Christy v. Butcher

GRAY, J.

This is an appeal by the defendant from a judgment of the circuit court of Greene county, in an action instituted by plaintiff to recover damages from the defendant for communicating smallpox to plaintiff and her family. The defendant filéd a demurrer to the petition, and the court overruled the same.

*400 The. only issue on this appeal is the action of the court on the demurrer. The petition contains much surplusage and immaterial matter, and would not be attractive to a pleader searching- for “a plain and concise statement of the facts constituting a cause of action without unnecessary repetition,” as required by the statute.

The petition is in one count, and the appellant charges that it alleges the injury incurred was caused' by' the negligence of the defendant, and also by the willful act of the defendant. If appellant is correct, then the demurrer should have been sustained. [Waechter v. Railroad, 113 Mo. App. 270 , 88 S. W. 147 ; O’Brien v. Transit Co., 212 Mo. 59 , 110 S. W. 705 ; Raming v. Railroad, 157 Mo. l. c. 508, 57 S. W. 268 ; Rideout v. Winnebago Traction Co., 101 N. W. 672 , 69 L. R. A. 601.]

The petition alleges: “That defendant thereafter well knowing that he was afflicted with said above mentioned disease and that the same would be communicated to plaintiff and her family and her boarders and would destroy her business and endanger the health and lives of herself and' family continued for several days to abide in said house without apprising her of the character of the disease, to-wit: smallpox, with which he was afflicted; but kept the nature of his ailment a secret; that doing so in such condition and under such circumstances, defendant was willfully and intentionally neglectful of the rights'of the plaintiff herein and was acting in utter disregard' of his duty towards her, her family and. members of the community generally.”

The petition then alleges that a certain ordinance was in force in the city of Springfield, requiring persons to make immediate report to the mayor of contagious or infectious disease of persons, and making it a misdemeanor for a person who has knowledge of the existence of such disease to fail to give such notice. That *401 said defendant well knowing he had the disease and its contagious character, negligently failed to observe the ordinance, but negligently continued to remain in plaintiff’s house and to mingle with plaintiff and the other occupants thereof, without notifying them of the nature of his malady; “that he failed to observe the general and usual custom or precaution exercised under similar circumstances thereby negligently subjecting them to said disease in violation of said' ordinance and general custom, and of his duty to the plaintiff therein. That plaintiff and her three children solely on account of the said negligence of defendant in failing to observe said ordinance and custom and duty towards plaintiff on account of his condition which he well knew, contracted from the said defendant the said disease, and that she and her children were taken to the ‘pest camp,’ which was a place in the outskirts of the city supplied’ with none of the conveniences and scarcely any of the necessaries of life. That by reason of said premises and on account of the said willful acts of the defendant in so knowingly and intentionally communicating said infectious and contagious disease to plaintiff and her family and her boarder, the plaintiff has been to great trouble and expense,” etc.

It will be noticed the petition first alleges that the defendant knowing.he Avas inflicted with smallpox, and that the same would be communicated to plaintiff, continued to abide in plaintiff’s house without apprising her of his condition, and in so doing under such circumstances he was willfully and intentionally neglectful of the rights of plaintiff. It is claimed by the appellant that this is a charge of willfulness, and the respondent, that it is a charge of negligence. We are inclined to agree with the appellant. There is a distinction between ordinary negligence and' intentional wrong doing. When willfulness enters, negligence steps out. The *402 former is-characterized by advertence, and the latter by inadvertence. “The one requiring intent, actual or constructive to injure, and the other being inconsistent therewith. The practice of charging that one caused injury to another by careless, negligent, wanton and willful misconduct, or of using language of similar import in attempting to state a cause of action is improper.” [Rideout v. Winnebago Traction Co., supra; Bolin v. Railroad, 84 N. W. 446 , 81 Am. St. Rep. 911 .]

In the Bolin case, the court said: “Inadvertence, in some degree is the distinguishing characteristic of negligence, while misconduct of a more reprehensible character, characterized by rashness, wantonness and recklessness of a person as regards the personal safety of another, has been designated by this court as gross negligence. That involves ‘a sufficient degree of intent at least to be inconsistent with inadvertence.’ ”

In this state where the, allegation is confined to a charge of “gross negligence” or “willful negligence,” our courts have construed the words “gross” and “willful” as surplusage in such pleadings, and have held the pleading simply stated a case of negligence. [McPheeters v. Railroad, 45 Mo. 22 ; Reed v. Telegraph Co., 135 Mo. 661 , 37 S. W. 904 ; Mueller v. Ins. Co., 45 Mo. 84 ; Taylor v. Holman, 45 Mo. 371 .]

The principle is well illustrated by the language of the court in Richter v. Harper, 54 N. W. 768 , as follows: “The word ‘willful’ is employed in the declaration, which charges that the defendant ‘willfully, wantonly, - negligently, and unlawfully’ caused the fire to be set. If the word ‘willful’ stood alone, or was coupled with other words which implied a purpose to do a direct injury to the property of the plaintiff, this contention would be of more force; but where the word is used in connection with others imputing negligence it is not the rule that the plaintiff must show the appropriateness of every adjective employed in his declaration.”

*403 In Bindbeutal v. Street Ry. Co., 43 Mo. App. 463 , the court dealt with the question in the following language: “The defendant assails the judgment on the ground that the court erred in giving the fourth instruction for the plaintiff, which told the jury, ‘if the grip-man intentionally and carelessly ran the defendant’s car against the plaintiff’s wagon, that this was negligence.’ This instruction, in effect, told the jury that willfully and intentionally were convertible terms, and that maliciously meant intentionally and wrongfully. The terms ‘carelessness’ and ‘negligence,’. in the law, are synonyms. And so, too, are the terms ‘willfully’ and ‘iutentionally.’ The instructions complained of declared that ‘intention’ is a legal ingredient of negligence. The books on negligence are generally agreed that ‘intent’ is hot included in the essentials of negligence. It is too clear for argument that the two terms ‘carelessness’ and ‘willfulness’ are not equivalents, the one of the other, in any legal sense; they are repugnant and inconsistent in their signification and meaning. An instruction is not to be tolerated which proceeds upon the idea that it may be good either for willful injury or for negligence. To say that an injury resxilted from negligent and willful conduct of another is to affirm that the same act is the result of two exactly opposite mental conditions.”

Our construction of this part of plaintiff’s petition is borne out by the plaintiff’s construction as shown in the latter part of her petition where it is alleged: “That by reason of said premises and on accoxmt of the said willful acts of the'defendant in so knowingly and intentionally communicating said infectious and contagious disease to plaintiff,” etc. H;ere the charge is in plain language that the defendant “knowingly and intentionally” communicated the disease to the plaintiff and her family.

Another part of the petition charges the defendant failed to observe the provisions of a municipal ordi *404 nance, and. that such act was negligence, and that on account thereof the plaintiff’s injuries were sustained. It.is also alleged in the petition that plaintiff negligently failed to observe a custom, and on account thereof, plaintiff’s injuries were received.

It is our opinion the petition charges- in the one count that plaintiff’s injuries were caused by the willfulness of the defendant, and also by his negligence.

The respondent contends that a motion to require the plaintiff to elect was the proper remedy, and that the demurrer was not. Undoubtedly, in some jurisdictions the motion to elect or to make more definite and certain is the proper practice. [Rideout v. Winnebago Traction Co., supra, (Wis.).] But in this state, our courts hold that a demurrer is the proper pleading. [Raming v. Railroad, supra; O’Brien v. Transit Co., supra.]

The judgment will be reversed and the cause remanded, permission granted to the plaintiff to amend her petition, if she so desires.

All concur.