McMurdock v. Kimberlin

• Decision Date: 06 December 1886
• Parties: WILLIAM MCMURDOCK, Respondent, v. WILLIAM H. KIMBERLIN, Appellant.
• Court: Kansas Court of Appeals

23 Mo.App. 523

WILLIAM MCMURDOCK, Respondent, v. WILLIAM H. KIMBERLIN, Appellant.

Court of Appeals of Missouri, Kansas City.

December 6, 1886

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

The case is stated in the opinion.

W. C STEWART, for the appellant.

I. The motion for a continuance ought not to have been sustained and defendant compelled, when ready for trial, to submit to a continuance or to admit the affidavit in evidence. 31 Mo. 462; 28 Mo. 341.

II. The court erred in instructing as to the measure of damages, and is in contradiction of instruction given by the court at request of defendant.

III. The court erred in modifying instructions asked by defendant as to the degree of care, skill and diligence which the law required of defendant to bring to the discharge of his undertaking. The instruction, as asked, declared the law. Small v. Howard, 128 Mass. 131; McCandless v. McWha, 23 Pa.St. 261; Leighton v. Sargeant, 7 Foster [27 N. H.] 460; Howard v. Grant, 23 Me. 97; Simons v. Henry, 39 Me. 7, 155; Landon v Humphrey, 9 Conn. 209; Utley v. Burnes, 70 Ill. 162. So as to other instructions fairly stating the responsibility of defendant as implied by the law. Reasonable skill constitutes the measure of the engagement. Patterson v. Gaudasaqui, 15 East. 62; Howard v. Grane, 15 Shep. 97; Teft v. Wilcox, 6 Kan. 61.

IV. The court erred in permitting plaintiff to introduce incompetent evidence, in assuming a certain state of facts by a hypothetical question and allowing the witness to say, in his opinion, whether the treatment was proper and skillful. The merits of the issue must always be left to the jury. Starkie on Evid. [9 Ed.] 154; Elwell on Malpractice, 277; Teft v. Wilcox, supra.

V. The court erred in rejecting evidence offered by defendant, and in refusing to permit defendant to examine plaintiff's eye before the jury, and show therein, by his witness on the stand, the physical facts on which he gave his opinion, and afterward allowing plaintiff to do substantially the same thing through an expert witness.

VI. The court erred in sustaining the verdict of the jury. It was, in law, no verdict at all, as is shown by the affidavits of the deputy sheriff, and by seven of the jury.

VII. The court should have granted a new trial.

JOHN W. BEEBE and F. W. RANDOLPH, for the respondent.

I. The granting of continuance was a matter for the sound discretion of the trial court. Scogin v. Hudspeth, 3 Mo. 123; Carpenter v. Myers, 32 Mo. 213; The State v. Klinger, 43 Mo. 127; Leabo v. Goode, 67 Mo. 126.

II. The instructions given declared the law properly. The obligation is no more than that physicians will use reasonable care in the treatment of their patients. 2 Chitty on Cont. (11 Am. Ed.) 808; Smith on Negligence, 339; Whart. on Neg., sect. 730. The instructions given for defendant are more favorable than he deserved.

III. A hypothetical question may assume a great variety of forms. They are not objectionable, if within the possible or probable range of the evidence. Hunt v. Gas Co., 8 Allen [Mass.] 169; Harnett v. Garvey, 66 N.Y. 641; Fairchild v. Bascomb, 35 Vt. 415; Brown v. Chenorth, 31 Tex. 439; Leopold v. Vankirk, 29 Wis. 548; Gottlieb v. Hartman, 3 Col. 58. In any event the objection to the question is too general, and the reviewing court will not consider it. Clark v. Conway, 33 Mo. 438; Matthews v. Lecompte, 24 Mo. 545.

IV. The affidavit of jurors will not be received to impeach their verdict. Thomp. & M. on Juries, 315; The State v. Branstetter, 65 Mo. 149; The State v. Alexander, 66 Mo. 148; The State v. Underwood, 57 Mo. 40; Pratt v. Coffman, 33 Mo. 71; The State v. Railroad, 37 Mo. 240. Nor is the paper found in the jury room evidence of misconduct. Leverett v. The State, 3 Tex.App. 218; Railroad v. Wythe, 51 Ind. 566; Wiley v. Belfast, 61 Me. 569. The affidavit of jurors in support of verdict settled all question as to misconduct. Graham on New Trial, 103, 108.

