Louzader v. James

• Decision Date: 02 August 1937
• Docket Number: No. 5549.,5549.
• Citation: 107 S.W.2d 976
• Parties: LOUZADER v. JAMES.
• Court: Missouri Court of Appeals

107 S.W.2d 976

LOUZADER v. JAMES.

No. 5549.

Springfield Court of Appeals. Missouri.

August 2, 1937.

Appeal from Circuit Court, Christian County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Action by Opal P. Louzader against Joseph D. James. From a judgment for defendant, plaintiff appeals.

Affirmed.

Hamlin, Hamlin & Hamlin and Fred Carden, all of Springfield, for appellant.

Frank B. Williams, of Springfield, for respondent.

FULBRIGHT, Judge.

Plaintiff filed this action in the circuit court of Greene county. Change of venue was granted to the circuit court of Christian county where the cause was tried on September 6, 1934. The action is to recover damages in the amount of $7,500 alleged as resulting from the negligent treatment after an operation on plaintiff during childbirth. The answer was a general denial. The case was tried before a jury, and at the close of plaintiff's evidence defendant filed a demurrer to the testimony which was by the court sustained. Whereupon plaintiff moved the court to enter an involuntary nonsuit with leave to move to set the same aside, which was ordered entered and the jury discharged. The motion to set aside the nonsuit and grant plaintiff a new trial was overruled and an appeal was taken to this court.

The petition alleges that the plaintiff, Mrs. Opal P. Louzader, in June, 1932, being pregnant, engaged the services of defendant, Dr. Joseph D. James, to treat and care for her from that time until the birth of the child and until she had fully regained her health and strength; that defendant accepted said employment and was frequently consulted by plaintiff, who kept him fully advised as to her condition, obeyed his instructions, and on December 4, 1932, entered St. John's Hospital, placing herself in defendant's care; that defendant then made an examination and informed her that an operation would be necessary for the delivery of the child, to which plaintiff consented; that on December 5, 1932, the child was delivered by defendant by means of an operation, and "in so doing, he used the services of a trained nurse who was under the directions, control and instructions of the defendant," and that "the nurse, in obedience to the instructions and directions of the defendant, negligently administered to plaintiff an injection of glucose solution by injecting same into the bowels of plaintiff through her rectum, and that the said glucose was of such a temperature at the time that it burned plaintiff's flesh, intestines and internal organs wherever it touched them," causing scars on her person and strictures in her bowels, which scars and strictures are permanent. It is further charged in the petition that, after being informed of plaintiff's condition, and having been requested to administer such treatment as would relieve her, defendant negligently failed to do so, and negligently failed to make an examination of the condition of plaintiff's intestines or internal organs or make any examination whatever of her person near the parts about which she complained.

Plaintiff's assignments of error are as follows:

"1. The court erred in refusing to submit the issues to the jury for a decision.

"2. That under the law and the evidence the issues as made by the pleadings and evidence should have been submitted to the jury."

Respondent insists that appellant's assignments of error are not properly before this court, for the reason that appellant failed to prepare and submit a complete abstract of the record, in that appellant's abstract does not contain an abstract of all the evidence of any witness, but only such parts as serve appellant's purpose. We find, however, that in respondent's additional abstract of the record he has supplied all the missing matters about which he complains. Respondent, having filed an additional abstract, waives the right to complain that appellant in her abstract did not include all the evidence. Seested v. Applegate (Mo. App.) 26 S.W.(2d) 796; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.(2d) 898; Boyd v. Pennewell (Mo.App.) 78 S. W.(2d) 456.

Following the well-settled rule in this state in passing on the demurrer, plaintiff's evidence, and all reasonable favorable inferences that may be legally drawn therefrom, must be viewed in the light most favorable to her, and all evidence unfavorable to her must be disregarded. Nickelson v. Cowan (Mo.App.) 9 S.W.(2d) 534; Stevens v. Meadows (Mo.Sup.) 100 S.W.(2d) 281. However, this rule "does not go so far as to require us to disregard the dictates of common reason and to accept as correct or true that which obviously, under all the circumstances in evidence, cannot be correct or true, nor does it require us to give plaintiff the benefit of any other than reasonable inferences." Hill v. Illinois Terminal Co. (Mo.App.) 100 S.W.(2d) 40, 47.

