such, this rule does not obtain with respect to an ordinary liveryman. [Lemon v. Chanslor, 68 Mo. 340; Leward v. Parkinson (Kan.), 85 Pac. 601, 5 L. R. A. (N. S.) 1069; see also Cravens v. Rodgers, 101 Mo. 247, 14 S. W. 106.] Liverymen are required to conduct their calling with the same degree of care and circumspection which is exercised by prudent persons engaged in the same business and are answerable only for a breach of the slightest obligation which the law imposes upon every person who accepts a human being in bailment; that is, the obligation of ordinary care. [Siegrist v. Arnot, 10 Mo. App. 197; Siegrist v. Arnot, 86 Mo. 200; Stanley v. Steele, 77 Conn. 688; Payne v. Halstead, 44 Ill. App. 97; Copeland v. Draper, 157 Mass. 558; Erickson v. Barber Bros., 83 Ia. 367.] From this
“If a person volunteers, through himself or his servants, to transport others by modes or under circumstances calculated to expose them to danger, he should be held to assume the duty of care in so doing, and the duty to make compensation, in case he should become the instrument of a negligent injury to his charge.” [1 Cooley on Torts (3 Ed.), 242.]
Furthermore, it has been declared by courts of high authority that the precepts of humanity alone, unattended by any other obligation Avhatever, enjoins the duty of ordinary ■ care upon one knowing the condition of a sick person to look out for the safety and welfare of those who are thus enfeebled. [Depue v. Flateau (Minn.), 111 N. W. 1; Ploof v. Putnam (Vt.), 71 Atl. 188, 189.] And the rule obtains with respect to common or public carriers of passengers to the effect that if the carrier accepts a passenger known to be sick or enfeebled, it is bound to exercise for his or her safety a degree of care commensurate with the responsibility assumed and that is such care as is reasonably necessary to protect the passenger from injury, in view of his or her physical condition. [2 Hutchinson on Carriers (3 Ed.), sec. 992; Mathew v. Wabash R. Co., 115 Mo. App. 468, 78 S. W. 271, 81 S. W. 646; Hanks v. C. & A. R. Co., 60 Mo. App. 274; Young v. Mo. Pac. R. Co., 93 Mo. App. 267; see also Phillips v. St. Louis & S. F.
But it is said the question of ordinary care is beside the case for the reason the suit is on the contract and not on the obligation the law enjoins. This suggestion is inaccurate in principle in that it assumes a false premise as though there is in the relation here involved an obligation imposed by law in the true sense of that term. In the case of a private carrier, there is no obligation imposed by law as obtains on the custom of the realm with respect to the public or common carrier, for such private carriers operate only in accordance with their contract of hire, whereas the public carrier owes a public duty by law which must be performed in favor of one and all alike. However, there is a term in every contract of even a private carrier which is implied by the law to the effect that he shall exercise ordinary care for the safety of his charge. Instead of this being the obligation imposed by law in the sense of those words as applied to public carriers, it is but one term (i. e., an implied term) of the contract which the carrier entered into with the plaintiff. Such implied term of the contract, as contradistinguished from the obligation of the law alone may, of course, be invoked in a suit on the contract, for it is one of the-matters stipulated for therein though not expressed in words. [State ex rel. v. Laclede Gas Light Co., 102 Mo. 472, 14 S. W. 974, 15 S. W. 383; 22 Am. St. Rep. 7, 8, 9; 7 Am. and Eng. Ency. Law (2 Ed.), 91; 15 Am. and Eng. Ency. Law (2 Ed.), 1095, 1096.] It is entirely clear that the contract in this instance as much required the defendant to exercise ordinary care for plaintiff’s safety as it enjoined the duty to make the transit in a reasonable time or make it at all for that matter. In so far as the obligation of the contract is concerned, the form of the remedy is immaterial, for whether the actions proceeds eco contractu or eco delicto the rights of the parties stipulated or assured in the contract are to be determined
But it is said that to consider the question of defendant’s failure to exercise ordinary care for this sick lady passenger will as a correlative thereof permit the introduction of evidence tending to prove contributory negligence on the part of plaintiff and thus introduce an anomaly to the effect that contributory negligence may be put forward as a defense in a suit on contract. In answer to this, it may be said that a precedent obtains in this court bn facts very similar to these before us where in a suit for the breach of a contract of carriage the plaintiff’s recovery was denied on the ground of her contributory negligence. See Francis v. St. Louis Transfer Co., 5 Mo. App. 7. The Supreme Court of Massachusetts, too, seems to entertain the view that in suits ex contractu for the breach of a contract of carriage the plaintiff’s negligence contributing to the injury may be shown in defense. See Ingraham v. Pullman Co., 190 Mass. 33. The thought seems to run throughout the authorities that where the suit is either in contract or in
“Where, therefore, the carrier has wrongfully set the passenger down short of his destination or has carried him beyond it, and has thereby imposed upon him the necessity of getting to his destination by other means, the carrier must respond, whether the action be brought for the breach of the contract or for the tort, if the passenger, while in the exercise of reasonable care and prudence for his safety, has received an injury while seeking to extradite himself from the situation in which the carrier has thus wrongfully placed him.” [Hutchinson on Carriers (3 Ed.) (M. & D.), sec. 1429.1
The thought to be gleaned from this expression as to the carrier’s liability when the action proceeds either in contract or tort is that if the injury results because of the negligence of the plaintiff in contributing thereto no recovery should be allowed. As before stated, the case of Francis v. St. Louis Transfer Co., 5 Mo. App. 7, heretofore cited, was a suit as for a breach of the contract of the carrier to complete the transit undertaken by transporting plaintiff to her home, and the right of recovery was denied as for her contributory negligence in unnecessarily exposing herself to inclement weather. The authority is directly in point and a precedent of our own on this feature of the case.
But it is suggested the action being on the contract and not in tort, the damages occasioned because of plaintiff’s catching cold, etc. are remote and not recoverable in an action as for a breach of the contract. The case of Hobbs v. London, etc., R. Co., L. R. 10, Q. B. 111, is relied upon in support of this argument. . That case, though an action in tort, Avas treated by the court as if it proceeded for a breach of contract, and it was ruled that the consequential damages prayed for on account
The judgment should be reversed and the cause remanded. It is so ordered.