This is an action for damages claimed to have accrued to plaintiff on account of the death of her husband, A. J. Weller, who died from “locked bowels,” resulting from strangulated hernia.
The petition alleges that plaintiff is the widow of deceased; that he left no minor children and no personal representative; that he had brought no action-prior to his death on account of the injuries mentioned in the petition, and that he died intestate. It is then averred that defendant represented itself to decedent, who was then suffering from hernia, as skillful in the treatment of that affliction and as having and furnishing and using for its treatment an appliance known as Plas-tr-pads, and that these appliances were suitable and safe for treating his hernia and would cure him of it; that decedent, then residing at Nashville, Tenn., applied to defendant in the city of St. Louis for that appliance and for directions for using it for his affliction, and informed defendant that he desired it for that purpose; that he paid defendant the price demanded for the appliance and directions; that defendant, in response to the application and payment, sent from St. Louis to decedent at Nashville, and for the purpose of treating his hernia, one of its plas-tr-pads and directions for using it; that decedent thereafter, relying on the representations and directions of defendant, used the appli
It is further averred that defendant knew, or by the exercise of ordinary care would have known, that the appliance was insufficient, worthless, dangerous and unfit, as aforesaid, and of the danger of injury to decedent from so using it as he did use it, “yet thereafter defendant wrongfully and negligently furnished the same to said A. J. Weller for him to use as he so used it aforesaid and wrongfully and negligently directed him to use it as he so used it, all without protection or notice of any kind to him and thereby directly caused his said injuries and death.”
It is further averred that A. J. Weller was a citizen and inhabitant and resident of the State of Tennessee, and that plaintiff is still a resident, inhabitant and citizen of that State, and that defendant has always been a resident of and located in the city of St. Louis.
Various sections of the statutes of the State of Tennessee are pleaded and set out in full, which will be found in Shannon’s Edition of the Code of Tennessee (1896), commencing with section 4025, on page 986. Section 4025 is entitled, “Right of action in case of injuries or death,” and reads:
Other sections provide how and by whom the action is to be prosecuted, when it may be instituted by the widow or children; the measure of damages and limitations of action, all unnecessary to set out here.
Averring that by his injuries so sustained A. J. Weller suffered greatly, both mentally and physically, and lost much time and incurred large expenses and became liable for large expenses, and that prior to his death had lived with, supported and protected plaintiff and by the death of her husband plaintiff lost his care, maintenance and support, all to her damage in the sum of $7500, judgment is asked for that amount.
The answer was a general denial.
At a trial before the court and a jury a verdict was returned in favor of defendant, from which plaintiff has duly perfected her appeal to our court.
The errors here assigned are to the giving of certain instructions at the request of defendant and one by the court of its own motion, the refusal of two instructions asked by plaintiff, improper exclusion of evidence offered by plaintiff, the improper admission of evidence offered by defendant, and improper remarks by the court.
It appears that the decedent had been suffering from hernia for a number of years and had been wearing steel and elastic trusses. Acting for decedent, his wife, from their home in Tennessee, wrote to defendant at St. Louis, in the name of her husband, that seeing the advertisement of defendant in a publication named, he wrote for a trial treatment of defendant’s plas-trpads for rupture. In response to this decedent received
' It appears that the blank slip above mentioned as sent with the literature to plaintiff was to be filled up among other matter, with a description of the case and measurements of plaintiff. What was claimed to be this blank, printed on white paper, and filled up with answers and with what purported to be the name of plaintiff signed to it, was produced by defendant, but plaintiff testified that it was not the blank she had signed and sent to defendant; that the one she had signed and sent was on a “kind of a yellow paper,” which she thought contained questions and answers as to the age and weight of her husband, as well as his height. Beyond this she did not remember what was on it, but testified very positively that the blank shown to her printed on white paper was not the one she had signed and sent on, and that she did not recognize the’ signature to it as her own. There was testimony from an expert produced by defendant, that the signature on this blank was writ
There was evidence on behalf of plaintiff tending to prove that this appliance was not only entirely insufficient for the treatment of hernia, but was dangerous, and that it was not recognized by the medical or surgical profession as adapted for any such purpose, and that when this pad was applied to plaintiff’s husband, after having been on a short time, it rose with the skin of the body to which it adhered and left an opening through which the intestine protruded.
On behalf of defendant there was evidence tending to prove that the pad had been successfully used in the treatment of that affliction and that defendant had, in good faith as to its curative qualities, when properly used, put it on the market. Defendant also introduced evidence which it is claimed tended to prove that on sending it to decedent, defendant had recommended that in certain cases of rupture or hernia, it had put out the caution that this pad would not itself hold the rupture but that a spring or elastic truss should be used in conjunction with the pad.
