*1 experts “may symp- upon relative to mental disease be based observation, and circumstances which come within own toms their by others, whiph are testified statements hypothetical questions assuming their existence.” & Stille’s Medical Wharton [1 Jurisprudence, questions hypothetical, sec. statements or No 338.] witness, 'again ruled* were submitted to this but the court time symptoms might that he tell he Observed his examination of ‘‘ directly patient. asked, the witness was are Furthermore, what (cid:127) objection, was: symptoms reply, of-that disease?” His without (cid:127) memory.” “A loss of . (cid:127) judgment and the find no error in record es- reversible 'We tablishing will All concur. is affirmed. (2d) 580. Schofield, Appellant. S. W. Golda Cazzell v. L. J. May 18, One, 1928. Division 11ÍO *2 M. W. Aber, Montgomery, Ha/yes D. V. & Rucker Draffen '
appellant. Prince, E. A. Harris,
C. W. James N. Beery, Boy D. Williams respondent. and Wm. II. Allen for *5 damages by
SEDDON, plaintiff is an recover C.—This action bodily to have charged personal injuries, suffering illness, and defendant, alleged a malpractice who is resulted from the Court, physician. changed to the Circuit The venue of the action was Cooper jury, a result- tried County, where the cause was before ing assessing damages in the plaintiff, in a her unanimous verdict for against four originally sum of instituted $10,000. The action was plaintiff’s evi- defendants, physicians, but, conclusion at the .all for all dence-in-chief,' trial court the to find instructed plain- whereupon except present appellant, defendants defendants, ex- involuntary tiff made an all of dismissal as to appeal cept Dr. was allowed an Schofield. The defendant Schofield against him judgment to this court from the adverse nisi. petition by plaintiff interlineation at was amended ‘‘during amended, charges trial, and, that commencement of the as so being sought medical September, she, pregnant, month 1921, Schofield; defendant, J. and Dr. L. care attention S'chofield, accepted patient her as a and defendant, com; said L. J. treating plaintiff, giving medical in the said menced her attention 1921, ; thereafter, up September, month of and until .... the said defendants did treat month and render January, purpose enabling plaintiff, this for the her medical attention to child; proper delivery physical that plaintiff’s of her said unborn condition, physicians, gradually under the treatment and care of said January, L. grew worse, month of after defendant and negligently upon plaintiff, or attend J'. Schofield failed treat though plaintiff into duly called, called consultation other the. physicians physicians surgeons, was advised said other and she surgeons fetus; carrying ivas dead the time that she physicians surgeons, and plaintiff was advised so said great physical prior thereto, for several months suffered torture; pain and that ivhile under treatment care of skilfully defendants, during should the time defendants have poisoned system by auto-intoxication cared for her became paralysis as a result of said body her and limbs suffered toxic carrying womb, dead fetus auto-intoxication, due to said when, by ordinary exercise putrefying thereof, membranes emptied surgical been have skill, care and said womb should calling physicians, in of other operation; prior *6 suggested and husband her both to the defendants were opinion plaintiff of the that the carrying fetus; was a dead but said carelessly negligently defendants treated, and administered,^ cared plaintiff for and advised hypothesis, on the that'said fetus was not dead; immediately upon calling physicians surgeons and physicians said operation advised that an necessary was to' save' plaintiff’s life, and'thereupon she was reduced to a state of un- operated upon consciousness and physicians said surgeons last and and said fetus was womb, .the removed from her' dead and in de- cayed condition; decay that from the state of of said fetus at the time of plaintiff’s its removal from womb, the same been had weeks; decaying dead and for k period of several that as a result of aforesaid, negligence carelessness and plaintiff permanently rendered sick, lame, sore, and weak, and has sus- (cid:127) lasting tained a system nervous shock to her entire that as a result carrying of said womb, plaintiff dead fetus -in her' suffered from paralyzed auto-intoxication and poison became from through toxic body her and limbs, and body she is unable to use said and limbs and be-, has pow'er. locomotion; lost her plaintiff’s, body at times greatly comes swollen, sore, tender com- has been pelled to helplessness in a many state of remain bed for months, as a complaints direct result of the to, above referred all of which directly resulted negligence from the carelessness and de- fendants, improper care, in their treatment and attention of this plaintiff; plaintiff, that the has lost and wall in the future lose much sleep; of her natural rest and that she an has become invalid and will so continue be an invalid the remainder of petition her life.” The prays judgment $20,000. the sum general- The answer is a allegations denial of petition.
Plaintiff, at trial, twenty-nine the time of years w&s age-and had been years. married about five Shortly marriage after their plaintiff and her City husband removed from Kansas to.'a farm near Centerview, Missouri, they resided plaintiff’s where until illness October, 1921. The evidence tends to show that performed duties, including the usual laundry household work, and attended raising poultry care farm. Plaintiff is a .the graduate Warrensburg College, State Teachers’ two for years graduation public after her was a in a school, she teacher dur- ing which only day time she was absent one .from her school duties.
