*1 926 of Section provisions true here. must hold that
trary was We enough au- 5415) are Section broad (when 5388 construed with in the Act elsewhere find no restrictions purchase, and we thorize this which by appellants) Act Indiana cited (as was true authority to be construed way so that would have limits this appellants contend. All affirmed. concur. Friend, v. John Rothe, Minor, by her Next Rothe,
Nadine Victor 7. (2d) 38684. 180 W. S. Appellant. Hull, No. One, May Division I). Inghram Thomas, Hook Hook and Harry L. Thomas for ap- pellant. *2 respondent. W. Johnson for V. Garneit and Donald
Chas. *3 DALTON, reassignment cause C. This comes on re after. hearing. quotation marks, Without adopt portion prior we of the opinion.
Action damages $50,000 to recover In the sum of for an assault. alleged plaintiff employed substance osteopathic physician surgeon, remove her appendix; performing appendix he removed both her Fallopian tubes; without removal thereby consent and he committed an answer assault. The denial. Verdict for defendant. given request court ruled IV that instructions Nos. and VII
of defendant were mo- erroneous for that reason sustained the for a appealed. tion trial. new Defendant suddenly
Plaintiff with a pain stricken violent her abdomen. Defendant called at her her. án home He made examina- attend tion, specimen obtained a blood and went his officefor an examina- tion of specimen. examination, telephone, After the and over the arranged hospital, he directed that be taken to the where he for the operation. The husband and went parents hospital. with her to the resulted in removal appendix tubes. substance, In tending there was to show performance operation, the defendant informed *4 condition, husband that the in a tubes were diseased would longer and function should be removed. There also evidence tending to show use that the husband authorized the defendant judgment his best with reference to the matter. contends, plaintiff denies,
Defendant tend- there was evidence ing to show that the plaintiff by examination of the defendant at indicated, enlargement in to an appendix, home addition acute an region; of the tubes and in' tenderness the tube that the defendant plaintiff, so informed who stated she wanted her taken condition judgment. words, care of and would leave to his it In other defend- plaintiff gave general authority ant contends that him to use best his judgment as to the of the operation, thereby extent impliedly tubes, authorized him thought necessary to remove the if he under existing conditions. assigns
Appellant ruling error the on court’s that instructions IV Appellant and VII they were erroneous. contends were correct pleadings, under the law and the the evidence.
930 jury that the IV as instructs Instruction is follows: “The court in resulted plaintiff operation if which consented to the authoriza- by giving, so, general if Fallopian removal both tubes care, skill permission to use his reasonable tion and defendant to correct, during found judgment condition during said and if find and that the removal of tubes believe necessary judgment in his reasonable and advisable for be health, your for must preservation of her life or verdict the defendant.” theory implied defendant’s instruction conforms to be they authority if in his should remove the by supported
removed, says was not respondent the instruction but unless error the instruction was course, giving- the evidence. Of by Compagne Generale supported v. evidence. Gundelach evi (2d) 1, 41 2. Substantial Transatlantique (Mo. Sup.), S. W. Estate, 347 required. In Thomasson’s particular dence in case is re Co., 762; King City Life Ins. 748, (2d) 757, 148 W. v. Kansas Mo. S. respondent W. 458. insists 75, (2d) 350 Mo. 164 S. But on granting ... appeal plaintiff an néw trial “on from order request er given were at defendant’s instructions ground_that plaintiff.” roneous, favorably to must be viewed most evidence City O’Malley 122; v. Jackson, 342 (2d) 116 W. 537, v. Mo. S. Clarke are not Louis, (2d) 343 Mo. 119 W. 785. The cited 14, of St. S. eases may is we presented here. rule applicable on the issues recovering ato most favorable consider the evidence given at defendant’s a verdict whether an determining & Andrews Com by Moffett Bros. request unsupported is evidence. v. (2d) 395, 402; 5 Branson (Mo. Sup.), W. Co. Kent S. mission v. 570; (2d) 562, 130 Abernathy 1171, Mo. W. Co., 344 Furniture It is immaterial Poague Kurn, (2d) 13, 140 S. W. v. Mo. judg presented by appeal on whether de appeal or the verdict for ment entered on granting trial a new trial on from an order of the court fendant ground unsupported the evidence. that defendant’s instruction is support Was substantial record there in stated, respondent contends particular As instruction? no evi “prejudicially IV erroneous because struction finding for consented removal dentiary support giving authorization to defendant to correct says: operation.” “In Respondent found condition par terms. It not deal struction No. 4 does attempts particular out a kind of consent pick ticularizes. It *5 given, particular consent was jury if that kind of that, inform to jury of recovery. permits presence It to find the there could be no ‘general permission and from singles par- judgment.’ and It out care, his reasonable skill use fact, ticular and directs the to return a verdict for defendant if it finds the existence particular of that fact. Therein lies its vice. There is no evidence upon finding in the record which a par- of that ticular fact can . be based. . . There no evidence whatever gave that plaintiff authorization to defendant to correct during condition operation found appendicitis.”. the authorized for There is suggestion adequate the evidénce was not support finding that defendant found and believed from conditions appearing “that the removal of said tubes necessary judg- and advisable in his reasonable ment preservation for the and, accordingly, of her life or health” we shall review the evidence most favorable to defendant upon which the attacked. Plaintiff deposition being offered the parts of read against' counsel as admissions interest and the remainder being read explanation defendant’s counsel in parts read by plaintiff’s counsel.' Defendant testified follows:
“At I (plaintiff) the time first examined her I and told her that my pelvic operation (examination) abdominal was a region enlargement, tenderness I an could feel history that the of this acute distress with pain abdominal radiating right nausea, side, tempera- chills and pointed a flare-up appendix ture of an very possibly which could with pelvic might be associated other involvements that she have present. . . .
