McDonough v. Freund

• Citation: 19 S.W.2d 285,323 Mo. 346
• Decision Date: 30 July 1929
• Docket Number: 28065
• Parties: Edward McDonough v. Doctor Newton M. Freund, Appellant
• Court: United States State Supreme Court of Missouri

19 S.W.2d 285

323 Mo. 346

Edward McDonough v. Doctor Newton M. Freund, Appellant

No. 28065

Supreme Court of Missouri

July 30, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed and remanded.

Watts & Gentry and Wm. H. Woodward for appellant.

(1) (a) The court erred in overruling the defendant's demurrer to the evidence for the reason that plaintiff did not sustain the burden of showing causal connection between any act of defendant and the spread of infection, it affirmatively appearing that the infection might spread from perfectly natural causes. Goransson v. Mfg. Co., 186 Mo. 300; Sabol v. Cooperage Co., 282 S.W. 429; Purcell v Shoe Co., 187 Mo. 276; Kane v. Railroad, 251 Mo. 13; Nevinger v. Haun, 196 S.W. 39; Spain v Burch, 154 S.W. 172; Coffee v. Tiffany, 192 Mo. 455; Ewing v. Goode, 78 F. 442. (b) The testimony of both the plaintiff and his witness, Westerman, was so contrary to all human experience as to be unbelievable. Where the physical facts demonstrate clearly and positively that plaintiff's testimony cannot possibly be true, the court is not warranted in treating such testimony as having any probative value whatever, but must entirely disregard it. Miller v. Schaff, 228 S.W. 491; Cadwell v. Stove Co., 238 S.W. 415; Alexander v. Ry. Co., 233 S.W. 44, 289 Mo. 599; Phippin v. Ry. Co., 196 Mo. 321; Sexton v. Ry. Co., 245 Mo. 254; Nugent v. Milling Co., 131 Mo. 241; Giles v. Ry. Co., 169 Mo.App. 24; Schupback v. Meshevsky, 300 S.W. 465; Steele v. Ry. Co., 265 Mo. 115; Flack v. Railroad, 224 S.W. 421; Lindsey v. Shaner, 236 S.W. 322. (2) The court erred in giving Instruction 1 at the request of the plaintiff. The vice of this instruction was twofold: (a) It submitted to the jury the alleged negligent act of the defendant in cutting the artery, and the alleged negligent omission on his part to tie the artery, when there was no evidence of any causal connection between either the cutting of the artery or the failure to tie the artery, and the spread of the infection. Causal connection must be shown between a negligent act or omission and injury to the plaintiff before he is entitled to have his case submitted to the jury. Coffey v. Tiffany & Howard, 192 Mo.App. 455; Ewing v. Goode, 78 F. 442; Nevinger v. Haun, 197 Mo.App. 416. (b) It gave the jury a roving commission to guess at anything or everything which they might conclude that the defendant could have done by way of taking proper steps or measures to arrest the progress of infection. The instruction was, therefore, much broader than the evidence. It should have been limited to the particular means or methods which plaintiff's expert claimed should have been used to arrest the infection. Any instruction that is broader than either the pleadings or the evidence is erroneous. Sommers v. Transit Co., 108 Mo.App. 319; Mulderig v. Railroad, 116 Mo.App. 655; Boles v. Dunham, 208 S.W. 480; Stid v. Railroad, 236 Mo. 382; Comiter v. Mfg. Co., 266 S.W. 340; Allen v. Railroad Co., 294 S.W. 80. (3) Instruction 2, given at the request of the plaintiff, contained two glaring errors. (a) The first error was that it was so worded as to permit plaintiff to recover damages for all pain suffered by him by reason of his injuries, without reference to whether such injuries were necessarily caused by the lancing of his boil or carbuncle (and all of the evidence showed that it was necessary to lance it) or whether it was caused by negligence on the defendant's part. In a suit for damages for malpractice a physician or surgeon is liable only for such damages as result from his negligence, and not for damages of any kind (including pain and suffering) brought about by causes independent of negligence on the part of the physician or surgeon. Carpenter v. McDavitt, 53 Mo.App. 393; Fowler v. Burris, 186 Mo.App. 347; Hill v. Jackson, 265 S.W. 859; McDonald v. Crider, 272 S.W. 980; Mernis v. Cory, 79 P. 174. (b) The instruction contained the old, old error on account of which so many cases have had to be reversed, to-wit, it permitted recovery for an item of damages not supported by the evidence, for the second paragraph in the instruction permitted recovery "for the reasonable expense for medical attention, if any, which the plaintiff has necessarily incurred and become obligated for by reason of his injuries, if any, and directly caused thereby." There is not a word in the entire record tending to show the value of any services performed by any physician or surgeon in rendering treatment to the plaintiff at any time. For this palpable error a new trial will have to be granted, if the case is not reversed outright. Ilgers v. Transit Co., 102 Mo.App. 529; Rhodes v. City of Nevada, 47 Mo.App. 499; Smith v. Railroad, 108 Mo. 243; Robertson v. Railway Co., 152 Mo. 382; Duke v. Ry. Co., 99 Mo. 347; Nelson v. Railroad Co., 113 Mo.App. 659; Gibler v. Term. Railroad Assn., 203 Mo. 208; Morris v. Ry. Co., 144 Mo. 500; Tyon v. Ry. Co., 232 S.W. 786; Davis v. Davis, Director General, 235 S.W. 182.

