Hill v. Jackson

• Decision Date: 07 January 1927
• Parties: NORA HILL, RESPONDENT, v. C. M. JACKSON, APPELLANT. *
• Court: Missouri Court of Appeals

290 S.W. 1012

220 Mo.App. 1302

NORA HILL, RESPONDENT, v. C. M. JACKSON, APPELLANT. *

Court of Appeals of Missouri, Springfield

January 7, 1927

Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.

AFFIRMED.

Judgment affirmed.

Ewing & Ewing and Haywood Scott for appellant.

(1) A dentist or physician, in treating a patient, is required only to exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing, practicing in similar localities, and to use reasonable care and diligence in the exercise of his skill and the application of his learning and to act according to his best judgment. Krinard v. Westerman, 279 Mo 680, 216 S.W. 941, 942; Sewald v. Gentry, 220 Mo.App. 367; Pate v. Dumbauld, 298 Mo. 435, 250 S.W 49; Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172. (2) Results following dental treatment afford no inference of negligence, nor is such result evidence of any lack of care or skill on the part of the dentist. There must be a causal connection amounting to negligence between accident and injury. Spain v. Burch, 169 Mo.App. 107; Wilt v. McCallum, 253 S.W. 156 (Mo. App.); Cardinale v. Kemp (Mo. Sup., July 1, 1925), 274 S.W. 448. (3) In an action of alleged malpractice against a dentist the maxim of "res ipsa loquitur" has no application and plaintiff cannot make a submissible case by reliance thereon. Hill v. Jackson (Mo. App.), 265 S.W. 861; Pate v. Dumbauld (Mo. Sup.), 250 S.W. 49; Wilt v. McCallum (Mo. App.), 253 S.W. 156; Cardinale v. Kemp (Mo. Sup., July 1, 1925), 274 S.W. 448; Fuchs v. St. Louis, 167 Mo. 620; Ewing v. Goode (Ohio), 78 F. 442. (4) Malpractice against a dentist is founded in failure to exercise the requisite degree of care and skill as a result of which damage to the plaintiff is occasioned. In such action, therefore, the plaintiff must prove affirmatively, by substantial evidence, first that the requisite degree of care and skill was not exercised, and secondly that such failure was the proximate cause of plaintiff's injury or damage. Nevinger v. Haun (Mo. App.), 196 S.W. 42; Pate v. Dumbauld (Mo. Sup.), 250 S.W. 52, 53; Wilt v. McCallum (Mo. App.), 253 S.W. 156; McGrath v. St. L. T. Co., 197 Mo. 104; Ewing v. Goode (Ohio), 78 F. 442; Spain v. Burch, 169 Mo.App. 94; Connelly v. Cone, 224 S.W. 1012. (5) In an action of medical or dental malpractice, involving as it does, the knowledge of the care and skill of such practitioners and a knowledge of the respective sciences, the court and jury, in such an action, must be guided wholly and solely by the expert evidence in so far as it relates to the question of defendant's failure to exercise care and skill and whether such failure, if any, resulted proximately in injury or damage to the plaintiff. Connelly v. Cone, 224 S.W. 1011; Spain v. Burch, 169 Mo.App. 109; Gabbert v. Evans, 184 Mo.App. 293; Ency. Evidence, par. b, page 152, par. i, page 168; McGraw v. Kerr (Colo.), 128 P. 870; Kline v. Nicholson (Ia.), 130 N.W. 722; Adolay v. Miller (Ind.), 111 N.E. 313; Ewing v. Goode (Ohio), 78 F. 442; Cooley on Torts (3 Ed.), sec. 777, 1386; 6 Corpus Juris, sec. 226, Note 42. (6) Plaintiff, in an action for alleged malpractice, having the burden of proving affirmatively and by substantial evidence the failure to exercise the requisite care and skill on the part of defendant and that the injury or damage proximately resulted therefrom, must prove such failure and proximate result by the evidence of witnesses qualified to speak upon such questions, that is by those versed and acquainted with the standard of care and skill. Proof of medical or dental malpractice is only made by medical or dental expert evidence, and lay evidence is incompetent on such questions. Gottschall v. Geiger (Mo. App.), 231 S.W. 95, citing the following cases: Moore v. St. Louis Transit Co., 226 Mo. 689, 705; Farrell v. Haze (Mich.), 122 N.W. 197; McGraw v. Kerr (Colo.), 128 P. 870, 873; Adolay v. Miller (Ind.), 111 N.E. 313, 315; Getchell v. Hill (Minn.), 21 Minn. 464, 465; Pettigrew v. Lewis (Kan.), 26 P. 458; Ball v. Skinner (Ia.), 111 N.W. 1022; Spaulding v. Bliss (Mich.), 47 N.W. 210; Ewing v. Goode (C. C.), 78 F. 442. (7) A theory cannot be said to be established in a civil case unless the facts relied upon are of such a nature and are so related to each other that it is the only conclusion that can fairly or reasonably be drawn from them. Where, in an action based upon medical or dental malpractice the evidence is equally as consistent with no negligence as with negligence, then the proof is, as a matter of law, insufficient to establish the malpractice charge, and the court should direct a verdict for the defendant. Nevinger v. Haun (Mo.), 196 S.W. 39; Hunter v. Burroughs (Va.), 96 S.E. 360; Hopkins v. Heller (Cal.), 210 P. 975; Yaggle v. Allen, 48 N.Y.S. 827; Honaker v. Whitley (Va.), 97 S.E. 808; Ewing v. Goode (Ohio), 78 F. 442; Matuschka v. Murphy (Wisc.), 180 N.W. 821; Coombs v. James (Wash.), 144 P. 536; Note: 4 A. L. R. 1556; 9 A. L. R. 1315. (8) Plaintiff charged defendant with negligence, or lack of care and skill as a result of which her jaw, on September 6, 1921 was dislocated, and that defendant was negligent or did not exercise reasonable care and skill as a result of which the said dislocation was not discovered and treated. There being no competent evidence sustaining either averment, defendant's demurrer at the close of the case should have been sustained. Nevinger v. Haun (Mo. App.), 196 S.W. 39; Davis v. Spicer, 27 Mo.App. 279; Faucette v. Grim (Mo. App.), 186 S.W. 1177; Pate v. Dumbauld (Mo.), 250 S.W. 49; Spain v. Burch (Mo. App.), 154 S.W. 172; Holstapple v. Schofield (Wisc.), 187 N.W. 682; Hopkins v. Heller (Cal.), 210 P. 975; Robbins v. Nathan, 179 N.Y.S. 281; Friend v. Kramer (Pa.), 85 A. 12; Matuschka v. Murphy (Wisc.), 180 N.W. 821; Honaker v. Whitley (Va.), 97 S.E. 808. (9) Where the burden is on the plaintiff to show that defendant on account of his failure to exercise care and skill dislocated plaintiff's jaw, and that he likewise failed to discover and treat same, and where defendant's evidence controverts the charge which evidence is uncontradicted, the jury is not at liberty to disbelieve defendant's evidence and take such disbelief as supplying the lack of affirmative evidence required of plaintiff. Nevinger v. Haun (Mo. App.), 196 S.W. 39; Spain v. Burch (Mo. App.), 154 S.W. 172; Faucette v. Grim (Mo. App.), 186 S.W. 1177. (10) Where a case of malpractice is bottomed on defendant's failure to exercise care and skill as a result of which the plaintiff's jaw is dislocated it is prejudicial error to permit the plaintiff in said action to testify that her jaw was dislocated, as such evidence plainly invades the province of the jury. The witness cannot be substituted for the jury. Johnson v. Powell (Kansas), 123 P. 881; Spaulding v. Bliss (Mich.), 47 N.W. 210; Cook v. Coleman (W. Va.), 111 S.E. 750; Gulf Co. v. Sullivan (Tex.), 190 S.W. 739; Adams v. Junger (Iowa), 139 N.W. 1096.

Howard Gray, A. E. Elliott and W. H. Hallett for respondent.

(1) Defendant's demurrer to the plaintiff's evidence was properly overruled. Wise v. Railroad, 135 Mo.App. 230; Hill v. Jackson, 265 S.W. 859; Hill v. Jackson, 272 S.W. 108. (2) The issue of the defendant's negligence in dislocating the plaintiff's jaw was for the jury. Hill v. Jackson, 265 S.W. 859; Hill v. Jackson, 272 S.W. 108. (3) The plaintiff was a competent witness to testify that the defendant dislocated her jaw. Wise v. Railroad, 135 Mo.App. 230; Hill v. Jackson, 265 S.W. 859. (4) Instructions numbered 1, 2, 3, 4 and 5, given at the request of the plaintiff, properly declared the law as applicable to the facts in evidence. (5) Defendant's instruction lettered "A" was properly refused. Hill v. Jackson, 272 S.W. 108. (6) The question whether a particular act of negligence was the proximate cause of the injury, in other words, the causal connection, is usually a matter of inference from others facts, the determination of which is for the jury. Sharp v. Railway Co., 213 Mo. 531; McDonald v. Railroad, 216 Mo. 480-483; Eichholz v. Poe, 217 S.W. 284. (7) "Mental anguish," for which a recovery may be had in an action for personal injuries, includes the mental sensation of pain resulting from the injury and also the purely mental suffering experienced by the injured person in contemplating his crippled condition and brooding over his future prospects. McMahon v. Kansas City Rys. Co., 233 S.W. 64; Railway Co. v. Miller, 61 S.W. 978; 5 Words and Phrases, (1 Ed.), page 447. (8) The matter of the appointment of physicians to make a physical examination of the plaintiff was within the court's discretion. Graham v. Sly, 177 Mo.App. 353; Sidekum v. Railway Co., 93 Mo. 403; Atkinson v. United Rys. Co., 228 S.W. 485. (9) The affidavit of a juror is incompetent to impeach the verdict of the jury. Hoffman v. Dunham, 202 S.W. 431. (10) It was not error for the court to refuse to inquire of the jurors whether they, or any of them, had read or seen the newspaper articles referring to the case while the trial was in progress. Copeland v. Wabash Ry. Co., 175 Mo. 678-684.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

This is an action against a dentist for malpractice. The cause was filed in Vernon county, but the venue was changed to Jasper county where plaintiff recovered and defendant appealed.

It is alleged that while extracting plaintiff's teeth defendant negligently dislocated her jaw and negligently failed to discover that he had done so and negligently failed to replace and reset it and failed to advise plaintiff that her jaw was dislocated. The answer is a general denial and a plea of contributory negligence. The reply is a general...