*1 APBIL 1923. TEEM, reasoning, reach sound that he both came conclusion, charged. guy in contact with the wire that it was To and and hold it would to contravene otherwise, disregard a well settled sound rule law. of
theAs evidence lia- demonstrates defendant’s bility presumptions or de- inferences, was builded on pendent presumptions on or inferences, other and was conjecture, opinion the of the therefore founded mere Springfield Appeals of decisions Court contravenes the mentioned, of this court heretofore record and the judgment quashed. Higbee, of that court is G., concurs; sitting. Bailey, .C.,not foregoing opinion PEE CUBIAM: The of Davis,, court; adopted opinion hereby All of as the the
C., judges concur. Appellant. B. A. DUMBAULD, PATE v. JOHN Two, April 9, Division Loquitur. Ipsa Specific Alleged: Where 1. NEGLIGENCE: Acts Res petition plain language unequivocal in de- sets out negligence; specific room in there is no tail defendant’s being ipsa loquitur. Such the case for the doctrine of res acts, pleading, prove alleged specific plaintiff cаnnot must alleged rely upon general negligence, one of case be whether the negligence. malpractice or other Presumption. Malpractice: Physician: In the absence 2. -: possess showing any did not the defendant community allopath physicians average where skill of leg, presumes that the law de- for a broken he treated duty. fendant did held Degree No should be Care. man -:-: -:3. average than a fair higher care of skill and to a physician due of a profession, care standard trade profession average prudent man of his of the- is the conduct community. -; -; Where Evidence. No Substantial -: Nonsuit: evidence, establish, substantial failed to has duty professional in his physician, defendant, derelict negli- guilty acts plaintiff, that he COURT OP MISSOURI. CO so Dumbauld.
Pate v. gence charged against petition, court direct him in the should malpractice, up- a verdict for *2 defendant in suit by taking nonsuit, leave, plaintiff, refuse the with of a should grant a new to sustain his motion to the and him set same aside trial. Leg: 5. -: Evidence. Plain- -: -Broken Failure of broken, horse, leg titff was a was kicked and the bone one defendant, practic- hospital. and he was taken to a He called physician ing examination, vicinity, made a who . wound, solution, antiseptic washed the it with set cleansed an the bones, bandaged leg splint; broken and the in a woven wire he regularly continued to him for treat three weeks and until the healed, leg plaster cast, plain- placed wounds and and then the in leg tiff testified that at that time there was no sensation the except together rubbing grinding a “kind of like the two bones during time the inwas the cast.” Two months after acci- dent, plaintiff discharged defendant, employed osteopath, and an plaster case, X-ray photograph, who removed the and an took that disclosed there been no union of the broken bones. osteopath only expert plaintiff, This was witness for and testified that there properly evidence that bones had not been set; plaintiff epilepsy, had been afflicted from and inpoverished condition, blood was in an and the reason the bones had united to not was that nature had failed throw out from necessary their broken ends the or exudate callus which is to unite persons supplies health; broken bones and that it would made have no difference whether or not the bones were placed apposition placed bandage before the in the wire together, nature„had provided ends their thereafter held not necessary bone-growing bridge them; to unite or and that feeling not could tell his sense of either before or while his cast whether not the bones were apposition. Held, properly gave peremptory that the court in- defendant, upon taking struction to return a verdict for thereupon by plaintiff, of a nonsuit with leave to move to set the aside, sustaining granting same erred said motion and him a trial. new Appeal Jasper from Circuit Court.—Hon. Grant Emer- Judge.
son, (with directions). Reversed AND bemanded Haywood appellant. Pritchett Morrison Scott for (1) petition allege does Where not any war ranty, to contract, to cure, obtain is, a union of APEIL TERM, physi appellant, merely respondent’s snrge’on, in called to treat cian and juries bones and care for the broken to carelessly join appellant ‘‘negligently failed presented properly issue fit bones,” etc., said broken of the broken “cure” union whether a ¡was in bis not the defendant but whether or obtained, degree of skill treatment of exercised possessed mem learning ordinarily and exercised practicing standing, good profession, in bers of bis of suсh and warrant the submission similar localities; jury, intro issue to it was prove competent tending defend duce plaintiff’s case, ant in bis treatment of exercise, did Berg- learning. Vanhooser v. of skill and 'that *3 (Mo.) 216 W. Westerman, Krinard v. S. hoff, 487; 90 Mo. (Mo. Connelly Cyc. 224 30 v. S. W. 942; 1570; Cone, Ewing Spain App. App.) v. 95; Mo. v. 169 Burch, 1012; Rogers 870; Pac. McGfraw 128 G-ood, 443; Kerr, Fed. v. 78 Houghton Dickson, 155 Pac. 137 N. v. Kee, 260; v. W. Repp, (2) There is no Zoterell v. 153 N.
