Ingram v. Poston

• Decision Date: 01 April 1924
• Docket Number: No. 18454.,18454.
• Citation: 260 S.W. 773
• Parties: INGRAM v. POSTON.
• Court: Missouri Court of Appeals

260 S.W. 773

INGRAM v. POSTON.

No. 18454.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Rehearing Denied April 18, 1924.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Clara L. Ingram against Harry P. Poston. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank A. Habig, of St. Louis, and Jerry Burks, of Farmington, for appellant.

W. A. Brookshire, of Farmington, and A. L. Anderson and Curlee & Hay, all of St. Louis, for respondent.

DALES, J.

This is an action for damages for alleged malpractice of defendant as a surgeon. Plaintiff recovered $3,725, and defendant appeals from that judgment.

The petition charges negligence against the defendant, Dr. Poston, in that he carelessly caused a hypodermic syringe to be placed into an incision made by him while performing a surgical operation upon plaintiff, and that he failed to remove such syringe before closing the wound. It is alleged that the syringe remained in plaintiff for three years and ten months, and caused her serious pain and injury.

The answer pleaded both the five-year and the two-year statutes of limitation, and also a general denial.

The following facts were developed at the trial: Plaintiff, a married woman, residing at Farmington, Mo., suffered an attack of appendicitis some time in 1909 or 1910. In 1913 plaintiff met with the misfortune of a miscarriage, and a local physician performed curettement. Afterwards, on February 6, 1913, or about a month after the miscarriage, plaintiff having developed appendicitis, she was operated upon by defendant as surgeon in a hospital at Bonne Terre, Mo. Defendant employed the Coyle method in the operation, which consists of small dose of ether to the patient, and then, by means of a large hypodermic syringe and needle, injections of novocaine are made along the incision, and following the course of the wound, with further injections as the cut is made deeper. In this patient, it appears, the abdominal wall was nearly six inches thick from skin to cavity. Plaintiff seemed to recover from the operation and was removed to her home in about four weeks, and defendant did not attend her any further. After leaving the hospital, plaintiff developed a temperature and in about six or eight weeks an abscess began to form at the point where the incision had been made in her side. She developed chills, and the sore caused pus to form. This condition, according to plaintiffs evidence, continued off and on for the entire period of over three years. Plaintiff developed eruptions and blotches on her body, intermittently, accompanied by fever.

Plaintiff testified that on October 12, 1916, having again developed pus in the wound, she pressed the wound to rid same of pus, and that on that occasion the butt end of a hypodermic needle was emitted from the sore at the place of the old appendicitis incision. This part of the syringe or needle was exhibited at the trial and was made an exhibit in the case, and at the end where same is attachable to the syringe same is as large as the tip of the small finger. Plaintiff testified that from the time the operation was performed in 1913 until she extracted this base of the needle no opening had been made in her abdomen or in her side, or anything inserted into same, and that no operation had been performed upon her during that period, and that no instrument of any kind had been inserted into her body. She testified that immediately after taking out the needle the wound began to heal, and that in six weeks' time thereafter she had gained strength enough to do her own work and quickly regained her normal strength, and that within three months she was well.

On cross-examination, plaintiff testified that she had gone to St. Louis some time after the operation and had received treatment to her throat, and also that in 1921 she was operated on in St. Louis for cancer of the breast, and that her left breast was removed at that time.

Plaintiff produced other witnesses, who corroborated much of plaintiff's own testimony.

The defendant, on his own behalf, testified that he had been a practicing surgeon since 1907, and that he was graduated from several colleges of repute, both in this country and in foreign countries. He testified that plaintiff came to the hospital and had the operation performed as testified to by her. He also testified that plaintiff had an infection as the result of a miscarriage, and that she suffered from chills and fever, and was an intensely nervous woman. As to the operation, defendant stated that all due preparation and care was taken by way of sterilization, and that the hospital nurses and attendants aided in the usual way in preparing for same; that he performed the operation by what is known as the Coyle method, described above, and that injections were made along the line of the proposed incision by the use of a hypodermic syringe; that the syringe used in this case was a Record 20cc. hypodermic, having a needle at least 1½ to 2 inches long, and that the whole syringe would be about 7 or 8 inches long. He testified that as the incision was made injections would be given deeper until the cavity was reached. After the operation, the wound was stitched and sewed up, beginning with the lower layer. Defendant testified that this large hypodermic syringe was the only one used about this patient at any time while he had her in his charge. When handed the stub of the needle, which was plaintiff's Exhibit "A," and which was testified to by plaintiff as having come out of the wound, the doctor was asked whether he used such needle at any time in treating this plaintiff, to which he answered that he did not, explaining that the needle was too short and too weak for such purpose.

