Atkinson v. American School of Osteopathy
| Decision Date | 05 March 1918 |
| Citation | 202 S.W. 452,199 Mo.App. 251 |
| Parties | GRACE ATKINSON, Respondent, v. AMERICAN SCHOOL of OSTEOPATHY, and CHARLES E. STILL, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Monroe County.--Hon. William T Ragland, Judge.
AFFIRMED.
Judgment affirmed.
Frank W. McAllister, C. E. Murrell and Campbell & Ellison for appellants.
(1) The court erred in permitting plaintiff to testify that Dr Laughlin told her when he treated her that her ribs were broken like a "green stick fracture" (Ab. 36, 105). This was hearsay and prejudicial. Atkinson v. American School of Osteopathy, 240 Mo. 388, 356; McDermott v Co., 73 Mo. 516, 520; Fry v. Railroad, 200 Mo. 377, 406; Price v. Thorington, 10 Mo. 135, 140; O'Brien v. Kenney, 74 Mo. 125, 127. (2) The court erred in admitting alleged statements of Dr. Charley Still made after the alleged injury without instructing the jury that they could not be considered as affecting his co-defendant. (Ab. 98, 99.) Abbott's Trial Evidence, page 188; 2 Wigmore on Evidence, sec. 1076, pp. 1275-6. (3) The court erred in admitting an alleged statement of Dr. A. T. Still to Dr. Laughlin (Ab. 38) to look for trouble right here. "It is sunk down on it." It was hearsay and inadmissible for any purpose. Abbott's Trial Evidence, page 188; 2 Wigmore on Evidence, sec. 1076, pp. 1275-6. (4) The court erred in overruling the objection to the purported conversation between plaintiff and defendant Still, and erred in refusing to strike out the answer of the witness (Ab. 33, 35). It was a selfserving declaration, and evidently designed to, and did, prejudice the jury, and was inadmissible for any purpose. Fourth National Bank v. Nichols, 43 Mo.App. 385, 390, 394; 2 Wigmore on Evidence, page 1258; State ex rel. Tiffany v. Ellison, 182 S.W. 997. (5) The court erred in overruling defendants' objection to the hypothetical question propounded to Dr. Mitchell (84, 85), and erred in refusing to strike out the answer of the witness, because said question as framed, was not supported by any proof because the answer is not responsive to the question being limited to the mere experience of the witness with his own patients. (6) The court erred in permitting the witness Esther Campbell to testify that plaintiff, in September, 1901, had no indication or symptoms of asthma. She was a lay witness and not shown to have any knowledge of the disease of asthma, and incompetent to answer the question. There is a sharp conflict in the testimony as to whether the plaintiff was afflicted with asthma in September, 1901, plaintiff contending that she was not, and defendant contending she was thus afflicted. Therefore, the evidence referred to was highly prejudicial, and given by one incompetent to answer the question. Reid v. Company, 58 Mo. 421; Sharp v. Company, 114 Mo. 94. (7) The court erred in permitting plaintiff's mother to state her mere conclusions and opinion as to the plaintiff's state of health. She was asked how low would the plaintiff get. Objection was made because the question necessarily calls for conclusion. The objection was overruled, and the witness stated she would get so low she could not stand anybody to move around or be in the room. She was also permitted to state that the plaintiff suffered pain. She was not asked as to the physical indications but stated she had pain (Ab. 13, 14). This evidence was prejudicial. (8) The conduct of the plaintiff in continually and habitually stating incompetent and prejudicial matters while on the witness stand and failing and refusing to answer questions, and instead thereof, indulging in addresses to the jury, was a palpable attempt on her part to influence and prejudice the jury, and the court should have granted a new trial on account of such conduct. Wajtylak v. Company, 188 Mo.App. 260. (9) The court erred in not granting a new trial because plaintiff and her witnesses Oven, Yost and Wening were guilty of palpable perjury. (10) The court erred in refusing to grant a new trial because the evidence of defendant is overwhelming that plaintiff did not sustain the injuries or any of the injuries of which she complains. (11) The court erred in not granting a new trial because of the misconduct of the jurors as shown by the affidavits filed with motion for a new trial as well as affidavits filed by respondents (Ab. 266, 288). Tatlow v. Grantham, 66 Mo.App. 509. (12) The court erred in giving Instruction No. 1 on the part of respondent (Ab. 256). It advised the jury that plaintiff claimed in her petition that defendant Still "crushed, depressed or fractured said gladiolus, and fractured the cartilages of the second, third and fourth ribs." Whereas the petition charged (Ab. 4) that defendant "broke and crushed plaintiff's sternum and forced the same in and upon her lungs and bulged and forced out the cartilages of her ribs on the right side of her body into an unnatural position." State ex rel. v. Ellison, 195 S.W. 722, 724. (13) The court also erred in giving instructions on behalf of respondent Nos. 2 and 4 for the same reason. State ex rel. v. Ellison, 176 S.W. 13. (14) The court erred in giving plaintiff Instruction No. 6 because it defines the word "negligently," and the words "ordinary care" to mean such care as an ordinarily prudent person would exercise, whereas this defendant is to be tested not by conduct of an ordinary person, but by the conduct of the ordinary osteopathic physician. Atkinson v. American School of Osteopathy, 240 Mo. 338. (15) The verdict is excessive. (16) The court erred in permitting plaintiff to ask the witness Laughlin the question (178) showing what Henor had written in his book. It was hearsay. Railroad v. Yates, 73 F. 587; McDonald v. Railroad, 219 Mo. 468, 492; Brown v. Company, 141 Mo.App. 382, 384, 17 Cyc. 421.