128; W. 692. to a cure that the defendant bound himself effect evidence joining, union, or to obtain n not a bis contract is bones; and under law possesses only will use cure, warrant diligence performing judgment skill, ‘and reasonable possessed employed by mem as is service, 'the such Berghoff, profession. v. 90 Mo. of bis Vanhooser. bers malpractice question (3) case as to 487. physician, treatment, exercised bis whether possessed learning ordinarily degree of skill and profession, good of bis exercised 'and members standing, question practising localities, similar necessity, testi be answered must, of science qualified speak upon question. mony of witnesses surgeоn say physician or can what but a No one : learning exercised in the should have been of skill the law is well settled mal Therefore treatment. expert practice must be substantiated COURT 438 OF MISSOURI.
Pate v. Dumfoauld.
prevail. Connelly
224
order
S.
Cone,
v.
witnesses
App.
Spain
v.
Mo.
Burch,
109;
v.
169
Sheldon
1011;
W.
Wright,
Atl.
70 Atl.
Mc-
Brock,
575;
Wilkins v.
807;
67
Pettigrew
128
Pac.
Kerr,
870;
Pac.
v.
26
Lewis,
Graw.v.
Longfelloyr
Higgins, N.
Ver
Qninn v.
24
v.
458;
482;W.
904;
105
E.
85
178;
Norcross,
N.
Willard v.
Atl.
non,
Rogers
Atl.
Kee,
N. W.
Barker v.
49
260;
Lane,
v.
137
Houghton
Adolay v.
111
Dick
Miller,
313;
N. E.
963;
v.
130; Miller Toles,
155Pac.
v.
150 N. W.
son,
118; Zoterell
Ewing
Repp, 153 N.
v.
692;
Good,
442;
v.
W.
78 Fed.
v. Barnes,
Martin,
66
Ill;
Wurdman
N. W.
Norkett v.
Boroughs,
O’Grady
256;
v.
Pac.
Hunter
36.9;
165
96 S. E.
Cadwalter,
v.
166 N.
D'eBruine v.
.169
759;
Voskuil,
W.
Supp.
Paul-
N. W.
Robins v.
179 N. Y.
288;
Nathan,
281;
Nipple,
Pac.
180
v.
187
771;
Eidenmuller,
ick v.
Sherer
445;
Pac.
Louden v.
194 Pac.
Benson
Scott,
Dean,
v.
488;
Holsapple
125;
N. E.
133
N.
682;
V
187
Schofield,
W.
Ency.
(1 Ed.)
110
Heir v.
N. E.
9
Stiles,
252;
Evidence
Rainey
Epps
v.
846;
Smith, 201
1106;
Pac.
v. Mc
Van
Kinney,
Supp.
(4)
N.
189 Y.
It was for
account for the
union
:to
failure of
and the cause of it,
if
than
and more
one cause was
shown,
one of which
competent
defendant is liable,
if
must fail
evi
damages
produced by
does not
dence
show
are
responsible.
cause
for which defendant was
Hunter
Boroughs,
City
S. E. 360; Fuchs v.
Louis,
St.
Cooperage
App.
Mo.
Breen v.
635;
St. Louis
-50
Co., Mo.
(5)
expert testimony showing
Plaintiff’s
failure
provide
due to
growing
nature’s
union,
failure
bone
*4
proximate
shows
union,
for
cause
which defendant is not liable. DeBruine v.
169
Voskuil,
Snearly McCarthy,
(6)
N. W. 288;
v.
53 E.
v.
Atl.
147;
S.
55
Carstense
965;
28 N. W.
150 N.
Hanselman,
159;
v.
Miller v.
W.
Toles,
Sawyer v.
134 N.
Adams
118;
Berthold,
120;
W.
y.
