McGuire v. Amyx
| Decision Date | 16 September 1927 |
| Docket Number | No. 24633.,24633. |
| Citation | 297 S.W. 968 |
| Parties | McGUIRE v. AMYX et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.
Suit by Catherine McGuire, by her next friend, John McGuire, against Robert F. Amyx, Martin C. Woodruff, and another. From a judgment in favor of the named defendants, plaintiff appeals. Affirmed.
Laughlin, Frumberg, Blodgett & Russell, of St. Louis, for appellant.
Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent Amyx.
Julius T. Muench and Oliver Senti, both of St. Louis, for respondent Woodruff.
This is the suit of Catherine McGuire for damages in the sum of $30,000, brought by her next friend, John McGuire, against Robert F. Amyx, Martin C. Woodruff, and Michael J. Dwyer.
It is averred in the petition that the defendant Amyx is a physician of St. Louis; that defendant Woodruff is a physician and chief diagnostician of the division of health of St. Louis; that as such it was his duty to carefully and skillfully examine all persons suffering from contagious diseases who might be brought to his attention, as well as such persons suspected of having such diseases, and to forward to the quarantine hospital such persons as appeared, upon a careful and skillful examination, to be suffering from smallpox; that in such examination it was his duty to use due care to determine if such persons were suffering from such disease; that the defendant Dwyer is a physician and superintendent of said hospital; that on the 2d of May, 1919, plaintiff was in good health and not suffering from smallpox or other communicable disease, and on said day accompanied her mother, Mary J. McGuire, to the office of defendant Amyx that said defendant might treat the mother; that at said time a slight and harmless rash had broken out on the body of plaintiff to a very slight extent; and upon the attention of said Amyx being casually called to such fact, he voluntarily and without being requested so to do made a hasty, superficial, and negligent examination of plaintiff and announced that she was suffering from smallpox, called an ambulance, and, against the protest of plaintiff's mother that plaintiff did not have smallpox and had had no opportunity to contract the same, and regardless of the fact that she had no symptom indicative of said disease, caused her to be immediately taken to the city dispensary as a person afflicted with smallpox; that the city dispensary was in charge of defendant Woodruff as chief diagnostician, who made no inquiries as to the history of the case; and though plaintiff was in perfect health and suffering from no disease and showing no symptoms indicative of smallpox, said Woodruff, after the most superficial and casual glance at the small discolorations on plaintiff's hands and without making any other diagnosis, immediately ordered her sent to the quarantine hospital, to which place she was immediately taken and confined in a ward of said hospital with fifteen or more female persons afflicted with smallpox in all stages of that disease, where she was compelled to continuously associate with said persons from the 2d of May, 1919, until the 11th of May, 1919; that during the time she was in the hospital she showed no symptom of smallpox or other contagious disease; that thereafter she was returned to her home in St. Louis apparently in good health, but plaintiff says that while in the hospital she contracted smallpox, and on the 15th of May, 1919, suffered from chills, with a high fever and delirium, so that she had to be held in bed and so continued until the 21st of May, 1919, followed by smallpox eruptions until the 25th of May, 1919, at which time she was again sent to the hospital and confined until she had recovered on the 3d of June, 1919; that by reason of the premises she suffered great pain and anguish—all of which was directly caused by the negligence and carelessness of the defendants in this, that the defendant Amyx negligently and carelessly failed to make a sufficient examination of plaintiff or a proper inquiry into the history of any ailment she might have had, and carelessly and negligently diagnosed her condition as being that of one suffering from smallpox, when a careful and skillful examination would have shown that no reliable symptoms of said disease existed; that the defendant Amyx further negligently and carelessly refused to vaccinate plaintiff to reduce the chances of said disease being communicated to her while in the hospital and in negligently ordering an ambulance and sending plaintiff to the city dispensary as a person suffering from smallpox; that defendant Woodruff, in wanton disregard of his duties as an officer and of the damages to which plaintiff was being exposed, wantonly and recklessly pronounced her to be suffering from smallpox and sent her to the hospital; that by reason of the premises plaintiff has been damaged, etc.
