179 Mo. App. 61 | Mo. Ct. App. | 1913
These are cross-appeals. The suit is for damages accrued to plaintiff on account of the loss of service of his wife through the negligence of defendant while performing and in treating a surgical operation upon her. The petition proceeds in two counts. On the first count the finding and judgment were for defendant, while plaintiff prevailed on the second. Plaintiff prosecutes an appeal from the judgment against him on the first count, and defendant prosecutes an appeal from the judgment against him on the second count.
Defendant is a practicing physician and surgeon in St. Louis, and was employed as such to remove a cancer from the breast of plaintiff’s wife. It appears that,
Plaintiff’s wife withstood the operation well enough, and no complaint is made with respect to the manner of its performance, save that pertaining to the placing of the hot water bag against her limb so as to inflict the burn above mentioned. However, complaint
Though Dr. Hiller was called to treat the burn on the limb on January 19, it does not appear just when his attention was called to the trouble resulting from the concealed drainage tube in the wound in the breast. It appears that Dr. Hiller was the secretary of the State Board of Health, and, therefore, not in the active practice at Jefferson City. Because of this, he says he kept no books containing dates or records of his treatment. However, concerning the condition of the wound on the breast of plaintiff’s wife, the doctor testifies as follows: “At the time I saw her, the wound in her right breast as a result of the operation had healed, with the exception of the point of drainage in the rear under the arm and back of the arm and a point of apparent infection, or a sore spot to be plain, showed in the anterior incision. There was nothing protruding from the breast. There was nothing protruding from the posterior drainage. It had practically healed.
Here the doctor identified the drainage tube so» removed, which was introduced in evidence, and continued, saying: “This point, on the anterior or in front, simply showed as a little suppurating point apparently of infection, probably the size of a split pea.” Other evidence goes to the effect that Mrs. Reeves suffered great pain from both the bum and the concealed drainage tube in her breast until the tube was finally removed and for some days thereafter. Mr. Reeves, in speaking of the condition of his wife’s breast, immediately before the extraction of the drainage tube and thereafter, says: “This formation finally opened on the breast. It became an abscess — that is, an opening or a hole.” It should be said here, however, that another drainage tube had been inserted in the wound, designed to drain the posterior portion thereof under, the arm, and this was removed in due time. No complaint is» made in the case touching this matter, but it is mentioned in the evidence as revealing a small spot under the arm not yet healed when the patient returned home on January 14th and, indeed, for some time thereafter. This matter is referred to here merely for the purpose of obviating confusion and to the end of elucidating the particular drainage tube complained of, that is, the one inserted) by defendant in the anterior portion of the breast.
As before stated, the petition is in two counts. The first declares upon and seeks a recovery for the loss of services, companionship and society of plaintiff’s wife as a result of the burn inflicted upon her limb through the alleged negligence of defendant in placing an unusually hot water bag against it and thus inflicting the burn. The second count declares upon and seeks a recovery for the loss of services, companionship and society of plaintiff’s wife, occasioned through the alleged negligence of defendant in the treatment of the surgical wound, through omitting to remove therefrom the drainage tube in the anterior portion of the breast and permitting the wound to heal over the same. As we interpret the case, it would seem that a recovery is sought in the first count for the loss of service, companionship and society .which ensued from the burn for some weeks after plaintiff’s wife returned home on J anuary 14th, and until the burn healed, about the middle of February; and a recovery is sought in the second count asi for the loss of services', companionship and society of the wife which ensued during the latter half of February and the month of March, and until the suit was filed April 24th, from the concealed drainage tube in the breast. Though the point is not pressed, it is clear enough that, in this view, the two counts do not declare upon and seek a recovery for the identical or the same cause of action.
We will first consider the plaintiff’s appeal and thereafter that of the defendant. Plaintiff’s appeal relates alone to the finding and judgment against him on the first count of the petition.
There can be no doubt that the evidence revealed a case for the consideration of the jury on the first count
The court treated the ease as one for the jury, and in submitting it instructed as follows, on behalf of defendant and at his request:
“1. The court instructs the jurors (on the first count in the petition)' that the employment of defendant, Dr. Lutz, to perform the surgical operation (mentioned in the evidence) on plaintiff’s wife was not for the exercise of extraordinary shill and care by defendant in the matter of said operation; defendant was only required to exercise reasonable shill and. care, that is, such skill and care which an ordinary skillful and careful surgeon is accustomed to exercise and use in like surgical operations, under like circumstances; and, if defendant exercised and used such skill and care in said operation performed on plaintiff’s wife, then the plaintiff cannot recover on the first count of his petition, although during the performance of said operation the hot water bag mentioned in the evidence came in contact with her person and caused the injuries out of which this suit grows.
