Gates v. Dr. Nichols' Sanatorium, No. 31020.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWesthues
Citation55 S.W.2d 424
Decision Date16 December 1932
Docket NumberNo. 31020.
PartiesGRACE GATES, Appellant, v. DR. NICHOLS' SANATORIUM, Corporation.
55 S.W.2d 424
GRACE GATES, Appellant,
v.
DR. NICHOLS' SANATORIUM, Corporation.
No. 31020.
Supreme Court of Missouri.
Court en Banc, December 16, 1932.

Appeal from Holt Circuit Court.Hon. Guy B. Park, Judge.

REVERSED AND REMANDED (with directions).

Sherman & Maugher and Mayer, Conkling & Sprague for appellant.

(1) Hospitals or sanitoriums which undertake to treat patients for hire with the expectation of securing gain and profit are liable for error in diagnosis and for negligence and malpractice on the part of their physicians, nurses or servants employed to treat such patients. Cazzell v. Schofield, 319 Mo. 1169; Davis v. Springfield Hospital, 204 Mo. App. 626; Phillips v. St. L. & S.F. Railroad Co., 211 Mo. 419; Grainger v. Still, 187 Mo. 197; Tulsa Hospital Assn. v. Juby, 22 A.L.R. 333; 22 A.L.R. 341. (a) A sanitorium receiving patients for treatment for hire is held to the duty of exercising ordinary care in diagnosis and treatment and is responsible for injury and damage resulting from failure to perform this duty. The negligence of the corporation is as that of an independent physician or surgeon. Owens v. McCleary, 313 Mo. 213; Davis v. Springfield Hospital, 204 Mo. App. 626; Phillips v. Railroad Co., 211 Mo. 419; 22 A.L.R. 343. (b) In determining whether the case as made was one to be submitted to the jury, all reasonable inference from all the testimony must be considered in aid of the verdict. A demurrer to the evidence is sustainable only in the absence of material testimony or reasonable inference. It has been held that in cases where the testimony was vague and contradictory (which is not the case here), the jury has the right to weigh it and pass on its credibility. The evidence favorable to the defendant should be disregarded, and only that tending to make a prima facie case for plaintiff should be considered. Plaintiff is not compelled to produce direct and positive evidence of the negligence of the defendant. Cazzell v. Schofield, 319 Mo. 1185; Trask v. Dunnigan, 299 S.W. 116; Stratton v. Barnum, 263 S.W. 476: Eicholz v. Poe, 217 S.W. 282; Kinard v. Westerman, 279 Mo. 688. (c) Under all the record facts, plaintiff made a case for the jury and was entitled to recover. Owens v. McCleary, 313 Mo. 223; Cazzell v. Schofield, 319 Mo. 1169; Krinard v. Westerman, 279 Mo. 690; Grainger v. Still, 187 Mo. 197; Longan v. Weltmer, 180 Mo. 322; Noren v. Osteopathy School, 2 S.W. (2d) 221; Lewis v. McClellan, 1 S.W. (2d) 249. (d) Although the result of the treatment may not, per se, be sufficient to justify a verdict for plaintiff, yet the erroneous diagnosis, the improper treatment and the outrageous result may warrant a finding by the jury that the defendant was negligent. In this case the diagnosis was not correct, the treatment not only not approved by the profession, but distinctly disapproved, the result was outrageous, disfiguring, maiming, and required an operation to correct even in part, and there was expert testimony that the treatment was improper and negligently given. Owens v. McCleary, 313 Mo. 223; Cazzell v. Schofield, 319 Mo. 1169; Grainger v. Still, 187 Mo. 222; Longan v. Weltmer, 180 Mo. 322; Leighton v. Sergeant, 31 N.H. 119; 21 R.C.L. 407. (2) The record of the trial in the court below shows that the cause was tried without error. Cazzell v. Schofield, 319 Mo. 1169; Krinard v. Westerman, 279 Mo. 680; Noren v. Osteopathy School, 2 S.W. (2d) 215; Lewis v. McClellan, 1 S.W. (2d) 247; Grainger v. Still, 187 Mo. 197; Longan v. Weltmer, 180 Mo. 322.

Booher & Woolverton, Randolph & Randolph and R.B. Bridgeman for respondent.

