*1 Grace, Appel Simpson H. M. J. v. Arthur Edward Telanus (2d) 920. W. S. lants. 12 One, 1928. December Division *3 Bro-wn, Douglas & Kitt & Marshall and Brown appellants.
Roger respondent. Stone Miller and Scott J. Miller for
730 LINDSAY, C. defendants, appellants, physicians I. The are surgeons, malpractice charge and this is a case. The is that operated upon appendicitis, defendants and in do- ing so, negligently nerves, body cut tissues and muscles of `s that, result, right atroj~hied so as a became and useless. The defendants, general denial, admitting in addition to a and after they physicians surgeons, pleaded were as a bar the Statute of approved 29, (Laws 1921, pp. 197, Limitations-the act March 198). statute, earnestly plain- Under this defendants insist barred, tiff was and that it was error to refuse their demurrer of- extensively fered at the close of the ease. That discussed constituting in the briefs. The fact issue are as follows: plaintiff alleged injury The and the evidence showed that oc- day September, curred on the 4th of 1920. 1-us suit was filed on day March, 1924, years the 8th or three and six injury. September 4, 1920, months after the On plaintiff's alleged injury, 1317, 1919, date of Section Revised Statutes force, prescribing years period was in the limitation of five ar the within which actions of the character therein defined should be menced. part 9, Chapter Said sectionis of Article 12. Section1342 Amending saidArticle9 is as - - "Section 1. chapter ap- this shall not 8 and of Articles provisions “The right any of ac- cases where nor to any commenced actions ply to time when said articles accrued before entry have shall tion or the laws subject to then remain shall effect, the same take 1, 1919. November articles took effect on Said force.” 198) (Laws 197, amended Article 1921, pp. Act adding 12, new there- 1919, Revised Statutes Chapter section as follows: 1319a, and is known to be as Section to, "Section 1. Amendingarticle IX, chapter by adding new sectionto be 1319a.-Ainending IX, chapter 12; IX, known as article that article chapter12, Missouri,1919, be, RevisedStatutesof hcreby byadding thereto, sameis amended newsection be known a, as section1319 read as follows: read as follows:
73i brought 1319a. shall years. “Section Actions be within two —Ail against physicians, surgeons, dentists, actions roentgenologists, hospitals damages nurses, sanitariums for for malpractice, er- brought years ror, mistake within or shall two from the date of neglect complained the act of. Repealing conflicting parts 2.
“Section laws.—All acts and hereby with acts this are repealed.” inconsistent act *7 20, act on This went into effect June 1921. Plaintiff’s suit was years brought eight two months thereafter. whether, presented
The counsel virtue of the provisions 1317 1342, of Sections Revised 1919, Statutes the years, had after action, five the accrual of his cause of in sue, which or, applies whether the Act 1921 and therefore, of since plaintiff’s brought action was not until after the Act of 1921 had years, thereby. been in effect more than for two he is barred appellants Counsel for application insist that 1342 Section has no They press the case bar. the claim at the words “the laws then in force” used in that mean in as section laws force at the time Chapter 12 effect, and in went into the laws force not when the cause accrued, of bearing action and that Section 1342 can have no upon 12 Chapter a cause of which action accrued after went into effect. present part chapter
That
in its
form
been
of
section
has
a
the
on
1855,
limitations in the successive revised statutes since
and had
Then,
15
been before
time.
of
was Section
the
it
Limitation
Act,
page
found on
1053
the
Statutes of 1855.
It
Revised
was
in
v.
46
construed
Billion
Mo. 492. The
Walsh,
case
a real
prior
action,
plaintiff’s
year
the
cause of action accrued
to the
1847,
1847,
period
when
pre-
she
under disabilities.
In
disabilities,
bringing
scribed for
such an action after removal of
1866,
upon
in
shortened. The
sued
relied
limita-
accrued,
tion
in
at
and,
act
the time her cause of action
force
on
said Section 15
the Statute of 1855. It
held that the words
laws
in
“the
then
force” meant the laws in force when the Re-
effect,
vised
in
Statutes of
went into
and not the laws
force
1847,
when the
Act
which
cause
action accrued. The
had short-
subject
ened the
period, was the law
on
when the Re-
force
vision of 1855 went
effect.
into
The decision -was followed Gilker
Brown,
v.
