Krinard v. Westerman
| Decision Date | 01 December 1919 |
| Citation | 216 S.W. 938,279 Mo. 680 |
| Parties | LILLIAN KRINARD v. CLARENCE M. WESTERMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.
Affirmed.
Watts Gentry & Lee for appellant.
(1) The court erred in overruling the demurrer to the evidence. There was no evidence offered from which the jury would have been justified in finding that the defendant negligently cut punctured or tore the plaintiff's bladder, nor was there any evidence offered from which the jury would be justified in finding that the defendant either cut or tied off one of plaintiff's ureters, or that he negligently failed to promptly repair the bladder. The most that could be said of plaintiff's evidence is that it tends to show that she suffered from conditions which might possibly have been brought about by the doing of one of the aforesaid negligent acts, but, at the same time, the plaintiff's evidence clearly showed that there were other causes, not in any way resulting from any negligence of the defendant, which could equally well have produced the conditions shown. Where an injury may have resulted from one of two or more causes, for some of which the defendant would be liable, and for other of which he would not be liable, the jury should not be allowed to speculate and guess that it came from defendant's negligence. Goransson v. Ritter Co., 186 Mo. 300; Kane v. Railroad, 251 Mo. 1; Caenefelt v. Bush, 198 Mo.App. 491; Crawford v. O'Shea, 145 P. 579; Ewing v. Goode, 78 F. 442; Coombs v. James, 144 P. 536; Merriman v. Hamilton, 103 P. 406 (Ore.) . All a physician or surgeon is required to do is to possess and use such skill and judgment and use such care as a reasonably skillful man of his profession in his community would have and use, and mere error in judgment does not make him liable. Spain v. Burch, 169 Mo.App. 106; Vanhooser v. Berghoff, 90 Mo. 487; Gore v. Brockman, 138 Mo.App. 231; Granger v. Still, 187 Mo. 216; Martin v. Courtney, 75 Minn. 255; Staloch v. Holm, 100 Minn. 276. (2) Instruction 1, given at plaintiff's request, was erronous because it permitted the jury to find the defendant guilty of negligence if he did not exercise the degree of care and skill exercised by physicians and surgeons anywhere in the world, whereas it should have been limited to the degree of skill and care exercised by physicians practicing in the same locality where the defendant resided. Vanhooser v. Berghoff, 90 Mo. 487; Cozine v. Moore, 141 N.W. 421. (3) The instruction on the measure of damages contains glaring errors, clearly entitling the defendant to a new trial, even if the plaintiff was entitled to go to the jury. First, The jury were authorized by the instruction to allow compensation to plaintiff for her suffering -- not only suffering resulting from operations which had been performed before the trial, but also for suffering that might result from operations that she "may hereafter be required to have performed." The evidence showed that there was nothing like a reasonable probability that an operation for the removal of plaintiff's left kidney -- which was the only further operation under discussion -- would have to be performed. A plaintiff may recover such damages -- in a case like this -- as are reasonably certain to accrue in the future, and may not recover for a bare possibility. Wilbur v. Railroad Co., 110 Mo.App. 698; Bigelow v. Railroad, 48 Mo.App. 367; Chilton v. St. Joseph, 143 Mo. 192; Batten v. Transit Co., 102 Mo.App. 285; Albin v. Railroad, 103 Mo.App. 308; Ballard v. Kansas City, 110 Mo.App. 391; Schwend v. Transit Co., 105 Mo.App. 534; Barr v. The City of Kansas, 121 Mo. 30; 2 Shear. & Red. on Neb. (4 Ed.), sec. 743. Sutherland on Damages (3 Ed.), sec. 123, and sec. 944, vol. 3; Joyce on Damages, sec. 244; Voorheis on Measure of Damages, sec. 46, p. 75; Watson on Damages for Personal Injuries, secs. 302, 303, p. 385. Second. The other glaring error in that instruction is that, in its second subdivision, it permits a recovery on account of expenses incurred for surgeons' fees, when there was not a particle of evidence offered tending to show the value of such surgeons' fees. Plaintiff expressly stated that she had not received any bill from Dr. Ernest, Dr. Caulk or the Mayos for their services. Dr. Judd testified that he did not know what his charges were without looking them up. He did not look them up. This portion of plaintiff's instruction on the measure of damages permitted recovery of an item as to which there was no evidence to show what damage the plaintiff had suffered on account thereof. To include such an item in an instruction on the measure of damages is universally held to be reversible error. Morris v. Grand Ave. Ry. Co., 144 Mo. 500; Robertson v. Wabash Railroad, 152 Mo. 382; Moellman v. Lumber Co., 134 Mo.App. 485; Waldopfel v. Transit Co., 102 Mo.App. 529; Duke v. Railroad, 99 Mo. 347; Rhodes v. City of Nevada, 47 Mo.App. 499; Smith v. Railroad, 108 Mo. 251; Nixon v. Railroad, 141 Mo. 440; Davidson v. St. L. Transit Co., 211 Mo. 320; Gibler v. Ter. Assn., 203 Mo. 220.