During period war, father, of the late in.order release .her rural carrier, mail work, assumed, period for farm -she for a ninety days, daily carrying mail, her father’s duties in driving driving muddy team when the roads were an automobile when dry. discloses, plaintiff the roads far record w'ere So as the had' suf- n years fered no serious age, illness since she ten twelve eyes trouble her received treat- she some at which time eye specialist. from City months therefor Kansas some ment partial eye trouble, plaintiff was afflicted with -after the S'ome time Defendant had deafness, apparently has continued. which deafness during plain- family, and of all physician been the plaintiff’s having mother at the time of attended lifetime, tiff’s *7 plaintiff plaintiff’s or-April, 1921, In de- birth. March consulted him, fendant, or ab- and received from a stomach treatments suspected being ailment, appendicitis, at as to dominal time says plaintiff “responded moderately which treatments defendant well, completely.” but not gave which menstruation, prior to her illness rise
Plaintiff’s last present action, August early In 19, about 1921. occurred plaintiff a in part September, developed nausea, of which- 1921, removed from intensity to that she was creased in such extent in farm her-husband to her mother’s home where she resided with October, 1921, was to treat early town in and defendant then called plaintiff’s plaintiff. diagnosed as and to illness attend Defendant being pernicious pregnancy, plain that nausea "due to advised kept abate, apparently did not be in bed. Plaintiff’s nausea but tiff grew stage plaintiff scarcely worse, reaching could a retain W'here times, according plaintiff’s kind. food nutriment of At to blood, severe she vomited clots of testimony, the nausea was so that Food, a principally being'un she diet of Mellin’s subsisted gradually to Plaintiff able retain cow’s milk. became weaker and inability weight retain lost because of her to nourishment and be paroxysms frequent cause of violent of nausea. In lat part November, plaintiff complained of 1921, ter of a numbness in tingling fingers, feet and of a sensation her toes and and she experienced difficulty urinating, disturbance and be considerable ing being lifted urinate all from the bed and unable to at without placed sitting posture. ain brought 23, 1921,
On or about defendant three November physicians, consultants, plaintiff’s bedside, apparently upon as tó According his own to defendant’s two of testimony, volition. physicians" vaginal a bimanual at made of time examination and, examination, such as the one consult- result ing physicians reported slight catarrhal condition at a the mouth of local remedy, of a which uterus, and recommended the use consulting physicians applied by The also defendant. recommended corpus drug hypodermical- lutein, use which administered ly plaintiff allay of one cubic centimeter to the nausea. doses corpus lutein was continued dur- administration defendant ing part early December, 1921, apparently with successful re- prior frequently sults, plaintiff less than ad- vomited drug. ministration On tlie occasion of tlie visit of tbe four physicians 23, 1921, plaintiff’s November mother testified that she mother) (plaintiff’s told “if baby defendant there was there, it surely must dead.” that,- part,
Plaintiff’s tended to show about evidence the latter December, January, plaintiff or the first and her hus- vaginal band, mother, her- noticed discharge, brownish color accompanied and sufficient stain the bed clothing, a fetid and offensive odor. Plaintiff’s husband described the odor vaginal discharge being something decayed, as “like some- thing rotten.” Plaintiff testified that vaginal she noticed the dis- charge day, part every napkin, she had wear time which, discharge, badly while with the- was so stained saturated thereby vaginal would not discharge, stain come out. The according plaintiff’s testimony, .gradually intensity, increased in particles and later pieces mucus, it contained brownish pieces observed.immediately brownish she mucus testified Christmas, 1921, and before she told thereof. Plaintiff defendant, testified that time called his attention *8 discharge, replied saying bring that he would doctor “another By Christmas, 1921, plaintiff’s to see. that.” according evidence, plaintiff’s legs seemingly paralyzed, become had so that: she was without, unable to assistance, move them bed and her hands had affected, also so that she was become unable to feed herself or to use readily. them Plaintiff’s also to show she ex- tended that evidence difficulty breathing, perienced experienced and sensation choking or smothering, which her at times mother wbuld 'have fan might readily. her order that she breathe more Plaintiff testified distinctly vision failed until could not see clearly, she her. .that somebody dropped that “it seemed that had a drab colored ’’ face, suffering veil of her and that her front was so acute she sleep except fitfully. plaintiff could The mother of testified that spells cold, get “she would take and she could not her breath.” lapses Plaintiff’s to show evidence also tended that she suffered from memory part November, 1921, the latter and was unable recognize they at times to visitors called at her bedside. ’At when spells times, plaintiff testified, she of semi-consciousness. evidence, conflict,-discloses that defendant without serious regular upon
quite in his constant attendance -from 1921, 28, calling upon plaintiff defendant October 8.to December at days 'Upon- during several frequently successive mother’s home days period, said occasional intermission few de- an of. testimony respecting conflicting, however, ’s is fendant visits. The 1921, December 28, visits of defendant’s between number Januaiy 13, latter is have been the 1922, date conceded 1178. on one upon plaintiff. Plaintiff, tbe called defendant
last time continuously, and 'her almost that defendant' visited hand, testified January 1922, that every day, up every day or days, re- of twlo or three after an intermission thereafter, Defendant, final visit. January the date 13, 1922, on turned hand, that from' a written record his visits testified on the other 28, 1921, and plaintiff between December no call he made days. January of about sixteen 13, 1922, interim -accompanied by another January defendant, 18, 1922, On testimony according of de- plaintiff, and, physician, visited vaginal consulting they physician, then made fendant and the discharge from and discovered no mucous examination As or fetid odor therefrom. vagina, detected no unusual at physicians two arrived such;examination, result of Respect- child was not dead. fetus of the unborn conclusion January 1922, defendant testified: ing the made examination (the consulting physician) getting ready day, while he “On glove I forth, and so -took her a rubber for the examination with As he examination—-the temperature, which was normal. finished the finger glove put to his nose and then bimanual examination —he I remark, said, ‘There is no odor.’ placed and made the it to mine that, again.” I saw her odor.’ never ‘No, there no After Plaintiff’s husband testified:
“Q. January Dr. Schofield there on the 13th of when You were ? sir. Yes, there A. physician and the other were your day? “Q. an examination of wife that And made Yes, A. sir.
“Q. you call Dr. attention to Did at that time Schofield’s I him time, but at odor? A. I didn’t told offensive I the child was dead. date that believed you A. “Q. attention to offensive odor? Did call his *9 it, anything if know I him he noticed or didn’t that asked speaking I it. don’t remember kind. day.” any day?
“Q. discharge A. Not that You didn’t that see Respecting abandonment of defendant’s the issue conflicting. Plaintiff’s husband testi- testimony is likewise somewhat : fied - “Q. (defendant) any the 13th of treat her Didn’t he January? No, A. sir. “ sir; ? Q. stop No, her A. told treating to he you Did tell him or next January, ‘I -her tomorrow 13th of will see me Sunday,’ way spoke. is he or day.’ ‘Tomorrow Friday. “Q. day 13th? A. What was the “Q. that, him after when he you call him or talk to didn’t Did to ? I and talked him. come A. went to the office
1179. say? “Q. wbat And did he A. 'I said, He will her see this ’ evening. “Q. day What was that? A. Tuesday morning. That was on “Q. Well, And what? A. then he didn’t come.
“Q. He didn’t No, come? A. sir.
“Q. you following him ? I Did see after that A. saw him on the Thursday morning, the 19th.