If irpon the Act of 1921 all operative had no effect at barred; but, operated upon if action, cause he is not it period fixed, his cause of action so as to it was that, the shortened operative or, act; putting as of the effective date of the another way, operated, period if it but did include the its during prior his to the time Section cause of action had existed years effect, period 1319a went into did include the two after brought effect, then, that section went un- into since suit was not years elapsed til more than 1319a two after Section went into effect, is barred. large
Counsel for under defendants have cited number cases harmony claim the action is barred. There is not entire shortening upon limi conclusions reached of statutes effect period; tation general and where result has been somewhat same (cid:127) reached, given In such different reasons have been result. early Ridgley against Reindeer, ease v. 27 Mo. an action vessel, from new statute cut down time which to sue twelve only months to six months, applying and was as construed cases, cause arising passage. earlier, of action after other some its case, proceeded upon theory some later than decisions remedy only, that as the statute statutes of limitation affect case, brought, governed force of the suit time operated saving accruing of action clauses, absence on causes prior passage to its from the later act went into the time effect. 229; Manning, Mo. Under are this head the decisions in Weber v. Callaway 393; Copp, v. County Nolley, Mo. 31 Mo. Seibert *8 Callaway County 398, 182. In l. c. this court said: “The case, the upon existing as to put of limitations real construction the statute taking is, from the years elapsed actions effect where ten have act, although it accrued under some the first action barred, within which gave longer period a to limitations, other act of which bring clause, 1342. saving was not referred to it.” now Section The language quot County was Callaway in This the Seibert and cases. applied was in Copp. with A like rule approval ed in Seibert v. Hoffman, 32 v. Mo. 334. 377, v. 45 Hauser Short, Forcht Mo. bringing limited for suits In the time eases last mentioned the shortened; and where the cause of liens, was enforce mechanics’ effect, was into it action new act went prior accrued to the time the applied. by new act prescribed held that the limitation brought one 119, the suit was District, v. 151 Mo. Cranor School by to this court upon judgment. a The case was one certified The cause action Appeals, App. 152. of City Kansas of 81 Mo. Court force, fixing the limitation accrued of 1879 while the Statute was The years. the same. period twenty at Statute of The 1895, which, of brought years Act passage of the suit was after three and, if the Act years; by judgments after terms, barred all ten its already barred. of action plaintiff’s cause applied, the it that was nothing indicate act to It was held that there was action, right retrospective, was, and if as to the there plaintiff’s cause of It was held it would be unconstitutional. years twenty expiration action not barred until would become judgment. original after the date of the rendition 49, Fleming, 173 an upon v. Mo. also a judgment, Tice action conditions existed as Cranor the same case. In the Tice said, may 1. 55: it was c. “While be conceded Legis case that the may statutory period in lature shorten which actions are to be prosecuted, yet period as the shortened fixed, such only statute can passage operative after be of the act. In other words, the Legislature is authorized to make not a statute limitation retro spective period in its and include the of existence of the prior enactment of cause action to the the statute.” Reference holding in Copp was then made to Seibert v. Callaway Coun ty Nolley, announcing as “the doctrine that where the action ac subsecjuently a statute and crued under former is changed, statute fixing period, barred, a different before the action is period the full elapse as later must fixed statute.” Reference was then made ease, Cranor decision in that case construed as a ruling application that the Act 1895 could have no judgments prior to its enactment. difference rendered between the cases ease, is, Tice and Cranor and the instant those cases the prescribed years, constituting the limitation period ten time as act, already elapsed the later when the act was passed, while period year in the case at bar a than one more remained under brought act in new which could have suit. The Kan City Appeals opinion sas Court of its Cranor case made now Act, reference to the section in the Limitation Section Judge writing opinion Statutes 1919. said, Revised Ellison, App. Mo. l. c. 153: any will of 1895 does allow period “It be noticed that Act already if for accrued. bringing actions So the statute be judgment a literally, which had construed been rendered and on brought period lacking an might action day have been a being years, single day would in which ten there to institute years judgment suit. Or if had been than ten rendered more *9 brought statute, on it the date of the no action could be at all. Evi- dently why in the provision the reason no was made new enactment altering period limitation, was from fact that the of the the limita- provides: (Section 6797) unnecessary. It tion statute made it ‘The chapter provisions apply any of this shall not to actions commenced any right entry or nor to eases of action of shall have ac- where the chapter effect, but crued before the time when takes the this same in in subject shall to laws then force.’ The law force remain the at stated, twenty- was, the the time action in accrued as before the hand year period. clear, So the terms of statute it- that it is under the County self, present the not Neilson v. of action was barred. [See Chariton, 60 Mo. 386.] passed subsequent act to the enactment
“But the bere was since suggested may it the section chapter limitations, of be the on may thought quoted apply. say, not That is to it be the last does (in only which quoted applied to actions accrued section had section) the chapter when effect. But as language of the the took the amendatory chap- ivas law of 1895 limitation enactment 3895, by of general statutes, section in the Act of the ter in This made of the act, ‘enacted lieu thereof.’ new terms subjected provisions chapter and part of to section a 6797, set out.” Section above was made the foregoing no direct to con-
