Mitchell v. Poole

• Decision Date: 06 March 1934
• Docket Number: No. 22178.,22178.
• Citation: 68 S.W.2d 833
• Parties: MARY MITCHELL, RESPONDENT, v. DR. W.E. POOLE, APPELLANT.
• Court: Missouri Court of Appeals

68 S.W.2d 833

MARY MITCHELL, RESPONDENT, v. DR. W.E. POOLE, APPELLANT.

No. 22178.

St. Louis Court of Appeals. Missouri.

Opinion filed March 6, 1934.

Appeal from Circuit Court of St. Louis County. — Hon. Robert W. McElhinney, Judge.

REVERSED AND REMANDED.

Woodward & Evans for appellant.

(1) Under the issue that defendant negligently used a hypodermic needle that was "old, worn, weak, unsafe and inadequate," evidence that the needle was an improved needle, purchased from a reputable manufacturer, was competent. Wilt v. McCallum, 214 Mo. App. 321, 253 S.W. 156; Tallman v. Nelson, 141 Mo. App. 478, 125 S.W. 1181. (2) The court erred in granting plaintiff a new trial on the theory that defendant's instruction No. 6 had been erroneously given. The instruction was proper in form and fairly covered the issues in the case. Gore v. Brockman, 138 Mo. App. 231, 119 S.W. 1082; Hailes v. Raines, 146 Mo. App. 232, 130 S.W. l.c. 428; Seewald v. Gentry, 220 Mo. App. 367, 286 S.W. l.c. 447; Hill v. Jackson, 218 Mo. App. 210, 265 S.W. 859; Rothschild v. Barck, 324 Mo. 1121, 26 S.W. (2d) l.c. 762. (3) Regardless of any ground of error set out in the motion, the trial court erred in granting a new trial for the reason that the evidence was not sufficient to make a case for the jury upon any of the issues, and the court should have given the instructions in the nature of demurrers to the evidence at the close of plaintiff's case or at the close of the whole case. Pate v. Dumbald, 298 Mo. 435, 250 S.W. 49; Nevinger v. Haun, 197 Mo. App. 416, 196 S.W. 39; Spain v. Burch, 169 Mo. App. 94, 154 S.W. 172; Connelly v. Cone, 205 Mo. App. 395, 224 S.W. 1011; Bailey v. St. L. & S.F. Ry. Co., 296 S.W. 477.

A.G. Schumacher and Clarence G. Baxter for respondent.

(1) Plaintiff is entitled, on defendant's appeal, to have appellate court consider all assignments of error in his motion for new trial in addition to assignments on which court granted new trial. Cole v. St. Louis-San Francisco Ry. Co., 61 S.W. (2d) 344. (2) In the absence of a contrary showing, every presumption on appeal is in favor of the correctness of the ruling on a motion for new trial. 4 C.J. 782, sec. 2733. (3) Trial court has wide discretion in passing on motion for new trial. Beer v. Martel, 55 S.W. (2d) 482. (4) And where the trial court set aside a verdict on the ground that an instruction to the jury was erroneous, such action of the court will be presumed to be right in the absence of an affirmative showing that it was wrong. Goodwin Mfg. Co. v. Fritsch Foundry Co., 115 Mo. App. 382. (5) The court did not err in sustaining plaintiff's motion for a new trial on the 6th ground thereof, that is, that the court erred in admitting evidence on behalf of the defendant to the effect that defendant used an improved (approved) hypodermic needle purchased from a reputable manufacturer. This evidence, in effect, invoked the simple-tool and assumption-of-risk doctrines, which apply only when the question of contributory negligence is involved in master and servant cases. Neely v. Chicago & Great Western Ry. Co., 14 S.W. (2d) l.c. 974. (6) The court did not err in sustaining plaintiff's motion for new trial on the 12th ground thereof, to-wit, the giving of defendant's instruction No. 6. This instruction, in effect, limits the skill required of defendant to that skill possessed by practitioners in St. Louis County, in that it stresses St. Louis County; and the words, "or in similar localities" are rendered meaningless. Krinard v. Westerman, 279 Mo. l.c. 693. (7) It has become axiomatic in the law that (on demurrer) plaintiff's evidence shall be considered as true and defendant's evidence, which is contrary to it, shall be rejected and that plaintiff is entitled to the benefit of all reasonable inferences which may be drawn from all the evidence of both plaintiff and defendant. Gilstrap v. Osteopathic Sanatorium Co., 24 S.W. (2d) 249, l.c. 255. (8) In a malpractice case, the negligence of defendant and the casual connection between such negligence and the injury may be established by circumstantial evidence and inferences legitimately drawn from physical facts. It is not necessary that negligence and casual connection between it and the injury be established by direct and positive testimony but may be shown by circumstances, inferences legitimately drawn from physical facts which are disclosed by the record. Eichholz v. Poe, 217 S.W. 282, and cases therein cited. (9) The very fact that the needle was broken off in plaintiff's jaw was an unusual occurrence, where the treatment is given with proper care, that a finding of negligence against defendant, who was in control of the treatment, is warranted in this case. State ex rel. v. Daues et al., 18 S.W. (2d) 487; Stolle v. Anheuser-Busch, Inc., 271 S.W. 497, 307 Mo. 520; Eichholz v. Poe, 217 S.W. 282. (10) The entire treatment, being under the management and control of defendant, was sufficiently out of the ordinary course of that which usually happens where ordinary care and skill is employed, in the absence of explanation by defendant, to warrant the jury in finding that defendant was negligent, and since defendant offered no explanation the verdict was against the weight of the evidence. Eichholz v. Poe, 217 S.W. 282; State ex rel. v. Daues et al., 18 S.W. (2d) 287; Stolle v. Anheuser-Busch, Inc., 271 S.W. 497, 307.

