Evans v. Clapp, No. 13919.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTrimble
Citation231 S.W. 79
Decision Date04 April 1921
Docket NumberNo. 13919.
PartiesEVANS v. CLAPP at al.
231 S.W. 78
EVANS
v.
CLAPP at al.
No. 13919.
Kansas City Court of Appeals. Missouri.
April 4, 1921.
Rehearing Denied May 23, 1921.

[231 S.W. 80]

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

[231 S.W. 81]

Action by Bess Evans against C. B. Clapp and another. From judgment for plaintiff, defendants appeal. Affirmed.

John R. Hughes, Dan H. Hughes, and Otho F. Matthews, all of Macon, and Hunter & Chamier, of Moberly, for appellants.

Harris & Price, of Columbia, and Walter C. Goodson, of Macon, for respondent.

TRIMBLE, P. J.


Defendant Clapp is a physician at Moberly, Mo., in charge of and practicing in the private hospital of the Woodland Hospital Company, codefendant herein and a corporation all the shares of which, except one, are owned by defendant Clapp and his wife. The plaintiff was a patient in said hospital and brought this suit for negligent malpractice based upon her claim that she was severely burned by defendant Clapp's application to her of the wonderful and mysterious, yet dangerous, X-ray. There was a verdict and judgment of $5,000 in plaintiff's favor, and from this defendants have appealed.

As appellants' principal contention is that their instructions in the nature of demurrers to the evidence should have been given, it is necessary to state the facts with some degree of particularity. In doing this, however, inasmuch as the verdict of the jury is in plaintiff's favor, we set forth only that evidence which tends to support the verdict, disregarding all of defendants' evidence contradictory of plaintiff's theory. For the rule appellate courts must follow, in dealing with the propriety of a demurrer to the evidence in a law case, is that all of the evidence supporting plaintiff's case must be accepted as true, unless it is wholly opposed to well-known physical laws or is contrary to the common experience of mankind; and the defendant's evidence which contradicts that of plaintiff must be treated as untrue, since the jury have shown, by their verdict, that they did not accept it. In such case, the plaintiff is also entitled to the benefit of every reasonable inference which the jury could rightfully draw, in support of the verdict, from any evidence in the case, including that offered in defendants' behalf; and it is only where there is no substantial evidence to support the verdict that an appellate court can set it aside on the ground that a demurrer to the evidence should have been sustained. Only a few of the many authorities are here cited in support of the foregoing: Fink v. Kansas City Southern R. Co., 161 Mo. App. 314, 143 S. W. 568; Peak v. Taubman, 251 Mo. 390, 158 S. W. 656; Lawler v. Montgomery, 217 S. W. 856; Crawford v. Kansas City Stock Yards Co., 215 Mo. 394, 409, 114 S. W. 1057; Beckermann v. Kortkamp Jewelry Co., 175 Mo. App. 279, 157 S. W. 855; Steffens v. Fisher, 161 Mo. App. 386, 143 S. W. 1101; Behncke v. Mitchell' Clay Mining Co., 189 Mo. App. 639, 175 S. W. 271. Indeed, the foregoing is so well established that it would seem almost unnecessary to say anything about it, but a mention or restatement thereof may perhaps be useful in alleviating, in some degree, the amazement and dismay experienced by a defeated litigant when, on reading an appellate court opinion in his case, he finds that the evidence he relied upon most `confidently as a defense is given little attention, or, perhaps, is not mentioned at all.

With the foregoing in mind, the record contains ample evidence to support the following as the facts in the case:

Plaintiff, a widow living in Centralia, able to do her work and apparently in ordinary health, except that she suffered with attacks of severe sick headache, went to Dr. Clapp at Moberly and consulted him as to their cause. He advised her to come to his hospital, where he would give her the "bismuth meal" and tell her what caused the headaches.

Accordingly, on Saturday, September 1, 1917, plaintiff went to Dr. Clapp, and he placed her in his hospital, and on the following Monday began the work of examining her with his X-ray machine to ascertain the cause of her trouble.

