240 Mo. 338 | Mo. | 1912
This is a suit by which the plaintiff seeks to recover from the defendants damages for malpractice in treating her for disease by the method or system commonly known as osteopathy. She recovered judgment in the amount of ten thousand dollars, from which this appeal is taken by the defendants. The suit was instituted April 17, 1906.
The amended petition on which the cause was tried states in substance that the defendant the American School of Osteopathy is a corporation; that it owns a large amount of real estate in Kirksville, Adair county, Missouri; that it conducts a school whereby it teaches the science of osteopathy, with a regularly organized faculty of teachers who are practitioners of the science, and whose duty it is to treat the students during their attendance at the school without charge; that the defendant Still was a member and president of said faculty, duly authorized to practice said profession and that it was in the liné of his duty to treat the students; that plaintiff entered the school as a student about October 1, 1901, paid her tuition in full, and thereby became entitled to instruction and treatment, and afterwards graduated therefrom and became entitled to practice osteopathy. It then proceeds in the following words: “That at the time plaintiff so entered said school she discovered that she had a slight affection of the nasal passages that slightly affected her breathing'; that on or about said date defendant Charles E. Still made an examination of her case while she was then a stu
Defendant Still answered,, admitting that he was an osteopathic physician; that plaintiff began the study of osteopathy in 1901 and before that time was afflicted with asthma; that she graduated, and became a doctor of osteopathy in June, 1903; and that during the time she was a student he treated her osteopathically several times, and always with his best skill and ability; and denied all other allegations of the petition.
The defendant corporation answered with a general denial.
No question is made, either in the pleadings or evidence, as to the skill and learning of the defendant Doctor Charles E. Still in his profession of osteopathy. The following facts developed in the evidence are admitted and accepted by all parties to the controversy:
As to matters in dispute: The plaintiff testifies that when she came to Kirksville she had been working on a hard case, was nervously run down and had a little whistle in her nose. The defendant Doctor Still treated her from a short time after her arrival until April, 1902, when she claims to have received the injury complained of under circumstances which she describes in her testimony as follows:
“He came in the room and he said. ‘Good morning, Miss Atkinson, how are you this morning?’ I said, ‘Dr. Charley, you are not doing me a bit of good. I am getting worse.’ He said, ‘I will take that out of you or I will break your neck,’ and with that he put his knee against the breastbone and by putting his arm around the back he pulled with his hand and pushed with his knee, and drew me forward like that, and I said, ‘Dr. Charley, you crushed my sternum in the breastbone.’ He said,‘I guess not.’ I said,‘-You did, I know you did,’ and he said, ‘Oh, I guess not.’ I said,*346 ‘Well, I know yon did,’ and lie went around to the back and felt the condition, and he said, ‘I .guess you will come out all .right, I didn’t realize you were so small. I have just been treating a two-hundred-pound woman, and didn’t realize the weight I was putting on you. ’ ”
She said that she just felt the bone crush; that there was no special pain that day; it hurt a little and the third day it pained her so had that she turned sick and had to leave the class. She then had to go to bed and had stabbing pains all the time for two or three days and then got better. In the fall of 1902 she had her first attack of asthma, and it grew worse and worse. She suffered much pain around the ribs, which stood out prominently on the right side, and her breastbone was sunken. She said that as a consequence of this injury she also had female, bowel and kidney troubles, and an abscess on the lung. She also says that at the time she went to Kirksville and applied for treatment she thought that the, wheezing in her nose was asthmatic, and “supposed perhaps asthma might have been coming on. ’ ’ Her father and one sister had had asthma. As to the condition of the parts affected after the time stated by her as the date of the injury, she introduced much testimony of expert osteopathists, graduates of the defendant school, who testified that they had then examined her; that some of her ribs were dislocated and the cartilages fractured; that her breastbone was fractured or out of place; that the injuries would probably be produced by such violence as that described by her in her testimony, and that the asthma and other difficulties from which she suffered would probably be the result of these injuries. She also introduced evidence of admissions made by defendant Still, one of them being a statement said to have been made in a lecture delivered in the school by defendant Still, as a member of the faculty, cautioning his class against the appli
On the other hand, all violence and injury is denied by evidence introduced by defendants, which tends strongly to prove that the plaintiff was afflicted with asthma when she came to Kirksville in 1901, that it had progressed until she had become a comfirmed asthmatic, and that the physical deformities and diseases which she ascribes to the injury alleged in the petition, are the natural effects of that disease. They also introduced expert testimony to show that the necessary and immediate result of such an injury as she claims to have received would have been much more serious than that which is admitted by her to have followed it.