Without setting out further of defendant's testimony, it is a denial that the needle found in the abdomen of plaintiff was such as was used by him in the operation of this woman. It was his testimony that he did not use a "screw-in" needle, but that the type used by him was one that would be pressed over the syringe without threads; that the one found in plaintiff had threads on it. There was evidence for defendant tending to show that the needle found in the woman was such as is used in skin or arm injections and not such as is used for deep injections when tie Coyle method is used. This, we think, is a sufficient recital for our purposes.

The first of appellant's assignment of errors is that the verdict was a "quotient" verdict, and therefore illegal, and should be set aside. It is the rule in this jurisdiction that a party who attacks a verdict upon the ground that it is a quotient verdict must show that there was a prearrangement among the jurors to accept the quotient as their verdict; the presumption being that there was no such prearrangement. Ownby v. Kansas City Rys. Co. (Mo. App.) 228 S. W. 879; Hagan v. Mining Co., 131 Mo. App. 386, 111 S. W. 608. And it is also settled that the evidence of a juror will not be received to impeach the jury's verdict. McMurdock v. Kimberlin, 23 Mo. App. 523; Devoy v. Transit Co., 192 Mo. 197, 91 S. W. 140.

The attack on the verdict in the instant case is based on a slip of paper found in the jury room after the jury had been discharged and upon an affidavit made by one of the jurors after the trial. From the authorities examined by us, we do not believe that the mere finding of a slip of paper by one of defendant's counsel on the floor of the jury room, in the absence of positive proof that the jury had agreed among themselves to abide by the quotient, would invalidate the verdict. The affidavit of the juror was incompetent to impeach the verdict rendered. The record shows that plaintiff's counsel properly objected to the affidavit of the juror, and also to the introduction of the slip of paper. We think the verdict ought not be disturbed or this complaint.

It is next insisted that the address to the jury of counsel for plaintiff, with the court's action with respect thereto, constituted reversible error. The remarks and the action taken on same were as follows:

(1) "Mr. Hay: * * * As I said during the trial of the case, we waived all privilege, and if this woman (referring to plaintiff) has not spoken the truth, why didn't they call Dr. Watkins—why didn't they call Dr. Watkins?

"Mr. Habig: Your honor, please, I want the stenographer to take that statement. Plaintiff's counsel has made a statement about waiving privilege, etc., about Dr. Watkins. That is an improper statement before the jury. It is a well-recognized fact that if those witnesses were not called and are presumed to know the facts in the case the law assumes that their testimony would be unfavorable to the party whose witnesses they are, and these are plaintiff's witnesses, the doctors. I say that the conduct of Mr. Hay in using that argument is improper and incompetent—it is outside of the evidence and the law in the case.

I want to save my special exception to that statement.

"The Court: Let the exception be saved."

(2) "Mr. Hay: I really expected Ben to say that it was injected as an enema—

"Mr. Habig: The court please, I am going to object to that argument as being outside of the evidence; it is not proper argument, and Mr. Hay knows it is not proper, and I will ask the court now to caution him.

"The Court: Yes; that is what should be done. The argument should be confined to the facts. Proceed. "

"Mr. Hay: That is what I am going to do; that is the trouble with the gentlemen—I am going to argue the facts.

"'To which remark of counsel for plaintiff counsel for defendant then and there at the time duly saved their objection and exception."

(3) "Mr. Hay: * * * It creeps into the Precious breast of this woman, and it has to be cut out.

"Mr. Habig: I want to save the record on that statement, if your honor please. Did the stenographer get that statement?

"Mr. Hay: I will repeat it. ...