Loretta Mae Smile and her husband Paul brought suit against Sidney Lawson, D.O., for $470,000 damages for malpractice and loss of consortium, arising out of the performance by defendant of a thyroidectomy on Mrs. Smile. According to the petition the nervous structures of Mrs. Smile’s throat were severed and irreparably damaged, resulting in paralysis of her vocal cords, due to defendant’s unskillful and negligent operative procedure. It was further alleged that after the operation defendant fraudulently concealed the fact of surgical damage; that with knowledge of the facts defendant failed to disclose that he had irreparably damaged the nervous structures during the operation and concealed the true state of affairs, thereby causing plaintiffs to desist from making claim or filing suit.
The first judgment in this case, entered summarily for defendant on his motion, was reversed on appeal. Smile v. Lawson,
Plaintiffs’ first complaint relates to the giving of Instruction No. 5, which defined the term “negligence” as “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession
in good standing practicing in similar localities.”
We have italicized the language of which complaint is made by plaintiffs on the ground that in Gridley v. Johnson,
Plaintiffs’ second point is that the court erred in permitting defendant to cross-examine Mrs. Smile concerning certain criminal convictions. Plaintiffs argue that none of the convictions was shown to be anything but a municipal ordinance violation. The court permitted defendant’s counsel on cross-examination to ask Mrs. Smile whether it was not a fact that she “had some 5 or 6 convictions beginning back in about 1950 and continuing for several years.” The basis for this question lay in answers given by Mrs. Smile to interrogatories, in which she answered “Yes” to the following question, “Have you ever been convicted of any criminal offense, either felony or misdemeanor?” Asked to list the offenses, their dates and the sentences imposed, she listed six vagrancy convictions in various cities in Oklahoma, Texas and Tennessee in different months in 1950 and 1951, in which fines of $1500 and $15, three one-week imprisonments and one one-month incarceration were imposed. Although counsel for Mrs. Smile objected on the ground that the convictions were merely city ordinance violations and not misdemeanors there was no evidence to substantiate the objection.
There was no error in permitting the cross-examination. Section 491.050, RSMo 1969, V.A.M.S., authorizes proof of conviction of a criminal offense to affect the credibility of a witness upon his cross-examination. Kansas City v. Roberts,
Plaintiffs’ third point is that the court erred in giving defendant’s affirmative defense Instruction No. 4, as follows: “Your verdict must be Tor defendant on Count I and Count II of plaintiffs’ petition unless you believe that defendant severed plaintiff, Loretta Smile’s right and left recurrent laryngeal nerves and that defendant had actual knowledge of this fact and fraudulently concealed this fact from plaintiff and engaged in trickery and deceit to prevent plaintiff from ascertaining the truth of her condition and that plaintiff exercised reasonable diligence to determine the truth of her condition.” Plaintiffs contend they were prejudiced (1) by the use of the word “severed” in this instruction; that it is argumentative, calculated to mislead, confusing, unclear, ambiguous; that it conflicts with Instruction No. 2, which submits “failure to protect” the laryngeal nerves, and that it constitutes a misdirection; (2) by requiring a finding that defendant have actual knowledge of the severance of the nerves, which is also in conflict with Instructions Nos. 2 and 3; (3) by requiring the finding of trickery and deceit as additional elements of fraudulent concealment; (4) by requiring a finding of the element that “plaintiff exercised reasonable diligence to determine the truth of her condition” as an additional el *403 ement under the fraudulent concealment and trickery theories; that defendant has attempted to shift to plaintiffs the burden of proof on his affirmative defense.
Instructions Nos. 2 and 3, offered by plaintiffs, directed verdicts for plaintiffs upon a finding- of failure to protect each recurrent laryngeal nerve from damage during surgery. The direction of a verdict for defendant under Instruction No. 4 if the jury found that the nerves were
severed
did constitute a conflict with Instructions Nos. 2 and 3, but the conflict was engendered by plaintiffs’ fault and not by error on the part of defendant. Plaintiffs’ Instructions Nos. 2 and 3 were too favorable to plaintiffs. They authorize verdicts for plaintiffs without requiring a finding of several elements essential to recovery in this case. Plaintiffs waited until five and a half years after the operation to bring this suit — long after the expiration of the statute of limitations in malpractice cases. To avoid the bar of the statute “[t]he burden [was] on the plaintiffs to prove the facts necessary to a finding in their favor on the issue of fraudulent concealment of the facts giving rise to the cause of action.” Smile v. Lawson, supra,
No error appearing, the judgment is affirmed.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the Court.
All of the Judges concur.