Boner v. Nicholson

Citation179 Mo. App. 146,161 S.W. 309
PartiesBONER v. NICHOLSON.
Decision Date02 December 1913
CourtCourt of Appeal of Missouri (US)

Nortoni, J., dissenting.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Elizabeth Boner against Clarence M. Nicholson. From a judgment for plaintiff, defendant appeals. Reversed.

Watts, Gentry & Lee, of St. Louis, for appellant. Carter, Collins, Jones & Barker, of St. Louis, and Casper M. Edwards, of Malden, for respondent.

REYNOLDS, P. J.

Action by plaintiff, respondent here, against appellant, for damages. The petition in the case, after averring that plaintiff's husband had employed defendant, a physician and surgeon, to remove an abscess or tumor from plaintiff's abdomen and attend and care for her thereafter for compensation to be paid therefor, avers that defendant entered upon the employment but failed to use due and proper care or skill in the operation and care of plaintiff in this: "That defendant negligently and with gross negligence, unskillfully and unprofessionally closed the wound made by said operation without first removing therefrom a piece of cloth known as gauze, folded compactly and with a tape attached thereto, said gauze being approximately eight inches square; that by reason of defendant's gross negligence, plaintiff was compelled to undergo numerous operations known as probings, until on or about the 21st day of October, 1909, when said gauze was removed by a final operation." Averring that plaintiff was confined to her room and bed for approximately five months and put to additional expense for physicians, surgeons and medicines in the sum of $800, and caused to suffer great bodily pain and mental anguish, and that she is now and will continue for a great period of time so to suffer, $10,000 are demanded as compensatory and $10,000 as punitive damages, with costs.

The answer was a general denial; the trial before the court and a jury.

At the close of the evidence in the case for plaintiff, defendant interposed a demurrer, which was overruled. Thereafter he introduced his testimony, and all of the evidence being in, defendant again interposed a demurrer, which was overruled and, the court instructing the jury, a verdict was returned in favor of plaintiff in the sum of $1,000. Filing a motion for new trial and excepting to that being overruled, defendant duly perfected his appeal to this court.

The learned counsel for appellant make seven assignments of error. First, to the action of the court in overruling the demurrer to the evidence. Second, to the admission of improper evidence. Third, the allowance of improper questions by plaintiff's counsel which suggested that defendant was insured against liability in actions for damages. Fourth, to the overruling of motions made by defendant to discharge the jury and continue the cause because of these improper questions. Fifth, to the exclusion of evidence offered by defendant. Sixth, the making of improper remarks and the asking of improper questions by the trial court. Seventh, the giving of improper instructions by the court at plaintiff's request. In the view we take of the case, it is only necessary to consider the first of these assignments. We hold, on the testimony of plaintiff herself, and on the petition in the case, that the demurrers should have been given. We might rest on plaintiff's own evidence, for her case was in no manner helped out by that of the defendant. In point of fact, the evidence for defendant showed that his treatment of the case while in his hands was highly skillful, and very successful.

First, as to the petition, the negligence charged is, "that defendant negligently and with gross negligence, unskillfully and unprofessionally closed the wound made by said operation, without first removing therefrom" a piece of gauze, etc. We have italicized the words, "defendant" and "closed." They are not only very significant, but controlling. It is not charged that nature closed the wound; not charged that in the ordinary course of things the wound became closed; it is distinctly and specifically charged that defendant closed the wound, without first removing the gauze from it, and that this was negligence. To paraphrase it, that this sponge was put into the wound when the surgical operation was first performed and that with this sponge in the wound, "defendant negligently and with gross negligence, unskillfully and unprofessionally closed the wound." That is the charge, gathered not only from the petition but from the testimony of plaintiff, and the theory upon which her counsel tried the case.

Turning to the testimony given by plaintiff herself, it appears that, living at Malden, this state, suffering from an abscess or tumor which had formed in her abdomen, her family physician insisted on her going to St. Louis for treatment, that physician recommending that she place herself under the care of defendant, who was at the time chief surgeon of the Rebekah Hospital in St. Louis. Accompanied by her husband and family physician, she went to St. Louis on the 27th of May, 1909, going directly to the hospital, and placed herself in charge of defendant for the operation. She was operated upon the next day, May 28th. Without going into detail, it is sufficient to say that a large gash, six, eight or ten inches long was cut in her abdomen. The operation— designated laparotomy—was performed by defendant, assisted by another surgeon and one or more nurses. During this operation plaintiff was under the influence of an anæsthetic. That, says plaintiff, was the only time while she was at the hospital, that, so far as she knew, she was under the influence of an anæsthetic.