John Whiteside, W. W. Barnes and J. H. Whitecotton for respondent.
(1) The court did not err in the admission of the testimony of Dr. Laughlin as contended by appellant for the reason that it stands in the nature of an admission by an agent, when in the line of duty, and as such is an admission of defendants. The authorities cited by appellants do not support their contentions. Atkinson v. American School of Osteopathy, 248 Mo. 338, 520; Phillips v. Railroad, 211 Mo. page 419, 441; Malecek v. Railroad, 57 Mo. 21. (2) The appellants are not in a position to complain of the nonaction of the court in not instructing as to the alleged statement of Dr. Charles Still as no instruction was asked by the appellant school. The court announced when the testimony was admitted that it was admitted because competent against defendants, Still, (Abst. 98). (3) This testimony was admissible on the ground of it being in the nature of an admission because not denied when made. The language used by the plaintiff charged Still with liability for her condition and injury, and was such as called for a denial of any liability by him which was not made at the time shown by the conversation. Coffey v. Tifony & Howard, 192 Mo.App. 455, 474. (4) The testimony of Esther Campbell as to the health of plaintiff as to asthma violates no principle of law. She first gave the facts in full and then stated that she never discovered any symptoms of asthma. "A non-professional witness may give his opinion as to the physical condition of another as to health with a full statement of the facts upon which he bases his conclusion," as was done in this case. Crowe v. Peters, 63 Mo. 429; Moore v. Moore, 67 Mo. 192; Norris v. R. R. Co., 239 Mo. 711. (5) The same is true as to the objections to the testimony of plaintiff's mother.
This suit was instituted April 17, 1906, in the circuit court of Adair county. Plaintiff seeks to recover from the defendants for malpractice in treating her by the method or system commonly known as Osteopathy. Plaintiff took a change of venue to Putnam county where a trial was had and a judgment resulted in favor of plaintiff and against the defendants in the sum of $ 10,000, from which an appeal was taken by the defendants to the Supreme Court of Missouri (sec. 240 Mo. 338, 144 S.W. 816), where the case was reversed and the cause remanded. Thereafter the venue was changed to Clark county and again to Monroe county, in which latter county the case was tried twice, the first trial resulting in a hung jury, and in the second trial plaintiff recovered a judgment in the sum of $ 5000, from which, after an unavailing motion for new trial, defendants bring this appeal.
A comprehensive, detailed statement of the facts in this case is found in connection with the Supreme Court's opinion when this case was there, to which reference may be had in that with a few minor changes, which will be noted in this opinion, the facts are identical with the case as we have it before us.
The amended petition on which the case was tried alleges that the American School of Osteopathy is a Missouri corporation owning a large amount of real estate and conducts a school whereby it teaches the science of Osteopathy, and has a regular organized faculty composed of teachers of such science conducting said school, and at the same time the members of the said faculty practice the science of curing and healing the sick and afflicted, and that it was the duty of the said faculty to treat and operate on students in attendance of said school without charge; that defendant Charles E. Still, was a member of said faculty duly authorized to practice his profession and authorized to treat students of said school for any disease that they may have or contract during their attendance at said school. The petition then alleges that plaintiff became a student in the defendant school about ...
To continue reading
Request your trial