“Q. you sáy What'did to him then? A. I didn’t ask him'to morning, I said, come that but went to the office him to-see and he you might Dr. ‘Well Hoefner’ —I it Dr. Hoefner, take believe an osteopathic said, might help doctor—‘down' there.’ He ‘He those ’ limbs. n “Q. any No, Did he come down more? A. sir.
“Q. you What do ? A. called did I another Dr. doctor, Haughey. “Q. respond your Did Dr. Haughey Immediately; call? A. ' . yes, sir. ...
“Q. occurred, Haughey What was that the date when Dr. January came? A. 19th. . . .
“Q. Now, any Mrs. Gazzell any treatment from received physician January between the last date that Dr. Schofield came and ? Absolutely 19th A. none.
“Q. you, telephone any Had word of pen mouth way, you indicated didn’t treating your want him to continue wife? No, A. sir. ‘‘ Q. give you any ceasing Did he excuse treat and car- ing for No, her? A. sir. . . .
“Q. you any "warning hint from Had or notice or Dr. Schofield your previous to that he didn’t care treat wife? A. No. - “Q. given you by Was that the last advice that was Dr. Scho- field, your condition, you when he reference to wife’s told get osteopath? A. sir.Wes, “Q. When was that? A. That was on the 19th. -
“Q. Yes, The 19th. A. sir. “Q. Cazzell, you any any Mr. ever consult or' call did time your physician upon Dr. Schofield, previous other to attend wife than you Haughey? Dr. A. did not. the time called “Q. you physician upon any calling Do know of other her or physician attending any way any other than Dr. her in S'ehofield — 33th, A. previous Haughey Dr. came? After the to the time that you mean? “ Q. No, doctor ever treat her ? A. At time—did n none ever treated her. None, except
“Q. A. the doctors that call her? came Or with Dr. all.” Schofield—is
Defendant testified: you patient to
“Q. jury if this refused Tell the abandoned again! A. I did not. see her to her after
“Q. you call come see her husband Did January? No, A. sir. 13th of you go again. A. When
“Q. jury why ’t back tell the didn Just jirevious understanding left, January, was, 13th of we by along, ’phone on, and so date, that we to be informed that were physician was days I that another passed a few ascertained and, course, that I was out. at the house meant that seen going he “Q. you that was Had advised husband been No, A. sir. physician? to call another family? A. sir. “Q. No, member byOr 13th, “Q. you your after the office, Had husband come osteopath you suggested wait his wife? had have that he No, sir; A. never.”
Cross-examination: treating
”Q. say her— you that another doctor was mean to Do say A. I that. you know of that? didn’t do hearsay “Q. got ? A. I Well, you say you it understood days Vas after the 13th and was another doctor there number taking of her. care discontinuing
‘‘Q. your your services? A. reason for Was that I not more. supposed needed “Q. up if A. you call and ask them that were true? Did them No, sir. siege
“Q. treating in all you been this dreadful had After another doctor—and understood that sickness, you merely quit'the No, A. . . . understanding case? sir. you people “Q. get on the didn’t telephone, knew You how these you? A. Sure. 13th?
“Q. your he, after office, came to didn’t Mr. Cazzell No, A. sir.
‘‘Q. A. did not? sir. No, He your ‘‘Q. you Mr. tell the Cazzell did come Do A. I 13th Jañuaiw? do. after the offiee get him, “Q. no in communication with you effort And made family patient? mother-in-law, of this sick wife, or the or his else. somebody A. Not understood dpc- get “Q. you ‘rubbing Mr. Cazzell to one of the Didn’t tell No, sir, A. tors?’ I never did. No, your 19th? A. office, on
“Q. he last time sir, my life.” a man that in I never told counsel: defendant’s testified, on cross-examination
Plaintiff long (defendant) 9th 10th how after the ‘‘Q. missed he Then days. three A. Two or January? *11 -
1183 again “Q. ? my why Then he came A. After husband asked-him coming. he wasn’t your
“Q. in Yes, He answfer to on 13th? A: came husband the sir.
Q. my And come more? A. No, didn’t husband went to him at the time and 13th. talked the ‘ n 'Q. you you He told about it at A. What the time? do mean?- you “Q. day went, He told that that he that he had been down going A. there? He told me he was to Dr. Schofield and down see n answering why he wasn’t our calls. ‘ (cid:127)“Q. My my husband, A. Who called him? mother and my I him, and one time called when had a sister convulsion.
ICQ. Yes, That was after the 13th? A. sir.
“Q. things?. all You A. remember those remember those very distinctly.” convulsions Haughey January
Dr. plaintiff 19, 1922, was called to attend on plaintiff day. and saw of for the first on the afternoon that time in He testified that found an. and he emaciated semi- condition, temperature high conscious with a of and a rather pulse rapid family, part or of 180. told about He the as a wias history case, of the that had had no bowel movement days for two or three and that had not voided urine from 36 she n plaintiff’s 48 having history- hours. After of obtained the case family, Haughey from the members of the Dr. immediate advised.the emptying suggested physician the that uterus another case, called consultation the one Dr. Anderson was twenty within Dr. called consultation came minutes after Haughey’s January-19th. arrival on the afternoon of Dr. Anderson suggested that, uterus, pack of emptying instead the it was best to eject normally fetus, the uterus order the uterus would the which-usually within about 12 to occurs hours after the uterus packed. physicians, visit, according has been On the first the two testimony Haughey, part Dr. discovered membrane in a vagina. physicians plaintiff again the The two on visited the after- day, January 20, following having the noon the uterus ejected fetus, they repacked visit, the uterus. On second the vagina, discharge, but a observed no there was membrane time, plaintiff At noticeable odor. was unconscious. On following Saturday, 21, 1922, day, January the afternoon of surgeon physicians two in consultation with a from Kansas met Sheldon, City, opening one Dr. who of" advised the uterus- operation surgical the removal of the fetus Plain- therefrom. surgeon put anaesthetic, split tiff was and the under mouth contents, womb and removed the consisted of the de- composed parts fetus, dead macerated mass placenta Haughey Dr. that, membranous afterbirth. testified as to -so womb open, visit the cervix his-first then pregnancy had indicating “parts finger, admit one dilating cervix. womb,” thus passed out of mouth of the age expressed opinion Haughey, testifying, Dr. n or four and one-half' three development the fetus was about been dead fetus had months, that the and that he estimated operating Sheldon, days Dr. period of ten to three weeks. defendant, testified appeared on behalf surgeon, who as witness *12 four and about afterbirth seemed that of the fetus and the “the size express opinion his and, to months,” to when asked one-half five operation, long the time how the fetus had been dead at rule, but many exceptions to the answered, “Well, are there produce' the sufficient to days think a would have been week or ten medical testi- There was changes had in the fetus.” that occurred decomposition effect that mony adduced defendant to the fetal death rapid many in cases after putrefaction is comparatively in oftentimes rupture sac, amniotic where a there been has days, Haughey that there a Dr. testified from two or three to week. operation, was but was some amniotic fluid found at time of the intact, ruptured, say sac was or wias not unable to that the amniotic operation. at of the time surgical testimony witnesses was adduced of medical and January on discovery of a fetus