In determining the correctness of the court's ruling on the demurrer, a review of the evidence is necessary. Plaintiff, Opal P. Louzader, testified, in part, as follows:

"I am 22 years old and am married. * * * I am acquainted with Dr. James. * * * He made an examination and said, yes, I was pregnant, that he would be glad to take my case and care for me if I would place myself entirely in his care and do as he directed, and, I told him I would do the best I could; and, I asked him if it would be necessary for me to go to the hospital. * * * He said it was. * * * Early Sunday morning, the 4th of December, I went to the hospital. I was admitted at St. John's sometime after eleven Sunday morning. * * * I did not make any arrangements at the hospital. When I got to the hospital a Sister took charge of me and took me to my room. * * * Mother went with me, and mother was there just a few minutes, and a Sister came and told her she was wanted in the office. The floor nurse helped me and I was put to bed. Dr. James came sometime after lunch. * * * He made another examination; and, at that time he asked mother if she could remain with me all night, if there was the slightest change in my condition he wanted to know it immediately. * * * He said that he would see that arrangements were made for her to stay all night and she did stay. * * *

"Then along about eleven o'clock mother reported my condition to one of the nurses. * * * I saw Dr. James shortly after eleven o'clock * * * and he told me it would be necessary for him to make a Caesarian incision; and I told him, `All right,' * * * and they were preparing me for the operating room and he came to the door and told me I would have to have a trained nurse for twenty-four hours. I said, `All right, Doctor, that is up to you entirely;' and I didn't see him any more until I was rolled into the operating room. Dr. James also told me not to worry or be nervous, that I would be all right. I told him I thought I would be all right; I wasn't worried, I was leaving the matter up to him. * * * I then went to the operating room, and I don't remember seeing the doctor again until Monday morning. * * * He came to my room twice that morning, and in the afternoon he visited me and inquired about my condition, just made inquiry. He came about twice every day. * * * I saw him on Wednesday * * * he would ask me how I was feeling, take my pulse and talked to the trained nurse how I was. * * * I didn't know I was burned at all until Wednesday morning. Dr. James came into the room, made the remark I was still running temperature; and the nurse told the doctor she thought my temperature was caused from something she had done rather than the actual condition. He asked what that was. She said she had burned me when she gave me glucose, gave it too hot. He said, `A superficial burn?' She said, `Yes.' That was Wednesday morning, the nurse, Miss Shantz, made that statement to the doctor. * * * The Sister came the next day with Dr. James, and said, `Doctor, I want you to see these burns,' and he examined them and mother was in the room. He just looked at them, he did not make an internal examination. * * * He turned to mother and said, `My, those are bad. Undoubtedly, she did administer that too hot. It must have been burning to have burned like that.' And he prescribed treatments for them immediately. He had saline packs put on them until the inflammation was taken out, and then prescribed unguentine packs.

"He came in my room one day in my second week at the hospital, and said, `Your mother called me this morning and told me you were running a discharge.' I said, `I don't know, I can't tell,' and he said, `You are not burning internally; you forget that. You forget about it.'

"I was in the hospital two weeks and two days. * * * Dr. James came to the hospital twice a day until I left the hospital. He did not make any internal examination of me. * * * I first saw the nurse, Miss Shantz, when I regained consciousness, after being brought down from the operating room. * * *

"The charge that the hospital made was charged to me and my husband and my husband paid something on it and I knew it. * * * I understand that the hospital is conducted by the Sisters of Mercy, in charge of the Sisters. The Sister took charge of me * * * when I went up to the room the Sister left and the nurse prepared me to go to bed, and Dr. James came a short time after that. He was there three times that Sunday, twice on Sunday afternoon and on Sunday evening. * * *

"I met Sister Baptista over at St. John's Hospital. She is night supervisor. * * * She was in charge of my floor, and she was in and out of my room during the time I was being prepared for the operation. * * * She came to my room after mother reported to her that Dr. James wanted to know about my condition. * * * I am positive that Sister Baptista did not have any conversation with me about this special nurse. * * *

"After I went home I started taking enemas frequently. * * * Dr. James is the man who told me to take them. Dr. James, I suppose, was the one who prescribed them in the...