Tn this court reference opinion, 154, to siderations, page but does refer the decision in County Chariton, 386, 60 Mo. wherein reference Neilson 1342, under circumstances made to what is now Section somewhat There, present plain- in Cranor case. different from those act took tiff’s of action before revised effect. cause accrued Haley, a proceeding McFaul v. 166 Mo. to have 56, allowed probate court, judgment, which been ren- classified presented probate to the 5, 1878, on December and was not dei’ed years Act of 1895 went into effect. court until three after the barred, reaching not action was held to conclusion given 6977, 1889, section Revised Statutes said effect was Section being 1342, ivith Statutes 1919. identical Section Revised After 1889, prescribed to Section 6796 of the Statute of reference twenty repeal period years, thereof substi period cutting the down to therefor of Act of 1895 ten tution place 1895 took the years, said, court l. c. 63: “The Act of this chapter, subject part of that to the Section and became place had taken of had been same conditions the section it concerned, subject far as amended feature chapter, to. The so its effect, and, hence, by amendatory effect when the act took its took existence, bnJ very did apply terms to a of action then cause subject of action to the laws force when such cause was to remain plaintiff’s question, which was the judgment it accrued. The passed, 1895 was action, was in when the Act of cause existence governed expressed exception, and is therefore and comes within the 1889. appears in Statutes Under 6796 as it Revised Section judgment was not barred provisions of that section the statutory presumption payment nor was it under the ban of the probate 1898, court.” June, presented when it was existing causes of of 1921 makes reference action The Act no It of the occurrence saving fixes the time and contains no clause. period. express beginning of the. injury complained as the creates, amendatory effect, of Article it is terms and its *10 of,those to whom the 1317, persons a of in Section class out included 785 apply. given should Under tbe construction in the limitation new amendatory as ease, 9, far Article so feature McFaul was con amendatory effect when the Act of 1921 cerned, went into effect took thereby apply did not the new act a cause of action then in governed by that was to be existence, 1817, cause Section only accrued, when the cause of action law in force but also in amendatory chapter act of the took the time the force at effect. There instant between the ease the McFaul is this difference case. In period years prescribed the full of in ease, ten the amendatory effect; Act not run from time that act went into by here, years period prescribed the full of two while the amendatory took run after that effect before act had act suit was reached in brought. But, upon the conclusion the McFaul case apply grounds there makes the older in this stated, statute case. in grounds stated this case. Tt a
The there exist is of con therein, judgment struction, and a construction by between period saving shortening clause, the later statute without period began run prescribed the new statute when it went or, governs case, gen effect the construction into expressed 1842, by saving eral clause in Section virtue of the amenda- act, tory application has existing character of the new to causes new act into effect. latter the time the went construction conjoint in adopted case, the McFaul effect Section 1342 amendatory accruing upon act of action and the cause before the given date of the The construction applies effective amendment. statute, form, preserved which,
to a has been in the same the suc beginning 1855. cessive revisions with the revision of The McFaul ease, find, so far as has not been we have been able overruled or respect upon question. this to the conclusion reached criticised applicable It law The case states the to the instant case. is cited upon point Wolf, 206 in Remmers v. Estate of Mo. followed this 1342 Brown v. App. 159. Reference is also made Section Grin 973, Springfield Appeals, stead, S. W. Court case in Ingram 773, v. St. Poston, 260 S. W. a case decided Louis Appeals. opinions in the Court of most what is said However concerning 1342, Section these last mentioned cases the force of unnecessary to a decision case. appellants for decision in
Counsel to the Fal have called attention vey Hicks, 462, v. Belfast Investment Co. v. 442, Mo. also to may both of Curry, Mo. 498. as to these cases It observed assignment they proceedings were under the statute dower, part Chapter 12, Statutes 1919. a statute not a Revised 1342, by only Section to cases terms, application its seems to have arising subject provisions Chap 8 and 9 under and Articles to the ter 12, Revised Cranor Statutes 1919. The conclusions reached *11 grounds supra, Fleming, and District, supra, upon
School Tice v. the opinions overcoming cases, nothing stated the involve those the On conclusion reached the MeFaul case. that account we hold upon that the of demurrer the defendants were sustainable the ground plaintiff’s by that of Act of cause action was barred the 1921. by that, upon II. The next contention made defendants is merits, case; failed to make a that the evidence failed any injuries by to show sustained as the re- any negligent defendants; that, suit of acts of and as to Grace, that, defendant no case was made for the reason although partners, they the defendants were were not sued as such. operation performed by Simpson; and the was defendant and that part except defendant Grace took i~o in it to administer the anaes- thetic, guilty negligence. and was of no act oE -- - - evidence, allegations of of neg- Preliminary to statement alleged by he Plaintiff that was advised ligence are out. defend- set appendicitis operation an and that with was afflicted ants that he operation himself to an that he submitted necessary, was and that unskillfnlly so and trouble; charged negli- “that the defendants and performance themselves, about the in and gently conducted through and negligence their unskillfulness operation, that nerves, vessels, blood performance operation, muscles, such ten- anatomy parts dons, arteries, veins, tissues and of his other were thereby destroyed, cut wrongfully, unskillfully negligently and and parts unnecessary, cutting neg- so unskillful and was and right causing ligently causing atrophy leg, his and it done, to useless,” etc. atrophy dispute condition of that There no resulted real crural nerve. The the condition of the anterior from produced Upon that what the condition of nerve. trial, his theory his as the cause of plaintiff’s injury, and evidence was, crural show, all that anterior directed to the effort nerve cut, in denied the anterior operation. Defendants crural claim was that the atrophy was cut in their nerve neuroma, is, was caused tumor operation performed. explana- The nerve, existent when the tion of this comes later. community up Chillicothe, plaintiff grew in the near
