Bailey v. St. Louis-San Francisco Ry. Co.

• Decision Date: 09 June 1927
• Docket Number: No. 4091.,4091.
• Citation: 296 S.W. 477
• Parties: BAILEY v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

296 S.W. 477

BAILEY v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4091.

Springfield Court of Appeals. Missouri.

June 9, 1927.

Appeal from Circuit Court, Howell County; B. P. Dorris, Judge.

Action by Sim A. Bailey against the St. Loris-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. T. Miller, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

J. N. Burroughs and George T. Humphries, both of West Plains, for respondent.

COX, P. J.

Action for damages for personal injury resulting in hernia and for failure to properly treat plaintiff while in a hospital. Plaintiff recovered, and defendant appealed.

Plaintiff was in the employ of defendant, and engaged in handling cross-ties. He claims to have received a strain which he felt in the right groin, and which resulted in a rupture. He went to see Dr. Gum at West Plains, who is the local surgeon for defendant, and was sent by Dr. Guni to the Frisco Employees' Hospital at St. Louis. He remained there eight days, when he was discharged by the surgeon in charge of the hospital, and sent home.

The petition was in two counts. The first count sought to recover on the original injury. The second count was based on negligence of those in charge of the hospital in handling his case after he arrived there. The first count was dismissed by plaintiff, and his case went to the jury on the second count. Appellant insists that no case was made on that count, and hence its demurrer to the testimony should have been sustained. The petition in charging the injury to plaintiff and the negligence of defendant states, "Plaintiff sustained severe injuries by a rupture in the lower part of the right side." Then; after alleging the facts to show that plaintiff was entitled to hospital service at the hands of defendant, alleges as follows:

"Plaintiff alleges and avers that the agents and servants of the defendant and its hospital association procured a dismissal and discharge of the plaintiff from said hospital without treatment, either medical, surgical, or otherwise, as was necessary to the recovery of plaintiff from his said injuries; that the agents, servants, managers, and employees of the defendant in charge of said hospital refused, neglected, and declined to treat plaintiff as was necessary and required to heal said injuries, and so negligently, unskillfully, and improperly treated and managed plaintiff's said injuries that the same were not healed or cured as could have been done by proper, careful, and skilled care and treatment of the same. Plaintiff therefore alleges that, through the negligent, careless, and unskillful conduct of the agents and servants of defendant engaged in its said hospital association in dismissing plaintiff from said hospital, and through the negligent, careless, and unskillful conduct of defendant, its agents, servants, managers, and employees in charge of said hospital in the treatment of his said injuries as aforesaid, plaintiff is still unhealed. 0 0 0 "

The position of plaintiff is that the surgeon at the hospital should have performed an operation on him, or, if that were hot thought to be necessary, they should have retained him in the hospital a much longer period to see if his injury would not heal without an operation. It is contended that plaintiff was actually ruptured; that the hernia was complete, and in that case the only proper treatment is by an operation, and it was negligence not to operate upon plaintiff. The only evidence tending to show that the hernia was complete at the time plaintiff entered the hospital is found in the testimony of plaintiff that, when Dr. Gum examined him before he sent him to the hospital, the doctor told him he was ruptured. The doctor in his report to the hospital described plaintiff's injury as "right inguinal hernia (incomplete)." The doctor testified that the hernia was not complete. Dr. Hogan, who examined him at the same time, also testified that there was no hernia. Dr. Woolsey, the surgeon in charge at the hospital, testified that there was no opening and no protrusion, and therefore no hernia, while he was in the hospital. Dr. Rohrer, who examined plaintiff about two weeks after he returned from the hospital, testified that at that time plaintiff was afflicted with a slight hernia. Dr. Thornburg examined plaintiff August 15, 1925, about ten months after the injury. Plaintiff was then wearing a truss. That doctor went no further than to say he found in his examination with the fingers a slight impulse at the tip of the finger which, at its best, could indicate...