Hales v. Raines
| Decision Date | 05 December 1911 |
| Citation | 141 S.W. 917,162 Mo. App. 46 |
| Parties | HALES v. RAINES. |
| Court | Missouri Court of Appeals |
Plaintiff sued defendant for injuries sustained by an X-ray burn, and accepted an involuntary nonsuit. He then brought another action for the same injury, reciting only a portion of the grounds of negligence alleged in the former complaint. Held, that the second action being for the same cause was a continuation of the former, which could not be said to have terminated adversely to plaintiff, so as to entitle defendant to maintain a counterclaim in the second suit for alleged malicious prosecution in the first.
5. ACTION (§ 27)—CAUSE OF ACTION—TORT OR CONTRACT.
Where, in a suit against a physician for malpractice in burning plaintiff's hand with an X-ray, plaintiff alleged that he employed defendant for reasonable compensation to treat his right hand for eczema, and that defendant so negligently performed the treatment that plaintiff's hand was burned and injured, the petition alleged a cause of action in tort, and not for breach of contract; the allegation as to the contract of employment being mere inducement.
6. EVIDENCE (§ 155) — RELEVANCY — EVIDENCE ADMISSIBLE BY PROOF SUBMITTED BY ADVERSE PARTY.
Where, in an action against a physician for an X-ray burn, defendant did not plead assumed risk in its answer, but plaintiff introduced, as part of his case in chief, defendant's abandoned answer, alleging that before applying the rays to plaintiff's hand defendant informed plaintiff that the treatment was new and imperfectly understood, that there was always peril to the patient which it was impossible for the physician to anticipate, to which plaintiff replied that he would assume all known and unknown risks incident to the use of the rays, plaintiff was bound by the position he assumed; and hence defendant was entitled to prove in reply the entire arrangement as to defendant's employment, and that plaintiff assumed the risk.
7. PHYSICIANS AND SURGEONS (§ 16)—MALPRACTICE—ASSUMED RISK.
Where a physician, proposing to treat plaintiff's hand with X-rays for eczema, informed him that there was always danger connected with the treatment, and plaintiff agreed to assume the risk, such assumption was limited to risks attending the use of the X-rays in a careful and skillful manner; it being contrary to public policy to permit the doctrine of assumed risk to include an injury caused by the physician's negligence in exposing plaintiff's hand so close to the tube of the machine that it was seriously burned.
Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.
Action by James Hales against Oney C. Raines. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Richard F. Ralph, P. H. Cullen, Thos. T. Fauntleroy, and Shepard Barclay, for appellant. Joseph F. Coyle and Morrow & Kelley, for respondent.
This is a suit for damages accrued to plaintiff on account of malpractice by defendant. Plaintiff recovered in the amount of $5,583.33, and from this judgment defendant prosecutes the appeal.
Plaintiff is a machinist by trade, while defendant is a physician and surgeon engaged in practicing his profession in the city of St. Louis. The evidence tends to prove that while working at his trade plaintiff received a slight scratch in the palm of his right hand, which, though it did not impair the usefulness of the hand, nevertheless refused to yield to home treatment. In a short time the injury developed a red spot in the palm of the hand about the size of a half dollar. Though such result appeared, it is said that it neither occasioned pain nor inconvenienced plaintiff in the performance of his work as a machinist. As the condition seemed obstinate and continued, notwithstanding the treatment applied, plaintiff consulted defendant thereabout on August 10, 1901. Defendant diagnosed the case, and informed plaintiff that he was suffering from a chronic disease, known as dry tetter, or eczema, and that he could cure it in a reasonable time; whereupon plaintiff says he employed defendant to treat his hand for the ailment, and that he commenced the treatment by applying a salve to the spot in the hand, but which afforded no relief. Defendant continued treating plaintiff for more than a year by the application of different remedies without satisfactory results therefrom until September 27, 1902, when he commenced the use of the X-rays thereon. The grievance complained of here relates alone to the manner of the X-ray treatment; for it is said that defendant so negligently and carelessly applied the same as to burn and distort plaintiff's right hand so as to permanently injure him. For plaintiff the evidence tends to prove that defendant applied the X-ray to his hand 9 times within 11 days for different periods from 15 to 35 minutes each, and during each treatment required plaintiff to hold his hand within one-half inch of the tube of the machine which emitted the electrical current. As a result of this, the inner tissues of plaintiff's hand were so burned as to occasion its permanent injury. It appears that plaintiff suffered excruciating pains for several months as a result of this treatment, and that the ligaments and muscles of the hand are so withered and distorted as to render it, according to the language of some of the witnesses, a "claw hand." The proof is overwhelming that, though the application of the X-ray was a proper treatment for eczema at the time, the apparatus should have been adjusted at a distance from 6 to 12 inches from the affected part to which the treatment is applied. In other words, no physician, in the exercise of ordinary prudence and care, would apply the X-ray with the tube of the instrument within one-half inch of the parts under treatment. If plaintiff's evidence is true, as the jury found it to be, the record is replete with testimony tending to prove that defendant was negligent in respect of the manner in which he applied the X-ray on 9 different occasions within 11 days.
But it is argued there is no evidence of the particular negligence alleged in the petition, and the court should therefore have directed a verdict for defendant. Under this head, too, it is argued the court by instructions submitted to the jury that as negligence on the part of defendant which the evidence conclusively reveals to be a proper course of treatment in the circumstances of the case. Both of these arguments assume as a predicate and proceed upon the theory that the petition alleged specific acts of negligence on the part of defendant. It is argued that though the petition contains an averment of negligence in general terms in the first instance, it limits the same by a subsequent averment that the X-ray was applied to plaintiff's hand eight or nine times for such length of time as to occasion the injury. We do not so understand the petition. As we interpret it, the allegation of negligence is a general one, for both the first and subsequent clause thereof are connected by the conjunctive "and." The averment is: "That in treating plaintiff for said disease or ailment defendant negligently, carelessly, and unskillfully applied certain electric rays or currents, commonly known as Roentgen rays or X-rays, to the palm of plaintiff's said right hand, and negligently, carelessly, and unskillfully caused the palm of plaintiff's right hand to be exposed to said rays...
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