defendant to the effect dead that the conclusively indicative 21, operation performed, is was when the January 13, on the date of de- the fact that the fetus was dead hand, was upon plaintiff. On there fendant’s last visit chills, tempera- in testimony a rise medical that effect sudden pulse rate, power in' patient, loss ture increase locomotion, discharge a fetid vaginal accompanied a brownish vision, difficulty breathing, and dimness cessation odor, or loss of vomiting, symptomatical and indicative of fetal or abatement of are resulting death, placental rupture, septic there- infection from, suggest remedy emptied. that the uterus should be vomiting that One of the medical witnesses testified the cessation “presumptive is fetal death.” Another medical witness evidence of for, expected, when is looked testified that fetal death to be patient violently continuously is that blood woman. vomits so patient nutrition. De- and the to retain food or vomited unable effect that continued vomit testimony fendant’s ivas to January 13, 1922, although up on her the time of last visit vomiting considerably was somewhat less had been checked formerly. Plaintiff testified that the nausea con- at that than time days early September, 1921, until a few from before she tinued operated January, when the nausea was seemed testimony pass was adduced that off. Medical accompanied by pregnancy, vomiting, toxemia of severe does-'not usually fetus, and that it indicate a dead indicates-the reverse. There - testimony the effect that of locomotion, medical loss and the was legs paralysis plaintiff’s hands, might apparent have resulted following septic placental rupture toxic or infection from or fetal - - death; that, following to show operation Plaintiff's evidence tended January, 1922, confined to much she was bed of the time until' May;’ weeks, bed, for not in nineteen when she lifted from that placed chair; in an invalid the bed and she could not walk pushed using chair, assistance, without or without she before support; September, 1922, get that in she able to about her - cane; that, October; of a at trial, with the use the time suffering pain affliction; disability and from w$g she still pained leg walking, her in and that her ankles her left were so weak walking sidewalk, that she could not risk on and that she experienced several hard falls because her ankles were too weak to weight surface; -cramped that her limbs bear lier uneven so comfortably; sleep that she was unable one of her turns feet straighten her; habitually so her husband has it for trial, that, up steps, time she had to be 'carried *13 so and her was weak that she could stand but heart little exertion. weighed pounds 196 in
Plaintiff testified that she dur- July, and ing weight weighed only gradually her illness she lost until she 95 operation. pounds 100 or at of the the time She that she- testified weighed pounds present of the of the time trial action. testimony, requested all
At the conclusion of ’the giving peremptory in general'de- of a instruction a the nature of peremptory murrer which evidence, to instruction was refused Thereupon court. trial the cause was submitted to the upon given request respective of parties instructions at the action. assigns Appellant
T. reqfiested error in peremp- the refusal of his tory general instruction in the nature aof demurrer to the evidence. petition upon
The amended action was tried charges defendant, intendment, in and substance wiith negligence respects: failing'to in two discover (1) failing the fetus of the unborn child was dead and in to re- fetus, move the or failing empty dead of contents, uterus its (2) abandoning .patient, and plaintiff, his without notice-to the patient having plaintiff. without been dismissed Plain- tiff, by theory recovery, her on instruction submitted her case both on said or theories, negligence. defendant’s specifications, study analysis to the critical given
We have scrut-inous. and evidence, record, forth in our as set the abstract of the examina- inescapable analysis con- of the evidence leads us to the tion and which -to clusion that there is substantial evidence -submit determination, aforejsaid jury, either and- both their defendant,. negligence part charges, or specifications, upon which to submit in the .record There substantial evidence failing diagnose negligence in defendant’s jury- the issue of to the failing dead, child or the fetus unborn discover that - expert medical .Several of the empty the uterus of its contents. locomotion, apparent paralysis of that-loss of testified witnesses ..the difficulty in limbs, rapid pulse, of breath and .a shortness patient’s odor, vaginal discharge accompanied by fetid a. breathing, and a plaintiff’s tends to show symptoms evidence of which several all January by plaintiff visit on prior to defendant’s last were exhibited placental strongly of fetal 13, 1922, are indicative death suspicion say least, sufficient, to to raise the rupture, and were physician reasonably skilful that fetal death a careful Plaintiff, husband, and her rupture placental had occurred. vaginal accompanied discharge a mother, noticed testified 192-2, shortly prior January, first of on or fetid odor replying^ thereto, defendant called defendant’s attention was discharge, vaginal that he .wanted “some told of the when medical ex- in the clinic -to see that.” other doctors Several defendant, that such testify testified perts, on behalf called suggest, remedy,, the as the indicate, would symptom or condition cross-examination, Robinson, upon Dr.- tes- emptying of the uterus. tified : discharge, -they if and the
“Q. Well, fetid odor found the abe condition A. That would putrefactive there? would indicate strong very suggestion of that. very, you would “Q. your judgment physician, as a skilled And in patient detecting steps that condi- what behalf of the take *14 , emptying Well, would indicate A. a condition that sort tion? .- ... of the uterus. sinking vitality, it say, is ex- if as I is “Q. patient, -But the fetus, to that risk allow remain
posing patient the to a tremendous to discharge? A. A discovery- that odor and the fetid there after odor, vagina with a in a discovery discharge fetid of a from the stated, the will indicate that previously as I pregnant woman, have ' emptied. uterus should be . speed, should all reasonable “Q. should be done And that generally That is conceded emptying uterus? A not, it the of the profession.” the on cross-examination: Pearse testified Dr.
