Wheeler v. Bowles

Decision Date21 May 1901
PartiesWHEELER v. BOWLES.
CourtMissouri Supreme Court

Appeal from circuit court, Maries county; C. D. Corning, Special Judge.

Action by Martha Wheeler against W. H. Bowles. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. S. Pope, Wm. M. Blair, and J. W. Terrill, for appellant. Holmes & Mosby, Murphy & Murphy, and Harrison & Bland, for respondent.

GANTT, J.

This is an action for damages alleged to have been caused by the malpractice of defendant, who was and is a physician. The petition, in substance, states that on the 17th day of February, 1896, the plaintiff, who is a married woman, by accident had a fall which dislocated her right shoulder; that at that time the defendant was engaged in the practice of medicine and surgery in Maries county, in this state, and held himself out to the community in which he and plaintiff resided as skilled in his said profession; that, on the day and date of the fall and injury aforesaid to plaintiff, plaintiff, having confidence in the skill of defendant, employed said defendant, for a reasonable compensation to be paid by plaintiff to him, to set and heal the dislocation or fracture so as aforesaid received by her, and defendant, in his capacity, undertook to treat her arm and shoulder for said injury, and gave her and her husband explicit directions for caring for her said injury, which directions she followed in every particular, but she states that defendant so negligently and unskillfully conducted himself in and about treating said dislocation or fracture, and in attempting to reduce the same and heal plaintiff's said injuries, that through and by reason of his negligence and unskillfulness plaintiff's said arm and shoulder grew stiff, and she entirely lost the use of the same, and through said negligence and unskillfulness she is left in a deformed condition, to such an extent that her clothing, worn in the usual manner, will not hide the deformity. Plaintiff further states that, by reason of the negligence and unskillfulness of defendant as aforesaid, she was made sick, and had to endure great pain and suffering for the period of six months, and was all that time unable to attend to her duties as the wife of Ray Wheeler; that she has entirely lost the use of her arm; that same is permanently deformed, so she cannot enter society without appearing in a deformed and crippled condition which is apparent to the sight of every one and by reason of such deformity plaintiff at all times suffers mortification of mind, and, by reason of said negligence and unskillfulness of defendant as aforesaid, she is wholly disabled from attending to her duties as the wife of Ray Wheeler, and is permanently injured, lamed, and disfigured. Plaintiff says, by reason of the premises, she has been damaged in the sum of $25,000, for which, with interest from date of suit, she prays judgment. The answer is as follows: "The defendant now comes, and, by leave of the court first had and obtained, makes the following amended answer to the amended petition of plaintiff: First. The defendant admits that on the 17th day of February, 1896, he was a physician and surgeon, and engaged in the practice of his profession as such in Maries county, Missouri, and had been so engaged for many years, and that on or about that time the plaintiff's shoulder was dislocated, and that he was called upon in a professional capacity to treat the plaintiff therefor and reduce such dislocation, and says, further, that he properly treated the plaintiff, and reduced the said dislocation, according to the usual and most approved method of medicine and surgery, and in every particular properly treated the plaintiff's wound and ailment, and, having so done, dismissed his said patient, and was paid for his professional services in so doing, and his employment then ceased; and if the plaintiff's arm and shoulder grew stiff, and she entirely lost the use of same or became deformed, it was through no fault, negligence, or unskillfulness on the part of the defendant. That defendant says that after properly treating the plaintiff's injury, and reducing the dislocation, and giving the same the proper treatment and attention, and the proper directions for caring for the same, he was not again called for by the plaintiff to treat the said wound, and, if any other or greater inconvenience or injury resulted to the plaintiff than is inevitable and the usual and natural result thereof, it was occasioned by plaintiff's own negligence and want of care and caution; and the said defendant says that he is informed and believes, and so charges the fact to be, that the plaintiff, after being properly treated and advised in every particular by him, did again dislocate her arm or shoulder by attempting to perform hard labor, and performing her usual and ordinary household duties, before she had recovered from the wound aforesaid, and by attempting to do work and labor she was unable to do, and the certain result of which would be to dislocate the joint again; that, after the joint was again dislocated, he was not notified thereof, nor called upon to treat the case again, and had no opportunity so to do; and that all the injuries the plaintiff has suffered on account of said wound, other than those necessarily occurring and arising from such injuries, were occasioned by her own negligence and want of care in taking care of the same after treatment, and that the same contributed thereto. The defendant denies every other allegation of the plaintiff not herein specifically admitted, and, having fully answered the complaint of plaintiff, asks to be discharged, with costs." In her reply, plaintiff denies the charge of contributory negligence on her part, and again prays judgment. It will be observed that it is admitted in the pleadings that plaintiff's shoulder was dislocated; that defendant was a surgeon and physician, and was employed by plaintiff to reduce the dislocation and treat the said injury; that he undertook to do so, and was paid for his services. The manner of the treatment, the contributory negligence of plaintiff, and the extent of her injury, constituted the principal issues before the jury. The testimony of the plaintiff and her witnesses tended to prove: That the defendant failed to make a proper diagnosis of plaintiff's injury. That, instead of recognizing it as a dislocation of the shoulder, he pronounced it a bad sprain, only. And on his cross-examination he said it was only a partial dislocation, and that he only used one test to prove that he had reduced the dislocation. When told the next day by plaintiff that her arm was very painful, and that she had not been able to sleep at all during the night, he said there was no displacement; to apply vinegar and paper, and it would soon get better. That he applied no bandages, nor did anything else to relieve her. He saw her again...

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    • March 12, 1941
    ......(2d) 180; Whitley v. Stein, 34 S.W. (2d) 998. (6) There was no error in the court giving plaintiff's requested Instruction 4. Wheeler v. Bowles, 163 Mo. 398, 63 S.W. 675; Jablonowski v. Modern Cap Mfg. Co., 251 S.W. 482; Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 89. (7) The ......
  • Brunk v. Hamilton-Brown Shoe Co., 31472.
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    ......Q., O. & K.C. Ry. Co., 170 Mo. App. 514, 156 S.W. 732; Wilson v. St. Louis & San Francisco Ry. Co., 160 Mo. App. 649, 142 S.W. 775; Wheeler v. Bowles, 163 Mo. 398, 63 S.W. 675; see, also, Hurst v. C., B. & Q. Railroad Co., 280 Mo. 566, 219 S.W. 566; Hoover v. St. Louis Electric Term. Ry. ......
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    ......Q., O. & K. C. Ry. Co., 170 Mo.App. 514, 156 S.W. 732; Wilson v. St. Louis & San Francisco. Ry. Co., 160 Mo.App. 649, 142 S.W. 775; Wheeler v. Bowles, 163 Mo. 398, 63 S.W. 675; see, also, Hurst. v. C., B. & Q. Railroad Co., 280 Mo. 566, 219 S.W. 566;. Hoover v. St. Louis Electric ......
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