“I with history findings said that my this case and ex- amination, telling and (plaintiff another) after them and I enlarged had discovered region and tender structures in the tube that in it was appendix involved, addition unusual for an be pelvic pathology, with other very para- and often the associated such, hospital mount cause of and that I case, considered this case emergency, an cause acuteness that this attack had struck with, picture, and the nausea, temperature, associated blood pain which right region localized into this side and I felt it was better to exploratory type an make of incision and attend to what we found wrong, and it was better to do that than to take chances on appendix acutely maybe up pelvic pathology that could flare with rupture they agreed right that was they because imme- diately in. sent her ... ‘‘ She said she had known that she had past trouble in the had, pain, tubes from the distress that she had and. had been doctors, who, informed of other say such examinations of she did not certainly and that wanted her taken she condition care and she my judgment, would leave it to better and she was taken into hospital understanding. operated with that . *6 932 made my that opinion appendix
“It that had an was she acute emergency pelvic pathology. presence an of other ease in the de- purpose I the of operate . . told them her'for . that we would termining . emergency operation. procedure. final It was out going definitely go I tell them I ivas in there to take didn’t that to was say specifically ... I that I appendix alone. did going operate appendix hospital ... At the to her for an acute thought necessary, and that told me to do what I her husband was done.” in- entirely adequate support
We think the evidence was to given. quoted as that It is immaterial some of the struction 298, 337 85 appeared deposition. Chapman, Pulitzer v. Mo. 400, Berry & (2d) (10); Development W. 411 v. Peacock Co. Coal (Mo. App.), 253 460 456, (13); S. W. Woelfle v. Mutual Connecticut Co., Scoggins App. 135, (2d) 865; Life Ins. 234 112 S. v. Mo. W. (Mo. App.), (2d) Miller 80 S. W.
Respondent IV further next contends that “general authority given erroneous because it told any plaintiff ap to correct condition found the authorized pendicitis operation, justified and authorized the removal of her tubes involving entirely which was an different risks and results operation.” not contemplated complaint in the This authorized theory alleged upon general based authorization plaintiff applied condition, specific to defendant to the solely of cure wit, to appendicitis; acute no evidence of consent perform a operation (different extent) different so as to include diag tubes; removal of Fallopian and that there was no evidence of any of any nosis other trouble or authorization correct it. favorably Considered most to defendant no the evidence shows diagnosis general authority ap- mistaken to correct pendicitis condition, general but does show ap- condition found with correct reference to the pendix and tubes.
Respondent next contends that defendant was bound his personal testimony own trial; testimony at the his at directly trial him prior testimony conflicted his and concluded submission in authorization as cluding (by implication) authorization for the removal tubes. Respondent admits that at trial defendant testified you necessary,” had told him things care feel but re “take spondent insists testimony that defendant’s other tends to show that neither plaintiff nor defendant understood that was there by consenting tubes; to the removal Fallopian of her that defendant tubes; had made no statement that taking he out her diagnosed that defendant appendicitis; had trouble acute as agreed upon” relating “operation direction to the “apparent” constituted neither actual nor consent for the removal tubes; statement, and that defendant did not consider necessary,” including authority “do what is to remove the tubes. cross trial as Defendant testified on examination follows: “Q. Now, ago your say did direct examination that awhile (plaintiff) she did not consent at the house the removal of her *7 nothing Q. tubes? A. about removing was said her tubes. There Nothing said about A. I know that? Because didn’t at that time romoving I Q. Well, you whether was or not. did tubes what tell A. I room, her about it? it in the that this was a sus- discussed picious appendix presence pelvic pathology, in the and she volun- said, everything necessary, part teered on her own and ‘Do that is get thing Q. I doctor, up.’ Now, want to this fixed that state- is you say you girl go- ment that authorized to ahead and render this . knowing childless for the her life? . ..A. I rest of Not that going tubes, to remove had no on me from that influence stand- point. get I didn’t the answer. Witness: The Court: Not knowing going got operating that I was remove tubes before I to to the you room, nothing Q. Well, expect it had with it. how did her to do something A. consent she didn’t about? She told me to know judgment. Q. say, I my Well, use it was that on statement hers you case, your which base action in this isn’t it? A. I consulted her husband.”