V. The appeal is wholly without merit.

ELLISON J.

This action is for malpractice.

The petition charges that defendant, holding himself out as a physician and surgeon, undertook to treat the plaintiff's eye, and that he so unskillfully, carelessly, and negligently treated it that plaintiff lost its use, incurring great expense and suffering much pain. The answer admitted defendant was a physician and surgeon, and that he treated plaintiff's eye, but denied the other allegations of the petition.

There was a verdict and judgment for plaintiff for $362.75, and defendant appeals.

Defendant complains here of the action of the trial court in granting a continuance, in giving plaintiff's instructions and refusing a portion of those offered by defendant, in the admission of certain testimony, and in refusing to set aside the verdict for misconduct of the jury.

Defendant does not include the testimony, or any portion of it, nor any statement of its import, in his abstract as presented to us. Some portions of the testimony are set out in his brief and argument, but not in the manner nor in the place required by the rules of this court.

I. The granting of the continuance is not complained of as error in the motion for new trial, and we cannot, therefore, consider the objection made.

In support of the charge of misconduct against the jury the affidavit of Henry Dougherty, deputy sheriff, together with that of several of the jurors, was introduced.

That of Dougherty states that immediately on the return of the verdict, he went to the jury room and found on a table in the room a paper containing the following, the quotient being the exact amount of the verdict rendered, viz.:

450.

1.00

1.00

1.00

500.

500.

500.

400.

500.

500.

500.

500.

12) 4353

$362.75

One juror deposes that the figures were his, and were made by him near the close of the deliberations of the jury. Others of the jury deposed: " That it is true that after deliberating on the verdict that should be rendered a considerable space of time, and failing to agree, it was suggested by one of the jurymen that each member of the said panel of jurymen put down or declare a sum or amount which he thought the plaintiff should recover against the defendant, provided that no one should put down a figure above five hundred dollars ($500), and that the amounts so declared by the jurymen respectively should be added together, and the sum should be divided by twelve (12); and that the quotient should be the verdict of the jury. That said suggestion was agreed to by all the jurymen respectively, and that in pursuance of said agreement each one did declare a sum, which was marked down on paper, added together and divided as aforesaid; and, that without further vote or agreement, the said quotient or amount so found, to-wit, $362.75, was by said jury returned as their verdict in said cause, although some one of the jury made the remark: ‘ So say you all,’ which created some merriment; but no vote for or against was expressed, after said amounts were added, and their sum divided by twelve, as above stated."

On the other hand, two of the jurors deposed, " That the method adopted of addition and division was to ascertain the individual views of the jurors, in the first instance; and, that after the result of such method was attained, the jury considered the amount as a proposition and agreed to it individually and collectively, and adopted the same as their proper verdict."

It is a well settled rule in this state that the affidavit of jurors will not be received to impeach their own verdict. The State v. Fox, 79 Mo. 109; The State v. Branstetter, 65 Mo. 149; The State v. Dunn, 80 Mo. 681. In Pratte v. Coffman (33 Mo. 71), it is stated that exceptions might be engrafted on this rule in felonies, and it is then said there was no good reason why the affidavit of a juror might not be received in aid of evidence derived from other sources. I consider the remarks of the court in that case as disapproved by later opinions of the same court. Each of the cases cited above were felonies involving " life and liberty," and that of The State v. Branstetter, was evidently intended to especially discountenance the statement referred to in Pratte v. Coffman. If this rule, so forcibly stated and illustrated in The State v. Fox (supra ), is correct in principle, I am unable to comprehend how the innovation attempted in Pratte v. Coffman, can be received. How much and what character of evidence from outside would be necessary as a foundation for " explaining and enlarging" by testimony from inside the jury room, would be a question not easy to determine.

No consideration will, therefore, be given to the affidavits of the jurors in this case which tend to impeach the verdict.

It is insisted, however, that the evidence of the deputy sheriff is such as to nullify the verdict. He simply testifies to finding the paper above set out containing, in the hand of one of the jurors, the figures given. Conceding the figures on this paper to have been the act of the jury during their deliberation, I am of the opinion it is not inconsistent with the finding of a proper verdict in a proper way.

In a case for unliquidated damage the jury may well adopt the average judgment of them all as the individual verdict of each. Not that they can agree beforehand, without a knowledge of what the result will be, that such result, to be obtained by the average process, shall, irrevocably, be their...