Plaintiff testifies that she knew nothing of the operation itself, as she was unconscious while it was being performed; that she regained consciousness about half past four o'clock on the afternoon of the 28th of May, and found her husband and Dr. Mitchell sitting in the room, with others, possibly, but not defendant. It would seem, from what plaintiff testified to as occurring afterward, that when the operation was performed, the opening was packed with gauze strips or sponges, as they are called, the edges of the cut sewed together and a bandage put around her body to hold the dressing in place. That condition remained until the ninth day after the operation had been performed. On this ninth day, says plaintiff, and we here follow her testimony, placing in quotation marks portions of it just as she gave it, the bandage was undone and the stitches and packing taken out. She then for the first time saw the wound, which, she says, had not been opened between the day of the operation and this ninth day. When the packing was taken out on this ninth day, the wound was washed out and strips of packing, of gauze—plaintiff indicating the length by her hands—put "up and down the gash." The first time this dressing occurred the gash had come open after the stitches had been removed, and Dr. Axline, the surgeon who acted as assistant to defendant in handling the case, "taken strips of adhesive, the nurse held that together, and Dr. Axline put strips of adhesive over it to keep it from coming further apart," that is, put this adhesive plaster on the outside, and "then he would take strips of gauze with an instrument about that long (indicating) he had, and slip it under that adhesive and fill up that place." The gauze was in long strips, plaintiff indicating the size. Plaintiff continues: "They would get that just about full, then they would take pieces of gauze doubled backwards and forwards, they put a great pile of that over the place, and then put cotton on and bandaged me up. * * * I was dressed every day while I was there after they taken the stitches out." The treatment continued in the hospital until August 20th. Asked by her counsel whether during that time the wound was getting smaller all the time, she said it was, so that on the 20th of August, "it had very near closed up, only where the drain tube was, they had a drain tube in there." This drain tube apparently emptied through the vagina, "and," says plaintiff, "every morning whenever they would dress that place they would have to draw them drain tubes out; it was very painful." That was done every morning while plaintiff was at the hospital, the drain tube not being dispensed with until a week before she left the hospital. In the meantime they continued to dress the wound which kept getting smaller every day, until, when plaintiff finally left the hospital, as she says, the wound in her abdomen was not larger than the end of her thumb. Plaintiff said that at the last they were not putting any more gauze in the wound—"I don't know how long they hadn't used no gauze, only just enough for covering, just put in a big wide piece, as wide as your hand." That was put right over the wound, on the outside, next to the flesh. They gradually kept putting in less gauze. Asked up to what time they had quit putting in gauze, plaintiff said: "I don't know how long before I left there, that had healed up only where the tube was; of course they couldn't put no gauze there, only just to lay it over there;" knows they started in on that sort of treatment on the ninth day after she had been in the hospital and that they quit before she went home. Asked if she remembered about when they put the last gauze in the wound, plaintiff said she did not; did not remember about what time between the nine days and before she left the hospital it was that the wound became so small that they could not, or did not, put in any more gauze. Plaintiff said what she did know was, that a week before she left the hospital, the wound was healed up to the size of the end of her thumb When p...

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7 cases
  • Baird v. National Health Foundation
    • United States
    • Court of Appeals of Kansas
    • July 1, 1940
    ...... true rule. Owen v. McCleary, 313 Mo. 213, 281 S.W. 682, 685; Louzander v. James, supra; Boner v. Nicholson, 179 Mo.App. 146, 161 S.W. 309. The giving of. conflicting instructions is error. Sloan v. Polar Wave,. etc., Co., 323 Mo. 363, 19 ......
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    • Court of Appeal of Missouri (US)
    • July 1, 1940
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    ...... uncontradicted by any other witness, entitled defendant to a. verdict. Spain v. Burch, 169 Mo.App. 94; Boner". v. Nicholson, 179 Mo.App. 146; Fansette v. Grim, 193. Mo.App. 585. . .          Safford & Marsalek for respondent. . .       \xC2"......
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