O'Neill Ryan and Gug A. Thompson for respondent.
(1) (a) The case went to the jury on two (of the three) charges of negligence, to-wit, that defendant negligently cut, punctured, or tore the bladder, and that he negligently cut, or tied off, the ureter. Under all the facts and circumstances in evidence the jury was justified in concluding that one or the other of these charges had been established, and, as a proximate result, that the plaintiff had sustained the grave injuries complained of and proved beyond any question. It was not a matter of mere speculation or conjecture. The legitimate inferences from all the evidence warranted the deduction that there was the causal connection between one or the other of the acts of negligence charged and the injuries suffered. Fetter v. Casualty Co., 174 Mo. 266; Laesing v. Travelers Ins. Co., 169 Mo. 281; Kelly v. Railroad, 70 Mo. 607; Nevinger v. Haun, 197 Mo.App. 427; Fausette v. Grim, 193 Mo.App. 585; Coffey v. Tiffany, 192 Mo.App. 455. (b) On a demurrer to the evidence the most favorable construction should be given of which it is capable in favor of plaintiff and every reasonable inference therefrom taken as true. Hall v. Coal Co., 269 Mo. 365; Stauffer v. Railway Co., 243 Mo. 316. (c) Inferences of fact in favor of defendant cannot be allowed to overthrow inferences of fact in favor of plaintiff. Maginnis v. Railroad, 268 Mo. 675. (d) If men of reasonable intelligence would differ as to which of several causes, to be legitimately inferred from the evidence, caused the damage complained of, the case should go to the jury. Powers v. Transit Co., 202 Mo. 280; Dakan v. Mercantile Co., 197 Mo. 258; Hurlbut v. Railroad, 130 Mo. 667. (e) If the evidence -- the legitimate inferences or deductions therefrom -- tends to prove that the injuries complained of "might, could or would" have followed the act of negligence charged, that question is one for the jury. De Mae v. Storage Co., 231 Mo. 619; McDonald v. Railroad, 219 Mo. 477; Sharp v. Railroad, 213 Mo. 578; Glasgow v. Railroad, 191 Mo. 364; Taylor v. Railroad, 185 Mo. 256. (2) Instruction 1, telling the jury that in performing the operation it was the defendant's "duty" to exercise reasonable skill and care, that is, such skill and care as an ordinarily skillful and careful surgeon is accustomed to exercise and use in like surgical operations, under like circumstances," is proper. Ghere v. Zey, 128 Mo.App. 366; Wheeler v. Bowles, 163 Mo. 407; Vanhooser v. Berghoff, 90 Mo. 490; Logan v. Field, 75 Mo.App. 600; Robertson v. Wenger, 131 Mo.App. 224; Logan v. Field, 192 Mo. 54. (3) Appellant's first objection to instruction on the measure of damages is without merit. Dean v. Railroad, 199 Mo. 395; Sang v. St. Louis, 262 Mo. 454; King v. St. Louis, 250 Mo. 510; Whitworth v. Shurk, 197 Mo.App. 415; Brown v. Barr, 184 Mo.App. 456; Welborn v. Met. St. Ry. Co., 170 Mo.App. 351. (4) Likewise, appellant's second objection to said instruction because of its reference to surgeons' fees is without merit. Because (a) defendant expressly waived at the trial the necessity that plaintiff state the amount of such fees she had paid, and (b) plaintiff, having incurred such expenses, was entitled to recover therefor, and if defendant desired to limit the recovery to a nominal amount he should have tested out his right to do so by asking an instruction to that effect. State ex rel. v. Reynolds, 257 Mo. 19; King v. St. Louis, 250 Mo. 514; Sang v. St. Louis, 262 Mo. 454; Carter v. Wabash Railroad Co., 193 Mo.App. 234; Bell v. United Rys. Co., 183 Mo.App. 345. "The court will not sacrifice the ends of justice upon the sharp edge of technicality." Sherwood v. Grand Avenue Ry. Co., 132 Mo. 345.
Action for alleged malpractice. Defendant is a physician and surgeon in the City of St. Louis, and plaintiff is also a resident of said city.
By the petition it is alleged that plaintiff was troubled with a fibroid tumor of the uterus, and went to defendant for an operation for its removal. It is averred that defendant had represented to plaintiff that he was specially skilled in the performance of such operations, having performed 500 operations of like character. The charge of negligence is thus stated:
"That on the 13th of November, 1915, pursuant to said employment the defendant performed said operation upon the plaintiff, but that he performed the same negligently, carelessly and unskillfully in this, to-wit: first, that he cut, punctured or tore a large hole in plaintiff's bladder; second, that he failed and neglected to mend the bladder at once; third, that, either during said operation or during one of...
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