1185 “Q. Now, discharge what a does odor and a fetid .a indicate In- yoü condition such as has ... 1 A. been described to septic dicates infection. , “Q. you putrefaction What do mean Death that? and the and in- fetus contents of the A. uterus? That wiould be one you yes. ferences would draw,
“Q. remedy And that is be used when discernible what is the to by skilful Securing cleansing men? A. the of the uterus and removal causing discharge.” whatever infected tissue Is defendant, consulting While it is physicians true that and the by him, quite positively called testified none of their several on upon plaintiff they discharge visits vaginal accompanied did find by a fetid odor, emphatically plaintiff, and denied while had, family, the members of her time, their attention called vaginal discharge ato a therefrom, nevertheless, odor such fetid reconcile, conflict in jury weigh matter to the evidence was a for the question and determine as of fact. the evidence conflict “Where is ing opinions as to the on expert based, facts which the witnesses are given witnesses, and opinions where of such facts state of materially in the case, differ, determine, their jury it is to finding Cyc. 1588; Vanhooser v. 90 Berghoff, conclusive.” [30 487, jury, system jurisprudence, Mo. our are under 496.] judges credibility whight sole be witnesses, given jury testimony, to their trial court so instructed present Cyc. upon request in the action of the defendant. [38 1518, 1521; Co., 105, 140; v. v. Railroad 215 Rearden Mo. Gordon Burris, 602, App. 456, 614; Mo. v. Hunter, Cravens Mo. 463.] upon
There is submit to the likewise substantial evidence plaintiff, without issue of defendant’s abandonment of the patient having notice to the and without been dismissed patient, although upon bearing such likewise evidence issue is conflicting. quite positively Plaintiff’s that de- husband testified January 1922, on Friday, fendant told him of defend- date (plaintiff) “I will upon plaintiff,' ant’s last visit see her tomorrow that, day; Sunday,” following or the next tomorrow or on the Tuesday, defendant, who he went defendant’s-office talked to said, evening.” Concededly, upon “I then will see her this defend- testimony, upon plaintiff no or call own later ant’s he made visit Friday, January 13, gave after 1922. Defendant as for not reason continuing January 13, attendance physician he at the had “ascertained that another seen course, out,” and, “I house that meant that I was and that any more,” although supposed ap- needed verify parently part no made effort on his information physician another to attend been called treat
1386 mother, her husband, plaintiff, her get communication into Plaintiff testified patient. family member o£ the or sister, had called husband, her mother,
that her 1922, plaintiff’s evi- January 13, her after to visit and attend family, had or her show that furthermore tended to dence in- any way,” telephone or in “by pen or or word of mouth not, his discontinue he desire that dicated to defendant that it their uncontradicted is plaintiff. The evidence or treatment of attendance defendant’s physician to attend that no was called Haughey on January 13, 1922, was called until Dr. visit on last visit. January 1922, last 19, days six after defendant’s duty aof law, prescribing the principle of rule, The established patient, continuing physician respecting attendance his call responding to Cyc. physician, thus in 1573: “A stated 30 special, of a engaged, in the absence thereby a patient, becomes attention, un- requires long so as it agreement, to attend to the case patient; discharged by the gives contrary or is less he notice only in his at- ordinary care and skill and he is bound to use properly may safely and determining it tendance, but in when liability for abandon- rule of actionable discontinued.” And the Cyc. in 30 1576: stated patient by physician is thus ment of the period, re- a critical case at “The unwarranted abandonment sulting patient, suffering part on the pain increased damages.” physician will render the liable 34: 389, Law Ruling 211 Section is thus Case The rule stated patient impliedly en- engaging case a physician “On to treat his his services gages illness, him until throughout to attend dispensed places hands of patient himself in the are with. The knowledge of physician judgment and thereafter relies treat- physician partA of the correct rather than on his own. proper ment of careful and determination the' case is the When the physician of shall end. the moment when the relation patient, employed to physician charge attend takes of a case and is physician patient, employment, as well the relation of as or revoked parties, until continues ended the consent longer until his services are no physician, the dismissal of the ’’ needed. foregoing afore-cited rules, as announced established texts, opinion, expressed appear amply by judicial as supported to be Prescott, 313; 305, adjudicated 64 Me. v. cases. [Ballou 70 N. Y. 381; Plimpton, Griffith, Dashiell v. v. 363, 84 Md. Gerken 676; v. Supp. 793; 675, Potter Supp. Janinski, Becker v. 15 N. Y. Y.) (N. Virgil, Hun, (N. Y.) Reed, v. 578, 581; Barb. Boom 122; v. Cona 428; Lawson Tucker, v. 67 Ohio Gillette St. *16 1187 Pac. 63 (Cal.), 165; Lathrope v. Flood way, 37 W. Va.