The Mis- souri, became a resident but some months before the plant packing City, position Kansas a clerical July Company. August, 1920, & Morris He testified that he pain stomach, physicians two pit suffered in the of his consulted they IToxey Ayres. in Kansas Dr. Dr. He said told City, him deposition him. he did not the matter with The of Dr. have much was introduced in evidence him. by plaintiff, The Hoxey, taken August 5, 1920, about he examined doctor stated describing appendicitis. that he had condition indicated his among Doctor, things, other said: found, the “The condition he ’ plaintiff, pain patient right leg because con kept his bent.f father,. and went see Dr. tinued, at the instance went home family physician. went who, He Grace, was the appears, him. defendants examined defendants, and both After office they X-ray picture, decided taking an of an examination and *12 upon. plaintiff operated be had and that he should On appendicitis, performed morning Simp was Dr. following, operation the the administering present son, the anaesthetic. being Dr. and Grace operat he the that went to plaintiff when to the effect testified right leg, ing wrong his and that after nothing room was with there operation from under the influence of the he came out the or when my “I leg that anaesthetic, right was numb: discovered leg his thing first I up, and the said: numb I was and could not move ” my stated that ‘They leg.’ further he in He have cut nerve Simpson, later. He and Dr. tes told the and told Dr. Grace nurse, compelled operation, to use crutches for was tified that after the he year. for about one a cane about six with months and then walked he operation discarded years after the the one and about one-half of control of cane; atrophy a lack the and but the showed evidence conversation told of a with extending leg. Plaintiff muscles for the cross-examination, he said occurred Simpson, which, defendant on his in this said that year and operation, about a half after the and a what caused know the Simpson did not conversation Dr. him he told admitted to him atrophied leg, but diseased and condition of in that his con leg Plaintiff stated that the >vas a bad condition. Doctor, got “You have Simpson writh Dr. said to the
versation he replied, Simpson “Yes.” Dr. shape,” that me an awful and bad opera time, at intervals after for a Plaintiff testified also that occasion, upon an electrically; and that tion, Dr. him Grace treated following occurred: year operation, about a half and a after says: ‘I am in ‘Well, I you, and “Dr. Ed?’ Grace said: how are says: you?’ do and he get well, I will same fix. don’t I ever think says: has been cut and ‘No, I nerve you ‘That don’t think will.’ He ” question no it.’ there is about present was that he Henry father, Telanus, testified Dr. Grace administered operation performed; when the was that Simpson; Dr. performed anaesthetic, operation was and the Simpson stopped being Dr. operation performed, that while the like, go we something “Will Grace, and looked Dr. said at ap- answer; Simpson that Dr. ahead?” Dr. Grace made no he peared said and nothing nervous, pro- further but operation; per- with the that after the had ceeded been n plaintiff becoming complained formed, conscious, after of lack right “My leg leg, got and said: sensation his I aint no feel- ing; something objection. wrong.” went in This without The wit- every on further time he saw ness said afterward when say: plaintiff, hospital, “Papa, while still in defendants’ he would made, my Objection I leg.” I believe have lost was then sus- plaintiff complained. tained as to what as to the fact he said, by plaintiff This statement made to his father was not made presence pres- defendants. This witness also testified he Grace, Dr. ent when the with the conversation getting Dr. that time Grace that his told worse, Dr. said cut. Witness Grace the nerve was said there was no more then said about it. father,
Aside from the nurse who attended & packing superintendent at the and the .of Morris Com- pany, all On sides, witnesses on both medical witnesses. most were questions, testimony disagreement there is substantial no respectively produced. testimony the medical Tn witnesses there ordinary cases, appendix is described location of as found and the location crural its anterior nerve and functions. Ac- cording testimony posterior appendix to this lies between *13 peritoneum, ordinary anterior walls of the and cases is located point under the middle of a line from navel the top drawn the to right hip joint. the may It testimony be said now that there is no plaintiff’s appendix that place. not at was found the normal The entirely peritoneum. anterior crural lies nerve behind the It is sensory character; supplies both motor in sensation and motive power, leg. or By the impulse, to anterior its muscles the sever- ance, injury, or sensation destroyed and control of is those muscles impaired. or In ordinary operation appendicitis the the anterior crural operation upon nerve not In reached or affected. the the plaintiff, the incision made extended farther down the abdomen groin toward the in ordinary than cases. of the Some medical wit- beyond ordinary. nesses said it extended an inch or more the The explanation this, by upon they made defendants and what based they testified plaintiff pre- found to be the condition the when paring him for operation, was, the that their examination before abdomen, operation, they the lump found plaintiff’s a or mass situated down groin, toward and their decision was that this lump or mass explored investigated should be or ascertain to whether it contained pus, testimony medical other witnesses was that if lump good such existed, practice or mass proper, it was under circumstances, it, explore to so that if it reach it con- pus testimony Simp- it of defendant might tained be drained. explore lump a in plaintiff’s abdomen, lie clid reach and was that son pus. lump did contain He that it not said ascertained walnut; neuroma, that was a a tumor of a the size about emphatically He stated that he did nerve. not cut anterior crural upon all; not use a knife that he nerve or nerve at did sharp surgeons do not cut with a instrument around lump; that by exploration this dangerous places; that he made dissection with working wearing gloves, and fingers, loose the with rubber tissues his lump gauze; pus, he did not contain dry discovered the but was that enlargement tissues, nerve; an lump of nerve of the composed that lump; having did not this, it, he abandoned the cut into discovered peritoneum open ap- and remove the proceeded diseased wound, plaintiff said which he that pendix, after closed recovery.” “made an uneventful Carpenter, witness, Dr. who examined