The plaintiff having been introduced as a witness in her own behalf, the following question, referring to Doctor George Laughlin, was asked her by her counsel: “After Doctor Charley had sent George to treat you after the time spoken of in the last question, and while he was so treating you — I believe that was in 1902 — what other statements, if any, did he make as to the condition he found you in, and the cause of your affliction.” The defendants duly objected to this question, and, after overruling the objection, to which action the defendants excepted, the court said to the witness: “In answering this question confine yourself to the statement made while he was in the official treatment of you.” The objection was then renewed and overruled, to which exception was saved, and the witness answered: ' “He said that the second, third and fourth ribs were broken, caused, from Doctor Charley’s treatment.”- She was then asked: “He knew of the treatment Doctor Charley had given you?” and answered: “Yes, sir.” Then, upon objection of defendants the court said: “Strike out that ‘he knew.’ ”
The court refused each and all these instructions, to which action the defendants saved their exceptions.
The court then, at the instance of the plaintiff, gave the jury six instructions, the first of which is in words and figures foil owing-:
“No. 1. You are instructed in this case that the plaintiff sues the defendant, the American School of Osteopathy and Chas. E. Still, claiming in her petition that Chas. E. Still was the agent and representative of the defendant school of osteopathy and as such representative and agent was employed by her to treat her for an ailment; and she further claims that in treating her for said ailment he carelessly and negligently pressed his knee against her sternum near the gladiolus and put his hands behind her and pulling with his hands and pressing with his knee, crushed, depressed or fractured said gladiolus and fractured the cartilage of the second, third and fourth ribs between the end of the rib and the sternum, and that by reason of said treatment she suffered great pain and anguish of mind; now, if you believe and find from the greater weight of the evidence that the said defendant was*349 'the agent and servant of the American School of Osteopathy, and that in treating* the plaintiff he did carelessly and negligently press his knee in her sternum near the gladiolus, and his hands behind her back and pulling and pressing with the knee with such force that it did produce a fracture or depression of the gladiolus and a fracture of the second, third and fourth ribs or the cartilage thereof, and that said treatment was negligently and carelessly administered by the defendant and was improper treatment of plaintiff; and if you further believe that she suffered pain by reason of said treatment, then your finding should be for the plaintiff and you should assess to her such damages as you may believe and find will compensate her for said suffering and pain not exceeding the sum limited in these instructions.”
The second, after describing the treatment complained of practically as in the first, told the jury that if they believed “this treatment was carelessly and negligently administered and was not such treatment as is properly and ordinarily administered in such cases, and . . . that plaintiff by reason of such treatment suffered great pain, and . . . asthma resulted, from which she has since suffered, and become unable to do any labor or perform any services, . . . and . . . became incurable by reason of such treatment, ’ ’ their finding should be for plaintiff.
In number three the jury were told that if, in such treatment, defendant Still carelessly, negligently and unskilfully “did hurt, bruise and injure plaintiff in and upon her sternum and the ribs attached to the sternum, the verdict must be for the plaintiff.”
The fourth directed them that if such treatment was improper, and not such as an ordinarily skilful and careful man would have given the plaintiff under the circumstances, they should find for the plaintiff.
The fifth directs that if defendant, in the treatment of plaintiff “negligently and carelessly pressed
In the plaintiff’s sixth instruction the elements of damage submitted arising from the same injury consisted solely of “pain and anguish of both body and mind.”
For the defendant the court instructed the jury as. follows:
“1. If you find and believe from all the evidence that plaintiff, when she entered the defendant school, was afflicted with asthma, and that thereafter the defendant, Chas. E. Still, treated her for that disease, and in so treating her adopted the usual osteopathic method .of treating’ asthma, and used ordinary' care and skill in treating her, then plaintiff cannot recover and your verdict mast be for the defendants, regardless of any other fact or issue in the case.