1008.] assigned giving
II. Error is in the of Instruction No. 1 on behalf plaintiff. jury plaintiff’s No. 1 Instruction submitted to the two namely, question, negligence, issue, theories defendant’s the or 'negligence diagnosing- plaintiff’s in defendant’s ail issue, in and ment and his treatment of the or (jllos-tionj plaintiff 0f defendant’s abandonment of with- longer of his intention to no attend or treat plaintiff out notice sup- is no substantial Appellant contends that there evidence to her. Paragraph ruled, in giving said instruction. We have port the support in is evidence of the opinion, that there substantial of this petition and that no error was committed of the averments several refusing peremptory instruction by court in defendant’s the trial In- general Plaintiff’s of a demurrer to the evidence. in the nature pleadings purview and 1 within the of both the No. falls struction of defendant the instruction evidence, and the contention supported by the evidence must be denied. is not undertaking jury that, in No. told the
Plaintiff’s Instruction duty of plaintiff, “it the defend treat became care and ordinary employ and such reason in her behalf ant to exercise care physical plaintiff ail to relieve the able means and methods customarily reasonably ordinarily by used skilful as and ments were plaintiff competent physicians locality in was con where and B given A and told Instructions fined.’’ Defendant’s surgeon or of a cure and physician “a or is not warrantor insurer remedies; by is of his he is not liable not to be tried the results judgment if an hi exercised for an honest mistake or error reason arriving diagnosis ap diligence and if he skill and in at his able according diagnosis plied proper treatment and treatment,” negligent in his and that “the defendant cannot be made damages responsible judgment in in in for errors or mere mistakes uncertainty, provided in doubt or he exercised and used matters of diligence plaintiff such reasonable skill and as is of the treatment profession ordinarily practice in and used of the exercised practice by under conditions.” in defendant those who like comport structions, together, rule, principle with the when read law, Cyc. 1573, physician “A announced stated in as follows: and knowledge surgeon is in bound use reasonable and care learn ascertaining operation ing patient, if the condition of in necessary, determining place and proper, whether the time are and making diagnosis case.” .Both the and de of the' instructions, sought given fendant, by requested and invited and their question the finding jury upon and whether determination of I] 88 ordinary care had failed exercise reasonable not defendant treating her, and diagnosing plaintiff’s ailments
and skill ques- to submit such upon which being there substantial evidence finding and ruled, is bound as we have tion, jury upon question. determination care, 1No. measured defendant’s plaintiff’s Instruction While ordinarily cus- premises those and methods means “in competent physicians tomarily by reasonably skilful used than those confined,” rather locality where competent customarily by reasonably skilful ordinarily used *17 upon yet imposed localities,” instruction physicians “in similar the required him, of ivas degree a' care and skill than lesser of defendant instruction, be, if is favor- in such there and technical error the the Westerman, v. harmful, able, than to defendant. rather [Krinard by given Instruction 680, Besides, defendant, the 279 Mo. 694.] imposed upon himself, as the standard voluntarily B, assumed and use, in the treatment duty premises, in the exercise of his ordinarily diligence as is “such reasonable skill and of of profession the defend- practice of of exercised and used conditions.” by practice under like ant those who giving plaintiff’s of Instruc- assigns Appellant error ITT. permitted jury to damages, which 2 measure of on tion No. reasonably will damages sum which plaintiff’s at assess a any, suffering pain, if compensate for her her “for defendant, and by negligence, if any, of caused any, sustained, if plaintiff may have permanent injury that the may any, suffering, if that any pain . . . and for negligence through of by and future, sustain caused upon no evidence that there is contends Appellant defendant.” injury, or for future permanent predicate recovery for which a that, show at suffering. evidence tended to Plaintiff’s pain and year last visit defendant’s than a and more time of the trial from her ail- disability pain suffering plaintiff, she was still on difficulty in experienced weak that she ; were so that her ankles ment sleep cramped that so her sidewalk; limbs walking upon that her habitually; her heart turns disturbed; her feet that one of exertion; and that she little stand but that she could was so weak on as witness stairsteps. Plaintiff testified up the had to be carried evidence, least, jury some ocular behalf, and the her own inference draw a reasonable which to physical condition her probabil- injury reasonable her and the permanency respecting the by instruction, suffering. The pain certainty, of future ity, charg- recovery by plaintiff’s terms, amount of specially limited the its damages “award they could ing jury by may independent any negligence sickness sbe have sustained her directly only damages defendant, . . . but such as are trace negligence any.” from, defendant, able such if to, and result justify giving think We there was sufficient evidence to jury of instruction and the submission to the the matter of the injury certainty permanency plaintiff’s and the reasonable damages. pain suffering estimating future v. [Gharst Co., App. 411; Smelting Transit 115 Mo. Frazier v. and Re 431; Quinley fining Co., v. Traction 180 Mo. Co., App. 419, Mo.
App. 287, 303; Thompson (Mo. Sup.), Smith 253 W. v. S.
1029.] assigns Appellant
IV. error the modification court trial E, given, modified, of his Instruction which instruction was as instruction, as given, behalf defendant. The as fol- plain- lows: “The instructs court that before preponderance can tiff recover she must establish your only testimony and the credible reasonable satisfaction not carrying the fetus she’ was was dead on the date when to-wit, day January, 1922, last the 13th her, treated but prove thereto, in manner, she must in addition like that the defend- part knew, or the exercise of reasonable care and skill on his ant known, prior should have that such fetus was dead on or to the said *18 guilty negli- day January, 1922, 13th was of of negligent gence in her or his to treat her his treatment of failure plaintiff date, proof said if has failed to make such of after your facts, verdict must be for defendant.” either of such then trial modification of the instruction was the interlineation The court’s Appellant instruction, as so of clause. insists the italicized guilty negligence failing was modified, assumes that defendant of January 13, Abbreviating plaintiff treat 1922. and shorten- to ing somewhat, it reads: “The court instructs the the instruction a jury plaintiff pre- can recover she must establish that before your reasonable ponderance testimony the credible to satisfac- of guilty negligence of in his treat- tion . . . that defendant assump- to her, negligent of or his failure treat her.” We see no ment contrary, On instruction of instruction. tion fact proved requires every therein to be established and fact referred to testimony the reasonable preponderance the credible and to a if has failed such jury, and, plaintiff to make satisfaction assignment find for defendant. The jury to proof, are directed and must be denied. grounded, of error not well is contends that Appellant Haughey, Dr. who attended Y. January 13, after defendant’s last visit on plain- appeared and who a as witness on behalf permitted give opinion based, part, tiff, upon history which obtained from the case he members plaintiff’s assigned respect. family, and error is
Dr. Haughey was asked to tell the court and the the condi- tion in which January he found 19, 1922, on the afternoon of “ when he first her, saw: answered: I found in semi-conscious condition, temperature high. 102, pulse around rather it was She was rather in a condition. She emaciated and semi-conscious aroused, again. could be drop sleep but she would From the back to history from family, obtained had had no she bowel movement days two or three 48 hours, she had not voided urine from to they following said.” answered, After the witness had thus oc- curred : object what him. We We said to “DEPENDANT’S Counsbl:
object history family from members who interested are expert’s upon this. testimony facts, The must be and not based history. hypothesis upon . . . The he testifies must be Upon testimony going hypothetical ques- facts. this is to be based a go tion. can him, He ahead tell the whole world told what understanding hypothe- going that it the basis of the to be question, give history tical but he can’t obtained from some member family hypothetical question. and that be the basis of the I you. Objection understand overruled. Go ahead. Court: (Defendant excepts ruling). “Plaintipf’s proceed, Doctor. Counsel: Now physical “A. all condition, That is as observed it. (cid:127) “Q. Well, you history what A. Then I did do? obtained a from family. “Q. you purpose enabling For treat her? A. For the purpose enabling me treat her.
