*1 278 view that particular
In we are inclined this instance rule, wholesome calling application of such is one for the case remanding justice be best served will ends of it- question presents The outright reversal. cause, instead of is, be, that will our conclusion self, to what the effect of however, as reversed, lien which will be judgment for only it is whether against judgment personal shall attach to the the order also whether though appealed. not contractor, has original he even enforcing a judgment as a that, inasmuch The hold authorities merely ato subcontractor is inсidental in favor lien of a mechanic’s standing in contractual re against some favor one judgment property, and since the lien cannot owner of the lation appeal apart judgment, from such or be enforced exist review, and judgment a reversal brings up the entire owner a retrial the cause necessitate entirety, so as an vacates Bauman, v. & White Co. [Carthage Marble Lime respects. in both 67 Mo. Hoos, App. v. Co. App. Bruce Lumber Mo. 164 Mo. Briggs, Realty Williams Co. Clark Foundry & Iron Co. Simpson & Architectural 147; Christopher Kelly, App. judgment rendered the cirсuit therefore, follows, It The entirety, and the cause remanded. in its must reversed court recommends. so commissioner opinion Bennick, C., adopted foregoing
PER CURIAM:—The judgment of the circuit opinion is, The court ac- the court. as the Nvpper, cause Becker cordingly, remanded. reversed, sitting. concur; JJ., J., P. not llaid, Osteopathy, A Noren, Appellant,
Pete O. American School Respondent.* (2d) 2 S. W. 215. Corporation, February 7, Appeals. Opinion St. Court of filed Louis *3 Juris-Cyc Agency, 2CJ, 1, 419, 1; * Corpus p. References: section sec sec 317, n. 62; 79; 29, 434, 32, p. 436, Appeal Error, p. 3CJ, n. n. tiоn section 802, p. 899, 68; 4CJ, p. 316, 26; 1936, 1937, p. n. section tion n. n. section 35, 55; 833, 2261, p. 502, 2814, 53; Physicians p. section n. section n. 30Cyc, p. Surgeons, p. 1581, 14; p. 1588, n. n. n. C. D. Stewart appellant. *4 Higbee respondent.
S. II. and c& for Ellison Mills damages in- BENNICK, personal C. This is an action for for juries, alleged by plaintiff, receiving while have been sustained osteopathic Abram- certain at the hands of one Elmer C. Osteopathy, son, a student American School of senior city Kirksville, en- Missouri, an and institution in the located teaching practicing gaged in and the science the business of resulting for osteopathy. jury, in a A trial was had verdict course, sum In a motion for a new $3500. due trial, by defendant, upon ivas sustained court, filed ground giving instructions, and refusal certain error plaintiff perfected appeal. from which order rehearing. opinion, on Our re The case is now before us first versing remanding granting trial, and the order new cause jury judg to reinstate the verdict of and the directions thereon, 8, 1927, ment handed and rendered down on November unofficially reported 298 S. W. additional Subsequently, case, complications developed in the status of vieAVof necessary to sustain motion for it became reinstate defеndant’s opinion. rehearing, Thereafter, our former withdraw the case opinion. reargued resubmitted, present whence folloivs Avas court, sustaining defendant’s motion for The of the lower ground in trial, giving Aimsbased of error new No. No. the refusal instruction struction us, the case came to bill ex requested by defendant. As first exception such in either ceptions not show that instances did but, court; adverse action of had been sailed *5 point attempted made of to be such failure on as no inasmuch was case, opinion necessarily our prior of the the first submission However, pending resubmission, learned question. the upon silent an in caution, abundance filed defendant, out the counsel exceptions be asking that the bill of amended motion circuit court their tune, pro exceptions had, fact, timely so to that in mine as show hearing motion, been saved. After on such the court its entered and, sustaining appealed; the from which has same, by agreement respective may disposed of, be counsel, appeal such togther appeal granting trial, new in with the from the order the opinion. this one