.Lunger, 139
184 N.
Harris,
N. W.
Hansen
1096;
W.
y.
Eepp,
Shipp,
Zoterell
153 N.
262;
692;
v.
W.
Hamrick v.
Hacelip,
52
v.
'51
Hoffman v.
932;
So.
Shelton
So. 937;
Houghton
128;
138 Pac.
155
Watkins,
664;
Dixon,
v.
Pae.
Cooley
Cyc.
(3 Ed.)
p.
30
on
sec.
1584;
800,
Torts
(7)
ipsa loquitur
The doctrine
res
cannot
invoked
applicable,
in case where it is
even
where the
petition,
right
his
his
to recover on
has,
based
negligence.
McGrath Transit Co.,
v.
Pearson & Butts (1) all demurrer On evidence must be all reasonable inferences drawn in true, 'taken Hague Threadgill, 895; favor. v. 236 W. S. Vanhooser Wojcirchowski Berghoff, Coryell, 487; 90 Mo. v. v. 217 S. Eicholz v. 217 S. W. Brooks 638; Poe, 282; Brookes, v. W. Sontag (2) v. 638; W. Mo. 617. Ude, 186 S. The. opinions advisory. experts merely judgment are aсcuracy to be assumed the court, Their and not jury. Clingenpeel binding v.-Cin. Tr. Co., 240 S. Light Heyberg 153 Mo. 177; Henske, 63; Adams v. W. Co., S. W. 172. Power & December
BAILEY, 3, 1920, C. On filed Jasper County, peti- Missouri, Circuit Court of alleged --day August, in which he that on the tion, engaged regular employment, while he suf- *5 COURT OF MISSOURI. painful resulting in the accident, and fered a serious legs. breaking’ his It the front shin hone of one of of alleged practicing physician that defendant was a at City, in- sustained said Missouri, where "Webb jury as and that defendant held himself out hav- resides; professed knowledge ing, and and to that have, ordinarily which is аnd exercised those who skill used injuries patients practice in the treatment and such plaintiff sustained as that reason of the foresaid; premises, plaintiff injuries; to treat his called defendant injured plain- for the broken to set and care and bones of injured that defendant undertook the treat- limb; tiff’s attempted limb as aforesaid, ment set to together the and bind bone broken thereof, and ends and grow place, they might together, so that 'bind them be- strong, straight, and in about service, come six weeks. wholly He avers defendant failed use the' ordinary knowledge, diligence, care or skill, in it was premises, duty negligently exercise but so carelessly setting and conducted himself and about the injury, broken bones and the treatment said of said carelessly negligently join prop- he and failed to erly wholly fit said failed to set them carelessly negligently up at and all, and bound said setting without ,broken limb, same, as should or- dinarily negligently properly carelessly have been set, and impropery
allowed it up< be so bound for nearly thereupon again three weеks, undertook carelessly negligently said limb, failed to 'join adjust properly the bones thereof, and set the carelessly up injured same, bound in a cast the said being having properly limb without same set; premises, reason and as a direct result of defend- negligence, plaintiff ant’s great was caused to, and did, suffer
pain body, mind and will the future suffer pain; unnecessarily such that he was confined to his bed many injured leg weeks, said caused to be weak, shortened and can deformed, never use it so ef- fectively, permanently as he should have; he will be APRIL TERM, *6 pursuit occupation aas impaired in of Ms usual tbe damage in sum etc. $10',000, all to bis tbe laborer, general with denial. Tbe defendant answered plaintiff show tended to Tbe evidence on bebalf of City; parties to action resided at Webb that both tbis employed respondent on streets as a laborer was that August respondent, city; then that on 10, 1920, of said leg years right by a twenty-seven on was kicked bis old, point the shin broken in at a that was two horse; bone midway that between knee and tbe ankle; about tbe (ac- open compound with two fracture, wounds was according plaintiff, only cording to tbe one wound top expert Slaughter), Dr. one on witness, broken and tbe other on tbe one of tbe side, /’the shin protruding, through at tbe time of accident, bones respondent’s tbe
