Gross v. Robinson

• Decision Date: 16 February 1920
• Docket Number: No. 13457.,13457.
• Citation: 203 Mo. App. 118,218 S.W. 924
• Parties: GROSS v. ROBINSON.
• Court: Missouri Court of Appeals

218 S.W. 924

203 Mo. App. 118

GROSS v. ROBINSON.

No. 13457.

Kansas City Court of Appeals. Missouri.

February 16, 1920.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

Action by Simeon Gross against Joseph Robinson. Judgment for plaintiff and defendant appeals. Affirmed.

Battle McCardle and Boyle & Watson, all of Kansas City, for appellant.

Harding, Deatherage, Murphy & Stinson, and Bruce Barnett, all of Kansas City, for respondent.

ELLISON, J.

Plaintiff's action is for damages alleged to have resulted to him through the negligence of defendant in attempting to secure two X-ray pictures of a fractured rib with which plaintiff was suffering. The verdict was in plaintiff's favor in the sum of $10,000. Twenty-five hundred dollars of this was remitted, and judgment rendered for $7,500.

It is alleged in the petition:

That one of plaintiff's ribs was fractured, and that, desiring an X-ray picture of the fracture to use as evidence in court, where he expected to appear, he applied to defendant, who represented himself as an expert, to secure the picture. It is then alleged that defendant "exposed him to the rays made by defendant's X-ray apparatus 12 or 15 times, more or less within two weeks." That "said X-ray is a powerful and deadly current of electricity, with great power of penetration, and that the exposure of the body of a person to too great a quantity of said ray within said period is very likely to result in severe burns to the body of the person so overexposed, and that defendant, his agents and servants, acting as aforesaid, negligently and unskillfully exposed plaintiff's body to too great a quantity of said ray in said period of time, and negligently and unskillfully exposed plaintiff to too much of said ray in the last two of said exposures. * * * And plaintiff says that defendant and his servants, acting as aforesaid, so negligently gave plaintiff too much of said ray by exposing him for approximately 375 seconds, at a target skin distance of about 10 inches, using about 30 milliamperes of current, and with a spark gap of not less than 2½ inches, as a direct result of which plaintiff received the severe and lasting burns and injuries hereinafter set out. * * * That said burns produced a raw and open sore of such a character that the same would not heal without the removal of certain matter at the place of said burns or wound, and as a direct result thereof it became necessary for said matter to be, and the same was, removed by surgical Operation. That after such surgical operation said burns or wound were and continued to be raw and open, and the skin, or epidermis, would not grow over said raw and open place, and because and on account thereof, by surgical operation performed on the 8th day of June, 1916, skin was removed from plaintiff's left leg and grafted upon said open sore. That said removal of skin from plaintiff and said grafting thereof upon said wound became and was necessary for the purpose of closing said open sore and wound and for the healing thereof, and after said surgical operation, that is to say, said grafting of skin, said burns, wound, and sore continued to remain raw and open until the 15th day of August, 1916, upon which date the same closed over and the same did not close over at any earlier time."

Complaint is made that the trial court allowed plaintiff to introduce evidence tending to show a machine which lacked certain appliances, when such condition was not pleaded. The avowed object in such testimony was only for the purpose of proving the negligence charged; that is to say, if a machine was not equipped with a "filter," it was negligence to use it. There was no pretense that the absence of a filter was, itself, negligence. But a filter being absent, it was negligence to make certain character of exposures for certain time, without the protection of a filter. Such evidence was necessary for framing an intelligible hypothetical question to an expert.

Evidence tending to show that the sore made by the burn would probably become malignant was given and justified under the petition as set out above.

One Steiner was a salesman for the Physicians' Supply Company, and had sold defendant the X-ray machine, was at the latter's office, and after the latter had failed with one or more exposures, he turned to Steiner and asked him to try if he could take one; he made the attempt, but failed.

It appears that Dr. Donaldson was a reputable physician, and that after defendant had made several failures and Steiner had failed to get a picture, he then, in plaintiff's presence, called Donaldson over the telephone, saying to him that he had a man over at his office who wanted an X-ray picture, and that he (defendant) could not get one, and wanted him (Donaldson) to come and take one. Donaldson came to defendant's office and on his arrival defendant "requested" him to take a picture with defendant's machine. Donaldson made the attempt, but no picture was gotten.

Defendant's position is that he was not liable for the acts of either of these persons, and that as their attempts to secure a picture may have been the exposures that caused, or substantially increased, plaintiff's injury, a case was not made against him. As Donaldson was a skilled physician and Steiner was not a physician at all, we will endeavor to determine the relation they separately bore to defendant with reference to whether he is responsible for the acts of either.

It seems that the relation of master and servant, or principal and agent, does not exist between two physicians where one has been sent to treat the patient of the other with the consent of the patient. In such instance the rule of respondeat superior...