Logan v. Field

• Decision Date: 12 December 1905
• Parties: LOGAN v. FIELD.
• Court: Missouri Supreme Court

90 S.W. 127

192 Mo. 54

LOGAN v. FIELD.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. COURTS — APPELLATE JURISDICTION — CONSTITUTIONAL QUESTION—VERDICT BY NINE JURORS.

Where a verdict was rendered by 9 jurors, as authorized by an instruction, an appeal on the ground that such instruction was not authorized by the state Constitution raises a constitutional question of which the Supreme Court has jurisdiction.

2. JURY—RIGHT TO UNANIMOUS VERDICT.

The common-law right of trial by jury, by which is meant 12 jurors, who must render a unanimous verdict, may be so amended that 9 jurors concurring can render a verdict.

3. APPEAL—HARMLESS ERROR—ADMISSION OF INDEFINITE EVIDENCE.

An expert was asked what would be the proper treatment of a certain disease in certain conditions, but no foundation had been laid by showing the existence of the conditions named. His answer was: "It would be a matter of individual judgment, then, as to the operation. I think I, under the circumstances, should make an operation; but, as I said before, not seeing the case, I couldn't state positively. It would be purely a question of individual judgment as to the operation at that time." Held, that the answer was so indefinite and unsatisfactory that it could not possibly have prejudiced appellant.

4. TRIAL—OBJECTIONS TO EVIDENCE—ADMISSIBLE FOR CERTAIN PURPOSE.

Where an objection is made to testimony as a whole, and part of it is clearly admissible for the purpose of laying a foundation for impeaching the witness, the objection is properly overruled, although some of the testimony is inadmissible for any purpose.

5. SAME—INSTRUCTIONS—EFFECT OF CHARGE AS A WHOLE.

Where some of the instructions restrict plaintiff's right to recover to the evidence before the jury, it is not necessary that all of the instructions should in express terms direct the jury to the evidence in the case as the basis for the finding.

6. APPEAL—HARMLESS ERROR—ERROR IN INSTRUCTIONS CURED BY VERDICT.

Where the verdict was for plaintiff, and the only possible objection to be urged by him is that the amount is not sufficiently large, he cannot complain of instructions which did not go to the question of damages, but were confined to the issues involving his right to recover, which issues were found in his favor.

7. PHYSICIANS AND SURGEONS — COMPENSATION—NEGLIGENCE—UNSKILLFULNESS.

Though a physician does not guaranty a cure, it seems that he should not be permitted to recover for worthless professional service, if he has been negligent, unskillful, or unfaithful.

Appeal from Circuit Court, Jackson County; L. H. Waters, Special Judge.

Action by J. E. Logan against R. H. Field. From a judgment for plaintiff for a part only of his demand, he appealed to the Kansas City Court of Appeals, which transferred the cause to the Supreme Court. Affirmed.

W. S. Cowherd, R. J. Ingraham, and Sam B. Strother, for appellant. Wash Adams, for respondent.

BURGESS, P. J.

On the 24th day of March, 1896, plaintiff instituted suit before Theo. S. Case, a justice of the peace of Jackson county, against the defendant, Field, upon an account for $160 for services rendered defendant by plaintiff, as a physician. Plaintiff recovered, before the justice, judgment for $160, the full amount of his claim. Defendant then took the case, by appeal, to the circuit court of Jackson county, where, upon a trial de novo before the court and jury, plaintiff again recovered judgment for $160. From this judgment defendant appealed to the Kansas City Court of Appeals, where the judgment was reversed and the cause remanded for further trial. Thereafter, on the 17th day of November, 1901, the case was again tried in said circuit court, and plaintiff recovered a verdict and judgment in the sum of $50. After unavailing motions for a new trial and in arrest of judgment, plaintiff appealed from this judgment to the Kansas City Court of Appeals, and thereafter, on motion of plaintiff, that court transferred the cause to this court, upon the ground that the court had no jurisdiction of the appeal because of there being a constitutional question involved.