Addressing nunc propriety of the amendment ourselves first pro support motion, its and at tunc, we observe that in that, at thereon, judicial hearing the court to take notice the asked practice trial the'rule case, the time the by rulings regarded excepted that all were to be to court adverse against the party rulings made, whom such were and that the exceptions stenographer, party preparing and the bill of should the conceding exceptions show such been While that having saved. practice effect, such had beеn in court take rule the refused to judicial sought prove Thereupon, notice of the fact. to by testimony, objection the rule oral to an was sustained. offer trial in Finally,-the (reciting, substance, motion for a new giving every had erred in plain- court of each instruction for tiff, every requested instruction the refusal of each and together defendant), sustaining mo- the order the court such evidence; tion were introduced in assigned, for the reasons therein solely al- and, upon it was the basis of such records that the court made. the amendment be lowed right court its discussion of of a trial amend
No extended respects, speak truth, will in essential so as to make them records well necessary. proceeding be We this court observe original exceptions where, bill, an adverse understood having exceptions bill rulings not been saved, were noted as ' (as here), the end of was the case cannot amended after the term pro exceptions saved, nunc to show unless such an order tunc entry, some record is evidenced amendment warranted Thus, may files. amendment not be some written notаtion in the resting subsequent merely term matters made at upon parol proof by others; but, memory judge, nor itself, judge’s minutes, something appear the bill must contrary, proper paper entries, stenographer’s notes, or some the clerk’s for the allowance of amendment ease, form basis Contracting Co., 311 Mo. [Manthey Kellerman pro v. tunc. nunc M. Mo. City, Co., F. S. & R. 927; Kansas Ross v. 277 W. 147, S. Coy Landers, 957; 42 W. W. S. 38 S. (Mo. App.), 194 S. W. 789; Biglow Heier Brown & 125 W. (Mo. Turn v. Tower Grove Verein rel. Cammann ex State Poplar (Mo. App.), Bluff Ramsey City 206 S. App.), 286 W.
284 exceptions were equally that,
It is where no well established actually saved, trial saved, exсeptions recited no and the bill pro court is not amend nunc tunc reason authorized to the bill require exceptions the fact that it had in which not force a rule did to be saved, exceptions were deemed to be to the effect any ruling Colp, saved to v. 213 Mo. of the court. adverse [Reed 255; S. W. v. Ass 211 Mo. ’n, Green Terminal Railroad 577, 112 18, 109 S. W. 715; supra.] rel. v. Turn State ex Tower Grove Verein, In connection, this it well however, is to mention that the situation confronting now us must not be confused that before Su preme Court in Miller, State ex case of rel. v. S. W. 920, 241 validity wherein a rule upheld. of such The was distinction to be made apparent. between the two The situations is one is a case have, where bill exceptions shows no saved, been is and it sought to have the amended bill reason rule. of the The other is a case exceptions where the bill duly but, shows that saved, were right nevertheless, appellate court consider what is actually disclosed in the questioned, ground bill is on the a rule permitting saving a of exceptions rulings blanket all adverse is invalid, and in contravention of statute.