BECKER, J.

Plaintiff, in her action for malpractice, seeks to recover damages against defendant for injuries alleged to have been sustained as a result of a hypodermic needle breaking off and lodging in her gums during a tooth extraction. At the trial there was a verdict and judgment for the defendant, but subsequently the trial court sustained plaintiff's motion for a new trial and the defendant in due course appeals.

The petition in substance charges the defendant with the following acts of negligence: First, that the defendant negligently and carelessly used a hypodermic needle that was old, worn, weak, unsafe and inadequate; second, that the defendant carelessly and negligently used said hypodermic needle in such an unskillful manner that the needle broke and part thereof became lodged in plaintiff's gum; third, that the defendant proceeded to extract the tooth in such a careless, negligent and unskillful manner that parts of the tooth remained in the gum and mouth of plaintiff; fourth, that defendant, after extracting the tooth, carelessly, negligently and unskillfully proceeded to probe in and around the cavity and mouth in a futile attempt to remove the broken needle.

To these assignments of negligence defendant's answer sets out that he used an approved hypodermic needle purchased from a reputable manufacturer and that said needle broke without any negligence or fault on his part either in the choice or selection of the needle or in the manner in which it was used. The answer further states that hypodermic needles, even when handled with the greatest care and handled with the greatest skill, do occasionally break; that the needle in question had been sterilized prior to its use and that following the extraction of the tooth plaintiff's gum and jaw were tender and sore and that for said reason it was not advisable to probe or dig into plaintiff's gums for the purpose of extracting the portion of the needle which broke off in the gum at that time; that defendant accordingly advised plaintiff to delay a few days until her gums and jaw were sufficiently healed to enable defendant to extract the portion of the needle without undue pain and suffering to the plaintiff; that plaintiff agreed to this procedure and did in point of fact return several times for treatment of the infection of the root socket where the tooth had been removed, but that after the third visit plaintiff refused to cooperate with him and failed to return for proper treatment and thereby discharged him from the case and from any liability therein.

Plaintiff's reply put in issue the new matter in defendant's answer.

Plaintiff's own testimony was to the effect that on January 13, 1930, she had gone to the office of Dr. Poole, the defendant herein, for the purpose of having him treat her teeth; that her lower left third molar had been bothering her some and had been aching; that the top of the tooth was partially broken off and it had been filled; that Dr. Poole removed the filling and cleaned out the cavity and told her that he would not pull the tooth in its then present condition and for her to come back a few days later; that on January 20, 1930, accompanied by her daughter, she went back to Dr. Poole's office for the purpose of having the tooth extracted; that Dr. Poole, before pulling the tooth, injected something into her gums with a hypodermic needle; that she did not see the hypodermic needle prior to the time that the doctor made his injections; that Dr. Poole injected the hypodermic needle first into the gum on the inside of her mouth and then made two injections into the gum on the outer or buccal side of her jaw; that at the third injection the needle broke; she heard it "pop off;" that Dr. Poole then proceeded to extract the tooth, which took about half an hour. "Dr. Poole did not say anything about the needle breaking until after he had pulled the tooth. He probed down in the socket for quite a while. I didn't think he had all the tooth out and he said he was looking for the needle. He never did say anything about a part of the tooth being left in the cavity. I don't know how long he continued to probe around there. It was quite a little bit. The socket got so sore I could not stand it when he was looking for the needle... . When I told Dr. Poole that it hurt me he said for me to go home and rest up and later on I should have an X-ray made... . He spent quite a little time in putting this anesthetic in my gum. I figure it took him about half an hour to actually pull the tooth. I imagine he spent about ten minutes in...