Logan v. Field

• Citation: 90 S.W. 127,191 Mo. 54
• Parties: LOGAN, Appellant, v. FIELD [*]
• Decision Date: 12 December 1905
• Court: United States State Supreme Court of Missouri

90 S.W. 127

191 Mo. 54

LOGAN, Appellant, v. FIELD ^[*]

Supreme Court of Missouri, Division Two

December 12, 1905

Transferred from Kansas City Court of Appeals.

Affirmed.

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

(1) Appellant, in his motion for new trial, assigned, among others, the following grounds therefor: "Because the instructions given by the court at the request of defendant are contrary to the Constitution of the State of Missouri." Appellant, having thus presented to the trial court a question involving the construction of the Constitution of the State, placed the appellate jurisdiction of this case in the Supreme Court. Bank v. Bennett, 138 Mo. 500; Baldwin v. Fries, 103 Mo. 286; Bennett v. Railroad, 105 Mo. 644; Turley v Barnes, 131 Mo. 552; State ex rel. v. Smith, 141 Mo. 10; State ex rel. v. Smith, 150 Mo. 76. (2) In the examination of his own witness respondent was permitted, over specific objections by appellant, to propound a hypothetical question based on a condition of fact not at that time supported by the evidence, and which was not subsequently shown to exist. All the evidence shows that the trouble Judge Field had in 1890 was inflammation of the nasal cavity; while that he had in 1892 was inflammation above that extending into the sinus. The doctor had relieved the first trouble by "galvanic cautery." There was not a word of evidence tending to show that he had cauterized this canal leading to the sinus, where the last trouble existed. And yet the question was based on the false premise that in 1890 he had cauterized this canal. This was error. Russ v. Railroad, 112 Mo. 49; Hicks v. Railroad, 124 Mo. 125; Powers v. Kansas City, 56 Mo.App. 577. (3) The admission of statements made by Dr. Logan, Sr., as to what his son (appellant) had said, was nothing more nor less than the admission of hearsay testimony, and is therefore error. There was no ground laid for impeachment. State v. Pruett, 144 Mo. 95; Dun v. Altman, 50 Mo.App. 239; Fange v. Burgess, 71 Mo. 389. (4) Excepting instruction 7, given for respondent, all of his instructions utterly fail to direct the jury to the evidence in the case as the basis for their finding. All of the testimony, excepting that of the respondent, was the testimony of medical experts. This abstract method of framing and giving instructions was peculiarly erroneous in this case. For, by instruction 9, the jury was given to understand that they might disregard all the testimony in the case, and then, by a series of instructions given by respondent, referring in no way to the evidence, the jury was warranted in drawing their conclusion from any source whatever. Rosenthal v. Brady, 63 Mo.App. 403; Hanlon v. O'Keefe, 38 Mo.App. 273.

Wash Adams for respondent.

