Anderson v. White

• Decision Date: 05 December 1921
• Parties: JAMES ANDERSON, Respondent, v. DR. J. T. WHITE, Appellant
• Court: Missouri Court of Appeals

235 S.W. 834

210 Mo.App. 275

JAMES ANDERSON, Respondent, v. DR. J. T. WHITE, Appellant

Court of Appeals of Missouri, Springfield

December 5, 1921

Appeal from the Circuit Court of Webster County.--Hon. C. H Skinker, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

W. N Evans for appellant.

The court erred in refusing to instruct the jury at the close of all the evidence to return a verdict for the defendant, on motion of the defendant, for the reason that the evidence was not sufficient to sustain a verdict on the pleadings and that under the uncontradicted evidence the defendant was not guilty of negligence as alleged in plaintiff's petition; Schmidt v. Oil Co., 221 S.W. 389; Nevinger v Haun, 196 S.W. 39; Spain v. Burch, 169 Mo.App. 94; Coffey v. Howard, 192 Mo.App. 455; Kazee v. City, 217 S.W. 339.

Luna & Boone and Moore, Barnett & Moore for respondent.

(1) The so-called abstract of appellant shows no record proper whatever, and is not sufficient for this court to review the matters in dispute. Case v. Carland, 264 Mo. 463; Matthews v. Jones, 199 S.W. 578. (2) The trial court was right in submitting this case to a jury and would have committed error of the rankest type in giving the instruction asked by defendant in the nature of a demurrer. Grainger v. Still, 187 Mo. 197, l. c. 210; Coffey v. Tiffany, et al., 182 S.W. 495. (3) The instructions under the facts presented were proper. Wheeler v. Boles, 163 Mo. 398; Young v. Wolff, 190 Mo.App. 94, and authorities above cited. (4) Instruction number 6, which appellant's counsel take as established error on the part of the trial court merely declares the law and is not a comment on the evidence. State v. Underwood, 75 Mo. 230.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--Plaintiff sued to recover damages for alleged negligence on the part of defendant, a physician, in treating plaintiff's eye, injured by a sliver from an axe. Plaintiff recovered in the trial court, and defendant's motion for a new trial being overruled he appealed.

It is alleged that plaintiff engaged defendant to examine and treat his eye, which had been injured by being accidentally struck on the ball by a piece of steel, and that defendant negligently, carelessly and unskillfully conducted himself in and about the examination and treatment of said eye by attempting to locate and remove said piece of steel by means of a certain probe; that through negligence, carelessness and unskillfulness defendant punctured plaintiff's eyeball causing the vitreous humor to escape and causing inflammation to set up, resulting in the total loss and blindness of said eye. The answer is a general denial.

Defendant urges two propositions: First, that his instruction in the nature of a demurrer should have been given, and second, that error was committed in giving plaintiff's instruction 6.

Plaintiff and another were cutting wood, the cut pinched, and they put a double bitted axe in the gash, and plaintiff's helper struck this axe with the dull bit of another axe, and a sliver flew off and struck plaintiff in the lower part of the left eye next to the nose, "across the eyeball rather and cut a little gash." Plaintiff says that it hurt a little then, that he stopped work, went home and had his wife look in his eye. Plaintiff decided to go to Gainsville where defendant resided, but learned at a nearby store that defendant was in that neighborhood, and waited there. Soon defendant came by and examined plaintiff's eye, but could find nothing. Defendant told plaintiff to go to town that afternoon, that there might be something in the eye. Plaintiff went as directed, and defendant again examined the eye, but again failed to find anything. Defendant gave plaintiff some medicine to put in the eye and told him to go home and have his wife wash the eye with salt water. Plaintiff says that he went home and worked around the place some, and that his eye did not hurt him any more until about four o'clock next morning, that then it was paining him pretty severely. Plaintiff went again on that day to defendant. Plaintiff says that he could see out of the injured eye, but when he looked down it appeared smokey. Of this second visit and the treatment given, plaintiff testified: "I went to the doctor, told him I wanted him to look at my eye again, that I thought there might be something in it. He looked into my eye and then he probed into my eye, put something in there at that time. He had some little instrument, some kind of tweezers, sharp pointed instruments, something like that (pointing to a pair of tweezers laying on table). He took them and run across my eyeball that way two or three times and about the last time he went across there it cut through. I felt that instrument go through and it felt mighty bad. It make me sick and I began throwing up and I shoved him back. At that minute when I felt that go through was the last time I seen out of my eye and he said, you will have to go to West Plains and have the doctor look at your eye. My brothers fixed a way and took me over to West Plains. My eye was hurting me mightly bad. When we got to the river my eye was badly swollen. When he was probing the eye the water ran out of the eye and ran down my cheek, dripped off, and the doctor says, there is the eye water."