Manifestly, the way discussion heretofore been largely by has elimination, and purpose clarifying for the the issues. areWe brought directly question now whether, in contemplation law, the motion for a new trial paper was such a in the case toas be the basis for the amendment allowed the court. answer The negative. must be in the As a fact, matter of motion a new trial did not exceptions recite that had been saved giving instructions; and refusal but, if had, even the result ,a would be the same, for the reason that a statement motion as is thing not evidence- the. stated. Such is undoubted fact [Mаnthey rule. v. Contracting Kellerman Co., supra; Dougherty & Whitehead, Dry Mo. Keet Rountree 255; Goods Co. v. Wil (Mo. liams App.), S. Consequently, since that character of evidence was not introduced justify could the correction bill, it follows order that the
of the court allowing the amendment improvidently made; we are thus left to appeal consider the from the granting new light trial in the record originally as it brought to us. peculiar
The case, however, feature- of this that, despite the unsuccessful efforts of defendant to have the bill of exceptions sought, right cоrrected the manner no of review has been fore- closed to inasmuch it, as the trial court has right, proper grant discretionary exercise of its new power, trial on account excepted any ruling, erroneous whether to or not. [Bradley Contract Manthey Kellerman 246 W. Becker, 548, (Mo. Ry. Co. & J. City, C. St. C. v. Kansas ing Co., supra; Owens Association, Railroad Terminal Green v. 201 S. W. Sup.), 82 W. App. 108 Mo. Co., Transit v. St. Louis supra; Schuette *7 129 W. Mo. Rys. Co., v. United Richter App. 85 W. Croskey, 111 Nulton only where them, it is as we read hold, authorities The above grant of new trial the a to sustain court seeks appellate the (the given by reason court specified by the lower ground not some insufficient), precluded from that it is having found been the latter by exception saved reason, was unless considering other such ruling. Otherwise time the adverse party at the of complaining the may have benefit appeal the respondent on that the in stated, order designated but not trial, for newa assigned in his motion of errors sustaining motion, the the record grounds by court the trial as for „ the rul- duly excepted at the time to respondent the must show that Consequently, assignments еrror. of ings predicates on which he plaintiff, and No. giving instruction of so far as concerns the defendant, not are 5, requested we No. the of instruction refusal propriety of review only is our to liberty, duty, but it at exceptions though no there were granting trial, even the new ruling pointedly placed upon such court its saved, inasmuch as the grounds. term the therefore, may to what we
Directing attention, our petition, alleged in proper, find that it was merits of ease we graduation prerequisite from defendant substance, that, in a as required Abramson, agent and servant of school, give to members osteopathic a treatments certain number supervision general and of defend- under the direction public, unskillfully, ant; treating Abramson that, while so injured negligently him. carelessly, and general denial. filed defendant was a
The answer plaintiff acquainted The evidence disclosed that became with fall engaged giv- Abramson the latter was while ing osteopathic plaintiff’s treatments family. to certain members of graduate osteopathic Plaintiff was aware that Abramson was not physician, but that he was a student schoоl, studying qualify practice himself for the ultimate profession. his chosen appears It requirements that one of leading the school graduation student, was that year, each his senior should ad- minister two hundred treatments outside of the school, and an ad- ditional two hundred infirmary, at the school’s to members of the general public. given Such treatments were under direction a member of faculty defendant’s staff, reported by and were student to supplied defendant on blanks him for purpose. such personal
Prior to Abramson’s ease, plaintiff connection with tlie had been examined at school proper, and had been told at the time that suffering progressive he was lumbago, from disease which first part back, gradually manifests itself in the lower ex- higher. tends paid For this he examination the school the sum of two dollars. Subsequently, during one of Abramson’s visits plaintiff’s sought home, permission plaintiff he him, from to treat request granted. days Four or five later Abramson re- company with turned, Platt, Dr. faculty, member defendant’s charge required given by the director in to be students; and, plaintiff after an examination conducted both men, agаin diagnosed lumbago. his ailment was After a conference Abramson, Platt informed Abram- competent son was him, to treat was, fact, first treatment given by Abramson in presence. Platt’s immediate Thereafter regular treatments were administered a!t intervals Abramson *8 alone, until March, 1922. particular complained