John A. Witthaus for respondent.

(1) (a) The court properly overruled defendant's demurrer to the evidence and submitted the case to the jury, for the reason that in passing on the demurrer plaintiff is entitled to have all the testimony which is favorable to him considered as true and should be allowed every reasonable inference to be drawn therefrom; and when plaintiff in this case is given the benefit of the favorable testimony and such reasonable inferences, there is ample testimony to submit the case to the jury on each of the specifications of negligence submitted and of the causal connection between said acts of negligence and the spread of infection, and testimony of expert witnesses that such infection might spread from natural causes presented a question for the decision of the jury. McDonald v. Railway Co., 219 Mo. 468; Krinard v. Westerman, 239 Mo. 689; Reeves v Lutz, 179 Mo. 64; Grainger v. Still, 187 Mo. 197; Telaneus v. Simpson, 12 S.W.2d 920; McClarin v. Grenzfelder, 147 Mo.App. 478; Cazzell v. Schofield, 8 S.W.2d 586; Dorkery v. Woodsmall, 11 S.W.2d 1057; Zumwalt v. Railroad, 266 S.W. 717; Maginnis v. Railroad, 268 Mo. 667; Stauffer v. Railroad, 243 Mo. 305; Downing v. Biscuit Co., 8 S.W.2d 884; Evans v. Wheel Co., 273 S.W. 749; Eichholz v. Poe, 217 S.W. 284. (b) The claim that the testimony of both the plaintiff and Dr. Westerman are so contrary to all human experience as to be unbelievable and is therefore without probative value cannot be sustained because the rule which defendant tries to invoke requires that the testimony attacked must be in violation of some physical or natural law. The testimony objected to is not in conflict with any law of physics or nature. Miller v. Schaff, 228 S.W. 488; Turk v. Endsley, 1 S.W.2d 1038; Kibble v. Railroad, 285 Mo. 603; Scroggins v. St. Railway, 138 Mo.App. 215; West v. Duncan, 249 S.W. 127; Holland v. St. Railway, 157 Mo.App. 481. (2) The court did not err in giving Instruction 1 at the request of plaintiff. (a) The claim that said instruction "submitted to the jury the alleged negligent act of the defendant in cutting the artery and the alleged negligent omission on his part to tie the artery, when there was no evidence of any causal connection between either the cutting of the artery or the failure to tie the artery and the spread of the infection" cannot be sustained for two reasons: for the reason (a) that there was ample evidence to sustain this instruction, and (b) for the reason that the issues here complained of by defendant were submitted to the jury by defendant's Instruction 3. Where both parties present the same issue to the jury by their instructions, neither party can complain, for if error was committed, it was common to both parties and therefore not reversible. Gary v. Averill, 12 S.W.2d 747; Von Eime v. Fuchs, 8 S.W.2d 827; Smart v. Kansas City, 208 Mo. 204; Securities Inv. Co. v. Shoe Co., 5 S.W.2d 682; Spencer v. Railroad, 297 S.W. 353; Timmermann v. Iron Co., 1 S.W.2d 791; Alexander v. Grocery Co., 7 S.W.2d 370. (b) The contention that the instruction "gave the jury a roving commission to guess at anything or everything which they might conclude that the defendant could have done by way of taking proper steps or measures to arrest the progress of infection cannot stand because the instruction requires the jury to base any finding on a belief from the evidence. The instruction required a definite finding of the specific negligence charged and was within both the pleadings and the evidence. Morris v. Railway Co., 8 S.W.2d 14; Riley v. Independence, 258 Mo. 683. (3) (a) The plaintiff was entitled to recovery for injury resulting from the course and manner of treatment complained of. No other injury was before the jury except such injury as resulted from the negligent treatment of defendant, and although it might have been proper to cut the boil it was negligence to do it in an improper manner, and the sole injury, with accompanying pain, etc., was the result of the improper doing of an act proper to be done and an instruction authorizing recovery for such injury is not error. Carpenter v. McDavitt & Cottingham, 53 Mo.App. 393. (b) The portion of the instruction on the measure of damages permitting a recovery "for the reasonable expense for medical attention, if any, which the plaintiff has necessarily incurred and become obligated for by reason of his injuries, if any," although no evidence of the reasonable value of the medical services rendered plaintiff is produced, is not reversible error for the following reasons: First. There is undisputed evidence to show that medical services were rendered to plaintiff, and where such services were rendered, even though there is no evidence to show payment nor an...