The facts are substantially as follows: The plaintiff was a practicing physician, making a specialty of diseases of the nose, throat, and ear. He had treated defendant in the year 1890, and his bill for that service was paid by defendant. Defendant applied to him again for treatment in the month of October, 1892. The trouble defendant was suffering from in 1890 was different from that with which he was troubled in 1892. In the first instance he had an enlargement or thickening of the mucous membrane or lining of the nasal cavity. The plaintiff cured him, and defendant was not back to see him again until 1892, when plaintiff found that he was suffering from inflammation of the middle turbinate bone, together with inflammation of the frontal sinus. Plaintiff, hoping to relieve the inflammation, and successfully treat the disease without an operation, gave the defendant the treatment sued for, telling the defendant that he could not state whether a cure would be worked, and declined to guaranty that such could be effected. It appears, from plaintiff's testimony, that the defendant was benefited; that the case at times grew better; that the treatment administered to relieve the congestion in the canal leading to the sinus was successful, but that, from time to time, defendant would catch cold and violently blow his nose, thus keeping up the inflammation which tended to close the connection between the sinus and the nasal cavity.

Defendant's side of the case was presented by his own testimony and that of Dr. Leroy Dibble. The propriety and correctness of the treatment administered by plaintiff was supported by several physicians, and defendant's expert, Dr. Dibble, testified to the effect that plaintiff had been pursuing correct practice in endeavoring to work a cure without performing an operation. There was no contention on the part of the defendant that he had been in any way injured by plaintiff's treatment, but he did testify that he did not think he was benefited thereby.

On behalf of the plaintiff the court instructed the jury as follows: "(1) If you find and believe from the evidence that the plaintiff rendered the services sued for to the defendant and at his request, and that no price was fixed or agreed upon, then the law implies a promise from the defendant to pay the plaintiff for such services what the same are reasonably worth, if anything; and this is true without regard to whether the treatment of plaintiff by defendant was beneficial to defendant. (2) If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by the plaintiff, then plaintiff is entitled to recover what you may find and believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity; and this is true, although the services rendered may not have produced a cure of the disease with which plaintiff was suffering. (3) If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by plaintiff, then the plaintiff is entitled to recover what you may believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity. (4) If the plaintiff knew that the disease from which the defendant was suffering was in the frontal sinus, and plaintiff had reasonable cause to believe in the exercise of ordinary care and skill that the same would yield to treatment without an operation, then he had the right to treat defendant for such trouble until such time as he became reasonably certain it was necessary to perform such operation; and he is entitled to recover for such services what the same are reasonably worth, if anything, without regard to whether defendant was benefited by such treatment or not."

Thereupon the court, at the request of the defendant, and over the objections of the plaintiff, instructed the jury in the words and figures following, except in instruction No. 2, which was a modification by the court of the instruction asked by the defendant; the modification being the striking out of the word "because" before the word "encouraged," and writing in lieu thereof the words "and was"; "(1) The defendant, by submitting himself to plaintiff for treatment, did not confer upon the plaintiff unlimited discretion to run a bill for any kind of treatment and to any extent the plaintiff might see fit to bestow upon him. (2) Defendant had the right to expect good faith from plaintiff, and to rely upon the supposed superior knowledge of the plaintiff to discover, determine, and advise what course should be pursued in his case. If the treatment sued for was worthless to defendant, and if the plaintiff then knew, or ought as a man of his profession to have to have known, of the uncertainty or probable uncertainty of a cure of defendant from the treatment administered, and the defendant went for and received such treatment, and was encouraged by plaintiff to receive the same, or because plaintiff failed to inform him of the uncertainty or probable uncertainty of a cure from such treatment, the verdict should be for the defendant. (3) Plaintiff had no right, even if in the best of faith, to render service of no substantial benefit to defendant and charge therefor, if he himself had doubt, or as a reasonably prudent and competent doctor ought to have had doubt in his mind, of such service being a successful treatment of defendant's trouble, unless he fully...