“Q. history Now tell what that was.
“Dependant’s object Counsel: We to that. “The I think has that. Court: he told *19 just getting patient was he to it. The No, “Plaintiff’s Counsel: was talk— unable to gotten her.history from Court: He has now the members of
“Tiie family— the history. has not related that He “Plaintiff’s Counsel: got day, Court: He it there that but not he must tell the “The
jury, family of because some the other members the have told it. I authorities— have some “Plaintiff’s Counsel: - history. let Now "The CouRT: He obtained understand. the go with as to his that, him ahead treatments. history you you all Counsel*: Have told the
“PlaiNtiff’s got no. patient? to the condition of A. Oh, reference the your What Was treatment?”
“Plaintiff’s Counsel: re- readily foregoing Haughey’s It from that Dr. will be seen the concerning history of mark, statement, the case as obtained the wholly plaintiff’s to family, appears from have been members asking him to voluntary part, inquiry his and in answer to an per- plaintiff’s actually it, or he describe condition as he found as voluntary it. such state- sonally After witness made observed had voluntary state- ment, no motion to strike out .the defendant made to the witness, nor did ask the court direct ment of the defendant asked disregard Subsequently, when the witness was it. history must ruled that witness ease, relate the of the court hearsay jury, that it ground on the history not relate analyzed Dr. carefully We have read and whole evidence. expressed by Haughey’s opinion find no therein testimony, we any hypothetical question, which is based in witness, answer to the, patient’s upon any fact upon history case, or predicated family, or from her- plaintiff’s member of obtained from suggestion, Dr. slight, is there however self. Neither treating arriving his or in Haughey’s testimony that, upon what of’ diagnosis ailment, her he he been told relied upon his own history case, or he acted otherwise than of her judgment personal observation. appellant has attention to a directed our
Learned counsel for ap- this the several courts court, of decisions of number expert holding witness must not peals State, that medical of this past history part, even in permitted opinion, be base by by patient’s patient, to him case, as related decisions, cited and other have read the several persons. We decisions 'therein, ap- by now cited, the rule stated not contended conceded, appears well may to be established this be pellant, it present case, of the record in the However, under the state State. applied cases, in opinion, in the cited our is in- rule as stated present as record, inasmuch record present applicable to Haughey, witness, express Dr. did medical shows that plaintiff’s based, part, upon history ease as opinion even family. plaintiff, or the members either related him voluntary purely in the statement of if technical error But there be history (and case w'e think respecting there the witness failing error was waived none), such technical voluntary statement the witness from move strike the assignment therefore of error must denied. record.
1192 Appellant graduate VI. Longan, contends that Dr. a and practic- (cid:127) ing incompetent testify expert osteopath, was to as wit- medical belong on to,
ness behalf of because he does not profess or principles of, £0 follow the rules and system of of which or medicine defendant is member. The school clearly show, all, if it shows or principles does not at rules record system professes of medicine follow, of to what school practice system assume that defendant does not com- but we will Longan Dr. monly osteopathy. denominated as testified that diagnosis and same text-books medical authorities are in all used systems and of medicine, and different schools several and diagnosis.” all methods that “the same are used schools He experience knowledge practicing that his and further testified as acquired colleges physician osteopathic experience and from his practitioners. part greater Longan’s with other medical of Dr. only subject diagnosis, had to do testimony with the of and not with Grainger In v. Still, the matter treatment. Mo. 197, 226, this upon a court, many of this review division decisions au- and expert witnesses, regardless thorities, ruled medical school system competent adhere, medicine to express are to opinion diagnosis an testify any as to matters of as to to scientific' is, ought to be, every physician surgeon fact that to known far every system. find, school or So as foregoing juristic we pronouncement has never modified court, been or overruled this widely cited, stating and the has as decision been the true and proper legal rule, by foreign jurisdictions. textwriters and the courts of assignment Appellant’s of error in solely this court directed to competency Longan testify of Dr. to case, as a witness competency is not or admissibility any specific directed part words, his In testimony. appellant pointed has not out to us particular testimony what of the witness is claimed to have im- been properly admitted, general assignment but makes that the wit- incompetent testify ness was to as and, a witness therefore, all testimony of his should been ruling have excluded. Under our Grainger supra, v. Still, competent the witness was express opinion diagnosis as to matters of testify scientific fact ought every known to physician surgeon every system, testimony school or so that the witness on matters of diagnosis competent properly admissible. This court has ruled purpose that evidence which is admissible for cannot be simply excluded because it is for other purposes, inadmissible and, competent any purpose, where evidence is duty it' is trial court admit it when offered, and, furthermore, if it is effect, its duty desired have it limited then it is the op- posite party purpose. to ask instruction for that Mill- [Standard *21 ing Co. v. Transit 203 Co., 258, 273; Co., 122 Mo. v. Sotebier Transit Mo. 702, points an appellant particular Unless out evi 721.] dence general objection claimed to admitted, have improperly been will not considered, province be not court search for it is of this the record for errors specifically not attention. called to our [Sanzen v. Santhuff, bacher 274, 282; 280 Mo. Luyties, Mo. v. Christine 512; 416, 431; Maloney v. 509, Railways v. 237 W. Barnett S. Co.. Doody Hastain, 256 W. 753; Co., S. W. v. Mills 274 S. Woolen The assignment appellant. against 699.] must be ruled
VII. assigned Error is permitted plaintiff’s in that the trial court counsel, over objections, inquire defendant’s on voir dire examina-
tion of the iurv nanel whether anv of the iurors were agents protective asso- stockholders or certain medical ciation, company, they, or insurance and whether their any company. relatives, with such connection jury panel, of the voir dire examination that, on discloses record following occurred: you Wayne— any of stockholders in the Fort Are
“MR. Williams: we jury excluded, If you would like have the Rucker: “Mr. question. argue this will a decision— have We Prince:
“Mr. go is. know what decision Let’s here Yes, I “Mr. Rucker: argue it.” defendants, court, the counsel for Whereupon, room, follow- consultation where the to the reporter retired and the ing occurred: (cid:127) request response : In to the (dictating) “Mr. Williams jury, Mr. Williams question in absence of the to ask the court : Pro Gentlemen, any you stockholders the Medical says are company Wayne, Indiana, insurance Company of Fort tective malpractice surgeons against eases?’ physicians and that insures question on the voir dire examina- object to the We “Mr. Rucker: Company Protective first, that the Medical tion, reason, for the foreign corporation, has no stockholders Wayne, Indiana, ais Fort that the conclusion residing Missouri; and for the further reason injects case an unfair question element is into question per- rights. If the prejudicial defendants’ single inquiry be all, confined asked at it should mitted to be them, com- jurors, any of stockholders in the are whether as to in- explaining jury what character of named, pany without company surance the writes. question that. Let the sustained to Objection
“The Court: company. in that are stockholders asked whether “To portion ruling, defendants, which latter o£ court’s their counsel, duly excepted then and saved there time exceptions.” their reporter
Whereupon, the in- court, counsel aforesaid returned to the courtroom. box) (addressing :
“Mr. Wiluiams the twelve men Gentlemen, any you "Wayne are Medical in the Fort stockholders any you. Wayne Protective Association? Do own in the stock Fort Medical any you Protective Association? do Gentlemen, know' any agents representatives, you or the know, as far as Wayne Fort Medical Any you? Protective Have Association? you engaged selling ever insurance— RugkeR: object If please, inquiry “Mr. the Court further *22 about— n I
“Mr. represented Williams: going they am to ask if ever company.