Plaintiff’s ou day he feel an adhesion trial, that could or testified small by made lump Simpson; Dr. under the lower end of incision effect, In not that it was neuroma. that he could swear testi- things; mony many cutting that a could be caused neuroma disease, nerve, many of, to, incision, causes, or or injury or physicians. all are He further testified that an of which' known enlargement or adhesion could cause condition he felt the. been caused scar
plaintiff’s abdomen, and that it could have tissue. upon Tichenor, plaintiff’s testified the ex- witness,
Dr. trial, an atrophied at he found con- amination made the time of the leg plaintiff’s right and loss of motion and sensation of the dition of something had the anterior crural leg, occurred and said that disability suffering. from which the nerve cause the in normal assuming said condition at He and loss time and that numbness sensation operation, that shortly after the condition immediately, or followed ‘‘ nerve; something anterior tibial occurred to the would indicate things.” his examination there could be several region “in the trial, mass, found a small the time of the he opinion that this gave it as his condition anterior nerve.” He crural *14 “ very may A form in He neuroma or mass was a neuroma. said: longer. They may are exceed- weeks. It take several months or few plaintiff swelling, if ingly variable.” testified that He appendix, of was not defi- growth, below a character or per- nitely appendicitis for to be when the known enough swelling to the formed, close the incision should be made appendicial appendicitis, mass that in ab- explore lump, or colon found, which form between the scesses are sometimes down; may pretty well peritoneum, -wall of the and which be lateral incision so as to practice make the close over in such cases the was to cutting cavity. abscess, peritoneal without drain into He good practice it stated that would not have been had defendants nerve, attempting ap- cut the anterior crural while to remove the pendix. His statement that a neuroma on the anterior crural very nerve could well from which the cause the condition suffering; entirely severed, been had that nerve the muscles of the would become inactive and there have been have could no voluntary motion. proceeding upon Ill. Before to a conclusion whether any all, made case at we must consider the contention of appellants any that in event the demurrer offered defendant Grace sustained, because, urged, should have been is part evidence shows he took no in the guilty negligence; of no act of was not sued as a partner; any alleged and could not have been held liable for act of negligence part Simpson. this, on the of defendant Connected with is the contention that the statement of that Dr. Grace told cut, competent any purpose- him "the nerve" had been was not competent against theory was not Grace on the that he was not re sponsible Simpson, competel3t against Simp for the act of and not present made; son because the latter was not when.the statement was also, expression the statement was no more than the of an opinion by Grace, any way Dr. and did not tend in to show the qnestion admissibility anterior crural nerve was cut. On the against of this statement as evidence to be considered defendant Simpson, Chawkley we are cited to several cases: v. Wabash Rail way, 20; Williams, 864; 297 S. W. Holt v. 240 S. W. Hinson v. Mor (Mo. App.), things ris 298 5. W. 254. There are several to be con foregoing contentions, sidered in reference to the The statement objection part
referred to went in evidence without
on the
of either
terms,
conclusively
defendant.
In its
it cannot be said
that it was an
expression
opinion.
argued
of a mere
It
it was a state
merely
But,
ment
tributed to defendant Grace in a conversation about
that some nerve was cut.
the statement
is at
the condition
plaintiff was,
might
reasonably
in which the
and it
assumed that
Grace,
making
statement, knew,
physician,
Dr.
in the
as a
cutting
the condition was one which could be caused
Next,
responsibility
of the anterior crural nerve.
as to the
of Dr.
alleged negligent
Simpson:
Grace for the
acts of Dr.
Counsel for
appellants
say
responsibility,
evidence,
there is no such
under
and under
the rule stated in certain cases cited: Nelson v. San
dell,
440;
(Ky.),
43;
209 N. W.
Jett v. Linville
259 S. W.
Brown
Bennett,
305;
Long,
122 N. W.
Stokes v.
In Stokes v. agree- ease employed on the same and physicians are where two may judgment dictate, they as their best the service ment divide being independent agents, responsible for each considered as are may The like rule be found negligence own and no more.” his (N. S.) 785, A. Thybo, L. R. Morey Fed. stated and other cases. depend upon rule must the facts of applicability of the two The relation of the defendants to be con-
particular case. theory evidence, of the and also of the and manner view sidered petition allege they did not trial of the case. The were negligent charged both with commission of the act. partners, but They joint At the close of all answer. the evidence de- filed a separate demurrer, being which refused, his fendant Grace offered joint Simpson offering joined lie with defendant demurrer. trying counsel the case for the plaintiff,
On the cross-examination of concerning the circum- defendants, cross-examined prior him examined stances, and the fact that both defendants Grace, Dr. and called in Dr. operation; plaintiff went to he Then Simpson “right along at that time.” follows: together? A.