“2. The court further instructs the jurors on the first count of the petition that the fact that defendant,*76 Dr. Lutz, may have been guilty of inadvertence, in connection with the use of the hot water bag whereby plaintiff’s wife suffered the injuries mentioned in the evidence, will not justify a verdict for plaintiff unless such inadvertence amounted to failure on defendant’s part to exercise in the use of said hot water bags, the skill and care of an ordinarily skillful and careful surgeon, taking into consideration the character of the operation and all the attending circumstances.
“3. The court instructs the jurors that if the injuries to the wife of the plaintiff mentioned in the first count of plaintiff’s petition was the result of an accident and not of defendant’s negligence, as that term is defined in other instructions given to you in this case, then the plaintiff is not entitled to recover on the first count of his petition, and your verdict on said count will be for the defendant.
“4. The fact that defendant, Dr. Lutz, may have been guilty of inadvertence, in connection with the use of the hot water bag whereby plaintiff’s wife suffered the injuries mentioned in the evidence, will not justify a verdict for plaintiff, unless such inadvertence amounted to failure on defendant’s part to exercise the skill and care of an ordinarily skillful and careful surgeon, taking into consideration the character of the operation and all the attending circumstances.”
We regard each and all of these instructions as erroneous in the circumstances of the case, in that they are misleading. In the first instruction we have italicized the misleading features. We italicize, too, misleading words in the others. By the concluding portion of the first instruction the jury are told “if defendant exercised and used such skill and care in said operation performed on plaintiff’s wife, then the plaintiff cannot recover on the first count of his petition, although, during the performance of said operation, the hot water bag mentioned in the evidence came in contract with her person and caused the injuries out of
Moreover, the instruction minimizes the matter of defendant’s placing the hot water bag by telling the jury that if they found it “came in contact” with the person of plaintiff’s wife, etc. There is evidence in the case that sometimes patients struggled while undergoing an operation and in this manner portions of the body come in contact with a hot water bag so as to lie upon it and receive a burn. But there is not a word of evidence in the record here to the effect that plaintiff’s wife struggled or came in contact with the bottle in this wise. On the contrary, both the attending nurse and defendant himself testified in plain terms that defendant personally took the hot water bag in his hands and placed it against Mrs. Reeves’ limb while the anaesthetic was being administered. This being not only the undisputed evidence, but the admissiou of defendant as well, it appears that the reference in the instruction to the hot water bag, as if it merely came in contact with plaintiff’s wife’s limb, is misleading.
Defendant’s third instruction told the jury that if plaintiff’s wife’s injury from the bum was the result of an accident and not of defendant’s negligence, plaintiff is not entitled to recover. There is no evidence in the case justifying the theory of accident and this instruction, too, was misleading on the issues made. The evidence is plain, positive and direct, both from the nurse, who testified at the instance of plaintiff, and of defendant, who testified for himself, that defendant took the hot water bottle into his own hands and personally placed it against the limb of Mrs. Reeves, where
We come now to consider defendant’s appeal from the judgment against him on the second count of the petition. It is urged the court should have directed a verdict for defendant on this count because the evidence is uniform that it was proper practice to insert a drainage tube in the wound and permit it to remain
The evidence for plaintiff touching this' matter is as follows: “When Mrs. Reeves returned home on the 14th of January, the whole line of incision on her right breast was entirely healed. There was a mere large dot and a little scab on a small incision that seemed to have been made below the right arm and a little back, and that scab I dressed for her that evening; just rubbed the scab off. It was closed, but it didn’t seem to be entirely healed. That was- under the arm. On the Vreast it was entirely healed.” (Italics are our own.) From this testimony it appears that, while the
The petition sets forth a contract whereby it is averred plaintiff employed defendant, who held himself out as possessing the requisite shill as a physician andi surgeon, to perform the operation in removing the cancer and to treat plaintiff’s wife until the surgical wound was healed. After having thus alleged the contract of employment, by way of inducement, it proceeds as in tort as for the negligent performance of the duty annexed by law to the calling of a physician and surgeon. Plaintiff testified that he paid defendant $250 in compensation for the operation and treatment while his wife was yet in the hospital. The testimony of plaintiff to the effect that he paid defendant $250 as his fee was objected to, but the court admitted it over defendant’s exception. It is urged this was error,
It is urged that the court erred in permitting plaintiff to detail the pain and suffering of his wife incident to the concealed drainage tube in her breast and subsequently for a time to its removal by Dr. Hiller on March 26'. The argument is that, as plaintiff is not entitled to recover for such pain and suffering of his wife, the evidence should not be received. But we are not persuaded to this view. It is true plaintiff was not entitled to recover in this action for the pain and suffering his wife endured, but he was entitled to the services of his wife, of which such pain and suffering deprived him, and he was entitled:, too, to the companionship and society of his wife free of such pain and suffering as defendant’s negligent act entailed upon her. It would be difficult to establish his case of loss of services, companionship and society of the wife without giving evidence of the pain and suffering endured by her, which, as a result of defendant’s fault, tended to deprive him of his marital rights in the premises. [For an authority in point, see Cullar v. M. K. & T. R. Co., 84 Mo. App. 347.]
