Arnold v. The City of Maryville

• Decision Date: 06 February 1905
• Citation: 85 S.W. 107,110 Mo.App. 254
• Parties: ETHEL ARNOLD, by Next Friend, etc., Respondent, v. THE CITY OF MARYVILLE, Appellant
• Court: Kansas Court of Appeals

85 S.W. 107

110 Mo.App. 254

ETHEL ARNOLD, by Next Friend, etc., Respondent, v. THE CITY OF MARYVILLE, Appellant

Court of Appeals of Missouri, Kansas City

February 6, 1905

Appeal from Nodaway Circuit Court.--Hon. A. D. Burnes, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

A. F Harvey, L. C. Cook and J. S. Shinabargar for appellant.

(1) The allegations in respondent's petition are not sufficient to warrant the introduction of testimony of cancer causing the amputation of respondent's foot some four or five years after the alleged injury, such testimony being too remote, unless specially pleaded. Sedgwick on Damages (12 Ed.), sec. 1270; 5 Ency. Plead. and Prac., p. 750; O'Leary v. Rowan, 31 Mo. 119; Brown v Railroad, 99 Mo. 318; Muth, Ex., v. Railroad, 87 Mo.App. 442. (2) Where it is attempted in the petition to specify particularly the injuries resulting from the principal one, all that are designed to be proved should be stated. Finney v. Berry, 61 Mo. 366; Coontz v Railroad, 115 Mo. 674; Muth, Ex., v. Railroad, 87 Mo.App. 442; Grady v. Transit Co., 102 Mo.App. 212. (3) The primary cause of a cancer developing on respondent's foot some four to five years after the alleged injury was a point in issue particularly within the knowledge of respondent's physicians. They were present in court, but were not called by respondent, and when called by appellant their testimony is excluded by the court on respondent's objection. Then the jury may infer that the testimony of such physicians would be adverse to respondent, and should have been so instructed by the court. 22 Am. and Eng. Ency. Law, 1261; Cooley v. Faltz, 85 Mich. 47, 48 N.W. 176; Vergin v. Saginaw, 125 Mich. 449, 84 N.W. 1075; Katisfiasz v. Electric Co., 24 Ohio 127; Wenerstrom v. Kelley, 27 N.Y. 326, 7 Misc. 173; Evans v. Trenton, 112 Mo. 390; Graves v. U.S. 14 U.S. 40; People v. Hovey, 92 N.Y. 559.

W. W. Ramsay, B. R. Martin, W. E. Wiles and Blagg & Cummins for respondents.

(1) If plaintiff has sustained a personal injury by the negligence of the defendant city, which results in a cancer, damages may be awarded for that result. Railroad v. Kemp, 61 Md. 74; Jewell v. Railroad, 55 N.H. 54, cases where a personal injury superinduced cancer. Stewart v. Ripon, 38 Wis. 584, a case where a personal injury resulted in scrofula. Dickson v. Hollister, 123 Pa. St. 421, a case where a personal injury developed erysipelas. Beauchamp v. Mining Co., 50 Mich. 162, a case where pneumonia resulted from a personal injury. Railroad v. Buck, 96 Ind. 346, a case where typho-malaria fever and hemorrhage of the bowels resulted from a personal injury. Hanlon v. Railroad, 104 Mo. 381, a case where pneumonia was superinduced by a personal injury. Seckinger v. Mfg. Co., 129 Mo. 590, a case where pulmonary consumption was produced by a personal injury. We contend that plaintiff's petition states a sufficient cause of action, and is sufficiently broad to warrant the introduction of evidence of cancer. (2) The general rule is that the party who commits a trespass or other wrongful act is liable for all the direct injuries resulting from such act, although such resulting injuries could not have been contemplated as a probable result of the act done. 1 Sedg., Meas. Dam., 130, note; Eten v. Luyster, 60 N.Y. 252; Hill v. Winsor, 118 Mass. 251; Keenan v. Kavanaugh, 44 Vt. 268; Little v. Railroad, 66 Me. 239; Hart v. Railroad, 13 Met. 104; Kellogg v. Railroad, 26 Wis. 223. (3) The defects, if any, of plaintiff's petition, were cured by answer supplementing it. Note the last clause of appellant's answer. Price v. Protection Co., 77 Mo.App. 236; Summers v. Assn., 84 Mo.App. 605; Grace v. Nesbitt, 109 Mo. 9; Ricketts v. Hart, 150 Mo. 64; Powell v. Sherwood, 162 Mo. 605. (4) The defects, if any, of plaintiff's petition should have been taken advantage of by demurrer or by motion in the regular way. Marshall v. Ferguson, 78 Mo.App. 645; Hunt v. Ash Grove, 96 Mo. 168. (5) If the defendant pleads to the merits, he thereby waives the objection to mere formal defects, and will not be heard on the trial to object that the petition does not state a cause of action. Strauss v. Transit Co., 102 Mo.App. 644; Murphy v. Ins. Co., 70 Mo.App. 78; Buck v. Railroad, 46 Mo.App. 555; Seckinger v. Mfg. Co., 129 Mo. 590; Grove v. Kansas City, 75 Mo. 672. (6) The defects, if any, of plaintiff's petition were cured by verdict. Jones v. Underwriters, etc., 78 Mo.App. 296; Malone v. Casualty Co., 71 Mo.App. 1; Sawyer v. Railroad, 156 Mo. 468; Cobb v. Railroad, 149 Mo. 135. (7) The appellant at trial without objection, contested the issues of its liability for damages caused by the cancer. It marshalled its testimony upon that point, and by instruction numbered 4, given at their instance, solicited the trial court to submit that issue. A party will not be permitted to try a case on one theory below and invoke another on appeal. Nance v. Metcalf, 19 Mo.App. 183; Corn v. Cameron, 19 Mo.App. 573; Randolph v. Frick, 57 Mo.App. 401; Elevator Co. v. Cleary & Hamilton, 77 Mo.App. 301; Brokerage Co. v. Bagnell, 76 Mo. 554. (8) "A party may take advantage of the communication as privileged, and object to testimony in regard thereto, without any unfavorable presumption or inference arising against him." Lane v. Railroad, 21 Wash. 119; Bank v. Lawrence, 77 Minn. 282; Wentworth v. Lloyd, 10 H. L. Cas. 589; 22 Am. and Eng. Ency. Law, footnotes, 1261; Rice on Evidence, 647, note 2; Wentworth v. Lloyd, 10 H. L. Cas. 589; 10 Jur. N. S. 961; 33 L. J. Ch. 688; 10 L. T., N. S. 767; Rice on Evidence, 645, note 2, says: "A party cannot be asked as a witness whether he is willing to waive the privilege as to confidential communication with his physician," and cites, McConnell v. Osage, 8 L. R. A. 778; 80 Iowa 293.

OPINION

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 as 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...