Nevinger v. Haun
| Decision Date | 06 June 1917 |
| Citation | 196 S.W. 39,197 Mo.App. 416 |
| Parties | PERRY NEVINGER by Next Friend, Respondent, v. B. O. HAUN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.
Judgment reversed.
R. P. & C. B. Williams for appellant.
(1) Where the evidence is as consistent with the absence as the existence of negligence, the case should not be submitted to the jury. Epperson v. Postal Tel. Co., 155 Mo. 346; Patton v. Railroad, 179 U.S. 658; Delaney v Delaney, 206 Pa. St. 226; Farrell v. Kaze, 157 Mich. 374; Trapnell v. City, 76 Iowa 749. (2) In this case, in order to be entitled to a verdict, the plaintiff must show three things: First, an infection of the tooth; second, defendant the cause of the infection; third defendant's negligence in producing the case. Spain v. Burch, 169 Mo.App. 94. (3) That the infection followed the attempt to extract the tooth raises no presumption that the defendant was guilty of negligence. Coffey v. Tiffany, 194 Mo.App. 455; Spain v. Burch, 169 Mo.App. 94; McLarin v. Greensfelder, 145 Mo.App. 478. (4) It appearing from the evidence of plaintiff that the usual accepted practice of skillful dentists is to sterilize their instruments after they are used by boiling them before they are used again, and it further appearing from the evidence that the defendant boiled his instruments after they were used the last time, before they were used on plaintiff, and this evidence being uncontradicted by any other witness, entitled defendant to a verdict. Spain v. Burch, 169 Mo.App. 94; Boner v. Nicholson, 179 Mo.App. 146; Fansette v. Grim, 193 Mo.App. 585.
Safford & Marsalek for respondent.
(1) (a) In determining whether a demurrer offered at the close of the evidence should have been sustained, the court must give the evidence the most favorable construction of which it is capable in favor of laintiff, tiff's evidence and every reasonable inference therefrom being taken as true. Hall v. Coal & Coke Co., 260 Mo. 315, 365; Knoche v. Pratt, 187 S.W. 580. (b) Evidence, tending to show absence of plaintiff's right to recover, whether introduced by plaintiff or defendant, cannot be considered, but the demurrer must be tested by the plaintiff's evidence, aided by any of defendant's evidence and any reasonable inference that may be drawn from the entire record in plaintiff's favor. Maginnis v. Railroad, Mo. , 187 S.W. 1167-8; Knoche v. Pratt, 187 S.W. 580; Hall v. Coal & Coke Co., 260 Mo. 351, 365; Pounds v. Mercantile Co., 190 S.W. 374. (c) And the court cannot make inferences of fact in favor of defendant to countervail or overthrow inferences of fact in favor of plaintiff. Maginnis v. Railroad, Mo. , 187 S.W. 1167-8. (d) Where the facts and circumstances shown by the evidence are such that men of ordinary intelligence, viewing them, might differ as to their meaning, and might draw different conclusions therefrom, then it becomes the duty of the court to submit them to the jury, under proper instructions, for determination. Thornsberry v. Railroad, Mo. , 178 S.W. 197, 200. And the trial court is not warranted in sustaining a demurrer unless the evidence is such as to leave no room for men of reasonable intelligence to differ. Steffens v. Fisher, 161 Mo.App. 386, 393. (e) Where the evidence is susceptible of two inferences, one lawfully supporting the right of recovery and the other fatal to plaintiff's case, leaving room for reasonable men to differ with respect thereto, the case is one for the jury. Coffey v. Tiffany & Howard, 192 Mo.App. 455, 472; Yost v. Cement Co., 191 Mo.App. 422, 432; Powers Transit Co., 202 Mo. 280; Hurlbut v. Railroad, 130 Mo. 657, 663; Scott v. Springfield, 81 Mo.App. 312, 320; Dakan v. Mercantile Co., 197 Mo. 238, 258. (2) Where the issue is made, whether plaintiff's alleged condition resulted from defendant's negligence or from other causes, evidence tending to prove that the injury "might, could or would" have been caused by the alleged wrongful act requires the submission of the case to the jury. State v. Dargatz, 244 Mo. 218, 225; DeMaet v. Storage Co., 231 Mo. 615; McDonald v. Railroad, 219 Mo. 468; Sharp v. Railroad, 213 Mo. 517; Glasgow v. Railroad, 191 Mo. 364; Taylor v. Railroad, 185 Mo. 255; Patterson v. Traction Co., 178 Mo.App. 250; Council v. Railroad, 123 Mo.App. 432, 446; Bates v. Dr. King Co., 191 Mass. 585, 77 N.E. 1154; Coffey v. Tiffany, 192 Mo.App. 455; Zimmerman v. Pryor, 190 S.W. 26. (3) (a) Where the negligence charged is in the performance of a simple act, which ordinary layman are capable of understanding, it is for the jury to say whether or not defendant was negligent; and professional testimony in such a case, that the method of treatment adopted conformed to the usual standard, is purely advisory and not binding on the jury. Sontag v. Ude, 191 Mo.App. 625-6; Reeves v. Lutz, 179 Mo.App. 75; Shipman v. Ins. Co., 187 Mo.App. 400; Coffey v. Tiffany, 192 Mo.App. 455, 470; Bates v. Dr. King Co., 191 Mass. 585, 77 N.E. 1154; Sharp v. Railroad, 213 Mo. 517; Hoyberg v. Henske, 153 Mo. 63; McDonald v. Railroad, 219 Mo. 481; Laessig v. Protective Assn., 169 Mo. 272; Fetter v. F. & C. Co., 174 Mo. 256, 266; Poumeroule v. Cable Co., 167 Mo.App. 533, 538. (4) Plaintiff's main instruction properly stated the law. Authorities under point 3.
