Hales v. Raines
| Decision Date | 05 December 1911 |
| Parties | JAMES HALES, Respondent, v. ONEY C. RAINES, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Richard F. Ralph, P. H. Cullen, Thomas T. Fauntleroy and Shepard Barclay for appellant.
(1) The trial court erred in excluding the counterclaim, because an action lies for malicious prosecution of a civil action. Cooper v. Scyoc, 104 Mo.App. 414; Brady v Erwin, 48 Mo. 533. (2) The counterclaim states a perfect cause of action for malicious prosecution of the civil action mentioned. The fact that part only of the original charges (in the first action) are the basis of the counterclaim is no bar to recovery for malicious prosecution of those charges which were groundless and otherwise actionable. Boogher v. Life Assn., 75 Mo. 319; Reed v. Taylor, 4 Taunt. 616. (3) The instruction excluding the counterclaim was erroneous under the decisions holding that where the court, at close of plaintiff's case (or state's case in a criminal prosecution), declares the law to be that plaintiff cannot recover, and thereupon plaintiff dismisses or takes a nonsuit, a prima facie case of want of probable cause and of malice is thereby made out. McGarry v Railroad, 36 Mo.App. 347; Sharpe v. Johnston, 59 Mo. 577; Hurgren v. Ins. Co., 141 Cal. 585; Sappington v. Watson, 50 Mo. 83; Fugate v. Miller, 109 Mo. 289. Evidence tending to prove want of probable cause also warrants an inference of malice. Callahan v. Cafferata, 39 Mo. 136; Stubbs v. Mulholland, 168 Mo. 74; McGarry v. Railroad, 36 Mo.App. 346. But the exclusion of the instruction at the close of the plaintiff's evidence at the first trial was fatal error. Stone v. Powell, 5 Mo. 436. (4) The court erred in excluding the testimony that plaintiff's contract was with the association. If an action for malpractice is founded on contract (as here) it must be so proved as alleged. Lane v. Boicourt, 128 Ind. 420; Dashiell v. Griffith, 84 Md. 363. (5) Where a contract is alleged, plaintiff must prove same and cannot recover on another theory. Eyerman v. Assn., 61 Mo. 489; Mooney v. Kennett, 19 Mo. 551; Green v. Cole, 127 Mo. 587; Clements v. Yeates, 69 Mo. 625; Laclede Co. v. Tudor Works, 169 Mo. 137. (6) The court erred in not instructing for a verdict for defendant. The alleged negligence was shown to be no negligence by plaintiff's own witness. Where the evidence does not show negligence, it is the duty of the court so to declare. Carroll v. Railroad, 107 Mo. 653. (7) The weight of testimony in favor of defendant is so conclusive and overwhelming as to indicate passion or prejudice in the verdict for plaintiff and to warrant the closest scrutiny of all the proceedings. Whitsell v. Ransom, 79 Mo. 258; Garrett v. Greenwell, 92 Mo. 120. (8) The two instructions both of which authorized verdicts "for plaintiff in a sum not to exceed $ 10,000," without stating elements of damage, are erroneous, as giving a "roving commission" to the jury without any guide as to the recoverable claims for damage in the petition. Hawes v. Stockyards Co., 103 Mo. 60; Badgley v. City, 149 Mo. 134. (9) The instruction on particulars of damages is erroneous from the words "and such damages" to its close, for it authorizes recovery for other damages than those alleged, which is unsound in principle. Only one element (permanent impairment of the hand) alleged was within the sweeping language of this instruction, and it should have been so limited. Wallack v. Transit Co., 123 Mo.App. 160; Baquin v. Railroad, 90 Mo.App. 118. The instruction for plaintiff authorizes recovery for certain items of the "injuries for which he sues", but omits to limit compensation to those ascribed to defendant. This was error in view of the evidence as to the intervention of later treatment before plaintiff's hand became stiff, which was nearly a year after defendant ceased his attentions. The instruction should have confined the recovery to such injuries as resulted directly or proximately from the acts of defendant. That omission is material error. Neff v. City, 213 Mo. 365; Carpenter v. McDavitt, 53 