The statutes of Tennessee referred to were in evidence.
“3. The court, instructs the jury, that before there can be a recovery in this case, the plaintiff must have shown that the defendant knew that the appliance for rupture, made and sold by it, was worthless, dangerous■ and unfit for use in cases of rupture, or might have so learned by the exercise of reasonable diligence, by which is meant doing what any reasonable person would have done under like circumstances. There is no evidence of the necessary knowledge above indicated. As to the question of proper diligence in learning whether its appliance was worthless, or calculated to injure one who. used it, if the defendant from all of the facts and circumstances attending the use by it of the appliance sold was led to believe that it was adapted to the use for which it was devised and any reasonable person would have so believed under the same circumstances, then the defendant cannot be charged with any lack of diligence in the premises as to being informed as to the worthless nature of the appliance, if it was so worthless.” (Italics ours.)
“4. The court instructs the jury that whatever may have been the representations made by the defendant as to the appliance, which it made and sold, such representations cannot be considered as affording plaintiff any cause of action against the defendant — the question, which the jury are to decide under the instructions given, being merely one of knowledge, or the exercise of proper diligence by the defendant in learning whether the appliance made and sold by it was unfit in the particulars hereinbefore set forth in these instructions.”
“5. The court instructs the jury, that unless the order blank read in evidence as defendant’s exhibit 1, is the order received by the defendant, there is no basis on which any conclusion can be reached as to the order for plaster pads on which the pads were sent by the defendant and accordingly no basis for the representation. If the jury believe that the only blank used was the one on yellow paper as testified to by the plaintiff, they must return a verdict for the defendant.”
Learned counsel for respondent contends that on the petition and the facts in evidence the court should have directed a verdict for defendant, and that the statute of Tennessee pleaded, and which we have quoted, does not provide for the survival of an action such as this. We do not think that position is maintainable.
We have set out a sufficient summary of the evidence to show that this was a case for the jury.
Construing the statute of that State on actions for personal injuries, the Supreme Court of Tennessee has said, in East Tennessee, Virginia and Georgia R. R. Co. v. Fain, 12 Lea (80 Tenn.) 35, l. c. 39:
“Where a person uses his own property carelessly and negligently, without a reasonable degree of care and caution not to injure others, such as a prudent man would under the circumstances have observed, especially where injury was likely to ensue, he will be civilly liable.”
In Trafford, Admr., v. Adams Express Co., 8 Lea (76 Tenn.) 96, l. c. 100, construing the section of the statute providing for the survival of actions and giving the right of action to the widow and others when death has resulted from accident, the Supreme Court of that State has said:
“The construction put upon the provisions of the Code was, in accord with the current of authority in similar enactments, that they were not intended to be
And at page 102 it is said :
“But the weight of authority undoubtedly is, and so this court has repeatedly said, that the object of the act was to abolish the common law rule, and to allow the right of action which the injured party would have had if he had lived to survive to his personal representative. ’ ’
Further along, at page 103, noting the change made in the common law rule by Lord Campbell’s Act (9 and 10 Vict., 93), it is said:
“The damages were not to be in the nature of a solatium, but compensation to the family of the deceased equivalent to the pecuniary benefits which the family might have reasonably expected from the continuance of his life. . . . The injury to the deceased was not an element in the recovery, but only the pecuniary loss of the relative entitled to the benefit of the recovery, and therefore-if no damage" to the relative be proved, although he may be the father of the deceased, there can be no recovery.”
In Wagner v. Woolsey, Admx., 1 Heisk. (57 Tenn.) 235, construing the same statute, it is said (l. c. 236):
“The right of action that survives under this section of the Code, is one for injuries of which the party injured dies — that is, for injuries or wrongs causing his death, and this suit is brought on the assumption that the facts alleged and shown by the proof, caused the death of the husband, in the sense intended by the statute, or as a legal consequence of such acts. . . But this action must be sustained by proof of wrongs or omissions, causing the death of the party.”
In Louisville & Nashville R. R. Co. v. Pitt, Admr., 7 Pickle (91 Tenn.) 86, 18 S. W. 118, also construing the statute, it is said that to authorize a recovery under it two facts are essential: first, a wrongful act by the defendant, causing death; secondly, the existence of the parties authorized by the statute to sue.
In Darks et al. v. Scudder Gale Grocer Co., 146 Mo. App. 246, 130 S. W. 430. Judge Gray, speaking for the Springfield Court of Appeals when that court was supposed to have jurisdiction of the cause, has compiled a multitude of authorities from our State as well as elsewhere, covering actions for negligence where death occurs as the result of the negligence or wrongful act of another. The authorities are there so fully compiled, that it is unnecessary to repeat them.. When that cause came back to our court we adopted the opinion and conclusion of the Springfield Court of Appeals as that of our court, as see Darks et al. v. Scudder-Gale Grocer Co., 171 Mo. App. 37, 153 S. W. 1199.
