Berring v. Jacob

• Decision Date: 13 February 1980
• Docket Number: No. 40808,40808
• Citation: 595 S.W.2d 412
• Parties: Sharon BERRING and Nick Berring, Plaintiffs-Respondents, v. Karl JACOB, Jr., M.D., 621 South New Ballas, St. Louis, Missouri, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 412

595 S.W.2d 412

Sharon BERRING and Nick Berring, Plaintiffs-Respondents, v. Karl JACOB, Jr., M.D., 621 South New Ballas, St. Louis Missouri, Defendant-Appellant.

No. 40808.

Missouri Court of Appeals, Eastern District, Division Four.

Feb. 13, 1980.

Robert G. Burridge, Stuart M. Haw, Jr., St. Louis, for defendant-appellant.

James F. Koester, St. Louis, David G. Dempsey, Clayton, for plaintiffs-respondents.

SMITH, Presiding Judge.

Defendant appeals from the order of the trial court sustaining plaintiffs' motion for new trial in a medical malpractice case in which the jury returned a verdict in favor of defendant. We reverse.

Plaintiffs' claim was based upon the alleged negligence of the defendant doctor in failing to operate upon a diagnosed cerebral aneurysm in plaintiff Sharon Berring. The aneurysm subsequently ruptured causing serious permanent injuries to Mrs. Berring. There was substantial evidence from expert witnesses called by defendant that the doctor's action in waiting to operate was proper medical procedure and was not negligent. Plaintiffs presented no expert witnesses.

The trial court sustained the motion for new trial on the basis that:

"In giving Instruction Number 10, a not in M.A.I. Instruction which reads as follows:

'Readings from texts and published matter to which no witness agreed, are not evidence,'

the Court feels that it may have misled the jury into believing that it could not consider, in any respect, the contents of such publications, even though the witness may have acknowledged that such publications were authoritative, if the witness disagreed with the author."

During the trial plaintiffs utilized various medical texts and articles to cross-examine defendant and his medical witnesses. The witnesses were asked if they were familiar with the text or article and whether they regarded the writing as authoritative. Both positive and negative responses were given to both of these questions. Plaintiffs' attorney then read excerpts from these materials to the witnesses and inquired whether they agreed or disagreed with the statements made in the excerpts. This again elicited both affirmative and negative answers. The procedure followed was proper. Gridley v. Johnson, 476 S.W.2d 475 (Mo.1972) (3, 4). The record is clear that certain of the material read was never accepted as a correct statement of proper medical procedure by any witness.

The law of Missouri is most positive that such material, while properly the subject of inquiry on cross-examination of a medical expert is not evidence to establish the truth of the statements made in the material unless agreed to by the witness, even if the witness acknowledges the authoritativeness of the author or publication. If the statements read are agreed to, they become evidence because the witness adopts them as his own. If they are not agreed to, they are hearsay. MacDonald v. Metropolitan St. Ry. Co., 219 Mo. 468, 118 S.W. 78 (1909) l. c. 85-6; Ellison v. Simmons, 447 S.W.2d 66 (Mo.1969) (4); Edling v. Kansas City Baseball & Exhibition Co., 181 Mo.App. 327, 168 S.W. 908 (1914) (7). The instruction given to the jury was a correct statement of the law of Missouri. In their brief in this court the plaintiffs so concede.

Plaintiffs, however, contend that the court's ruling was discretionary and cannot be reviewed by this court in the absence of a showing of an abuse of discretion. We disagree. In Warren v. Kansas City, 258 S.W.2d 681 (Mo.1953) (1, 2), the Court stated the rule to be:

"If in point of fact an instruction is not erroneous as to a matter of law or it is not fairly demonstrable upon the record that the instruction was misleading or may have otherwise deprived the losing party of a fair trial the rule (that the ruling is discretionary) is inapplicable."

See also Wims v. Bi-State Development Agency, 484 S.W.2d 323 (Mo. banc 1972) (7, 8); McCormack v. St. Louis Public Service Company, 337 S.W.2d 918 (Mo.1960) (2); Gachioch...