The given treatment of was time in some Upon February, occasion, Abramson, placing plain- such after upon tiff the treating table, manipulated hips; then, first his taking hands, after hold of his head both twisted his head with plaintiff causing such table, force as almost to throw off the his of noise, neck to craсk with which plaintiff loud as a result of was very permanent injuries. caused to suffer severe and adjustment There was an neces- evidence that the neck was not sarily although specific lumbago, occasionally, treatment for when a being affliction treated, general was addition to treat- treatments, given; particular affected, ments of the were also that area extreme pressure neck, happened required would be to dislocate the as plaintiff’s neck, case; that, adjusting proper was the the method place operator’s to of the to the hands underneath and the sides place upon head, as Abramson neck, not them under or to patient’s body'upon did; and force as to move the apply that to such jerk table, give turn or as to dis- head such a severe and to proper osteopathic treatment. neck, locate the was not a Dr. Platt himself testified to the fact that Abramson required was give to certain patients, treatments to who were to be by a examined faculty member of school; and that it duty was the faculty such member to instruсt the student as to the nature of the ailment, and to outline the exact manner in which the case should having be He treated. admitted examined plaintiff, having given specific Abramson directions as to the course of treatment to pursued; be stated that after the but first treatment had been ad- ministered, supposed he was again, not to see unless the give relief, complaint treatments not or did some other was made. part upon bearing There was evidence offered on of defendant theory re- defense, its which that Abramson had tended to shоw ported reported treatments; certain of had not but he February, completed one as had at that time 1922, inasmuch he required him defendant. the number of heretofore Passing instructions for the matter of the the moment propriety to, referred ns first to direct our attention to behooves peremptory nature of a demurrer to instruction in the case, whole requested at the close evidence, defendant duly exception It is obvious which saved. the refusal of lower points correctness which our decision as to evi- sufficient First, whether there was turn ruling must are: court’s question of Abram- jury of the justify to the submission dence and, plaintiff; of his treatment agency during the course son’s part negligence on the second, proof actionable whether there In respond. liable to would be for Abramson us, presented we confess thus the issues consideration of our one, case, us to cited nor have counsel search has revealed no our facts being sufficiently regarded similar on as which could be therefore, re- left, for' We of it. are decisive case at bar to be expressiоn in they law, find principles course to fundamental herein. import justify citation their of sufficient authorities question regard agency With of Abramson’s commonly “agency,” it is term its understood that the broadest sense, person rep every for, relation in which one acts includes or authority. another, general no resents the latter’s There inis particular agency established; mode in must it is which an by what parties, immaterial what terms used name the are requisite designated, if the such status transaction elements of *9 the facts taken as a whole. Further are otherwise deducible from every more, agency depend upon a in event does not relation of but, contrary, appointment acceptance express thereof, and to implied words may frequently is, from the and be, it conduct and particular parties, several circumstances of and from the given case, [Johnson nafural and reasonable construction. when a Railway Express W. 22 American S. Hurley, Mo. Mfg. Phillips (Mo. Geiser App.), Co. Scanlon 471; 2 J. Co., 107 W. C.
Viewing the case in light, the above it to occurs us at outset that the matter requiring of its senior give students to general part of public members parcel and of defend- business, teaching ant’s that osteopathy; of science and that including persons, plaintiff, those who, for whatever reasons, sub- experimented upon mitted to be themselves at the hands of de- fendant’s were, undergraduates, reality, laboratory in but so much equipment employed enabling be in the students to meet re- quirements by graduation. laid down defendant for words, In other soliciting in upon might patients, whose bodies he test out technical learning acquired abstract he from the pages had his o.f books, text cannot be engaged upon said that the solely student was his own initiative, acting but rather that he in a matter in Avhich defendant had a vital well. interest as undisputed think agreeing