“Q. They Yes. were both associated “Q. partners? A. Yes.” As stating testify, the circum-
When Dr. Grace took the stand to said, among him, other which came to he stances under part- Simpson myself, were things: were, my and Dr. “We son vacation; was in Colorado on He stated that his son ners.” then he, verify if what Simpson in Dr. to see he would that he called swelling in the Grace, found. He then told of the swelling I see a “And could could feel. He continued:
he said he part of diseased condition oc- my opinion it was a and in there, gravitated my opinion pus appendix, casioned region. pus in likely would find some than we there .more Simpson . I told Dr. my opinion And, it. . . That was about pus.” it wasn’t but, I mistaken and thought; I is what Simp- Dr. said: “And he along in his direct-examination Farther operation, and at lump before I had discussed about the son and pausing him before beginning operation I remember feeling it, it, about incision, speaking he made down here thing is to cut to do examining it, proper and said: ‘The there, pus if it was lump;’ and, a little low on account of this made the it; and he thing be to drain why proper to do would *16 appendix and removed incision after lie made the incision and lump.” apparent that examined It is thus that defendants voluntarily themselves thrust into relation the ease the fact that the partners existed them. not an in- between Under the facts per- physicians, independently employed, stance of two the one to operation, form anaesthetic, the other to administer the or inde- pendently employed making according a division service n their own tending Nothing’-appeared ideas. the record show severally a made, according any respectively defense dif- asserted except, ferent relation, when, case, and until at the close of the Dr. separate Grace his offered demurrer. Under circumstances we must hold that the under this head cannot be al- contentions made lowed. charge negligence against specific, made defendants was that, plaintiff alleged thereby that defendants cut and de~
stroyed nerves, muscles, causing atrophy etc." and loss of the use leg, designed of his and all of his evidence was to show it was the anterior crural nerve which was cut. U~- evidence, der his and indeed all the evidence~ his con- solely dition was referable to the condition of the anterior crural properly. nerve-its failure to function These circumstances make plaintiff's the condition of operation anterior crural nerve at the time the begun so, the crucial in the case. This is because, time, nerve, lump, if at the there was a neuroma of that affecting functions, condition, or a mass of adhesions its such ac- cording evidence, explained plaintiff's subsequent to the medical atrophy leg. condition of and loss of control of his The evidence plaintiff's operation begun as to condition at the time the is of peculiar importance. Hoxey, Plaintiff's witness Dr. who examined August 5, 1920, him on one month before the testified that right quadrant at that time there was a tenderness of the lower plaintiff's indicating appendicitis; but, abdomen he said also that "nothing his record of that examination showed swelling-simply in the line of a speaking some tenderness at that time.'' Further plaintiff's time, patient kept condition at that he said: "The right leg Hoxey bent." Dr. saw the next time on October 16th, operation. several weeks after the He said that then September 4th, pJaintiff told him of the had on and that surgeon stones, said "the had taken out two fecal that he was numb, straighten tender or his and that he could not out Hoxey party his knee." Dr. was not asked either whether he de- swelling lump plaintiff's tected a or abdomen on October 16th. witness, Tichenor, plain Plaintiff's tiff also on October 16. 1920. After Dr. made his first examination of - cross-examination, n statin~, on growth August. to start possible for neuroma its after that it 4, 1920, defendants, September in imme- exist on 1920, and cross-examination,.brought out him the from fact that further diate 16th, pal- discover neuroma. He said: “I not, he on October did pitated I a tumor at region. Immediately didn’t disclose all.” following occurs: answer, after looking any special you for a neu-
“Q. Did make examination only special ? A. The examination we have to look roma at that time fingers. one, is our you “Q. an A. Yes. Did make examination? I
”Q. looking for A. an examination Specially one? made region feel a then. and I didn’t neuroma *17 I you looking A. "Q. making for at that time? Were one was. general
a examination. Doctor, time, a
“Q. you mind, at that Did have neuroma?
