Denny v. Robertson
| Citation | 179 S.W.2d 5,352 Mo. 609 |
| Decision Date | 06 March 1944 |
| Docket Number | 38455 |
| Parties | Nellie Denny, Appellant, v. Dr. Raymond E. Robertson |
| Court | Missouri Supreme Court |
Rehearing Denied April 3, 1944.
Appeal from Circuit Court of St. Louis County; Hon. E. McD. Stevens, Judge.
Affirmed.
E L. Rush, N. Murry Edwards and Douglas H. Jones for appellant.
(1) Although Dr. Tainter was disqualified by reason of relationship of physician and patient, he was permitted to testify, although confidential privileged communication was claimed. Witness admitted he was prejudiced against one of plaintiff's counsel. Defendant's entire defense was built on this witness' testimony. Its admission was prejudicially erroneous. Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1; Bouligny v Metropolitan Life Ins. Co., 160 S.W.2d 474; Metropolitan Life Ins. Co. v. Ryan, 172 S.W.2d 269; Hartley v. Calbreath, 127 Mo.App. 559, 106 S.W. 570; Cramer v. Hurt, 154 Mo. 112, 65 S.W. 258; Smart v. Kansas City, 105 S.W. 709, 208 Mo. 162; Thompson v. Ish, 99 Mo. 160, 12 S.W. 510; Meller v. Mo. Pacific Ry. Co., 14 S.W. 758; Rush v. Metropolitan Life Ins. Co., 63 S.W.2d 453; Foman v. Liberty Life Ins. Co., 227 Mo.App. 70, 51 S.W.2d 212; Hicks v. Metropolitan Life Ins. Co., 196 Mo.App. 162, 190 S.W. 661; Massoon v. Metropolitan Life Ins. Co., 36 S.W.2d 118. (2) Plaintiff's cross-examination of defendant's medical legal expert was unduly limited. Plaintiff was denied right to show that medical expert had been convicted of malpractice and had altered a hospital record in such case. Denial of the right to show bad reputation of expert witness is prejudicial error. Rogers v. St. Avit, 60 S.W.2d 698; Huhn v. Ruprecht, 2 S.W.2d 760; Ross v. Grand Pants Co., 170 Mo.App. 291, 156 S.W. 92; Bush v. Kansas City Pub. Serv. Co., 169 S.W.2d 331; Rath v. Knight, 55 S.W.2d 682; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777. (3) Defendant's counsel stated, in presence of jury, that annuity tables offered in evidence were not applicable to deceased because he was in bad health and was not insurable. Plaintiff was denied the right to show that deceased was insurable and had been insured during a late period. Such exclusion of relevant evidence constituted prejudicial error. Friedman v. Griffith, 196 S.W. 75; Larabee Flour Mills Corp. v. West Plains Comm. Co., 216 Mo.App. 257, 262 S.W. 399; Brendel v. Union Electric L. & P. Co., 252 S.W. 635; State v. Ritter, 231 S.W. 606, 288 Mo. 381; Costello v. Kansas City, 280 Mo. 576, 219 S.W. 386; Ross v. Grand Pants Co., 170 Mo.App. 291, 156 S.W. 92; State v. Dixon, 190 S.W. 290; Mann v. Weiss, 185 Mo.App. 335, 170 S.W. 355; Northrup v. Diggs, 128 Mo.App. 217, 106 S.W. 1123; Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 69 S.W. 474; Nelson Distilling Co. v. Hubbard, 53 Mo.App. 23; Baker v. Pulitzer Pub. Co., 103 Mo.App. 54, 77 S.W. 585; Willgues v. Pennsylvania R. Co., 318 Mo. 28, 298 S.W. 817; Larkin v. Wells, 12 S.W.2d 510. (4) Defendant's given instructions numbered 2 and 3 erroneously led the jury to believe that plaintiff could not recover unless defendant's negligence in breaking and fracturing deceased's jawbone was the sole cause of death and that no recovery could be had if decedent was in ill health prior to the negligence complained of. This constituted prejudicial error. Kuenzel v. St. Louis, 212 S.W. 876, 278 Mo. 277; Boggess v. Kansas City, 229 S.W. 404, 207 Mo.App. 1; Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S.W. 851; Gates v. Nichols Sanatorium, 331 Mo. 754, 55 S.W.2d 424; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Herke v. St. Louis & S.F. Ry., 141 Mo.App. 612, 125 S.W. 822.
David A. McMullan and James, E. Garstang for respondent; Carter, Bull & Garstang of counsel.