The answer of defendant Amyx was a general denial, with a plea of the ordinance requiring attending physicians to make immediate report to the health commissioner on the first discovery of a contagious disease. Further answering, said defendant states:
"That the plaintiff came under his care, observation, and attendance in connection with certain eruptions and pustules covering a large part of her body, and which defendant in good faith and in the exercise of care and prudence believed and diagnosed as smallpox; that in pursuance of his duty as a physician and in compliance with the ordinance hereinbefore set forth, he caused to be reported to the health commissioner that fact, the said disease of smallpox being infectious and contagious, whereupon the plaintiff was taken in charge by said commissioner, and plaintiff's ailment was also diagnosed by said health commissioner as smallpox, and plaintiff was thereupon taken to quarantine, as provided in section 1592 of the Revised Code of General Ordinances of the city of St. Louis."
Defendant Woodruff for answer states: "That as such chief diagnostician it was his duty to examine with reasonable care and skill all persons suffering from contagious and communicable diseases, as well as all persons suspected of having such diseases, who were brought to his attention, and that it was his duty as such chief diagnostician to order the quarantine of all persons whom he had reasonable ground to believe were suffering from smallpox; and denies each and every other allegation in plaintiff's petition contained.
"Further answering, defendant states that in the regular course of his employment as chief diagnostician of the division of health of the city of St. Louis, and in the course of the discharge of his duties as such officer, he examined the plaintiff in the manner and to the extent required by law, and that, upon such examination being made, this defendant had reason to believe and did believe that the plaintiff was afflicted with smallpox, and that he directed her to be quarantined in the Koch Hospital in the discharge of his duty as a public official, and for the purpose of preventing the spread of said disease."
The reply was a general denial.
The court sustained a demurrer as to defendant Dwyer, submitted the case against the other defendants, resulting in a verdict in their favor, and plaintiff appealed.
The facts are as follows: On the 2d of May, 1919, Mrs. McGuire went to the office of Amyx, her family physician, for examination and treatment. Her 7 year old daughter accompanied her, but not for examination or treatment. The appellant at this time had a "breaking out" on the palms of her hands, the soles of her feet, and there is testimony tending to show a similar condition existed on the shoulders, arms, and forehead at the hair line. The doctor's attention was attracted to this condition, and he concluded she was afflicted with smallpox. Upon his report the appellant and her mother were taken in an ambulance to the dispensary. Dr. Woodruff, the chief diagnostician, testified he examined appellant at the dispensary, was convinced she had smallpox, signed the commitment, and she was taken to Koch Hospital. During all this time the mother insisted appellant did not have smallpox. On arrival at the hospital appellant was confined in the smallpox ward with persons suffering from smallpox, where she remained until the 11th of May, 1919, and was discharged as cured. On Wednesday or Thursday after her discharge on Sunday appellant began to be chilly, was very sick with fever, and was put to bed on the 17th of May. She vomited, was delirious and feverish, which condition continued for several days, when shot-like eruptions appeared on her face and body, and on the 25th of May Drs. Woodruff and Jordan of the health department called at appellant's home on a report from Dr. Kane, who was then appellant's attending physician. They examined appellant, concluded she had smallpox, and again committed her to the hospital. On the 3d of June, 1919, she was again discharged as cured.
Evidence for appellant tended to show she had for several years a "rash or prickly heat" on her hands, feet and shoulders. It would disappear and come again. She attended school for two years, and during the months of January, February, March, and April, 1919, attended school every day, played regularly with other children, and visited the stores in the neighborhood—all up to the time of her first confinement in the hospital. No one in the neighborhood was at the time of her confinement or afterwards afflicted with smallpox, and the neighbors testified she appeared to be in good health and was about the neighborhood with other children.
Evidence for appellant further tended to show that while in the hospital the first time appellant was not sick and spent the time playing in the yard and helping the nurses. She had two little pimples on her face, and the rash remained on her hands and feet. She was not treated by a physician,...
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