It is conceded that this powerful agency was not used upon her at any time for purposes of treatment, but the sole object in having her to subject herself to the ray was merely to discover the cause of her headaches. Nor were any X-ray pictures or negatives taken at any time, but merely fluoroscopic views were had by causing the X-rays to penetrate the patient's body and cast upon a fluorescent screen a view of her bodily internal arrangements, which the radiographer, or person operating the machine, could see and observe so long as the rays were being generated and allowed to be directed against the plaintiff's body.

It seems that while the X-ray will pass through many otherwise opaque substances, lead is largely impervious to it, and therefore the point at which this agency is generated is inclosed in a lead box having an opening in one side through which the X-rays are allowed to pass to the object at which they are desired to be directed, which opening is controlled by an adjustable shutter which the operator can easily open or close, thereby allowing the ray to pass through the opening or not as he desires, and which shutter is so arranged as to make the opening, through which the rays pass, large or small as the operator desires, according as he wants the field of vision to be large or small. The current of electricity by which the X-rays are produced can also be turned off and on at the will of the operator. A sheet of aluminum, called the aluminum filter, is placed immediately in front of the exit of the rays from the tube, the purpose of which is to filter or take out what are called the "soft rays" which

231 S.W. 82

have an immediate and harmful burning effect on the skin and tissues. But even with this filter, if the X-rays are allowed to penetrate the bodily tissues for a longer time than they should, they will produce a burn of the tissues underneath the skin which will manifest itself afterward by working from the burned tissues outward to the skin, and not from the skin inward as ordinary burns, from contact with a hot substance, will do. Such X-ray burns are therefore deep-seated and exceedingly painful, and very difficult, almost if not entirely impossible, to cure. Often they will apparently heal over on the outside only to break out again in sores with a running therefrom of blood and serum.

In making a fluoroscopic examination the patient is required to stand, with his back against the aluminum filter, facing the radiographer, and between him and the patient is the fluorescent screen on which the rays, after passing through the patient's body, cast a shadow or view of the patient's internal bodily arrangements as heretofore stated. As the fleshly organs are not opaque to the X-rays, they pass readily through and cast no shadow of such organs on the fluorescent screen. Consequently, it is necessary to introduce some substance which is opaque to the rays and which at the same time is harmless to the patient. Barium sulphate is such a substance, and it is commonly administered by having the patient, at the time of examination, drink buttermilk with which is mixed the barium sulphate. This was done at the times the plaintiff was examined. As the buttermilk with the barium sulphate passes along the esophagus and into the stomach, the operator can see the outline thereof on the screen and can see the shadow of the barium sulphate where it rests thereafter. In this way he can ascertain, not only the shape and position of the organs through which it passes or into which it goes, but can note any rough places, ulcers, contractions, displacements, etc., which may exist therein.

According to plaintiff's evidence, she was subjected to 20 exposures to the X-ray within a period of 8 days, beginning on Tuesday, September 4, 1917, and ending on Tuesday, September 11th. In her deposition, taken before the trial, she seems to have said there were 22 exposures; and her evidence at the trial and in her deposition seems to differ slightly as to the number of exposures on Wednesday and Thursday, but she explained these by saying she made a memorandum of the exposures, but, though she had it with her when her deposition was taken, she did not refer to it but testified solely from her memory. At any rate, she testified on the trial that there were 20 exposures, and particularly enumerated 16 of these. She says that when Dr. Clapp at. tempted an X-ray examination of her on Monday, September 3d, the doctor was unable to get the machine to work, but finally said: "I can't operate the machine, it won't work to-day."

On Tuesday, plaintiff was again placed before the machine, and this time it worked, Plaintiff swallowed the buttermilk, and the doctor watched its progress as depicted on the screen, and finally he called the nurse's attention, and said: "I have discovered the cause of her headaches. She has a fallen stomach."

Thereafter, on the same day, plaintiff was again placed before the machine, and again about 5 o'clock that afternoon she was placed before it, the rays being turned on each time; and on each occasion the fallen stomach was revealed.

On Wednesday morning, the machine was again turned on her; at noon of that day this was repeated, and it was again done Wednesday evening. Plaintiff says, if she remembers correctly, there were four taken that day.