We it is that in accept Abramson, treatments at the hands of understood that Abramson student, was but given and that the be in treatments were to requirement although fulfill defendant, proof there is no that plaintiff any placed upon was aware limitation that had been But, total number of treatments to be administered this manner. particularly pertinent looking more facts of the we сase, ob- diagnosis by serve that was not made Abramson his own responsibility, conjunction him in with but instead the member charge having such of defendant’s staff all activities of the student may body. In far Abramson have been doubt so as as to the proper pre- pursued, method of treatment was course to be charge; and the first director treatment was not scribed had given be until been had between Abram- allowed to a consultation Platt, latter had assured and Dr. and the that Abram- son gave That Dr. Platt Abramson cer- competent son was to treat'him. admitted; responsibility his nоr did end here. tain is directions thereafter contrary, the conduct of Abramson remained un- To the eye defendant, as shown the fact der the watchful progress report the constant of his work required Abramson was supplied purpose, him for that as upon blanks well to defendant that, in Dr. Platt case Abramson’s treat- further admission complaint been made, had relief, some other given or had not ments upon plaintiff again. duty called Thus his to have have been it would that Abram- general course of treatment plaintiff did not receive the given administer, insteаd was fit but volition, saw to son, of his own corporate person engaged in treatment osteopathy, proper to practicing deemed teaching the science plaintiff’s a cure hands order to effect given Abramson’s at case. agent, principal the relation well
We are aware physicians exist between two held to servant, is not master and other, consent patient to treat the one is sent where wholly upon acts his treatment pursuing patient, *10 from the other. v. direction [Gross initiative, and without own 924; v. 109 Tex. Lee, 218 W. Moore S. Aрp. 118, 203 Robinson, 391, S. W. 214.] logical. entirely However, by parity reasoning,
Such is of rule apply equal effect, that, the of rule must with so converse the where (as here), present, of is not and is the case the element substitution physician the the one retains other as details control-of of nothing the disar&tion at to he given, treatment leaves of physician tendant, part his sole renounces no and functions of holding in is reason for that the relation of case, there sufficient agent Accordingly, Horn in exist. the facts this principal and does controversy, we cannot avoid the which but little case, as to is there jury from which a there was substantial evidence conclusion that physician patient and might have that the relation of properly found Abram- rather than between plaintiff, and between defendant existed only agent defend Abramson was of son and and prescribed treatment of through manual efforts course ant, wdiose negli actionable So far as the was administered. defendant from evidence concerned, was substantial gence there in the case plain reasonably a treаtment of inferred that might which W proper general physical condition in order better tiff’s neck ailment specific from treatment connection ad employed Abramson method suffering; he was by him application and improper; neck was justing upon body plaintiff’s the table, and to move sufficient force plaintiff’s neck, was a vertebra produce partial dislocation act. negligent was a practice and osteopathy, unwarranted respond in dam true, be held to being liable Such negli through him injuries suffered ages plaintiff for the American agent. v. Abramson, acting its gence [Atkinson 816; 338, 354, Atkinson Osteopathy, 240 Mo. School 251, 202 W. App. Osteopathy, 199 Mo. School American Ross, 3;Saucier v. E. 51 104 S. Vall, 25 v. Du Ga. Mullins 348, 98 Atl. Law J. Betts, 89 N. 306, 49; Klitch 73 So. 112 Miss. Cyc. 175; 30 App. Ill. Swinehart, 209 Smith light above, Accordingly, in what we have said we are con jury, strained to rule that a was made for submission to the and case requested peremptory that defendant’s instruction the nature of properly all demurrer to the evidence was refused. assignment The sole by plaintiff of error made is directed to the propriety of the action of sustaining the court in the motion fоr a new' trial, the theory that error had been committed giv- in the ing of instruction No. 1 for plaintiff, and the refusal of instruction No, requested by defendant. These instructions follow: “(1) You are you instructed this case that if find and be- from the lieve evidence that the defendant conducted its school Osteopathy city Kirksville, Missouri, during years the two of through agents its taught servants
