Gore v. Brockman

• Decision Date: 31 May 1909
• Citation: 119 S.W. 1082,138 Mo.App. 231
• Parties: VIRGINIA GORE, Respondent, v. HENRY H. BROCKMAN, Appellant
• Court: Kansas Court of Appeals

119 S.W. 1082

138 Mo.App. 231

VIRGINIA GORE, Respondent, v. HENRY H. BROCKMAN, Appellant

Court of Appeals of Missouri, Kansas City

May 31, 1909

Appeal from Miller Circuit Court.--Hon. Wm. H. Martin, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

W. S Pope, D. E. Wray and N. L. Musser for appellant.

Physicians are not warrantors of cures nor liable for errors of judgment. VanHooser v. Berghoff, 90 Mo.App. 487; Logan v. Field, 75 Mo.App. 594; Burnham v Jackson, 20 Colo. 532; Jones v. Angell, 95 Ind 376; Tefft v. Wilcox, 6 Kan. 33; Patten v. Wiggin, 51 Me. 594; Getchel v. Hill, 21 Minn. 464; Martin v. Courtney, 75 Minn. 255; O'Hara v. Wells, 14 Neb. 403; Graham v. Gauntier, 21 Texas 111; McCandless v. Mewha, 22 Pa. 261; Pelky v. Palmer, 109 Mich. 561; Duboise v. Decker, 130 N.Y. 325; Barker v. Lane, 23 R. I. 224; Simms v. Parker, 41 Ill.App. 284; Boydston v. Gittner, 3 Ore. 118. Instructions given at instances of plaintiff are in violation of well-known principles enunciated in foregoing cases. It was error to require defendant to state that he had transferred his property to his wife, that he had insurance protection, and it was also error to require him to give the contents of his policy from memory when there had been no attempt made to have the policy before the court. Miller v. Dill, 149 Ind. 326; Sievers v. Peters Box Co., 151 Ind. 642, 658; Board of Commissioners v. Pearson, 129 Ind. 456; Railway v. Lee, 17 Ind.App. 222; Getty v. Hamlin, 27 N.E. 299; R. S. 1899, sec. 737, et seq. A physician is not liable for error or mistake in diagnosing. Jamison v. Weld, 45 A. 299; Ramsdell v. Grady, 54 A. 763; Mallen v. Boynton, 132 Mass. 443; Griswold v. Hutchinson, 47 Neb. 727; Richards v. Willard, 176 Pa. 181. The law is well settled that it is improper to show in an action for negligence that the defendant is insured against loss in case of a recovery against it on account of its negligence; it is not proper to inform the jury of such fact in any manner. If allowed, it will be reversible error. Manigold v. Traction Co., 80 N.Y.S. 861; Wildrick v. Moore, 66 Hun (N.Y.) 630. Upon the question of testimony regarding defendant having transferred his property, we submit the following: Telegraph Co. v. Cashman, 132 F. 805; Assurance Co. v. Bailey, 44 S. E. (Va.) 692; Moody v. Osgood, 50 Barb. (N.Y.) 628; Rosewater v. Huffman (Neb.), 38 N.W. 857.

Moore & Williams and Hunter & Kraemer for respondent.

The right of plaintiff's attorney to cross-examine the defendant on collateral matters was entirely within the discretion of the trial court and was eminently proper, after his statement to plaintiff that he is not worth a dollar, and was unable to assist her to hospital treatment for the trouble he had brought on by his treatment. On cross-examination a witness may be compelled to answer any question which tends to test his credibility or shake his credit or show any questionable conduct. The doctrine is so stated in Stephen's Digest on the law of evidence, p. 123, which is often quoted by appellate courts. Muller v. Hospital Ass'n, 7 Mo.App. 390; State v. Long, 201 Mo. 675 and citations; O'Connor v. Transit Co., 106 Mo.App. 222; Dunn v. Altman, 50 Mo.App. 232; Hirsch v. Green, 83 Mo.App. 486; Briscoe v. Railway, 118 Mo.App. 668. The course and extent of a cross-examination, barring the rule that a witness cannot be made to criminate himself, is in the sound discretion of the trial court, and such discretion is not reviewable on writ of error, and appellate courts are reluctant to review or reverse them. Rea v. Missouri, 17 Wall. (U.S.) 532; Davis v. Coblens, 174 U.S. 719; Railway v. Powell, 9 L.R.A. (N. S.) 769-778; 1 Thompson on Trials, secs. 415 to 418; Straus v. Mertins, 64 Ala. 299; Butler v. Flanders, 12 Jones & E. 531; State v. Boyd, 178 Mo. 17; Prescott v. Ward, 92 Mass. 203. The leading case in this State on the proper qualifications of a physician or surgeon, and of the care and skill he is required to use, is Wheeler v. Bowles, 163 Mo. 198. That decision is the controlling one on this point in this State and the instructions are copied from that case principally, though some of those for defendant go further in his favor than any given in that case. We have examined in detail the cases cited on this point from other States by the appellant. Copeland v. Railway 195 Mo. 662; McCaffery v. Railway, 192 Mo. 152; Lucket v. Railway, 150 Mo. 271; Reynolds v. Railway, 189 Mo. 419. On this question as to the qualifications of the physician to treat a given disease, and the care and skill required in such treatment, we desire to call the attention of the court to the following cases cited by the appellant. Griswold v. Hutchison, 47 Neb. 727; Jamison v. Webb (Me.), 45 A. 299; Ramsdell v. Grady (Me.), 54 A. 763; Dubois v. Decker, 130 N.Y. 325; Pilky v. Palmer, 109 Mich. 561; Patten v. Wiggen, 51 Me. 594; Baker v. Lane, 23 R. I. 224; Tefft v. Wilcox, 6 Kan. 46; Jackson v. Burnham, 20 Colo. 532.

