Atkinson v. American School of Osteopathy

• Decision Date: 29 February 1912
• Citation: Atkinson v. American School of Osteopathy, 240 Mo. 338, 144 S.W. 816 (Mo. 1912)
• Parties: GRACE ATKINSON v. AMERICAN SCHOOL OF OSTEOPATHY and CHARLES E. STILL, Appellants
• Court: Missouri Supreme Court

144 S.W. 816

240 Mo. 338

GRACE ATKINSON v. AMERICAN SCHOOL OF OSTEOPATHY and CHARLES E. STILL, Appellants

Supreme Court of Missouri, First Division

February 29, 1912

Appeal from Putnam Circuit Court. -- Hon. George W. Wanamaker Judge.

Reversed and remanded.

Campbell & Ellison, N. A. Franklin, C. E. Murrell and Higbee & Mills for appellants.

(1) The court erred in permitting plaintiff to testify over defendants' objection that Doctor Laughlin told her that her ribs were broken, caused by Doctor Charley Still's treatment. This was hearsay and opinion. (2) The court erred in refusing defendants' instruction 1, in the nature of a demurrer to the evidence at the close of all the testimony. 1. The evidence relied on to prove that plaintiff sustained the fracture charged, has no probative value, is in conflict with the physical facts as testified to by plaintiff, and at war with common sense and human experience. Courts will take judicial notice that the fracture of a bone will cause instant pain. 7 Ency. Ev., 909; 1 Elliott, Ev., sec. 39, p 39, note 16, p. 37; Payne v. Railroad, 136 Mo. 562; 4 Elliott on Railroads (2 Ed.), sec. 1703, p. 787; Phippin v. Railroad, 196 Mo. 321. 2. There was no evidence by any person competent to speak upon that subject tending to prove that plaintiff's afflictions are a natural result of, or were caused by, the alleged injuries. Moore v. Railroad, 226 Mo. 689.

G. C. Weatherby, John D. Smoot, J. C. McKinley and C. C. Fogle for respondent.

(1) Where the evidence introduced by the respective parties is conflicting and of a substantial nature, the findings of the trial court or jury will not be disturbed by the appellate court. Sparks v. Jasper County, 213 Mo. 218; Liese v. Meyer, 143 Mo. 547; Sayre v. Trustees of Princeton, 192 Mo. 95; Franklin v. Railroad, 188 Mo. 533; Feary v. Railroad, 162 Mo. 75; Hamburger v. Rinkel, 164 Mo. 398; Phelps v. Zinc Co., 218 Mo. 572. (2) Defendants' first instruction admits the truth of all plaintiff's material evidence and all reasonable inferences therefrom. Puck v. The Company, 159 Mo. 468; Young v. Webster, 150 Mo. 333; Holman v. Mining Co., 102 Mo.App. 423. (3) Plaintiff's instruction according to the allegations of her petition and the evidence given at the trial declare the law of the case. Granger v. Still, 187 Mo. 213; Robertson v. Wenger, 131 Mo.App. 224. (4) Let us examine the points in appellant's brief based upon the hearsay rule. Dr. Geo. Laughlin was a member of the faculty -- dean of the college. He was therefore agent of the defendant school. Further, plaintiff was entitled to free treatment after the payment of her tuition. It therefore became Doctor Laughlin's duty, as agent of the defendant school, to treat plaintiff. Defendant Still was also a member of the faculty and an agent of the defendant school. Now defendant Still sent Doctor Laughlin to treat plaintiff. Hence Doctor Laughlin became the agent of the defendant Still. Therefore, at the time Doctor Laughlin made the statements complained of above, he was the agent of both defendants. This being true, then upon the authority of Phillips v. Railroad, 211 Mo. 419, 441, his statements are admissible as against both defendants. (5) The defendants complain that the court should have given an instruction defining the term "ordinary care." And yet defendants' instruction 1 used the term "ordinary care" without defining it. The rule is that a party is not at liberty to complain of an instruction on the part of his adversary, where his own exhibits the same fault. Quirk v. St. Louis, etc. Co., 126 Mo. 279; Lewis v. Humphries, 64 Mo.App. 466; Christian v. Ins. Co., 143 Mo. 460; Grocery Co. v. Smith, 74 Mo.App. 419.

BROWN, C. Bond, C., concurs.

OPINION

BROWN, C.