practiced system osteopathy during the in science and said school years you said and further find Elmer a that one C. Abramson was senior during student defendant’s years school the and required and that said give schоol directed and Abramson said two patients osteopathy hundred treatments to outside the rooms of de- supervision fendant’s school the and under and direction of a mem- ber faculty you and defendant’s school further find said and believe from the that Dr. Platt a evidence one ivas member of faculty the of said defendant’s school that said Platt and examined plaintiff plaintiff the and the said Abramson treat for directed lumbago and Abramson thereafter under said that said direc- did plaintiff treating plaintiff tions of and while said Platt treat the negligently carelеssly produced partial and a dislocation one of plaintiff’s injured plain- the vertebrae neck reason thereof your tiff, plaintiff.” then verdict should be the for “(5) you jury, The court the that instructs if believe find and given from the evidence in cause that witness Abramson the the liará prior required by given all the school be treatments giving by complained him of the treatment your then verdict must be defendant.” discussing Manifestly employed we language have jury large propriety is, measure, of the submission of the case to the equally the merits and appropriate to a consideration of demerits plaintiff’s far as concerns instruction the above instructions. So opinion purview we that it was within No. are of the properly pleadings evidence, and it covered the entire and the that contend; any facts, as counsel controverted case. It did not assume not, terms, require express and, is it did true that while physician patient existed be- jury relation of that find defendant, agent was the that Abramson or tween finding law facts it did submit the relationships say exist, with of the attendant did all would that such give any jury it failed to obligations. Nor can it said that law, constitute which, specific act under would guidance as to pleaded plainly sole act submitted the as it negligence, inasmuch partial produced had Abramson upon, namely, that and relied plaintiff’s neck. of the vertebrae of one dislocation 5,No. assume instruction we regard to defendant’s refused With testimony he that had Abramson’s by reason requested it was injury treatments, before the hundred required two completed language that, seem It would inflicted. plaintiff’s neck to have conceded held should be instruction, defendant оf such demanded giving engaged in long Abramson so agent, and that defendant’s acting he was by defendant, of him during such time defendant would be answerable negligence. for his this, But aside from it is the undoubted rule that unless the terms employment physician of a limit extent of his services, given reasonable notice patient will he not undertake subsequent treatment, the relation physician patient continues *12 until longer doctor’s services needed, are by no unless ended consent, mutual or revoked dismissal. 205 Brown, [Marshall S. W. Nash Royster, 189 N. C. 127 E. S. Cyc. 356; 30 1573.] (cid:127) As has been stated, heretofore nothing thеre is in the in- record plaintiff that any had been advised that dicate limitation had been placed upon the given number of be him Abram- supervision son under the defendant; and direction nor had the physician relation patient been either terminated, mutual agreement, or dismissal. Consequently, in the absence of notice from longer that the latter no re- assumed sponsibility given, for the treatments it must be held that the rela- continued, tion theretofore still established from which it follows requested omitting defendant’s instruction No. 5, the neces- sary properly elemеnt notice to refused. appellate always disposed is
AVhilean court less to reverse an or refusing yet der a new than granting it, trial one we must look the plainly face; and, facts if of each case we find that the lower upon misconception ruling court has its based of the principles of applicable law situation at we must hand, unhesitatingly hold granting error that it a new trial the grounds as University City (Mo. signed by [Pyle v. App.), it. S. W. (Mo. App.), 284 W. Kline’s Inc.
Scott v. entertaining the Accordingly, views have been herein ex- recommends pressed, Commissioner order of thе sustaining motion defendant’s to amend circuit court bill of pro reversed, the order be exceptions tunc, nunc and the re- cause aside; be set the order directions that manded with that as to sustaining for a trial, motion new defendant’s the order the order remanded with directions to and the cause reversed, reinstate the judgment jury thereon, and the rendered verdict of the with in- originally judgment entered. date of from the terest : n —The adopted C., is foregoing opinion PER CURIAM Bennick, the court. opinion as the sustaining motion defendant’s court the circuit The order rеversed, accordingly, is, pro nunc tunc exceptions bill amend aside; be set that such directions remanded cause and the motion sustaining defendant’s court circuit the order of to re- with directions remanded reversed, and the cause new trial thereon, judgment rendered jury and the instate the verdict originally entered. judgment as from the date with interest JJ., Nipper, concur. J., P. Becker and Danes, Drug Company, Maserang Joseph Omega Taggart, Appellant, Respondent.* (2d) 453. Corporation, A Opinion Appeals. filed March St. Louis Court of *13 p. 756, Juris-Cyc Appeal Error, * Corpus References: 3CJ. section 757, 52; 850, p. 857, 42CJ, Vehicles, n. Motor section section n. 21; Trial, 38Cyc, p. 1753, p. 1283, p. n. n. n.