A. necessarily.” Not witness, Carpenter, physician said a skillful
Plaintiff’s other Dr. making an might fail examination. The other detect a neuroma to upon question in case, which we call the crucial the is evidence this operation plaintiff he had of the to the effect that before the ob- that immediately nothing wrong leg, served with his and thereafter he numbness, of and motion in noticed the loss sensation felt and his already, leg; testimony, reference has right and which the to be.en alleged father,, made, plaintiff of and of as to the statement of the his cut, and the statement Dr. that nerve had been Grace the de: he, that Simpson reply plaintiff’s Simpson, statement fendant sufficiently fix. got plaintiff foregoing, bad a indicates upon allegations plaintiff which relies under his the evidence petition, and his that the anterior crural nerve under contention had been cut. demurrer
Counsel for insist that evidence defendants for the reason that condition of should have been sustained consequent loss of control of anterior crural nerve muscles, atrophy could of his have re- the muscles nerve, having there from that or been a sulted disease of without proof nerve; cutting not sufficient the nerve there is jury; and, submission of cut, to take was the case leaving jury arrive its conclusion case was it to the conjecture guessing. cut, solely by crural nerve was anterior Many of which particular eases are under circumstances cited might possible two or injury shown the resulted from more have and there was fail- causes, plaintiff liable, for which was not one of proof a for which the de- injury due to cause ure of that the v. Louis Moon St. fendant was liable. Some of we mention: these Dyer Building 227; M. & Co., Transit Mo. v. W. Sutherland (Mo. App.), 48; 258 W. v. Contracting S. ex rel. Bush Co. State (Mo. 598; v. & Co. Sturgis, Mo. Courter Chase Son Mercantile 340; Mullery Telephone Co.; & 266 W. Missouri Kansas App.), S. character. The burden was App. and others like Mo. and, negligence defendants, case, in this a plaintiff to show on the is cutting anterior crural because there no evidence of nerve, of the any produce could cutting injury other which would or or nerve Therefore, such a as that from suffered. condition only question is, warranted submis- serious whether the evidence This cut that nerve. is jury sion to the that defendant issue plaintiff and defend- so, because, according for both to the evidence operation appendicitis cutting of that nerve in the ants, cutting it could and proper also, practice; and because produce suffered. The would which the condition from testimony, all one, conclusion, is a from close but our overruling did the demurrer to the that the trial court not err consider, among things, other reaching evidence. In that conclusion we lump or the fact that defendants that there was neuroma testified Simpson lump of a walnut —at the time —defendant said the size operation performed, explored; which was reached testimony examination, in his Hoxey, the other to the effect that Dr. lump, month found no and Dr. about one before the Tichenor in his month examination about one after lump; and, found taken into consideration no we have further testimony father as to his condition before *18 by immediately and after the and the statements them operation, attributed to the defendants.
IY. ground against complaint The next the instructions
given plaintiff. instructions, other than for the These damages, follows: measnre 0f are as ^011 jury instructs the that one who holds “1. The court himself out physician surgeon, implies promise law public as a and to the the a duty part diligence will skill on his that he use reasonable and and operation upon may employ him. performing in an those who There- plaintiff you if find and believe from the evidence that fore so em- Simpson perform operation upon and to an ployed Drs. Grace him- removing you purpose appendix, and self for the further find operation performed was and believe from the evidence that said in negligent instructions, in a and careless manner as defined these by negligent, and careless and if that reason said unskillfulness you find, carelessly negligently cut, and so wound- injured operation by performance ed and in of said said defend- Grace, jmu if Simpson, Dr. J. Dr. H. M. then so find the ants, A. or evidence, you should find for from tbe facts to Simpson Dr. J. and H. M. A. Grace. against defendants diligence as skill and used in reasonable these instruc- By “2. diligence usually possessed which is skill and is meant that and tions in ordinarily surgeons the community skillful in by exercised performed. operation such you jury that if instructs the find and
“3. The court believe from Simpson Dr. A. J. defendants, and Dr. H. evidence that M. by perform employed plaintiff to an Grace, operation upon were and agreed perform that said defendants appendicitis, him for to duty degree it was operation, then their exercise skill said by ordinary surgeons skillful possessed and exercised in com- munity performed, performing in operations in which it such circumstances, you if find and under like and believe from the evi- performed said operation, said defendants dence that the and that you they did, doing so, if find that said defendants failed degree possessed of skill and reasonably to exercise the exercised community, performing surgeons skillful such an circumstances, they yon you find if did, under if then find like so you evidence, facts from the would be in finding to be warranted that said were as that negligent, defendants term is used these instructions. ‘ n '4. you if jury court instructs believe find from defendants, Simpson, op- the evidence that the A. J. performed an eration, removing M. Grace, appendix assisted H.
plaintiff, performing the defendants if said they did, negligent manner, you did in a unskillful if so so find they did, negligence and that as result of said unskillfulness find, part right leg on the yon of said if so defendants, unnecessarily negligently injured, atrophied, you if find, your plaintiff.” so then verdict be for the should
An objection, instructions, is, that common all of these none of them given against Grace, should have been as defendant on the ground finding against support him. there is no evidence theory petition allege did not
This is that the on defendants, and that defendant partnership between As we have the anaesthetic. than administer more no did Grace examination, direct testified on their defendants stated, both *19 brought already fact on they had out that and they partners, were petition charged that the plaintiff. The the cross-examination operation perform it. and did perform to undertook defendants time, but partners at only they were showed not The evidence un they examined and under which the circumstances they it undertook to show operation tended perform dertook to allegation was no true that there is partners. as It in their relation 746 partnership, principle that evidence is admissible to show
partnership between defendants, without an
partner
averment of
ship in
by
the petition,
is
long
established
line of decisions of
this
court
appeals.
courts of
Watson,
;
v.