“The if company. Court: You can represented ask ever the ruling defendants, by counsel, “To which of the court the their duly excepted then and exceptions. there the time their saved you “Mr. Williams: Did a while, sell insurance for Mr. Gross? “Mr. Gross: Yes. you any represent, Did in any capacity,
“Mr. Williams: ever or any dealings with, Wayne have Fort Medical Asso- the Protective ? ciation object any inquiry along
“Mr. Ruoker: We further that line as an attempt inject (No ruling.) a false issue. (addressing panel) six other :
“Mr. men the Are Williams any you Wayne in stockholders the Fort Medical Association? any anyone you your relatives, interested, Are in whom are or. any you in company associated with of? Do capacity know you any ag'ents Wayne know of the of the Fort Medical Protective directly you indirectly Association? Have represented or Wayne the Association? Fort Medical Protective You know don’t Mr,. your brother-in-law, McMahan, your whether whether brother- Wayne in-law is a Fort Medical member the Protective Association? I it, “Mr. MoMahaN: never heard of heard never the name be- fore.” occurrence, by foregoing procedure,
From as the shown the judge record, it counsel appears that the and the for the re- trial spective parties room, consultation presence retired to outside the interrogation jury panel, where the manner panel questions form on vo-irdire to be asked examina- by by counsel, tion ruled court. were discussed court and court, by specifically While for was not asked counsel company directly indirectly whether named insurance was
1195' defendant, nevertheless, ease, in as so interested tlie the insurer shows, say, not or even far as the record counsel for defendant did company was an insurer of intimate, that the named insurance attempt testimony defendant; offer, offer, nor did counsel company show defendant and that the named was not insurer of Neither, any way has there been was not interested the case. argument in this such disclaimer brief or made defendant^ nothing court. record before us indicate There acting propounding counsel for in bad faith questions prospective purpose prej jurors, or for the mere showing, assumption udicing them, and, in the absence of such may acting in indulged plaintiff’s' good us that counsel Co., Cap Mfg. 173, faith. 312 Mo. v. Modern [Jablonowski 201.] Upon trial us, the record was committed before no error overruling objections court in to the examination of the defendant’s jury panel. [Kinney Railway Co., 97, 114; Wagner v. v. Mo. (Mo. 890, 897; v. Con
Construction 220 W. Melican Sup.), Co. S. (Mo.
struction Co. 278 W. S. Sup.), 366.] VIII. Lastly, urged it is the trial court as error that failed assessing plaintiff’s refused to dam jury, set aside verdict of ages in being Judg excessive. $10,000, sum of as unreasonable and $10,000 against
ment de in favor of return fendant was entered of record the date verdiet, subsequent date ^he October 1923. At *23 court, and a later of the the court made entered term day following 19th order: “And now on the the being days adjourned of the of the February, the same one regular court, this defendant’s January, term of term of the regularly presentation on for trial herein came motion for new hearing argu read, And said motion court, court. fully find being premises, in the doth counsel, and advised ment of jury $10,000 by the is awarded to the verdiet of be and order said verdict reduced excessive and doth decree be overruled.” No order $6000, motion for a new trial and that the requiring by or court to file enter made and entered motion for new remittitur, penalty sustaining defendant’s made; judg nor was trial event such remittitur court, by upon set $10,000 the verdict aside ment for entered judgment ap for entered. Counsel nor was new and different opinion frankly herein, states that the in his filed pellant, brief authority amount reduce the of the verdict with trial court no entering a remittitur sub giving plaintiff the choice of out Cyc. 1901, it is said: “But In 38 where a mitting to a new trial. court, is approval trial it error large
verdict is too to meet judgment amount, for the court to reduce it and enter the reduced accept giving plaintiff option amount submit without amply supported to new trial.” The rule announced the text is judicial authority, as shown the cases cited the footnote Therefore, reducing text. the order of the trial court the amount jndice, of the verdict was co-ramnon no force effect.. Appellant insists, however, clearly -indicated, that the trial court entered, the order the court amount of deemed the the verdict excessive, unreasonable and and that should the court therefore have reiterating awarded defendant a new trial. Without the evidence respecting plaintiff’s physical injuries and suffering, it is sufficient say regard that we being do not the amount of the verdict as so un- justify disturbing reasonable and finding excessive as our to. determination of the thereon. Our attention is not part directed to error reversible on the trial court, and finding upon no reversible error the record us, jury upon before the verdict of the submitted is con- issues upon clusive this court. judgment $10,000, nisi for entered the verdict jury, must affirmed, therefore be and it is ordered. Lindsay so Ellison, CG., concur.
PER foregoing opinion by SeddON, C., CURIAMThe adopted All opinion , as the judges court. concur.
Florence Warner v. Oriel Company, Appellant. Glass S. W. (2d) 846. One, May 18,
Division 1928.