pants leg; immediately following tbe that hospital respondent to tbe at Webb was taken accident, appellant City, that tbe latter made a called; there respondent; leg re- examination of that tbe antiseptic spondent with solutions, was cleansed washed, hospital appellant, with tbe aid of dressed nurses, bandaged leg tbe set broken tbe wounds, said splint (called splint); up Puy wire De in a that woven against hospital evening, appellant called at tbe that resting again well; that was that he called saw respondent’s leg;, following morning examined tbe on tbe afternoon of last mentioned that was date, City; appellant home that called to his at Webb moved respondent frequently at his him on attended house, leg they treated on until there, tbe wounds bis as soon tbe healed; healed, wounds were which appellant put injury, three weeks after tbe about was plaster during in a all tbe time tbe cast; tbe put. splint, wire at tbe time it in tbe in tbe was was it had in the same cast, condition, remained placed appellant; which it had been when sensa- while tbe cast said be felt no on, leg, except “kind of broken, in tbe where it was tion grinding together during rubbing* tbe like tbe two bones ” lying I tbe cast on; time was bed with SUPREME COURT OP MISSOURI. Dumbauld. respondent frequently plaster cast called on after pnt that on while the cast on; 12, 1920, October plaintiff discharged from case still defendant on, Slaughter, City, osteopath, Dr and called an Webb leg; Slaughter treat the broken that Dr. removed plaster cast; that of motion non- there was evidence large union in bone between the ankle and knee; photograph X-ray 28, October an taken, disclosed that there not been union of X-ray bones; showed callus the exudate, glutinous (which ordinarily mass nature causes exude or be out thrown from the ends of broken *7 days breaking after within few the of the bridge which make between the broken then bones, and thereby forming union), and becomes hardens, bone, had not exuded or been thrown out from broken the respondent’s bones in case, and that broken the bones appearance they had the break, of fresh is, had appearance they same would the have the had, if X-ray immediately had been taken after the accident. expert except
No witness testified this case the osteopath, Slaughtеr. Dr. His was that there prop- was no evidence that the broken bones had not been erly why That set. the reason no union had occurred was because nature had failed out throw from of ends the respondent’s leg the bones the or exudate callus which to unite the bones, and plaintiff’s we such failure That the of due to condition blood. the health condition such was from bone-growing no That material was thrown out the ends of his broken bones nature. That have would made no difference in this case whether the bоnes were put apposition, pro- held or not, as nature had not bone-growing or thrown vided out the material neces- sary join bridge between broken bones. That the put if even the bones apposition, were not held bridge bone-growing of person in the of material, case anyway, thrown health, is out and a union the bones, kind, some results. That his treat- respondent, Slaughter ment and examination of Dr. TEEM, APEIL apposition and not in why bones were the broken learned bone-growing He been out. why material had thrown resрondent afflicted because the the reason was said respondent epilepsy. been That the had a form with epilepsy. rejected army That account on from morning epileptic attack one' Oc- had an Slaughter although treating he him, Dr. tober while during shortly him did see him attack, did see appearance his exhausted saw his afterwards, and epileptic during following these con- it. That condition an contract to such extent muscles vulsions the enough separate there was would unless broken bone-growing together. Dr. there to hold them Slaughter re- that from his first examination testified spondent, and also from 12th, on October which was him after- from that date and treatment examination X-ray picture, including day took there wards, say nothing from which he could found there that he was' ap- properly respondent’s not been had that pellant plaster August cast at the time 10th, Slaughter August put 27th. Dr. further testi- on, atrophied, respondent’s leg shrunken, fied in the and that cast, after it was non-use from (the cast) plaster off it was loose оn he took when injured shrinking while it account *8 young case of a such as man, that, in the cast, put tight enough hold respondent, to if a cast were epileptic apposition an fit, while he had the bones bone-growing as found he material, there no where was together, tight bones such a to hold the in this case, stop plaster to have tended the circulation cast would stopped gangrene had would have if circulation and that itself would have re- destruction set in Slaughter that it testified didn’t make Dr. sulted. put apрosi- held in the bones were or whether