(1) If there is any ground for a new trial shown in the record, the respondent is entitled to the benefit of it whether or not it was assigned as a reason by the lower court for granting a new trial. Manthey v. Kellerman Contracting Co., 277 S.W. 932; Chandler v. Gloyd, 217 Mo. 394; Emmons v. Quade, 176 Mo. 22; Hewitt v. Steele, 118 Mo. 463; Stoner v. Rovar, 200 Mo. 451. (2) The plaintiff is bound by the allegations of her petition and cannot recover upon any ground not stated in the petition, and should not be permitted to go to the jury upon any ground not stated in the petition. Fields v. Thomas, 286 S.W. 134; Gary v. Averill, 12 S.W. (2d) 750; Casteel v. Dearmont, 299 S.W. 816; Haynor v. Excelsior Springs Light, Power, Heat & Water Co., 129 Mo. App. 691; Gruwell v. Natl. Council of K. & L. of Security, 126 Mo. App. 496. (3) As to whether or not the petition alleges any other ground for recovery except that the lump under the arm which was removed in 1927 was a lacteal cyst and not a cancer, is not a question of law, but depends wholly upon the reading and interpretation of the petition. If that is the ground stated in the petition, then there must be evidence introduced that the lump under the arm which was removed in 1927 was a lacteal cyst. If no such evidence appears in the record, then the demurrer to the evidence at the close of the plaintiff's testimony should have been sustained. Also the demurrer at the close of all the testimony should have been sustained. This question will be discussed in the argument. Fields v. Thomas, 286 S.W. 133: Hayner v. Excelsior Springs Light Power, Heat & Water Co., 129 Mo. App. 691; West v. Martin, 31 Mo. 375; Spain v. Burch, 169 Mo. App. 94; 48 C.J. 1141. (4) Unless there was proof of a lacteal cyst under the arm in 1927 and proof that the lump found there was not cancer, then there is no question whatever in this case of a wrong diagnosis. Jennings v. Cherry, 257 S.W. 438; Gary v. Averill, 12 S.W. (2d) 750; Spain v. Burch, 169 Mo. App. 94; West v. Martin, 31 Mo. 375; 48 C.J. 1141. (5) There was no evidence to submit to the jury in this case, and the instruction in the nature of a demurrer to the evidence offered at the close of the plaintiff's testimony should have been given. Rucker v. Eddings, 7 Mo. 115; 38 Cyc. 1547, sec. 8; Milliken v. Tyson Commission Co., 202 Mo. 637. (6) Instruction 1 given for the plaintiff, is not a correct statement of the law and is not based upon the issues made by the pleadings in this case and is not based upon the evidence introduced at the trial. Hales v. Raines, 162 Mo. App. 46; Gary v. Averill, 12 S.W. (2d) 749; Glass v. Gelvin, 80 Mo. 302; Serivner v. Railroad Co., 260 Mo. 432; Owens v. McCleary, 281 S.W. 685; 48 C.J. 1141, note 22. (7). Instruction 2, given for the plaintiff, is erroneous and misleading and in effect tells the jury that there are facts from which negligence may be inferred. Hales v. Raines, 162 Mo. App. 46; Telaneus v. Simpson, 12 S.W. (2d) 920; Reeves v. Lutz, 179 Mo. App. 61; 48 C.J. 1154, note 85.

WESTHUES, C.


This action was commenced, by plaintiff, in the Circuit Court of Andrew County to recover damages for injuries sustained as a result of alleged malpractice, while plaintiff was a patient in defendant's sanatorium in Savannah Missouri. A change of venue was taken and the cause was tried in the Circuit Court of Holt

55 S.W.2d 425

County, resulting in a verdict for plaintiff in the amount of three thousand dollars ($3000). Defendant filed a motion for a new trial, which the court sustained, and plaintiff appealed.

The Kansas City Court of Appeals to which court the appeal was properly taken, in an opinion by ARNOLD, J., reversed and remanded the case with instructions to the trial court to reinstate the verdict and enter judgment for plaintiff. Defendant filed a motion for rehearing, insisting that the trial court had sustained a motion for a new trial on the ground that the verdict was against the weight of the evidence. Only two of the judges of the Court of Appeals participated in the disposition of the case. They were unable to agree on the question and on rehearing the Hon. JOHN C. GROVER was selected as a special judge to sit with the judges in the disposition of the case. In an opinion by GROVER, Special Judge, in which BLAND, J., concurred, the order of the circuit court, granting a new trial, was affirmed on the theory that the trial court granted a new trial because the verdict was against the weight of the evidence. ARNOLD, J., filed a dissenting opinion, holding the majority opinion to be in conflict with an opinion of this court in the case of Crawford v. Stockyards Co., 215 Mo. 394, 114 S.W. 1057. The case was then transferred to this court.

[1] If the order, granting a new trial, was based on the ground that the verdict was against the weight of the evidence, the action of the trial court must be sustained. [Riche v. City of St. Joseph, 326 Mo. 691, 32 S.W. (2d) 578; Littig v. Urbauer-Atwood Heating Co. 237 S.W. 782 (1), 292 Mo. 226.] We will, therefore, dispose of that question before considering the case on its merits. The motion for a new trial contained, among others, the following assignments of error:

"The court erred in refusing to give a peremptory instruction for defendant at the close of plaintiff's evidence.