Concerning deposition testimony, “Q. his testified: Is thinking something you there in there would tell them that were that taking Nothing about A. out her tubes? had been stated that I say Q. not, yet you going any to take out. Of course tubes you accepted because she ahead’ that statement as said ‘Go that authorizing you you any- her out hadn’t her to take when told thing possibility say of it? A. I I about would not con- anything taking Q. No, sidered at that about out tubes. but time you accepted authorizing you her statement made at time as I out, you? take them didn’t A. wouldn’t any have asked one else Q. Oh, figured you if I final. then would have her answer didn’t accept authority you? out, that as take A. Not her tubes did fully. Q. fully? A. Not Because I didn’t know that at time that I taking any Q. you . tubes out. Did have consent right except from her to take tube out this statement she made out say you accept the house that now didn’t as authority? full part A. From the admission she told ’’ condition, hospital. me to take care of her and she went to the by by plaintiff, submitted was whether the instruction general him re- impliedly authorization to authorized by question “apparent plaintiff, move her tubes. No consent” consent, which was believed and understood defendant to be actual admissibility concerning question No involved. presented .934 mental conclusions or of; opinion, impression
in evidence defendant’s says respondent concerning But plaintiff. what plaintiff’s mental evaluation of defendant’s evidence by his own was concluded that defendant tes was such including as timony submitting general authorization from testimony was tubes; his authority removal of implied for the conclusively that defendant shows equal judicial to a admission and or consent.” Steele knowledge “removed tubes without her Murray 177; 97, 175 W. City Ry. 265 Mo. Co., v. Kansas Southern cited W. 611. The cases Co., 176 Mo. 75 S. v. St. Louis Transit hold that controlling before us. ¥e view of the facts are he not consider that (tending that defendant did to show if in permission then final absolute to remove had clear, definite and required) was not so his removal was testimony, conflicting prior his certain, squarely nor so submitting implied preclude defendant from the issue weighed jury. was all to be authorization to the The evidence question ultimate sub determining considered All the cross examination and defendant’s mitted. conflicts between testimony jury. were for the deposition direct and *8 of fact that Respondent further that in view the contends theory of upon a the IY verdict for defendant instruction directed implied consent, it consent, evidence of implied when there was- no either that an requiring jury the to find in not also erroneous tubes condition of the emergency on of diseased existed account the during give operation. unable consent plaintiff or that not de (the correctness of which we need Respondent states the rule consent, express defendant “in the absence of termine) to be that only emergency removing tubes if an justified plaintiff’s in would be (when) of diseased condition existed because says Respondent that it could not be obtained.” plaintiff’s consent say (1) the conditions and necessities whether jury to was for the did exist and defendant to remove authorize which would ability mental and was able to had the (2) plaintiff not whether or have held that We give during the consent operation. from implied consent finding of support a evidence to matters. these not consider authorization, hence we need - that, in “You instructed follows: are YII as Instruction is operation which to the consented determining plaintiff whether may tubes, you consider of both in the removal resulted given by plain tubes was remove authorization to whether so act for her any, authorized to person, if any other or tiff herself any, inability, physical if mental any, of her or if period, will be for de your verdict find if so herself, and to act for fendant.”
Respondent says unsupported this instruction ivas in the same manner as^ IY, was no evi wit, that there tending dence opera to show an implied particular for the consent tion because of the testified to defendant. We objection against respondent. Respondent have ruled this next ‘‘ says that the contrary instruction was law because erroneous and require it did not incapable fact plaintiff to find that was in acting did”; of for her, herself at if he the time her husband acted for wholly require finding plaintiff the instruction failed to “was capable acting not of for herself the time the consent obtained”; husband was ac “clearly it was erroneous on that count”; justify and “that the husband’s authorization would not in him performing tubal excuse from or liability acting therefor plaintiff incapable unless for herself at the time the In the husband was obtained.” this con respondent says nection “a that there was conflict the evidence table”; ability 'to mental operating to consent on the while incapable when the wife is for some reason of consent, giving her own the consent of the husband . justify liability.” surgeon
would relieve the grounds stated, The instruction was because it on the erroneous finding inability clearly required physical or mental finding or permitting for herself before that another could act did act for her. granting theory trial erred new on court Respondent IY has briefed
instructions and YII were erroneous. trial points-to granting other the action of the court sustain a^new trial. judgment reversed and the cause remanded directions jury. verdict of the Brad- for the defendant enter ley Osdol, CC., Tan concur. adopted foregoing by Dalton, C., is opinion
PER CURIAM: The *9 judges All the concur. opinion as the of the court. Person Curator of the Estate
Frieda A. Guardian of the Schoen, Schoen, Appellant, Theodore A. G. American National v. Company. (2d) 57. 38488. 180 W. No Insurance April Banc, Court en
Rehearing Denied, May 2, 1944.