On Thursday morning, she was again placed before the machine, but it would not work. Dr. Clapp tried and tried to make it work, but could not, and finally said:

"I can't do anything with it. Dr. Streeter is gone, my man that handles this for me, and I can't fix it."

He tried throughout the day on Thursday, and plaintiff was in the fluoroscopic room two or three times that day, but no fluoroscopic results were obtained. Plaintiff was called to the...

To continue reading

Request your trial
16 practice notes
  • Christie v. Callahan, No. 7749.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 1941
    ...v. Lewis, 1931, 163 Tenn. 163, 40 S.W.2d 1038; Shockley v. Tucker, 1905, 127 Iowa 456, 103 N.W. 360; Evans v. Clapp, Mo.App. 1921, 231 S.W. 79. The cases which hold that res ipsa loquitur cannot be applied on a showing of X-ray burn are not cases in which it appears that the burn was of the......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...Depot Co., 168 Minn. 287, 210 N. W. 32;Holt v. Ten Broeck, 134 Minn. 458, 159 N. W. 1073, Ann. Cas. 1918E, 256;Evans v. Clapp (Mo. App.) 231 S. W. 79; 20 Ruling Case Law, 187, § 156; 21 Ruling Case Law, 407; Sauers v. Smits, 49 Wash. 557, 95 P. 1097, 17 L. R. A. (N. S.) 1242;Delahunt v. Uni......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...v. St. Paul Union Depot Co., 168 Minn. 287 (210 N.W. 32); Holt v. Ten Broeck, 134 Minn. 458 (159 N.W. 1073); Evans v. Clapp (Mo. App.), 231 S.W. 79; 20 Ruling Case Law 187, Section 156; 21 Ruling Case Law 407; Sauers v. Smits, 49 Wash. 557 (95 P. 1097); Delahunt v. United Tel. & Tel. Co., 2......
  • Waddle v. Sutherland, 28430
    • United States
    • United States State Supreme Court of Mississippi
    • February 17, 1930
    ...741, 40 L.R.A. (N.S.) 485; George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338; Evans v. [156 Miss. 549] Clapp (Mo. App.), 231 S.W. 79; Hamilton v. Harris (Tex. Civ. App.), 223 S.W. 533; Johnson v. Marshall, 241 Ill.App. 80. A contrary view appears to have been held by the cour......
  • Request a trial to view additional results
16 cases
  • Christie v. Callahan, No. 7749.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 1941
    ...v. Lewis, 1931, 163 Tenn. 163, 40 S.W.2d 1038; Shockley v. Tucker, 1905, 127 Iowa 456, 103 N.W. 360; Evans v. Clapp, Mo.App. 1921, 231 S.W. 79. The cases which hold that res ipsa loquitur cannot be applied on a showing of X-ray burn are not cases in which it appears that the burn was of the......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...Depot Co., 168 Minn. 287, 210 N. W. 32;Holt v. Ten Broeck, 134 Minn. 458, 159 N. W. 1073, Ann. Cas. 1918E, 256;Evans v. Clapp (Mo. App.) 231 S. W. 79; 20 Ruling Case Law, 187, § 156; 21 Ruling Case Law, 407; Sauers v. Smits, 49 Wash. 557, 95 P. 1097, 17 L. R. A. (N. S.) 1242;Delahunt v. Uni......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...v. St. Paul Union Depot Co., 168 Minn. 287 (210 N.W. 32); Holt v. Ten Broeck, 134 Minn. 458 (159 N.W. 1073); Evans v. Clapp (Mo. App.), 231 S.W. 79; 20 Ruling Case Law 187, Section 156; 21 Ruling Case Law 407; Sauers v. Smits, 49 Wash. 557 (95 P. 1097); Delahunt v. United Tel. & Tel. Co., 2......
  • Waddle v. Sutherland, 28430
    • United States
    • United States State Supreme Court of Mississippi
    • February 17, 1930
    ...741, 40 L.R.A. (N.S.) 485; George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338; Evans v. [156 Miss. 549] Clapp (Mo. App.), 231 S.W. 79; Hamilton v. Harris (Tex. Civ. App.), 223 S.W. 533; Johnson v. Marshall, 241 Ill.App. 80. A contrary view appears to have been held by the cour......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT