Hoyberg v. Henske
| Decision Date | 19 December 1899 |
| Parties | HOYBERG v. HENSKE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
A. R Taylor for appellant.
(1) The depositions not being subscribed, and there being nothing in the certificate of the notary indicating either a waiver of signatures or consent to the taking of the depositions in shorthand, they were in fact incompetent and inadmissible as evidence when objected to. Steckman v. Harber, 55 Mo.App. 81; R. S. 1889, secs. 4453-4455. (2) The rule of the court could not, in derogation of the statute, without the consent of the defendant, make an unsigned deposition admissible in evidence. "It is beyond the power of any court to make rules or take action which come into collision with either the organic or statutory law." State ex rel. v. Withrow, 133 Mo. 522; State ex rel. v Lewis, 71 Mo. 170; State v. Underwood, 75 Mo. 230; State ex rel. v. Gideon, 119 Mo. 94. (3) The ground on which the opinion of an expert witness is admissible is, that he possesses knowledge and information superior to that of the jury. This is peculiarly true where, as in the case at bar, the question was one of science; yet this instruction tells the jury that they may "disregard all or any such opinions (of the surgeons) as appear to the jury to be unreasonable." In other words, no matter that the jury did not understand whether or not the treatment of the child by the defendant was proper, and no matter how learned or skilled the witness testifying might be upon the question of science in issue, the instruction tells the jury they may disregard all such opinions as did not agree with their own opinions. (4) The instruction was bad as a singling out of a part of the evidence, instead of leaving the weight of the evidence to be determined by the jury. Such an instruction has been repeatedly condemned. Thompson v. Ash, 99 Mo. 160; Hampton v. Massey, 53 Mo.App. 504; Price v. Ins. Co., 48 Mo.App. 295; Rosenbreter v. Brady, 63 Mo.App. 403; Railroad v. Dawley, 50 Mo.App. 489; Hull v. St. Louis, 138 Mo. 625; Railroad v. Fowler, 142 Mo. 688. (5) The true rule is that the jury in considering the testimony of experts as to value either of services or property may exercise their own judgment in connection with the testimony of experts. Rose v. Spies, 44 Mo. 20; State v. Witten, 100 Mo. 525; Head v. Hargrade, 105 U.S. 45; Cosgrove v. Leonard, 134 Mo. 426. But in the case where the matter in issue is one of scientific knowledge, of which a layman is presumed to be ignorant, the jury must make up their verdict from the evidence in the case alone. Kansas City v. Hill, 80 Mo. 534; St. Louis v. Ranken, 95 Mo. 192.
Lubke & Muench for respondent.
(1) The depositions of witnesses, whose testimony had been taken in the city of St. Louis, with the aid of a stenographer, were properly admitted. (a) Because the signature of the witnesses thereto had been expressly waived, as certified by the notary. Steckman v. Harber, 55 Mo.App. 81. (b) Because they had been read at two previous trials without objection. (c) Because the rule which requires all exceptions to depositions to be made within a certain time after the filing of a deposition is reasonable and has been upheld by this court. Leslie v. Rich Hill, etc., 110 Mo. 37; Bowman v. Branson, 111 Mo. 343. (d) Counsel for defendant had been present at the taking of all said depositions, made and preserved objections to testimony, and cross-examined each witness at great length. The depositions had been on file for two years. The technical objection sought to be made on the very day of trial, must be considered waived. Bell v. Jamison, 102 Mo. 71; Delventhal v. Jones, 53 Mo. 462; State ex rel. v. Dunn, 60 Mo. 70; Holman v. Bachus, 73 Mo. 49; Dean St. P. Co. v. Greene, 31 Mo.App. 269; Weeks on Deposition, sec. 445; Randolph v. Woodstock, 35 Vt. 291. (2) Plaintiff's instruction numbered 3 was clearly authorized and proper according to the established law of this State. St. Louis v. Ranken, 95 Mo. 192; Hull v. St. Louis, 138 Mo. 626. "Expert evidence" is merely advisory, and the jury are themselves judges as to its reasonableness. Cosgrove v. Leonard, 134 Mo. 419; Rose v. Spies, 44 Mo. 20; Head v. Hargrave, 105 U.S. 45; Bourke v. Whiting, 34 P. 172; St. Louis etc., R. R. v. Fowler, 142 Mo. 688; Olson v. Giertsen, 42 Minn 409; Aldrich v. Grand Rap. C. Co. 61 Minn. 531.
OPINION
In Banc.
-- This is an action of a minor suing by his next friend for alleged malpractice of defendant.
The petition charged that the plaintiff, a child of tender years, sustained a fracture of the bone of the left arm above the elbow; that defendant, who held himself out to be a skilled surgeon, was employed to care for and treat plaintiff's broken arm, and because of the unskillful and negligent manner in which the fracture was reduced, and the arm bandaged and plaintiff's injury treated by him, the member became affected with gangrene, which caused the dissolution or wasting away of the muscles, nerves and fibre of the arm, thereby rendering it permanently useless, and damaging plaintiff in the sum of $ 15,000, for which, with costs, he asks judgment. Suit was originally instituted in the circuit court of the city of St. Louis, in May, 1892, where, after a mistrial, the venue was changed to the circuit court of St. Louis county, in which court the cause was tried three times. At the last trial, had in November, 1896, a special jury was called, rendering a verdict for the plaintiff and assessing his damages at the sum of $ 5,500, upon which in due time a judgment was rendered. Defendant filed a motion for a new trial and a motion in arrest of judgment, both of which were overruled, whereupon, by proper proceedings, he prosecutes his appeal to this court.
The answer filed in the case before its last hearing, contains a general denial of the allegations of the petition, and affirmatively charges plaintiff with contributory negligence, averring that his parents instead of performing their duty toward the plaintiff were negligent in caring for and nursing him, and failed to give him the necessary attention which his tender years and condition demanded, but instead permitted him to run out of the house while his broken arm was yet in a sling.
The answer further sets out that plaintiff, shortly after the injury occurred, attempted to jump upon a moving street car, and failing so to do, was violently thrown to the ground, severely shocking the broken arm and contributing, at least in part, if not wholly causing, the injury complained of. All of which new matter was denied generally in plaintiff's reply.
The substantial facts shown by the testimony are as follows: That on the 27th day of August, 1891, which was plaintiff's fourth birthday, while playing in a room at the home of his parents, he fell from a lounge and broke the bone of his left arm just above the elbow; that shortly thereafter the defendant was called in to set plaintiff's broken bone wrapping the arm with absorbent cotton and a muslin bandage, and caused a plaster of Paris cast to be formed around the same, and after so doing left the house, and never again called to see his patient, nor did he inquire after his condition; that within two or three days after the broken arm had been bandaged, plaintiff's fingers became greatly swollen and cold, and were turning blue where they protruded from the lower part of the bandage, and he was taken by his parents to the office of defendant, who examined him and assured the mother that it was customary for swelling to set in in such cases, and that she need not feel alarmed at the condition presented; the next day, Sunday, plaintiff continuing to suffer greatly, he was again taken to defendant's office, who cut off a piece of the plaster of Paris casting and said the boy would have no further trouble; instead of improving, plaintiff seemed to grow worse, and on the following Wednesday his mother again took him to defendant's office, where he removed the splints, bathed the injured arm in warm water, wrapped it up in a loose bandage and said he would put another cast about it in the course of a week. It appears from the evidence that from the time of the injury, which occurred on Thursday, up to the following Wednesday, plaintiff's sufferings were very great and that he cried continuously; that his parents were required to, and did, alternately sit up with him every night; and that when he was taken to defendant's office on the Wednesday morning spoken of, his fingers continued to be swollen and the bluish color had increased and that the finger tips were covered with blisters; that when the splint was removed the skin of the forearm below where the injury occurred, and where the flesh has subsequently wasted away, hung to the cotton; that a second trip was made to defendant's office on the same day, when he examined the fingers and again assured the mother that the boy's arm would soon be all right, but gave no directions as to the further care of the injury. On the following Friday, the mother again took the boy to defendant's office, when the conditions spoken of still existed in a more pronounced degree, and the defendant advised her to rub the fingers with Vaseline salve. On the following Monday she became dissatisfied with the treatment and took the boy to her regular family physician, who thereafter had charge of the case. The arm festered and parts of the flesh came off and didn't heal up until about Christmas time, since when he has had no strength in his arm from the elbow down; that prior to the...
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