“2. Although a person who is being treated by a physician may grow worse, or even if the patient dies under his care, yet such fact of itself alone furnishes no evidence that such physician was guilty of either negligence or unskilfulness.”
I. The plaintiff makes no complaint, either in her petition or the proceedings at the trial, that the defendant Still did not possess the qualifications required by the provisions of article 4 of chapter 126, Revised Statutes 1899, with reference to osteopathy, or that he did not possess the requisite skill for the treatment of diseases by the methods prescribed by that system. She simply claims that in the exercise of that profession he treated her so carelessly, negli
They say “that the history of her alleged injury is incredible and impossible, both from a physical and psychological standpoint,” and explain that “if she had suffered bone fractures, instant and severe pain and prostration would have followed, as certainly as fire will burn, or water run downhill.” The inference seems to be that. her assertion that after suffering these injuries, and a few days -of confinement and pain therefrom, she so far recovered as to pursue her studies and engage in sports for more than six months before the serious phases of the injury developed, is contrary to some well known and universally recognized natural law, like the force by which we may assume that water will run downhill, or to universal human experience from which also we are permitted to assume that fire will burn.
We fail, however, to appreciate the application of that argument to the evidence in this case. Many of us have not had the fortune to sustain similar fractures and cannot therefore speak from personal experience, but we have learned by observation as well as common information that apparently similar lesions of the human tissues produce widely different results, even in cases exposed to the most casual visual observation, and in cases of internal injuries we are prepared to receive the evidence of those skilled in
II. The defendants also complain of the instructions upon which the case was submitted for the plaintiff, because, they say, the question of negligence in the treatment of plaintiff was submitted to the jury in general terms without any explanation of the nature and extent of the duty assumed by defendants in relation to said treatment for the neglect of which the plaintiff might recover. This point may be illustrated by quoting from the fourth instruction given for the plaintiff as follows:
“And if you further believe that such treatment was improper and not such as an ordinary skilful and careful man would have given the plaintiff under the circumstances, then you will find the defendant’s treatment of plaintiff by the said Chas. E. Still as the agent and servant and employee, was careless and negligent and unskilful.” This instruction, as well as all the other instructions given for her, ignores the fact that the plaintiff submitted to the treatment furnished by the defendant school knowing that it was to be applied according to the system known as osteopathy, and that treatment according to this system was contemplated in her contract, and gave the jury the right to find that osteopathic treatment was not proper treatment, and that persons administering it were not ordinarily skilful and careful; while the law is that.her treatment must be judged by this method. [Grainger v. Still, 187 Mo. 197; Patten v. Wiggin, 51 Me. 594; Force v. Gregory, 63 Conn. 167.]
.All these systems, methods or sciences are directed to the treating of diseasespf the human body, and each stands upon the merits of its own system. This is evidently one of those “cases in which the conduct to be observed in order to fill the requirements of ordinary care should be specified in the instruction.” [Nephler v. Woodward, 200 Mo. 179, 187; Hayden v. Railroad, 124 Mo. 566; Dairy Co. v. Transit Co., 98 Mo. App. 20.]
It is suggested by the plaintiff that the error embodied in these instructions is cured by the first im struction given for the defendants, which tells the jury that if the “plaintiff when she entered the defendant’s school was afflicted with asthma, and that thereafter the defendant Charles E. Still treated her for that disease, and in so treating her adopted the usual osteo
A more plausible defense of these instructions is made upon the testimony of both the defendant Doctor Still, and Doctor Laughlin, dean of the faculty of the defendant school, to the effect that the application, in the position described in the evidence, of such force as to 'fracture or dislocate the parts involved would be improper practice. The plaintiff contends, with much reason, that this testimony being undisputed left-nothing to be determined by the jury except the simple question whether or not such injuries were produced in the manner described, and eliminated all question of negligence from the issue. The jury necessarily passed upon this simple question of fact, and it is insisted that their verdict ought not 'to be disturbed because it was submitted in connection with others not necessary to be considered by them. Under these circumstances we think that the objection made to these instructions is a purely technical one, not affecting the real merits of the controversy. The fact, however, that the trial was, in its principal features, a juratory contest over the existence of the facts asserted by plaintiff as the foundation of her suit, emphasizes the importance of the duty of the court to see that it was fairly conducted, in accordance with the rules prescribed by law for ascertaining the truth. This leads us to the consideration of the most important question in the case.
The question is one of importance, because, if such testimony is admissible, it opens one more door by which verdicts may be recovered upon unsworn gossip instead of sworn testimony, and makes it dangerous to furnish the first surgical aid to injured employees, which, happily,- most employers a.re glad to render. This evidence was admitted on the ground that the doctor was the agent of the defendants in the treatment of the plaintiff, and if his statement as to the cause of the injury was made during this treatment it was, by reason of its concurrence in point of time, a part of the res gestae; ignoring entirely that the res was not the treatment being administered by Laug’hlin, but the treatments that had long before been administered by Still, to which the words “caused from Doctor Charley’s treatment” could alone apply.
In support of her position in this respect the plaintiff relies on Phillips v. Railroad, 211 Mo. 419: In that case the witness was the chief surgeon of the defendant railroad company, the question was the mental condition of a man in his charge, and the evidence was his official report on that very question, made in the performance of his official duty, and was therefore properly held to be the statement of the company by its general officer charged with the duty, and
Any fact material to the interest of either party to an action, which rests in the knowledge of another, is to be proved by his testimony and not by his mere assertion, unless the party has authorized him to make the assertion. This doctrine was well stated by Mr. Justice Kennedy in Hannay v. Stewart, 6 Watts, 487, 489, as follows:
“The statements of an agent, generally, though made of the business of his principal, are not to be taken as equivalent to the admissions of the principal, for then the latter would be bound by them, whether true or false, which would render the situation of every principal truly perilous. Every man has a right to make such representations of what he has done as he pleases, and to bind himself to abide by them, whether true or otherwise; and they of course may be given in evidence against him afterwards, when relevant to the issue trying; not, however, because the facts therein stated are true, but because he has the right to pledge himself in the same mar.ner as if they were true; apd if true, justice naturally requires that he should be bound by them, or if not, it is no more than the infliction of a just penalty for his disregard of truth. But it would not be reasonable to hold him responsible upon the same principle for the declarations of his agent; nor upon any principle, except that of truth and the protection of those against loss or injury, that might otherwise arise from their having confided in the representations of the agent, made by ln'm at the time of entering into the agreement, or of transacting the business, under the authority of his principal. According to Mr. Phillips, in his Treatise*357 on Evidence, vol. 1, page 77, it is only the statements or representations of the agent made in effecting au agreement or doing an act within the scope of his authority, that are evidence against his principal and considered equivalent to his own acknowledgments; because, as he says, they may be explanatory of the agreement, or determine the quality of the act which they accompany, and, therefore, must be binding on the principal, as the act of agreement itself.”
This same reasoning is epitomized by this court in McDermott v. Railroad, 73 Mo.. 516, 519, as follows: ‘ ‘ The declarations of an agent are received, not as admissions, but as a part of the res gestae. . . . Only declarations, therefore, made by the agent while transacting business within the scope of his agency, and then only because a part of the res gestae, are admissible.” No pair of words in our legal terminology are more carelessly used than these words “res gestae.” In applying them to the subject we are now considering, we should bear in mind that they refer to the thing done by the agent, and that words to be a part of the res gestae must be used in furtherance of the doing of that thing. This court, in Price v. Thornton, 10 Mo. 135, 140, put the doctrine in a nutshell. In speaking of the admissions of a ship-master against the owners, it said: “They are bound for the actual conduct of Captain White; not for what he might say he had done.” In this case it is sought to bind the defendants by the unsworn statement of Doctor Laughlin as to what one of them — not he — had done long before. To hold that this can be done would be a long step toward depriving litigants of whatever protection there may be in the sanctity of the oath and the influence of legal pains and penalties for perjury.
The opinion already expressed renders it unnecessary to notice any of the numerous other errors assigned by the appellants in their brief.
PER CURIAM. — The foregoing opinion of Brown, C., is hereby adopted as the opinion of the court.