This is a suit by which the plaintiff seeks to recover from the defendants damages for malpractice in treating her for disease by the method or system commonly known as osteopathy. She recovered judgment in the amount of ten thousand dollars, from which this appeal is taken by the defendants. The suit was instituted April 17, 1906.

The amended petition on which the cause was tried states in substance that the defendant the American School of Osteopathy is a corporation; that it owns a large amount of real estate in Kirksville, Adair county, Missouri; that it conducts a school whereby it teaches the science of osteopathy, with a regularly organized faculty of teachers who are practitioners of the science, and whose duty it is to treat the students during their attendance at the school without charge; that the defendant Still was a member and president of said faculty, duly authorized to practice said profession and that it was in the line of his duty to treat the students; that plaintiff entered the school as a student about October 1, 1901, paid her tuition in full, and thereby became entitled to instruction and treatment, and afterwards graduated therefrom and became entitled to practice osteopathy. It then proceeds in the following words: "That at the time plaintiff so entered said school she discovered that she had a slight affection of the nasal passages that slightly affected her breathing; that on or about said date defendant Charles E. Still made an examination of her case while she was then a student in said school, and as such physician and surgeon undertook to treat her said complaint and assured her that he would really relieve her thereof; that plaintiff submitted to his said treatment and defendant Charles E. Still thereupon began to treat her therefor and continued to treat her therefor until the -- day of April, 1902, when defendant Charles E. Still so carelessly, negligently and unskilfully treated and manipulated plaintiff's body in so treating her for said maladies that he negligently and carelessly broke and crushed plaintiff's sternum, commonly known, the breastbone, 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; that as a direct result of said unskilful neglect and careless treatment and of the injury so inflicted upon her, she became sick and affected and has ever since suffered with asthma, uterine and rectal troubles, loss of flesh, and suffered much bodily and mental pain, and her general health has been permanently injured and she has been incapacitated from practicing her said profession, or to earn her livelihood."

Defendant Still answered, admitting that he was an osteopathic physician; that plaintiff began the study of osteopathy in 1901 and before that time was afflicted with asthma; that she graduated, and became a doctor of osteopathy in June, 1903; and that during the time she was a student he treated her osteopathically several times, and always with his best skill and ability; and denied all other allegations of the petition.

The defendant corporation answered with a general denial.

No question is made, either in the pleadings or evidence, as to the skill and learning of the defendant Doctor Charles E. Still in his profession of osteopathy. The following facts developed in the evidence are admitted and accepted by all parties to the controversy:

The plaintiff was a trained nurse, about twenty-nine years old at the time of the alleged injury, whose home was at Brantford, Ontario, with her mother and brother. About the first of October, 1901, she went from Buffalo, New York, where she was professionally employed, to Kirksville, Missouri, and was matriculated as a student of osteopathy in the school of the defendant corporation, paying a fee of three hundred dollars for the course, which entitled her to free osteopathic treatment by members of the faculty, who were doctors of osteopathy duly qualified for the practice. She was suffering at the time from some ailment or weakness for which she desired treatment and became the patient of the defendant Doctor Charles Still, a son of Doctor A. T. Still, the president and founder of the school, and himself the vice-president. He treated her during this school year, which closed in June, 1902. She went home that summer, returned to Kirksville in time for the term beginning in September, 1902, engaged in athletic sports to some extent that fall and the next spring, and graduated in June, 1903. Her brother was matriculated as a student of osteopathy at the same school in the fall of 1902, and graduated in June, 1904. In September of that year she began the practice of her profession in Albia, Iowa, where she stayed eight or nine months, at the end of which time she had become unable to practice. Before the bringing of this suit she had become a confirmed asthmatic, and was greatly reduced in flesh. At the time of her matriculation in the Kirksville school she weighed from one hundred to one hundred and two pounds, and at the time of the trial eighty-three pounds. She has a distinct deformity of the thorax, consisting of an abnormal position of the breastbone and ribs which constitute the bony structure of its walls. Her condition seems to be considered incurable.

It is a theory of osteopathy that most diseases are caused by some displacement or abnormality of the bones, and the treatment consists largely of manipulation to correct this condition. In treating asthma and other diseases affecting the chest the spine is manipulated to establish motion between the ribs and the vertebrae, and the ribs are sprung to establish better articulation with the spinal column, all portions of which are felt to detect what is wrong. In doing this it is customary to place the knee against the breastbone to immobilize the thorax, and then to press forward on the backbone and posterior ends of the ribs. This is called the knee treatment, and students are especially...