Cazzell v. Schofield

Citation8 S.W.2d 580
Decision Date18 May 1928
Docket NumberNo. 26486.,26486.
PartiesGOLDA CAZZELL v. L.J. SCHOFIELD, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Cooper Circuit Court. Hon. Henry J. Westhues, Judge.

AFFIRMED.

M.D. Aber, W.V. Draffen and Montgomery, Rucker & Hayes for appellant.

(1) Defendant's demurrer should have been sustained. The evidence conclusively shows that appellant was possessed of such professional skill and learning as was ordinarily possessed by practitioners in the locality in which he pursued his profession and that he treated the case with reasonable diligence and skill. There was no evidence of abandonment. Logan v. Field, 75 Mo. App. 594; Granger v. Still, 187 Mo. 197; Vanhooser v. Berghoff, 90 Mo. 487. (2) The court should not have permitted plaintiff's counsel to inquire of the jurors concerning their connection with or employment by the Medical Protective Association of Fort Wayne, Indiana. Burrowes v. Likes, 180 Mo. App. 456; Trent v. Printing Co., 141 Mo. App. 437; Gore v. Brockman, 138 Mo. App. 231; Kelly v. Sinn, 277 S.W. 361; Pinkerton v. Miller, 283 S.W. 455; Chambers v. Kennedy, 274 S.W. 726; Tarbutton v. Ambriz (Tex.), 259 S.W. 260. (3) A physician in an action for malpractice is entitled to have his treatment judged by the methods of his own school. Dr. Longan, an expert offered by respondent, belonged to a school of medicine different from that to which appellant belonged. In permitting him to testify over the objection of appellant, the trial court committed error. Granger v. Still, 187 Mo. 226; Booth v. Andrus (Neb.), 137 N.W. 884; Bowman v. Woods, 1 Iowa, 441; Burnham v. Jackson (Colo.), 28 Pac. 250; Force v. Gregory (Conn.), 7 Atl. 1116; McGrew v. Kerr (Colo.), 128 Pac. 870; Hanslin v. Wheaten (Minn.), 97 N.W. 882; State v. Smith (Idaho), 138 Pac. 1107; Hennis v. Banks (Wash.), 164 Pac. 58; 21 R.C.L. 383, sec. 28; 30 Cyc. 1571. (4) The court having found that the verdict was excessive should have set the verdict aside and granted a new trial or compelled respondent to enter a remittitur. (5) There was no evidence which justified the court in submitting to the jury the question of whether or not defendant failed to exercise reasonable care and skill in treating plaintiff, and Instruction 1 is erroneous for the reason that it submits this question to the jury. 30 Cyc. 1570; 21 R.C.L. 381, sec. 27; Parkell v. Fitzporter, 301 Mo. 227; Krinard v. Westerman, 279 Mo. 680. (6) By the words, "or his negligent failure to treat her after said date," which the court added to appellant's Instruction E, the negligent abandonment of respondent by appellant was assumed. In thus directing the jury the court permitted error. Mansur-Tebbits Implement Co. v. Ritchie, 143 Mo. 613; State ex rel. v. Ellison, 270 Mo. 656. (1) The court permitted Dr. Haughey to base his expert opinion, in part, upon a history of the case as related to him by respondent's parents. This was error. McGill v. Bank, 288 N.W. 498; Freeman v. Ins. Co., 196 Mo. App. 383; Holloway v. Kansas City, 184 Mo. 19; Kitchlow v. Railroad, 264 S.W. 416; Aronovitz v. Archias, 219 S.W. 620; Hutchinson v. Mo. Pac., 288 S.W. 94. (8) Respondent's Instruction 2 permitted the jury to award damages for permanent injury and future pain and suffering. There was no evidence upon which to base such an instruction. It was error to include these elements in the instruction in the absence of any evidence. Smith v. Dumond, 6 N.Y. Supp. 242; Thieson v. Morgard, 183 Ill. App. 158; McIlwaine v. Gabe, 137 Ill. App. 215.

C.W. Prince, E.A. Harris, James N. Beery, Roy D. Williams and Wm. H. Allen for respondent.