OPINION

ELLISON, J.

Defendant is a physician and plaintiff was his patient. She charged malpractice and recovered judgment in the trial court for thirty-five hundred dollars.

The petition alleges that plaintiff was suffering from some "malady" and that she engaged defendant to treat her. That defendant pronounced her trouble to be "the hardening of the right lobe of the liver and proposed to treat her by means of what is generally known as an X-ray machine." That defendant "unskillfully, rashly, unprofessionally, negligently and ignorantly commenced treating her with the X-ray." That in so doing the "right side of the abdomen for a space of more than one foot in diameter was blistered and became raw and sore," etc. The petition then, among other things, sets forth the serious and distressing consequences following such treatment.

Defendant was a witness in his own behalf and on cross-examination plaintiff's counsel was permitted to ask him, over the objection of his counsel, the following question: "Doctor, I will ask you if on or about that date (the time when plaintiff's condition became serious) you didn't take out what is called 'Doctor's Protective Insurance' to guard you against damages that might accrue from this or any other suit for malpractice?" The defendant answered that he carried insurance of that kind. The question was improper and was highly prejudicial. The issue on trial was negligent treatment of plaintiff by defendant as her physician, and indemnity insurance would not aid in determining that question. But more than that, its tendency and effect was to withdraw the real defendant from the consideration of the jury and to substitute for him an insurance company. A litigant has a right to his own personality and the opposing party has no right to have the consideration of his claim influenced or measured by any other standard, so far as individuality is concerned, than that afforded by the party of whom he complains. He cannot ask unliquidated damages of a good man who may have injured him and then substitute a bad man at the trial.

The subject has been before the courts and similar questions have been condemned. [Cosselmon v. Dunfee, 172 N.Y. 507, 65 N.E. 494; Manigold v. Black River Co., 80 N.Y.S. 861; Barrett v. Bonham Oil Co. (Texas), 57 S.W. 602; Sawyer v. Arnold Shoe Co., 90 Me. 369 (38 A. 333); Iverson v. McDonnell, 36 Wash. 73 (78 P. 202); Fuller Co. v. Darragh, 101 Ill.App. 664; White's Supp. Thompson on Neg., sec. 7275a.] Of these cases, in Cosselmon v. Dunfee it was held to justify a court in setting aside a verdict where the mere question had been asked and ruled as improper, if it was thought by the trial court to have influenced the verdict. In Manigold v. Black River Co., the mere asking of the question, which was not allowed to be answered, was held to be reversible error unless it affirmatively appeared that it had not affected the verdict. And the same ruling was made in Iverson v. McDonnell. In Barrett v. Bonham Oil Co., it was held that an employer having accident insurance for injury to employees was not a circumstance bearing on the question of his negligence and a question as to such insurance should not be allowed. In Sawyer v. Arnold Shoe Co., the Supreme Court of Maine said that it was "true the fact of insurance might have the effect of lessening the defendant's reason or motive for being careful. But the question was not as to how much or how little motive the defendant had for being careful, but whether or not it had in fact exercised due and reasonable care."

Defendant was asked, over defendant's objection, on cross-examination, if he had not conveyed property. As asked, the question was improper. But it would be permissible to ask him on cross-examination if he had conveyed his property to avoid the payment of damages he may have considered he had incurred.

Some of the instructions given for plaintiff are subject to criticism. It is difficult to say either from the language of the petition or instructions whether plaintiff intended to charge that the X-ray...