Lee Crawford, a witness for plaintiff, testified that about the second day after defendant treated plaintiff's eye he heard defendant say that he "probed in behind his eyeball and the eye water began running out and that he saw it was time to quit and he sent him to a hospital. Said he gave him some medicine to ease him; he said he wouldn't be surprised if he lost his eye." Bert Miller testified that about a week after defendant treated plaintiff's eye he heard defendant say: "When I probed into Mr. Anderson's eye, the eye water ran out so bad I had to quit and I advised him to go to West Plains." Henry Hays testified that on the third day after the treatment he had a conversation about plaintiff's eye with defendant in which conversation defendant said that he "probed into his eye and the eye water ran out on his cheek and ran on the floor, and he had a pencil in his hand and he indicated, said he probed into his eye about like that."

Plaintiff offered some expert evidence tending to show that it was negligent and improper to probe in his eye in the manner indicated by his evidence. Also plaintiff offered in evidence a part of the evidence of defendant at a former trial where defendant was asked and answered as follows: "Q. Doctor, you say it wouldn't do at all to put a probe in that eye? Down in the eye where the injury was; it wasn't the thing to do at all to use a probe in that eye? A. No, sir."

Defendant denied probing in plaintiff's eye. He says that he "used forceps or tweezers, just opening the lips of the wound and made an examination as carefully as I could, and found that I was not in a position to do so, so I sent him to a specialist." He also offered evidence tending to show that plaintiff's eye was badly swollen when he examined it, and that the sight was already then gone. Defendant said that he had no probe, and made no statements about probing the eye.

For the purposes of the demurrer the evidence is to be viewed in the light most favorable to plaintiff. When the evidence is considered in the light of this well known rule it appears that defendant's contention in this respect is not well founded. It is only when there is no substantial evidence to support the verdict that an appellate court can interfere. Plaintiff's cause is not so abundantly established as his learned counsel contend, yet when measured by a demurrer he was entitled to go to the jury.

The next assignment is of more serious consequence. Plaintiff's instruction 6 is as follows: "The court instructs the jury that the evidence of Doctor Klinger, Irvin Graves, Roma Sims, Tom Foster, and certain other witnesses used by the plaintiff and defendant appears by deposition and by transcript of the stenographer who took the evidence in the former trial in this case, and it therefore becomes your duty to give such testimony such weight and credit as you would if said parties were personally present and testifying before you."

To support this instruction plaintiff relies upon State v. Underwood, 75 Mo. 230. It appears in that case that the defendant was charged with murder, that he filed an application for a continuance. Under the law as it then existed the prosecuting attorney could defeat a continuance by consenting that the facts set out in the application might be read in evidence, etc., section 1886, Revised Statutes 1879. In the Underwood case the prosecuting attorney met the application for a continuance by proceeding according to the provisions of said section 1886. The court at the instance of the State gave this instruction: "The statements read in evidence as the testimony of C. R. Turner and John Doe, whose real name is unknown, are to be taken and received by the jury as the testimony of such persons were they present; and the jury are the sole judges of their credibility, and of the weight to be given to their testimony." The defendant requested and the court refused this instruction: "The statement read in evidence upon defendant's application for continuance, of the facts which he expected to be able to prove by the absent witnesses, are to be taken and received by the jury as the testimony of such witnesses, and are entitled to the same weight as if such absent witnesses had...