(1) The evidence was insufficient to establish a cause of action against defendant, because there was no substantial evidence to show that negligence on the part of defendant caused the death of Charles E. Denny. Kimmie v. Terminal Railroad Assn. of St. Louis, 66 S.W.2d 561, 334 Mo. 596. (2) The court did not err in permitting Dr. Tainter to testify, as any confidential or privileged communication had been waived. Groll v. Tower, 85 Mo. 249; Thompson v. Ish, 99 Mo. 160, 12 S.W. 510; Canty v. Halpin, 294 Mo. 96, 242 S.W. 94; Baker v. Mardis, 1 S.W.2d 223, 221 Mo.App. 1185; Demonbrun v. McHaffie, 156 S.W.2d 923, 348 Mo. 1120; Marx v. Parks, 39 S.W.2d 570; Bouligny v. Metropolitan Life Ins. Co., 160 S.W.2d 474. (3) The court did not err in excluding certain testimony of Dr. Tainter having to do with an unrelated case in which counsel for appellant and witness participated, and the objections to such testimony were properly sustained by the trial court. The questions propounded and answers sought had no relevancy to the issues in the case at bar. State v. Aurentz, 263 S.W. 178; Chenoweth v. Sutherland, 124 S.W. 1055, 141 Mo.App. 272; Bellovich v. Griese, 100 S.W.2d 261. (4) If the testimony excluded could be held to be proper, appellant cannot be heard to complain here, as there was no sufficient offer of proof. Wainwright v. Westborough County Club, 45 S.W.2d 86; Simpson Advertising Service Co. v. Manufacturers & Merchants Assn. of St. Louis, 330 Mo. 1049, 51 S.W.2d 1019; Hart v. Farmers Bank of Bates County, 28 S.W.2d 121; Eagan v. Prudential Ins. Co., 107 S.W.2d 133. (5) The court did not err in excluding the oral testimony of appellant having to do with insurance upon the life of Charles E. Denny, issued some four years prior to his death. The facts which such testimony was intended to prove were too remote. Dietrich v. Hannibal & St. Joseph Ry., 89 Mo.App. 36; Steltemeier v. Barrett, 91 S.W. 56, 115 Mo.App. 323. (6) In the absence of a showing that the policies in question were lost or destroyed or in the possession of the opposing party, the policies were the best evidence, and the testimony of appellant was incomplete. Miller v. John Hancock Mutual Life Ins. Co., 155 S.W.2d 324. (7) If the testimony of appellant upon the question of the insurance policies upon the life of Charles E. Denny was competent and the objections of respondent improperly sustained, then appellant cannot be heard to allege error on the part of the trial court, for the offer of proof made was insufficient. Bringhurst v. Bringhurst, 222 S.W. 874; Steddings v. Dobbins, 171 S.W. 979, 185 Mo.App. 43; City of Kirkwood v. Cronin, 259 S.W. 207, 168 S.W. 674; Linstroth v. Peper, 218 S.W. 431. (8) The court did not err in giving instructions 2 and 3 requested by respondent.
Action under the statute (Secs. 3652, 3653, 3654, R.S. 1939) to recover $ 10,000 for the death of Charles E. Denny, husband of the plaintiff. Judgment was entered on a verdict for the defendant and plaintiff appealed. The petition is conventional and the answer a general denial.
For six years prior to his death Denny had heart and kidney afflictions. On Jan. 9, 1941, he visited the office of the defendant dentist for treatment. The defendant took an X-ray of the jaw. He was not satisfied and directed Denny to return the next day. On Denny's return, the defendant took another X-ray of the jaw, which indicated an "impacted tooth". On administering a local anesthetic, the defendant attempted an extraction of the tooth. In doing so, he heard a cracking sound, which indicated that the jawbone had been fractured. Thereupon he discontinued the attempt and referred Denny to Dr. Ralph B. Rode, a dental surgeon who specializes in the extraction of teeth. On the same day (Jan. 10, 1941) Denny went to Dr. Rode's office where X-rays showed a fracture of the jawbone. The doctor sent him to St. Anthony's Hospital and called Dr. Frank J. Tainter, a physician, to assist in the case. On said day Drs. Rode, Tainter and Bardenheier, Denny's family physician, attended him at the hospital. At that time there was not much swelling of the jaw. Later and on Jan. 14, 1941, Drs. Rode and Tainter set the jawbone, at which time his general condition was improved. In twelve days he left the hospital. On Jan. 20, 1941, he visited Dr. Rode and Dr. Tainter at their offices, and thereafter visited them at the offices every two or three days until Feb. 20, 1941. On Feb. 21, 1941, Denny went to Dr. Rode's office, who, assisted by Dr. Tainter, examined the jawbone and found it firm as before the fracture. Thereupon Dr. Rode extracted the tooth under a local anesthetic. Dr. Tainter did not see Denny after the extraction of the tooth. On April 17, 1941, Denny returned to St. Anthony's Hospital as directed by his family physician, Dr. Phil J. Bardenheier, who visited him at the hospital twice a day for three weeks. Denny was taken to his home May 7, 1941, where he remained for three weeks. He was then taken to the Maplewood Nursing Home, where he remained under the care of his family physician until he died June 1, 1941.
Plaintiff contends the death of her husband was caused by the fracture. Defendant contends it was caused by the afflictions above mentioned. At the trial Drs. Rode and Bardenheier testified for the plaintiff, and Dr. Tainter testified for the defendant.
Plaintiff assigns error on the ruling of the court permitting Dr. Tainter to testify as a witness. She contends that he is prohibited by Sec. 1895, R.S. 1939, from testifying to information acquired in his treatment of Denny as a patient and that the provisions of said section cannot be waived by the beneficiaries under the "wrongful death" statute after the death of the patient. We ruled in Thompson v. Ish, 99 Mo. 160, 176, 12 S.W. 510, and in other cases as follows:
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