difference apposition apposition not or no did affect as not, or tion bone-growing throwing by nature of the material; out feeling respondent by could not tell his sense in the or cast before while either COURT OF MISSOURI. y. Dumbauld. apposition not the hones or whether whether or were they flowing over-riding. were That the of hone- growing from material the ends of the broken (in as soon the bones are broken the ease of a starts as person ordinary health) and continues fоr several stops begins days, and then harden and become picture X-ray at time the bone, taken, 28th, October almost eleven weeks after the accident, bone-growing whatever exudate material been had picture bony thrown out would show sub- X-ray picture That the stance. shows that no exudate bone-growing material was thrown out nature respondent’s case. Slaughter
Dr. testified that he knew of no treatment given respondent or medicine which could have been bone-growing cause the to flow from the ends of his broken bones. That the condition which responsible for the failure of the bones to unite in provide bone-growing failure of nature to respondent existed in material; had for some before time leg thereby kicked the horse, and his broken, nothing to with it do and had no control over it. testified that he feeling could tell injured leg depression
of his that there was a in it and therefore that the apposition, were not in but his only expert Slaughter, witness, Dr. testified that it would possible they ap- determine whether were position or not. That expert would take a medical question, and then he determine would have to have bandages injured on the limb, and he would have to wait about week and a half after the accident, might question even then it be a physi- the mind aof X-ray cian without an as to the condition of the frac- respondent, day (who ture. That the laborer testified nothing surgery medicine), he knew about could not tell. That man without a medical education couldn’t tell. except by anyone, There was no the re- *9 spondent layman, himself, had not, APEIL TERM, v: Dumbauld. respondent, treating setting ex- bones and tlie broken learning is ordina- of skill ercised surgeons by physicians rily possessed and exercised average learning ability ordinary under in the same or similar conditions circumstances similar localities.
Respondent “Exhibit A,” in evidence introduced injured leg photograph X-ray Oc- the taken tober substantially foregoing the evidence covers
the case. plaintiff’s testimony, court
At the conclusion the peremptory gave jury return a instruction the Thereupon, for took a non- vеrdict defendant. leave the aside. suit, Plaintiff, with to move same due a motion to set aside time, nonsuit, in. filed said etc., alleged for the the sustained, reason, which was sustaining demurrer to the court erred defendant’s duly appealed from evidence. The setting order defendant the granting plaintiff aside the nonsuit and new trial. important to determine is
I. At outset, damages, in which action for this anis whether alleged negligence constituting are the facts negli- general pleaded, ipsa specifically or whether Kes Loquitur. gerice sought recovery under and a ipsa loquitur. of res doctrine fully petition stated hereto- The substance unequivocal repeated. plain, In be need fore, including detail, facts, all out, language, it sets perform failing negligent defendant alleged there is room circumstances, duty. such Under might ipsa loquihw, if it even principle of res where applied character, in a case be otherwise on. Where negligence relied general specific negli- allege petition to acts in his chooses places the burden rule of law in this gence, as recovery, upon negligence if him, proving such* negligence pleaded. upon the must all, at *10 OF 446 COURT MISSOURI. v. DunLbauld.
Pate l. c. Mc Co., 447; 135 Mo. Pac. Mo. Ry. v. [McManamee Roscoe Mo. l. c. Co., 105; Transit 197 v. St. Louis Grath v. 588-9; 202 l. c. Zasemowich Mo. Ry. Co., Met. St. v. 213 Allen Comm. (Mo.) 799; S. W. West Co., Am. Mfg. l. Rice Mo. l. c. 228 S. c. 832; 286 W. Richter, 706, v.Co. cases 239 l. c. White, 144-5, S. W. v. cited.] in as- briefs, their vigorously Counsel (Mo.) in Eichholz v. Poe, 217 S. W. intimation, sail in be sustained a mal- 285, recovery may 1. c. the doctrine of res ipsa loquitur, case, upon based practice cases, number of large cite a well considered sustain- reached the as conclusion, their contention. ing Having is an action upon heretofore this based stated, to consider unncessary it negligence, in a as to whether a can be had question recovery loquitur. of res ipsa under plea in II. is not claimed the petition, elsewhere, It not possess that defendant did average City Webb allopath physicians vicinity. skill of on the In the absence evidence the law subject,' pre that defendant