This is an action for damages alleged to have been sustained by plaintiff through the negligence and unskillfulness of the defendant, a dentist practicing his profession in the city of St. Louis. The suit was begun before a justice of the peace where plaintiff had judgment. Upon defendant's appeal to the circuit court and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiff in the sum of $ 50, from which the defendant appealed to this court.
While there were other charges of negligence and unskillfulness in the statement filed before the justice of the peace, the only such assignment therein, if any, which the evidence adduced tended to support, and the only one submitted to the jury by the instructions, was that set forth in the statement in the following language, viz: "That defendant . . . negligently and unskillfully caused and permitted plaintiff's gum, and the skin and tissues thereof to become poisoned, infected and inflamed, when defendant by the exercise of ordinary care could have avoided said infection and blood poisoning and protected plaintiff therefrom."
It appears that on October 15, 1912, plaintiff, who was seventeen years of age at the time of the trial below, went, in company with his mother, to the office of a Dr. Robinson, a dentist in the city of St. Louis, who examined plaintiff's teeth for the purpose of making an estimate as to his charges for doing certain dental work for plaintiff, including the filling of certain teeth and the extraction of two others. It appears that the estimate which Dr. Robinson gave for doing the work was not satisfactory to plaintiff's mother, and on the following day, at about 7:30 p. m., she and plaintiff called upon the defendant. After some conversation had taken place, defendant undertook to extract for plaintiff a tooth which had decayed off until nothing remained of it, it seems, above the gum. Defendant did not use a "general anesthetic"--it being his practice not to extract teeth where the use of such an anesthetic was necessary--but injected cocaine into the gum, as a local anesthetic, and made efforts to extract the tooth. He did not succeed in so doing, and thereupon advised plaintiff to consult a dentist who made a specialty of extracting teeth and who would administer a general anesthetic. According to defendant's testimony he "found that the condition was such that it was too painful to extract the tooth without a general anesthetic." And defendant gave plaintiff or his mother a professional card of a specialist, a Dr. Fredericks. On the following morning plaintiff and his mother went to the office of Dr. Fredericks who extracted the tooth.
The testimony of plaintiff is to the effect that his teeth had previously caused him no pain; but it is said that he suffered much pain during the entire night, after leaving defendant's office and prior to visiting that of Dr. Fredericks on the following morning, and that his gums and face became badly inflamed and swollen during this time. After the extraction of the tooth plaintiff's condition became more serious; the inflammation, swelling and pain increased, and within a few days it was found that blood poisoning had developed. He was then treated by certain physicians, and it is undisputed that he endured much pain and suffering.
Defendant, appellant here, insists that plaintiff failed to make out a case for the jury, and that the trial court consequently erred in overruling the demurrer to the evidence. The only other assignment of error pertains to the sufficiency of the evidence to support plaintiff's main instruction, and this need not be separately considered, since the question thus raised will be disposed of by a consideration of the propriety of the court's ruling on the demurrer.
To entitle plaintiff to recover, on the theory upon which the case proceeds, it devolved upon him to adduce substantial evidence tending to show negligence on defendant's part with respect to sterilizing the instrument or instruments which he used upon plaintiff, and that as a direct and proximate cause of such negligence plaintiff's gum was infected, whereby he was injured and damaged.
There is a conflict of evidence as to whether or not defendant sterilized the forceps which he used in attempting to extract plaintiff's tooth, immediately before using them. As to this...
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