Noren v. American School of Osteopathy

• Decision Date: 08 November 1927
• Docket Number: No. 19495.,19495.
• Parties: NOREN v. AMERICAN SCHOOL OF OSTEOPATHY.
• Court: Missouri Court of Appeals

298 S.W. 1061

NOREN v. AMERICAN SCHOOL OF OSTEOPATHY.

No. 19495.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied November 22, 1927.

Appeal from Circuit Court, Knox County; James A. Cooley, Judge.

Action by Pete O. Noren against the American School of Osteopathy. Judgment for plaintiff, and from an order granting defendant's motion for a new trial, plaintiff appeals. Reversed and remanded, with directions.

C. D. Stewart, of Edina, for appellant.

S. H. Ellison and Higbee & Mills, all of Kirksville, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff during the course of certain osteopathic treatments received by him at the hands of one Elmer C. Abramson a senior student of defendant American School of Osteopathy, an institution, located in the city of Kirksville, Mo., and engaged in the business of teaching and practicing the science of osteopathy. The verdict of the jury was for plaintiff, in the sum of $3,500. In due course, a motion for a new trial, filed by defendant, was sustained by the court, upon the ground of error in the giving and refusal of certain instructions, from which order plaintiff has perfected this appeal.

The petition, in substance, alleged that, as a prerequisite to graduation from defendant's school, Abramson, as agent and servant of defendant, was required, to give a certain number of osteopathic treatments to members of the general public, under the direction and supervision of defendant, and that, while so treating plaintiff, Abramson unskillfully, carelessly, and negligently injured him. The answer of defendant was a general denial.

The evidence disclosed that plaintiff became acquainted with Abramson in the fall of 1921, while Abramson was engaged in giving osteopathic treatments to certain members of plaintiff's family. Plaintiff was aware that Abramson was not a graduate physician, and that he was studying to qualify himself for the practice of his profession. It appears that one of the requirements of defendant's school leading to graduation was that each student, in his senior year, should administer 200 treatments outside of the school, and an additional 200 at the school's infirmary. Such treatments were given under the direction of some member of defendant's faculty or staff, and were reported by the student on blanks supplied him for such purpose.

During one of his visits to plaintiff's home, Abramson asked permission of plaintiff to treat him, which request was granted. Four or five days later Abramson returned in company with Dr. Platt, a member of defendant's faculty, and the director in charge of treatments, and, after an examination of plaintiff conducted by both men, his ailment was diagnosed as lumbago, a progressive disease, which first manifests itself in the lower part of the back, and gradually extends higher. Platt thereupon informed plaintiff that Abramson was competent to treat him, and the first treatment was, in fact, given by Abramson in Platt's immediate presence. Thereafter the treatments were administered at regular intervals by Abramson alone throughout the following winter.

The particular treatment complained of was given some time in February, 1922. Upon such occasion, Abramson first manipulated plaintiff's hips, and then twisted his head with such force as to cause his neck to crack with a loud noise, as a result of which plaintiff was caused to suffer very severe and permanent injuries. There was evidence that an adjustment of the neck was not necessarily a treatment for lumbago, though occasionally, when a specific affliction was being treated, general treatments, in addition to treatments of the particular area affected, were also given; that extreme pressure would be required to dislocate the neck, as happened in plaintiff's case; and that a severe turn or jerk of the head with such force as to produce the condition from which plaintiff was suffering, was not a proper osteopathic treatment.

There was evidence offered on the part of defendant tending to show that Abramson had reported certain of his treatments to defendant, but that he did not report the one in February, 1922, inasmuch as he had at that time completed the number of treatments required of him by defendant.

The sole assignment of error raised by plaintiff is directed to the propriety of the action of the court in sustaining the motion for a new trial, upon the theory that error had been committed in the giving of instruction No. 1 for plaintiff, and the refusal of instruction No. 5 requested by defendant. These instructions follow:

"(1) You are instructed in this case that, if you find and believe from the evidence that the defendant conducted its school of osteopathy in the city of Kirksville, Mo., during the two years of 1921 and 1922, and through its agents and servants taught and practiced the science and system of osteopathy in said school during said years, and you further find that one Elmer C. Abramson was a senior student in defendant's school during the years 1921 and 1922, and that said school directed and required said Abramson to give 200 osteopathy treatments to patients outside the rooms of defendant's school, and under the supervision and direction of a member of the faculty of said defendant's school, and you further find and believe from the evidence that one Dr. Platt was a member of the faculty of said defendant's school, and that said Platt examined the plaintiff, and directed the said Abramson to treat plaintiff for lumbago, and that said Abramson did thereafter, under said directions of said Platt, treat the plaintiff, and, while treating plaintiff, negligently and carelessly produced a partial dislocation of one of the vertebrae in plaintiff's neck, and by reason thereof injured plaintiff, then your verdict should be for the plaintiff."

"(5) The court instructs the jury that, if you find and believe from the evidence in the cause that the witness Abramson had given all the treatments required by defendant school to be given prior to the giving by him of the treatment complained of by plaintiff, then your verdict must be for defendant."

In our consideration of the issues presented to us, we confess that our search has revealed no case, nor have counsel cited us to one, which could be regarded as being sufficiently similar on the facts to the case at bar as to be decisive of it. We are left, therefore, for recourse to general and familiar rules of law, as they find expression in authorities of sufficient import to justify their citation herein.

It is obvious that the points upon which our decision as to the propriety of the lower court's ruling must turn are: First, whether there was sufficient evidence to justify submission to the jury of the question of...