defendants performance should have exercised jury instructed the as to the skill °Perati011> possessed should have been defendants, when being petition in the with or charged unskillful in- they were not, mentioned instructions do as two competent. The jury to the skill that should have pos- as been claims, instruct respect greater they put duty no by the defendants. sessed they degree should have exercised the than on the defendants by surgeons in the ordinarily possessed and exercised communi- skill physician rule operation performed. The as to ty in which the Cyc. only required stated, 1570: “He is surgeon or is thus learning degree ordinarify possess pos- and exercise skill profession good of his and exercised the members sessed stand- duty his practicing localities, in similar is use ing, reason-. diligence application skill and the able care and in the exercise according judgment.” learning, and to to his best Many of his act among them, support text, cases are cited McMurdock v. Kimberlin, App. 23 Mo. 523. go jury beyond
Plaintiff’s permitted Instruction specific limits of pleadings act neg and the evidence. The cutting petition ligence alleged nerves, mus only suggestion negligent cles, evidence or etc. The crural nerve. The instruction runs that anterior was of cutting per that said the evidence from jury believes “if the manner, as defined and careless these in negligent ain formed negligent, careless and said unskill- by reason of structions, and carelessly and find, negligently you fulness, if so operation by performance of said injured in the wounded cut, plaintiff. finding for the defendants,” should be then the The said charge petition confusing. did not defendants instruction sense, yet general incompetent this being or unskillful with in charge unskillfulness, with we think 'seems them struction jury whether least in the minds of would raise par- this unskillful an they performance merely were to consider *20 general unskillfulness, ticular or a skill, or want of on the part of the defendants. clearly Instruction 4 is erroneous. It is to be observed that In question plaintiff ``carelessly
struction 1 submitted the negligently cut, that injured" performance wounded and in the require operation. But, finding it did not of a cut- ting any specific plain- nerve or tissue. In none of cjuestion tiff's instructions was there submitted the cut; 4, whether the anterior crural nerve was and in Instruction jury cutting were not limited to the of the anterior crural any nerve, cutting plaintiff all, nerve or of or to at it assumed case, plaintiff jury to cover the and it authorized a verdict for if the performed negligent found that defendants in a negligence unskillful manner and that as a result of said and uz~- part plaintiff's right leg skillfulness on the of defendants was unneces- sarily negligently injured atrophied. per- This instruction jury go large finding negligence mitted the for a on the part of defendant. in connection with to be considered Instruction
Plaintiff’s follows: is as defendant’s Instruction plaintiff jury before can that re-
“6. The court instructs evidence, preponderance of the must show the cover in this ease he that weight evidence, is, by greater condition of solely by defendant, A. J. plaintiff’s right leg Simpson, caused you if plaintiff and find cutting crural nerve he the anterior plaintiff’s right did that the condition not cut said nerve or must be for cause, your verdict the de- any from other resulted ’’ fendants. plaintiff to' find for was that meaning of said instruction cut defendants an- necessary jury find for the
terior crural nerve. plaintiff's necessary Under Instruction it was to find that
plaintiff negligently cut, injured. But, had been wonnded and under plaintiff's necessary any Instruction 4 it was not to find that nerve negligently or muscle of has been cut. It author giving jury any ized a verdict for without guidance specific neg as to a act which would constitute finding any specific neg- ligence, requiring act of and without finding any ligence, permitted base on them to theory negligence they might evolve out of their own minds. On McCleary, [Owens that account it was erroneous. 313 Mo. l. c. 224; Ry. Co., Allen v. Mo. Pac. 87.] 294 S.W. pleadings Instruction 4wentoutsideof and the evidence. IJn- der instruction,jury finding was not confinedto a as to a R~oader than *21 cutting the nerve, only g anteriorcrural act of ne - ligence whichplaintiff's show, evidencetended norcon- finedto negligent catting any nerves,muscles, - fined tothe of etc. within allegations petition;they of but wereau thorizedto leg any waynegligently injured find forthe if his wasin negligently injuredand atrophied. going yond thus be- limits,prescribed by petition, plain and the lact which tiff's evidence particularcausing injury, tendedto show as to act there purview error. ``Instructions must withinthe both of pleadings evidence,' Ellison, [State and the ex rel. v. 270Mo. 653; Daues, 463,464.] l. c. Stateex rel. v. 284S. W. Theseinstructionsare conflicting, clearly giving prejudicial Instruction4 wa~ defendants. CureDefendants Defendant’s 6 legal required Instruction jury in its substance to find for defendants, jury preponder-. found unless the from the
anee of plaintiff’s evidence that condition injury complained of, resulted from the rather thai~ it, from the other causes which would account for an~I preju there evidence. Since there was by is not 4, it cured the giving Instruction error dicial exception. 6 defendant’s over [Patterson Instruction defendant’s Bollinger Mfg. Co., v. Curtis 303; c. S. Mo. l. Evans, 254 c.W. l. 910.] Defendant's alsocomplain plaintiff's upon Instruction themeasureof
damages ground on the that the instructionauthorizedMeasure damages plaintiff pain anguish forthe and rnen~ tal jury," suffered him "as a resultof said in- without to, auy wayspecifyiug injury re- ferred jury damages that the was authorizedto award ulaintiff physicalpain guish for mentalan- suffered operationappendicitis. as resultofthe As the instruction is might be, drawn is notas definiteas for the errorsand foregoing, especiallyapplicable plaintiff's reason instruction judgment is reversed andthe causere- man de $eddon andEllison, CC., d. concur. CC. concur. The foregoing opinion adoptedas Lindsay, C., PER CURIAM: judges opinion court.All concur. All ofthe Instruction