did his v. duty. Harrison, sumes [Lenox Mo. c. v. 94 l. 496; O’Neill, l. Mathias Mo. c. 528; 88 113 l. Co., 579; v. Mo. c. Hartwell v. Ry. Yarnell Parks, l. c. 544; 240 Mo. Haggard McGrew Coal 200 Co., S. W. 1074 Wells, c. Wells v. 279 Mo. l. c. (Mo.); l. 213 S. F. l. c. B. C. Assn. v. Zollman P. 833; W. G. Co., 220 S. State v. 911; McNeal, (Mo.) (Mo.) W. S. W. l. c. 741.] has testimony fully been out the preceding not be Dr. statement, repeated. need Slaughter, physician witness for who plaintiff, only testified He removed the plaster the case. cast from plaintiff’s defendant had been discharged. after He leg said there no evidence that the bones had not been properly the rеason union set; why occurred, had failed out from because nature throw ends of bones respondent’s the broken exude of callus, unite the necessary such fail- blood; ure was due to the condition of plaintiff’s condition was such plaintiff’s physical that no bone-grow- out from the ing material was thrown ends his APRIL TERM, v. Dumbauld. nature; that would have made no difference placed apposi- case, whether the hones were or held provided thrown tion, as nature had not out not, hone-growing join bridge (cid:127) Slaughter between the broken bones. Dr. further testi- feeling fied that tell could not sense either while cast, before or apposition, whether or not the bones were etc. The Slaughter, of Dr. does whole, taken *11 specific charges negligence peti-' pleaded in sustain of testimony nor tion; does his show that defendant was guilty negligence charged against of the him. appellant array
Counsel for have cited an of au- support proposition respondent’s thorities of the supported by expert testimony, if case, must fail. do not deem to enter We into extended subject. man this No discussion.of should held higher degree average skill or care than a fair of his profession, trade and the standard of due care is the average prudent Taking conduct of the man. the testi- mony of and his witness at value, full we are opinion of the has failed to show respect evidence that substantial to his was derelict professional duty guilty that he was negligence charged against any of the petition. Slaughter, him The of Dr. as respondent’s lack of exudation, reason of his de- pleted condition is corroborated blood, respondent’s argument statement counsel at the oral here, to the effect, substance, client, after limping receiving around some after time medical watering places, treatment, visited some took .outdoor exercise, and thereafter walked into counsel’s office a legally justified accepting man. feel well We true respondent’s clearly the statement of in- counsel, plaintiff’s cоnjecture prior dicates as to his alleged negligence, condition, and were defendant’s Ray, (Mo.) [State well founded. v. S. 974 225 W. properly cited.]
cases The trial court to submit refused jury conjecture, the case to on mere erred 448 COURT OF MISSOURI. Hausgen rel. Allen.
State ex
v.
plaintiff a new
granting
the nonsuit and
aside
setting
l. c.
242
Van
979;
v.
S.
Wilcox,
(Mo.)
trial.
W.
[Perkins
l. c. 75;
&
228 S.
Cluett v.
(Mo.)
W.
Co.,
Bibber v. Swift
K.
l. c.
Grant v.
Co.,
867;
L. & P.
(Mo.)
U. E.
S. W.
l.
589-90;
c.
McGrath v.
Ry.
S.
St.
Co.,
(Mo.)
C. So.
W.
105-6 ;
c.
Warner
Ry. Co.,
L.
197 Mo.
Co.,
97, l.
Transit
Many reported found cases. may be reversed and remanded, cause accordingly trial court to set aside its order with directions new re-instate trial, and" to judg- granting nonsuit entered in favor defendant. formerly ment of concur. Higbee, GO., Davis and opinion foregoing PER CURIAM: -The Railed, court. All as the opinion
C., adopted concur. judges ex HAUSGEN v. WILLIAM
THE rel. CHARLES W. STATE *12 Court . et St. Louis al., H ALLEN Judges of Appeals. April Banc,
In drainage district, Corporation. A DRAINAGE DISTRICT: Public organization organized pertaining under the statute to the o£ courts, drainage public corporation, ex- districts circuit is a exclusively ercising functions, governmental a munici- pal term, corporation in the sense because munici- restricted pal corporations, they governmental func- exercise certain while drainage tions, proprietary A likewise functions. dis- . exercise private perform, proprietary trict has no such as functions by cities, villages, agency is an exercised towns and are necessity, public public public founded convenience or State welfare. Negligence Agents: Recovery Damages.
2. --: -: In declaring governmental agency, of a statute absence drainage district, negligence, such as shall liable for injuries damages negligence resulting liable from the