Arnold v. City of Maryville

• Decision Date: 06 February 1905
• Citation: 110 Mo. App. 254,85 S.W. 107
• Parties: ARNOLD v. CITY OF MARYVILLE.
• Court: Missouri Court of Appeals

85 S.W. 107

110 Mo. App. 254

ARNOLD v. CITY OF MARYVILLE.

Kansas City Court of Appeals. Missouri.

February 6, 1905.

PERSONAL INJURIES — DEFECTIVE SIDEWALK — PLEADING — SPECIFIC INJURIES — EVIDENCE — APPEAL — ESTOPPEL — INSTRUCTIONS — PHYSICIAN AND PATIENT — PRIVILEGED COMMUNICATIONS.

1. While, in an action for personal injuries, it is sufficient to make a general charge of injury, without specifying its details, if the particular injuries resulting from the principal one are specified in the petition all that are designed to be proved should be stated.

2. Where, in an action for personal injuries, plaintiff alleged that, as a result of the accident, her foot was violently wrenched, the bones thereof broken, and the ligaments torn and ruptured, "in consequence of which" she suffered "great pain of body and mind, and became permanently disabled in said foot," and was put to certain expense, evidence as to a cancer on the foot, resulting from such injury, and necessitating amputation of the foot, was inadmissible.

3. Where, in an action for personal injuries, evidence as to injuries other than those specifically pleaded is improperly admitted, the fact that an instruction submitting the question as to such other injuries is given at defendant's request does not estop the latter from complaining on appeal of the admission of such evidence.

4. Under Rev. St. 1899, § 4659, providing that all information obtained by a physician, "necessary to enable him to prescribe" for a patient as a physician or surgeon, is privileged, no unfavorable inference should be drawn from the failure of a plaintiff in an action for personal injuries to call as a witness a physician who has attended him.

5. Under Rev. St. 1899, § 4659, providing that all information obtained by a physician, "necessary to enable him to prescribe for a patient," is privileged, the result of an examination made by physicians called by plaintiff only with a view of qualifying them to testify in a personal injury action is not privileged.

Appeal from Circuit Court, Nodaway County; A. D. Burnes, Special Judge.

Action by Ethel Arnold, by next friend, Charles Arnold, against the city of Maryville, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

A. F. Harvey, L. C. Cook, and J. S. Shinabargar, for appellant. W. W. Ramsay, W. A. Blagg, B. R. Martin, T. A. Cummins, and W. E. Wiles, for respondent.

ELLISON, J.

This action was brought by plaintiff through her next friend, she being a minor. The ground of the action is personal injury received by plaintiff on one of defendant's sidewalks, alleged to have been negligently permitted to become and remain out of repair. She was nine years old when injured. The result in the trial court was in plaintiff's favor.

The petition was in the usual form in such cases, and, after charging the negligent condition of the sidewalk, proceeded: "Plaintiff further states that on the date aforesaid [August 25, 1898], at the said intersection of Main street and Ninth street, and while said sidewalk was then and there in the condition aforesaid, she was passing over and along the same, and, by reason of the rotten and defective condition of said sidewalk, and the large holes therein, and being out of repair as aforesaid, she, while exercising all due caution and care, slipped and fell, and her right foot passed into said hole and was violently wrenched, the bones thereof broken, and the ligaments thereof torn and ruptured, in consequence of which plaintiff was confined to her room for the space of more than one whole year, suffered great pain of body and mind, and became permanently disabled in said foot, and is permanently deprived of the use thereof, and was compelled to, and did, expend a large sum of money, to wit, $____, for medicine and medical and surgical attendance and treatment for her said injury."

There are but two points of objection to the judgment. The evidence for plaintiff showed that in August, 1898, she fell by reason of stepping in a hole in a sidewalk on one of defendant's streets, and that her foot was wrenched and painfully hurt, some bones being broken. There was evidence further tending to show that she complained of some pain continuously after her fall, and that a growth or enlargement appeared on her foot, though she walked about and attended school with other children until about three years afterwards. Finally the growth became sufficiently serious and sore to cause her parents to call a physician. He advised and performed an operation. A second operation was performed about one year after the first. In about a year after the second operation, being near five years after the injury, her foot was amputated on account of cancer. She instituted the present action a few weeks prior to the amputation. The evidence does not make clear just what length of time she was confined to her bed by reason of the operations, including the amputation, but it was probably near one year. Defendant objected to any evidence of the bunch or growth upon the foot which was said to be the inception of the cancer, and also objected to evidence that she could not wear a shoe on that foot, for the reason that "the time was too remote," and that, "it was not pleaded in the petition." After these objections were overruled, defendant also objected to evidence showing the amputation of the foot on account of the cancer, for the reason that it occurred after filing the petition. That objection was likewise overruled.

Each of those objections should have been sustained. It will be noted that the petition alleges the specific consequences which followed, or were caused by or resulted from, the fall, viz., that her foot was violently wrenched, that the bones of her foot were broken, and that the ligaments of her foot were torn and ruptured, "in consequence of which" she suffered "great pain of body and mind, and became permanently disabled in said foot," and was put to the expense stated. It seems to be clearly improper to admit evidence of a totally independent injury, manifestly not falling within those specifically set up as the result occasioned by defendant's negligence. The amputation of the foot on account of cancer thus omitted to be charged as one of the results of her injury did not occur until after this action was begun. Doubtless it may properly be shown that injuries specifically charged continued on down to the time of the trial, and that they were permanent. But that is an altogether different proposition from that of suddenly confronting a defendant with a cause of injury, not one of those specifically alleged, and with the aggravated results of such injury after the beginning of the suit. In an action for...