"The court erred in refusing to give a peremptory instruction for the defendant at the close of all the evidence.

"The verdict of the jury was against the weight of the evidence, and against the entire weight and current of the testimony."

[2, 3] The order of the trial court, sustaining the motion, recited that it was sustained on the ground "that under all the evidence the plaintiff is not entitled to recover." Plaintiff's assignment of error in the Court of Appeals reads as follows:

"The trial court erred in sustaining plaintiff's motion for new trial and in holding that under all the evidence, plaintiff did not make a case for the jury."

The meaning of the language, above quoted, found in the order of the trial court, sustaining the motion, is the subject for discussion. The theory of the majority opinion of the Court of Appeals can best...

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8 practice notes
  • Palmer v. Lasswell, No. 7214
    • United States
    • Missouri Court of Appeals
    • April 22, 1954
    ...but not enough in the light of the evidence, to the contrary to support the verdict'. Gates v. Dr. Nichols' Sanatorium, 331 Mo. 754, 55 S.W.2d 424, 425; Cf. Ponyard v. Drexel, Mo.App., 205 S.W.2d 267, 271; Schreiner v. City of St. Louis, Mo.App., 203 S.W.2d 678, 680(5). But, the weight of t......
  • Gumm v. Herman, No. 8448
    • United States
    • Missouri Court of Appeals
    • February 22, 1966
    ...rule that a case may not be submitted upon both general and specific negligence. State ex rel. Burger v. Trimble, supra, 331 Mo. at 753, 55 S.W.2d at 424(3); Thompson, supra, 277 S.W.2d at 531(5, 6); Ficken v. Hopkins, Mo., 389 S.W.2d 193, 200(14); Harris v. Mound City Yellow Cab Co., Mo.Ap......
  • Gilbert v. Am. Cas. Co., (No. 9493)
    • United States
    • Supreme Court of West Virginia
    • October 19, 1943
    ...to be qualified is always inadmissible. Dashiell v. Griffith, 84 Md. 363, 35 A. 1094; Gates v. Nichols' Sanatorium, 331 Mo. 754, 55 S. W. 2d 424; In re Flatau's Estate, 10 Cal. 2d 701, 76 P. 2d 506; Shawnee Gas & Electric Co. v. Hunt, 32 Okla. 368, 122 P. 673. Quaere: May a nurse who me......
  • State ex rel. Burger v. Trimble, No. 32349.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1932
    ...of negligence in the Richardson case was not a charge that defendant "failed to keep the car under proper control" but was 55 S.W.2d 424 a charge that the employees negligently failed to stop the street car and thereby avoid a An examination of the record in the Rogles case shows ......
  • Request a trial to view additional results
8 cases
  • Palmer v. Lasswell, No. 7214
    • United States
    • Missouri Court of Appeals
    • April 22, 1954
    ...but not enough in the light of the evidence, to the contrary to support the verdict'. Gates v. Dr. Nichols' Sanatorium, 331 Mo. 754, 55 S.W.2d 424, 425; Cf. Ponyard v. Drexel, Mo.App., 205 S.W.2d 267, 271; Schreiner v. City of St. Louis, Mo.App., 203 S.W.2d 678, 680(5). But, the weight of t......
  • Gumm v. Herman, No. 8448
    • United States
    • Missouri Court of Appeals
    • February 22, 1966
    ...rule that a case may not be submitted upon both general and specific negligence. State ex rel. Burger v. Trimble, supra, 331 Mo. at 753, 55 S.W.2d at 424(3); Thompson, supra, 277 S.W.2d at 531(5, 6); Ficken v. Hopkins, Mo., 389 S.W.2d 193, 200(14); Harris v. Mound City Yellow Cab Co., Mo.Ap......
  • Gilbert v. Am. Cas. Co., (No. 9493)
    • United States
    • Supreme Court of West Virginia
    • October 19, 1943
    ...to be qualified is always inadmissible. Dashiell v. Griffith, 84 Md. 363, 35 A. 1094; Gates v. Nichols' Sanatorium, 331 Mo. 754, 55 S. W. 2d 424; In re Flatau's Estate, 10 Cal. 2d 701, 76 P. 2d 506; Shawnee Gas & Electric Co. v. Hunt, 32 Okla. 368, 122 P. 673. Quaere: May a nurse who merely......
  • State ex rel. Burger v. Trimble, No. 32349.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1932
    ...the charge of negligence in the Richardson case was not a charge that defendant "failed to keep the car under proper control" but was 55 S.W.2d 424 a charge that the employees negligently failed to stop the street car and thereby avoid a An examination of the record in the Rogles case shows......
  • Request a trial to view additional results

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