There is no evidence tending to prove the -value of the services of plaintiff’s wife to him. And because of this it is urged the court erred in submitting that matter to the jury. However, there is an abundance of evidence that plaintiff’s wife was disabled from performing the duties of a housewife and that he employed another to keep house for him-. Obviously this is sufficient. It may be, in cases where the wife is conducting a business on her own account, and she suffers, an injury through the negligence of another, which impairs and diminishes her earning capacity, that, in her suit on that account, evidence must be given of the value of the loss of services or earnings. Such is the rule which obtains generally in suits for damages when it is sought by plaintiff to recover for loss of his own
But be all of this as it may, the instant suit proceeds as for a violation of the ancient common law right of consortium. The husband’s right of consortium at common law included the right of the services of the wife to be rendered to the husband, together with the right of her society and the comfort* incident to the association and her companionship. Such are the rights which, it is asserted here, defendant has invaded and of which plaintiff has been deprived by his wrongful act. [See Stout v. Kansas City Terminal R. Co., 172 Mo. App. 113, 157 S. W. 1019; Marri v. Railroad, 84 Conn. 9, 78 Atl. 582, 33 L. R. A. (N. S.) 1042, Ann. Cas. 1912B 1120.] In such cases, it would be difficult, indeed, to ascertain in dollars and cents the value of the consortium of either spouse to the other. The relation and the right are rather of a sacred character than of a valuable monetary interest or right. In this view, our Supreme Court has determined that it is not essential to introduce evidence tending to prove the value of the society and companionship of the wife. Obviously the principle supporting this view goes to'the effect that the law never requires pecuniary proof with reference to a nonpecuniary loss. Such is the thought of an eminent author on the subject. [See Watson on Damages, p.
As the right to the society, comfort and companionship of the wife is but parcel of the common law right of consortium, it would seem the same rule should apply to the loss of her services as well, for, indeed, after all, the right to the society and companionship is included within that of the husband to the wife’s unimpaired services. It is certain that the husband is entitled to recover for the loss of the services of his wife of which he is deprived by the negligent act of another, even though the parties are in such circumstances that she is not accustomed or desired to do physical labor; or the husband may not have realized anything from her services before she was injured. [See 4 Sutherland on Damages (3 Ed.), sec. 1252.] Therefore, the courts declare, in the cases of the character of this one, that there need be no direct or express evidence of the value •of the wife’s services, either by the day, week, month or of any other period of time, or of any aggregate sum touching the matter, for it is sufficient to show her disability from performing service if it were desired or ■she chose to do so. It is said when the loss of a wife’s services resulting from a personal injury is to be compensated for to her husband, she is not to be treated as an ordinary servant or as a mere hireling. On the contrary, she is to be regarded as sustaining to her husband and his household a relation special and peculiar in
Plaintiff’s instruction on the measure of damages was well enough in its general scope and contained no elements amounting to misdirection. This being true, it must be regarded as sufficient, under the rule of Browning v. Wabash R. Co., 124 Mo. 55, 27 S. W. 644, for defendant ashed no limiting instruction whatever. The rule that defendant may waive, through omitting to request a limiting instruction, the right to complain of an instruction on the measure of damages, which is sufficient in its general scope and contains no elements of misdirection, is constantly adhered to and has been but recently reaffirmed in both the Supreme Court and, this court, as will appear by reference to King v. City of St. Louis, 250 Mo. 501, 157 S. W. 498; Nelson v. United Rys. Co., 176 Mo. App. 423, 158 S. W. 446, That the rule of the Browning case applies in malpractice cases as well as others is well settled by decisions of the Supreme Court in point. [See Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655; Wheeler v. Bowles, 163 Mo. 398, 63 S. W. 675.]
We do not consider the verdict of $1500 on the second count as excessive. All of the points raised háve been duly considered and no reversible error appears, in so far as the recovery on the second count of the petition is concerned. However, the judgment must be reversed1 for the errors pointed out with respect to the
It is therefore ordered and adjudged that the judgment be reversed and the cause remanded for further proceedings on the first count and that the court hold the verdict in abeyance on the second count until the first one is finally disposed of and the final judgment in the ease to be entered on both counts. The plaintiff should recover the costs of the appeal. It is so ordered and adjudged.