Our Supreme Court in Wheeler v. Bowles, 163 Mo. 398, 63 S. W. 675, has considered the question of right of action for damages in case of malpractice by a physician. In that case it is said that the question as to the treatment the defendant, a physician and surgeon, actually gave plaintiff was a simple question of fact on which the witnesses did not agree and that made it a casé for the-jury. The court approved an instruction which told the jury, among other things, that if they found the defendant had negligently, carelessly and unskillfully treated and managed the' dislocation, and that it was not set, placed or reduced, and through such negligence plaintiff’s shoulder had become permanently injured, lame and disfigured, then they should find for plaintiff in the sum mentioned. It further approved an instruction which told the jury, among other things and in sub
While not altogether applicable here,, these cases are illustrative of the proposition that a case of the kind now before us falls under the classification of actions for negligence; applied in the Darks case, supra, to the sale of an article containing poisonous fluid; in the Wheeler case, supra, to a case of malpractice.
True, defendant here — a corporation — was' not holding itself out as a physician or surgeon, but there is testimony tending to' prove it did undertake, as evidenced by its literature sent to plaintiff’s husband, to treat and cure hernia, and a cure is more than any reputable physician or surgeon usually guarantees. [Vanhooser v. Berghoff, 90 Mo. 487, 3 S. W. 72; Ruth v. McPherson, 150 Mo. App. 694, l. c. 702, 131 S. W. 474.] That it undertook to treat the decedent for his affliction by mail or correspondence and without a .personal inspection and visit, is immaterial. It did undertake to cure decedent of his affliction, if he used its pad. It has been held that while it is true “that the surgeon is not required to exercise extraordinary or unusual care in the performance of his task, the fact of his holding out to perform the duties of the office he pursues annexes the obligation to his calling to exercise the care, skill and diligence that are ordinarily possessed by the average members of his
Regarding this as an action to recover damages for negligence, for a wrongful act causing death, we think that it is maintainable under either the laws of Tennessee or those of our State. The evidence in it was of such a character as rendered it peculiarly one for the determination, in the first instance, by a jury, so we find no reason to hold either that the petition fails to state a cause of action, or that the court erred in submitting the cause on the evidence to the jury, as now and here argued by learned counsel for respondent.
Instruction No. 3, given for defendant, among other things, tells the jury, in substance, that there was no evidence that the defendant knew that the appliance for rupture was worthless, dangerous and unfit for use in case of rupture; whereas instruction No. 4, also given at the instance of the defendant, told the jury that the question which they were to decide was “merely one of knowledge, or the exercise of proper diligence,” etc. These two instructions are so contradictory in this particular that they could not well fail to confuse and mislead the jury.
Again, instruction No. 4 tells the jury that “whatever may have been the representations made by the defendant as to the appliance, which it made and sold,
The instruction given by the court of its own motion and which is complained of, is the ordinary instruction as to the credibility of witnesses. As against this instruction we are cited by learned counsel for appellant to Keeline v. Dealy et al., 257 Mo. 498, l. c. 527, 165 S. W. 1088. The facts there present in no manner correspond to the ones; here. Here was a sharp conflict in the evidence,, and an instruction of this character, which was correctly framed, was properly given.
As to the refusal of appellant’s instruction, the first one marked “A,” the long one which we have referred to, we think it was properly refused for the reason that while purporting to cover all of the case, it left out very material matters interposed by the defendants and in evidence as the defense. Without pointing out these omissions in detail, it is sufficient to say that for this error, if for no other, that instruction was properly refused.
The other instruction requested by plaintiff, defining ordinary care, was in proper form, but in none of the instructions which have been submitted to us as given do we find the expression “ordinary care” used, except in the one asked by plaintiff and that was refused. Re
The error assigned to the action of the court in commenting on the evidence orally is untenable. A very careful reading of all of the proceedings at the trial as presented by the abstract prepared by the appellant, fails to show anything in the action or comment of the court that is in any manner improper.
A number of affidavits were introduced which had been sent defendant by persons purporting to have used its appliance. The court very distinctly ruled as to these when they were offered that they were not introduced and not admitted “for the purpose of proving that the various people who wrote them got well or did not get well, but they were introduced to show the knowledge which the defendant had in respect to this appliance at the time it was sent to the plaintiff in the case.”' For that purpose we think they were admissible.
For the error in respect to the instructions which we have pointed out, the judgment of the circuit court is reversed and the cause remanded for such further proceedings as may be had and in the line here indicated.