(1) Instruction 1 given by the court at the request of defendant that "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," declared a correct proposition of law. Hill v. Featherstone, 7 Bingh. (Eng.) 572. (2) The first clause of instruction 2, given at defendant's request, "that defendant had the right to expect good faith from plaintiff and to rely upon the supposed superior knowledge of plaintiff to discover, determine and advise what way should be pursued in his case," is recognized law. Hill v. Featherstone, 7 Bingh. 672; Schoonover v. Holden, 87 N.W. 737. (3) Appellant complains of the instructions given at the request of the defendant which required him to inform the defendant that his case was incurable, or that a cure was doubtful, if the appellant knew, or ought, as a reasonably prudent and skillful doctor, to have known, that a cure was impossible or uncertain from the treatment administered. In other words, the kernel of the appellant's condemnation of the instruction given at defendant's request seems to be this: That the doctor in treating a patient has a sort of "graft" that the courts and juries and patients have no right to look into or take away. That though the doctor be ignorant and knows, or has reason to know, that he does not understand the trouble of the patient and therefore can have no fair hope of a successful result of his treatment, he has a right to conceal from the patient his ignorance of the case, to conceal from the patient his lack of reasonable hope of accomplishing the result sought by the patient; to conceal from the patient the doubts in his mind, or that ought to be in the mind of a reasonably learned and prudent doctor, that the treatment administered would be successful to accomplish the result sought by the patient. That such contention is not the law is established by the decision in the former appeal (75 Mo.App. 594) and by the cases therein cited. Under the law, as declared by the decision in the former appeal, a doctor's right to recover is not defeated by his failure to cure his patient. But to entitle him to recover when the service was worthless or unbeneficial, it devolves upon the physician to prove that this result was for no failure to exercise reasonable skill and diligence on his part. Res ipsa loquitur. Ordonaux, in his "Jurisprudence of Medicine" speaks of the right of the physician to recover compensation for his services, and on page 42 says: "If the good effect of his treatment and the consequent value of his services be disputed, he must be prepared to show that his labor was performed with ordinary skill and in the ordinary way of his profession." 49 N. J. Law 687. The fault in the instructions is that they assume that there is a burden upon the defendant to prove the negative of the plaintiff's exercise of reasonable skill and diligence, together with the worthlessness of the treatment, when the burden was upon the plaintiff to prove skill and diligence in the treatment in question, as the benefit therefrom was an issue. The testimony of defendant is not "simply that he did not think he was benefited." His testimony is positive that he was not benefited at all by the treatment in question, and the plaintiff's testimony virtually concedes it. (4) The plaintiff having obtained declarations of law to the jury submitting only elements of a contract with the defendant implied by the law, it certainly was the right of the defendant to have all of the elements of contract implied by the law between him and defendant. (5) There is nothing in the appellant's objection to instruction 2, given at the request of the defendant, to the use of the words therein, "ought, as a man of his profession, to have known." Neither these words, nor the words in any other instruction given for defendant, refer to the skill and care of physicians in any other locality. However, if they did, it would not be error. Whitsell v. Hill, 101 Iowa 629; Baker v. Hancock (Ind.), 64 N.E. 38. (6) The other instructions given for defendant as a whole declare and recognize that only reasonable skill and diligence were required of the appellant in the treatment in question. This was, therefore, implied in instruction 2, given at the request of defendant. The judgment in this case should not, therefore, be reversed, because the words, "in the exercise of reasonable skill and diligence," were not repeated in this instruction. Harmon v. Donohoe, 153 Mo. 263. (7) The plaintiff poses as a nose and catarrh specialist. Thus holding himself out to the public, it is doubtful if he has any cause of action for services which are worthless to the patient. Hupe v. Phelps, 2 Stark (Eng.) 480; Hedden v. Institute, 62 Minn. 147; Baker v. Hancock (Ind.), 64 N.E. 38. Mere ordinary skill and diligence is not what the patient seeks of such a doctor. He has a right to expect more than this without fair notice from the specialist. There is not a meeting of minds between patient and physician on this measure of skill and diligence, as in the case of employment of a doctor who is a general practitioner, who claims no specialty and who does not hold himself as possessing unusual skill in the treatment of diseases. (8) Appellant's complaint of instruction 9, given for defendant, is groundless. This style of instruction and this particular instruction has been long approved in the courts of this State. Hoyberg v. Henske, 153 Mo. 63. This instruction did not assume, but left to the jury to determine, the incredibility of the expert witnesses in this case. This instruction was peculiarly proper, indeed it was essential to the justice of the case, in view of the manifest conspiracy existing between the plaintiff and the doctors who testified to win, in this case. Their testimony brings to mind the celebrated words of Lord Campbell in the Tracy Peerage Case, 10 C. L. & Fin. 191, that, "Hardly any weight is to be given to the evidence of what are called scientific witnesses; they come with a bias on their minds to support the cause in which they are embarked." Moratzky v. Wirth, 74 Minn. 146.

OPINION

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, R. H. Field, upon an account for one hundred and sixty dollars for services rendered defendant by plaintiff, as a physician. Plaintiff recovered, before the justice, judgment for one hundred and sixty dollars, 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 one hundred and sixty dollars. From this judgment defendant appealed to the Kansas City Court of Appeals, when the judgment was reversed and the cause remanded for further...