Mo.App. 403. (10) The trial court erred in allowing Dr. Harris to testify for plaintiff that his treatment of plaintiff (of ten or eleven months after defendant) to the time when plaintiff's hand became stiff was "proper treatment," instead of stating what he did; for the issue, whether or not the X-ray treatment or the after-treatment was the cause of the last condition of plaintiff's hand, was a material issue; and hence the above evidence of Dr. Harris was not admissible in the form it was given. (11) The consent of a patient to a course of treatment of experimental character, as the evidence offered by defendant and excluded by the court tended to prove would narrow and restrict the duty and liability of the physician to the patient, far within the limits of liability indicated by the Court's instructions in this case. Gramm v. Boener, 56 Ind. 497. (12) After admitting all of plaintiff's evidence concerning the conversations and other facts to show the terms and circumstances of defendant's employment to treat plaintiff's hand by the X-rays, the trial court erred in excluding the testimony by defendant and his witnesses to show their version of the same matters. (3) Plaintiff having (without any limitation or reservation) offered as part of his case an abandoned asnwer of defendant, the recitals of fact in that answer are to be treated as other evidence of the same facts, including its statements in regard to the agreement between plaintiff and defendant touching the X-rays treatment and those facts could not properly be pushed out of the case by the court or by the plaintiff ex post facto. Plaintiff was bound by the position taken by the aforesaid offer. Norton v. Ittner, 56 Mo. 353; Stalzer v. Dold Co., 84 Mo.App. 574; Paving Co. v. O'Brien, 128 Mo.App. 284; Northrop v. Diggs, 128 Mo.App. 217.
Joseph F. Coyle, Charles E. Morrow and Robert Kelley for respondent.
(1) This is an action for malpractice. The petition contains every allegation necessary to state a cause of action founded on this tort. Wheeler v. Bowles, 163 Mo. 398, 30 Cyc. 1583, 16 Enc. Pleading and Practice, 528. (2) The employment of defendant by plaintiff to treat his hand is pleaded as matter of inducement for the purpose of showing that the relation of physician and patient existed between plaintiff and defendant at the time defendant treated plaintiff's hand with the X-rays. When this relation is alleged and proven to exist, the law imposes the duty upon the physician "to use and exercise such care as would ordinarily be used and exercised by a physician or surgeon of average skill and knowledge in the City of St. Louis," and it is not necessary that the petition contain this allegation. Armelio v. Whitman, 127 Mo.App. 698; 30 Cyc. 1583; Bliss on Code Pleading (3 Ed.), sec. 150, p. 252. (3) Defendant now contends that proof of the involuntary nonsuit in the case before Judge Foster makes out a prima facie case of want of probable cause in the action for malicious prosecution set up in his counterclaim contained in his answer in this case. We submit that this is not the law in Missouri. Smith v. Burrus, 106 Mo. 94. (4) There was only one course open to the trial court in the face of the overwhelming volume of competent evidence introduced in this case as shown by the record, and that was to submit the case to the jury. Every allegation of the petition is supported by substantial evidence. Meily v. Railroad, 215 Mo. 586; Crossett v. Ferrill, 209 Mo. 707; Barth v. Railroad, 142 Mo. 548; Pitthan v. Schaithman, 127 Mo.App. 33; McManus v. Railway, 118 Mo.App. 161; Knapp v. Hanley, 108 Mo.App. 360. (5) Defendant's objection to the instructions on the measure of damages has been completely put at rest by the following decisions of the Supreme Court of Missouri: Wheeler v. Bowles, 163 Mo. 409; Browning v. Railroad, 124 Mo. 71; Fearey v. O'Neill, 149 Mo. 477; Harmon v. Donohue, 153 Mo. 274; Smith v. Fordyce, 190 Mo. 130; Partello v. Railroad, 217 Mo. 657.
Caulfield, J., not sitting.
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 ...
To continue reading
Request your trial