(1) At the close of the evidence, defendant filed a demurrer which was general in its terms. It was overruled. Defendant thereupon requested the court to submit instructions on various phases of the law applicable to the evidence and the issues. Two of these instructions, A and E, directly involve the question of defendant's negligence, asking the arbitrament of the jury thereon. No instruction was asked by defendant requesting the court to charge the jury that there was no evidence before them tending to show negligence on the part of the defendant in his treatment of the plaintiff, or negligence on his part in abandoning said treatment, or asking that either of said assignments of negligence be withdrawn from the jury's consideration. Therefore, the question raised by the defendant here challenging the sufficiency of the evidence has been abandoned and waived by the defendant, and he is estopped from raising said points in this court. State ex rel. Anderson v. Davis (Mo.), 287 S.W. 603; State v. Allen (Mo.), 272 S.W. 925; Anderson v. Davis (Mo.), 284 S.W. 439; Crum v. Crum, 231 Mo. 626. The trial court should not be convicted of error for doing what both parties asked it to do in declaring the law. Participation is tantamount to precluding future objection. Crum v. Crum, 231 Mo. 626. Defendant after having submitted an issue to the jury, may not, on adverse verdict, contend that there was no evidence to warrant the submission, or that the jury had no choice, or that the verdict was inconsistent with duty, and therefore cannot stand. By directing the jury as to what they must find in order to authorize a verdict, defendant clearly implied there was evidence pro and con the issues submitted. Davison v. Hines (Mo.), 246 S.W. 303. (2) Counsel for plaintiff have the right to ask jurors on their voir dire concerning their relation and connection with an insurance company interested in the outcome of the trial. Wagoner v. Construction Co. (Mo.), 220 S.W. 897; Melican v. Construction Co. (Mo.), 278 S.W. 361; Malone v. Small (Mo.), 291 S.W. 163; Boten v. Ice Co., 180 Mo. App. 96; Saller v. Shoe Co., 130 Mo. App. 720; Kinney v. Met., 261 Mo. 97. (3) Reference to insurance company in damage suit assumed to have been made in good faith. Jablonowski v. Mfg. Co. (Mo.), 279 S.W. 89. (4) The testimony of Dr. Longan was clearly competent and relevant, for it involves diagnosis only. But if it did include some incompetent evidence, it is the duty of appellant to point it out. Stoebier v. Transfer Co., 203 Mo. 702. (5) Disability and affliction, charged to the wrong of another, and continued to the date of the trial, furnishes sufficient foundation for an inference that such condition is permanent. Tompson v. Smith (Mo.), 253 S.W. 1029; Frazier v. Smelting Co., 150 Mo. App. 419; Gharst v. Transit Co., 115 Mo. 403; Quinley v. Traction Co., 180 Mo. App. 287. It is not necessary to show what part of the organs or organism gave way or when. The human system is so complicated and delicate that it is often impossible to prove this. It is enough that there is an efficient cause closely followed by the effect. In many cases it is difficult for the jury to determine which of the alleged causes which the evidence leaves open for discussion, as a cause, actually produced the effect complained of; but being difficult does not argue that the jury should not solve it. Being difficult should not transfer a determination of the facts from the jury to the court. Herke v. Railway, 141 Mo. App. 613; Jewell v. Powder Co., 143 Mo. App. 200; McDonald v. St. Rys. Co., 219 Mo. 65. Where evidence of lay witnesses show a gradual and definite decline which could have been checked or averted by simple local treatment, but which is not checked until the health is tremendously and permanently impaired and death is almost at hand, it needs no physicians testifying as experts to establish a case for the jury. McDonald v. St. Ry. Co., 219 Mo. 65. (6) It is not error to assume the existence of facts which must be theretofore found. That is to say, having found that certain facts have been established by a preponderance of the evidence, the jury in its consideration of the subsequent portions of the instruction could assume the facts theretofore found. Scharff v. Tank Car Co., 214 Mo. App. 658; Hereford v. Railroad, 220 S.W. 901. The defendant admitted he abandoned the plaintiff without notice to her or any member of her family

SEDDON, C.

This is an action by plaintiff to recover damages for personal injuries, bodily suffering and illness, charged to have resulted from the alleged malpractice of defendant, who is a physician. The venue of the action was changed to the Circuit Court of Cooper County, where the cause was tried before a jury, resulting in a unanimous verdict for plaintiff, assessing her damages in the sum of $10,000. The action was originally instituted against four defendants, all physicians, but, at the conclusion of plaintiff's evidence-in-chief, the trial court instructed the jury to find for all of the defendants except the present appellant, whereupon the plaintiff made an involuntary dismissal as to all of the defendants, except Dr. Schofield. The defendant Schofield was allowed an appeal to this court from the adverse judgment against him nisi.

The petition of plaintiff was amended by interlineation at the commencement of the trial, and, as so amended, charges that "during the month of September, 1921, she, being pregnant, sought medical care and attention of the defendant, Dr. L.J. Schofield; that the said defendant, L.J. Schofield, accepted her as a patient and commenced treating plaintiff, giving her medical attention in the said month of September, 1921, ...; that thereafter, and up until the month of January, 1922, the said defendants did treat and render medical attention to this plaintiff, for the purpose of enabling her to a proper delivery of her said unborn child; that plaintiff's physical condition, under the treatment and care of said physicians, gradually grew worse, and in the month of January, 1922, after defendant L.J. Schofield had negligently failed to treat or attend upon plaintiff, though duly called, the plaintiff called into consultation other physicians and surgeons, and she was advised by said other physicians and surgeons that she was carrying a...

To continue reading

Request your trial
15 cases
  • Steele v. Woods
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1959
    ....... 13 Sibert v. Boger, Mo., 260 S.W.2d 569; Reed v. Laughlin, 332 Mo. 424, 58 S.W.2d 440, 442; Lewis v. McClellan, Mo.App., 1 S.W.2d 247; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580. . 14 70 C.J.S. Physicians and Surgeons Sec. 48g, p. 967, Sec. 51c, p. 974; 41 Am.Jur., Physicians and ......
  • Williams v. Chamberlain
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1958
    ......Crider, Mo.App., 272 S.W. 980; Vanhoover v. Berghoff, 90 Mo. 487, 3 S.W. 72; Hales v. Raines, 146 Mo.App. 232, 130 S.W. 425; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580. In stating or approving definitions, however, our courts have often included such additional terms as 'in ......
  • Carver v. Missouri-Kansas-Texas R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • January 14, 1952
    ...... Steuernagel v. St. Louis Pub. Serv. Co., 361 Mo. 1066, 238 S.W.2d 426, 429. Courts may not compel remittiturs. Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580, 591; Kennon v. Gilmer, 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110. For this reason remittiturs are conditioned ......
  • Cazzell v. Schofield
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT