Clark v. Cole County

WHITE, C. The plaintiffs brought this suit against Cole County, on account, for the maintenance of one John Raithel, insane, at State Hospital No. 3, from September 1, 1908, to September 17, 1910. After Raithel had been kept there some years as a county patient at the expense of Cole County, on October 2,1907, an order was made by the county court of Cole County directing the clerk to notify the superintendent of State Hospital No. 3 that said Raithel was possessed of an estate and would be kept no longer at the hospital at the expense of the county. This order was not transmitted to the hospital authorities; On July 15, 1908, another order was made in the matter which recited that John Raithel had become possessed of an estate sufficient to support himself and family, and [139] upon notice thereof the probate court of Cole County had appointed a guardian to take charge of-his person and estate; it was therefore ordered that said Raithel be no longer a charge upon said county and that his charge be transferred tó his guardian so appointed, and that the superintendent of State Hospital No. 3 be so notified. The only question of fact at issue is whether this last mentioned order was transmitted to State, Hospital No. 3 at Nevada, Missouri, in accordance with requirement of Section 1429, Revised Statutes 1909. It is conceded by appellants that if it was received by the hospital authorities in due time then the maintenance of Raithel ceased to be a charge upon Cole County after September 1, 1908, and the county is not liable. The trial was by jury and the verdict for defendant. - Order of County Court: Transmission to Hospital. I. Error is assigned to the action of the trial court in refusing to give a peremptory instruction directing a verdict for plaintiff. It is claimed there was no evidence to show the order mentioned was received by the hospital superintendent. The plaintiffs first made out their prima-facie case by showing that the patient entered the hospital as a county patient. The defendant introduced the order of July 15, 1908, and then introduced Dr. O. L. Moore, who was deputy county clerk of Cole County at the time the said order was made. He testified that either the same day or the next day after the order was entered he made a certified copy of it and mailed it, in the county official envelope with the county clerk’s return address on the envelope, to the superintendent of the institution at Nevada, Missouri; that he had a specific recollection of mailing the particular document; that he recollected it because there had been a question as to whether he had sent a copy of the first order made in 1907, and to be on the safe side the second order was made in 1908. He said he was positive he made a copy of the order and put it in an envelope, “sealing it and stamping it and putting it in the post office.” It was further shown by defendant [140] that the guardian of Raithel, on June 10, 1908, paid Hospital No. 3 the sum of $67 on account of the care of Raithel. The evidence made out a prima-facie ease of delivery. The testimony of Moore was sufficient to raise the primafacie presumption that the addressee, the superintendent of State Hospital for the Insane, No. 3, at Nevada, Missouri, received the copy so sent, and to submit that issue to the jury. [Covell v. Western Union Telegraph Co., 164 Mo. App. l. c. 635; McFarland v. Accident Assn., 124 Mo. l. c. 219; Sills v. Burge, 141 Mo. App. l. c. 154; Grain Co. v. Mo. Pac. Ry. Co., 120 Mo. App. l. c. 210; Edwards v. Miss. Valley Ins. Co., 1 Mo. App. l. c. 198; Cromwell v. Phoenix Ins. Co., 47 Mo. App. l. c. 111.] This presumption was rebuttable and the plaintiffs introduced evidence tending to rebut it. However, the jury found the fact in favor of the defendant and the evidence was sufficient to sustain the finding. II. Complaint is made by the appellants of the refusal of the court to give two instructions, “C” and “D,” as asked by them, and of the court’s action in modifying them. These instructions directed the jury that although they might find from the evidence that the county court of Cole County made the order of transfer, yet, unless the jury should further find that a certified copy of the order ‘was deposited with” the superintendent of said Hospital No. 3, the verdict should be for the plaintiff. The trial court modified the instructions by erasing the words “was deposited with” and inserting the words “was transmitted to.” It is claimed that the instructions so modified did not require the jury to find that the order was actually received by the hospital authorities. The court in modifying the instructions simply used the language of the statute, Section 1429, which says: “If the county court of the proper county shall so order, the clerk thereof shall transmit to the superintendent a certificate, under his official seal, setting forth that any county patient in the state hospital from his county has sufficient estate to support and maintain him at the [141] hospital. After the receipt of this certificate the patient shall he a pay patient,” etc. The duty of the clerk of the county court is set out in the use of the word “transmit.” As the word is defined, that duty is discharged when it is shown that the order was duly mailed in an envelope stamped and addressed to the proper party. The receipt of the order is then prima-facie presumed. Such is the meaning attached by the authorities to the word “transmit.” [Stanton v. Kline, 11 N. Y. 196; Davies v. Newcastle & L. Ry. Co., 71 Ohio St. 325.] The words used in the instruction as asked, “was deposited with,” have a significance beyond the duty required of the county authorities. To deposit is not synonymous with “filing.” [People v. Peck, 22 N. Y. Supp. 576, l. c. 583; United States v. Van Duzee, 185 U. S. 278, 46 L. Ed. 909, l. c. 910.] “To deposit” means something more than “to deliver” and something different. [Staniels v. Raymond, 58 Mass. 314, l. c. 316; Toler v. White, 24 Fed. Cases, 3-5.] Counsel for the appellants complain that the jury should have been required in terms to find that the order was actually “received” by the hospital authorities. The appellant asked no instruction requiring a finding in that form; the word “received” was not used in any instruction asked. The plaintiffs asked an instruction, which was given, to the effect that unless the jury should find that a certified copy of the order was deposited in .the United States mail, hearing the proper address of the superintendent of the State Hospital No. 3 at Nevada, Missouri, and bearing the required amount of postage to carry said copy to its destination, the verdict, should he for the plaintiffs. Thus the theory of plaintiffs on which the issue went to the jury was that the proper mailing was a prima-facie presumption of the receipt of the document. That instruction, together with the instructions requiring the jury to find the order was ‘ ‘ transmitted, ’ ’ in the absence of any request by the plaintiffs for further qualifying or specific instruction relating to the actual delivery and receipt [142] of the order, was entirely sufficient to submit to the jury the issue as to whether the order was received. Finding no error in the record the judgment is affirmed. Boy, G., concurs. PER CURIAM: The foregoing opinion by White, G., is adopted as the opinion of the court. All of the judges concur.