Noren v. American School of Osteopathy

• Decision Date: 07 February 1928
• Citation: 2 S.W.2d 215,223 Mo.App. 278
• Parties: PETE O. NOREN, APPELLANT, v. AMERICAN SCHOOL OF OSTEOPATHY, A CORPORATION, RESPONDENT. [*]
• Court: Missouri Court of Appeals

2 S.W.2d 215

223 Mo.App. 278

PETE O. NOREN, APPELLANT, v. AMERICAN SCHOOL OF OSTEOPATHY, A CORPORATION, RESPONDENT. ^[*]

Court of Appeals of Missouri, St. Louis

February 7, 1928

Appeal from the Circuit Court of Knox County.--Hon. James H. Cooley Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

C. D Stewart for appellant.

(1) A corporation undertaking to treat diseases of the human body is liable for malpractice. Weller v. Laboratories Incorporation, 197 Mo.App. 47-59. (2) A school is liable for injuries to a third person through incompetence of a pupil whom one of its teachers intrusts with the treatment of a patient. Easton v. United Trade School Contracting Co L.R.A. 1917A, 394. (3) A physician or surgeon is liable for the malpractice of his apprentice agent or assistant. Hencke v. Hooper, 7 Car. & P. (Eng.) 81; Landon v. Humphrey, 9 Conn. 209, 32 Am. Dec. 333; Tish v. Welker, 7 Ohio N. P. 472; 5 Ohio State S. & C. P. Dec. 725; Moores v. Lee, 4 A. L. R. 191. (4) The relation of physician and patient or master and servant having been established, it could not be terminated without notice to plaintiff. No such notice was given, therefore the relation existed at the time plaintiff was injured although Abramson had theretofore reported to defendant school the number of treatments required of him by said school. 30 Cyc. 1573-1574, and cases cited in Note 38; 21 R. C. L., pages 389-390, sec. 34; Lamothe v. St. Louis Ry. & Dock Co., 17 Mo. 204; Cupples v. Whelan et al., 61 Mo. 583; Fanning v. Cobb, 20 Mo.App. 577; Waters-Pierce Oil Co. v. Zinc Co., 98 Mo.App. 324. (5) The fact that Dr. Platt, a member of defendant's faculty, testified that he directed the student to treat plaintiff's back and did not advise or direct him to treat the neck, does not destroy the relation of master and servant or principal and agent. A particular act of a servant may be within the scope of his authority or employment, although it violates the express instructions or orders of the master. Shamp v. Lambert, 142 Mo.App. 573, 574; 26 Cyc. 1535; Whimster v. Homes, 177 Mo.App. 130; Garretzen v. Duenckel, 50 Mo. 104. (6) Plaintiff's instruction No. 1 was properly given and defendant's requested instruction No. 5 was properly refused. The court therefore erred in setting aside the verdict and granting defendant a new trial for the alleged reason that it erred in giving plaintiff's instruction No. 1 and in refusing defendant's requested instruction No. 5. Authorities, points 1, 2, 3, 4 and 5, supra.

S. H. Ellison and Higbee & Mills for respondent.

BENNICK, C. Daues, P. J., Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff, while receiving certain osteopathic treatments 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, Missouri, and engaged in the business of teaching and practicing the science of osteopathy. A trial was had to a jury, resulting in a verdict for plaintiff in the sum of $ 3500. 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 perfected his appeal.

The case is now before us on rehearing. Our first opinion, reversing the order granting a new trial, and remanding the cause with directions to reinstate the verdict of the jury and the judgment rendered thereon, was handed down on November 8, 1927, and was unofficially reported in 298 S.W. 1061. Subsequently, additional complications developed in the status of the case, in view of which it became necessary to reinstate and sustain defendant's motion for rehearing, and withdraw our former opinion. Thereafter, the case was reargued and resubmitted, whence follows the present opinion.

The order of the lower court, sustaining defendant's motion for a new trial, was based upon the ground of error in the giving of instruction No. 1 for plaintiff, and the refusal of instruction No. 5, requested by defendant. As the case first came to us, the bill of exceptions did not show that in either of such instances an exception had been saved by defendant to the adverse action of the court; but, inasmuch as no point was attempted to be made of such failure on the first submission of the case, our prior opinion was necessarily silent upon the question. However, pending resubmission, learned counsel for defendant, out of an abundance of caution, filed in the circuit court their motion asking that the bill of exceptions be amended nunc pro tunc, so as to show that timely exceptions had, in fact, been saved. After a hearing on such motion, the court entered its order sustaining the same, from which plaintiff has appealed; and, by agreement of respective counsel, such appeal may be disposed of, togther with the appeal from the order granting the new trial, in this one opinion.

Addressing ourselves first to the propriety of the amendment nunc pro tunc, we observe that defendant, in support of its motion, and at the hearing thereon, asked the court to take judicial notice that, at the time of the trial of the case, it was the rule and practice of the court that all adverse rulings were to be regarded as excepted to by the party against whom such rulings were made, and that the stenographer, and the party preparing the bill of exceptions should show such exceptions as having been saved. While conceding that such rule and practice had been in effect, the court refused to take judicial notice of the fact. Thereupon, defendant sought to prove the rule by oral testimony, to which offer an objection was sustained. Finally, the motion for a new trial (reciting, in substance, that the court had erred in the giving of each and every instruction for plaintiff, and in the refusal of each and every instruction requested by defendant), together with the order of the court sustaining such motion for the reasons therein assigned, were introduced in evidence; and, it was solely upon the basis of such records that the court allowed the amendment to be made.

No extended discussion of the right of a trial court to amend its records in essential respects, so as to make them speak the truth, will be necessary. We observe in this proceeding that the court well understood that where, in an original bill, exceptions to adverse rulings were not noted as having been saved, the bill of exceptions cannot be amended after the end of the term (as was the case here), by an order nunc pro tunc to show the exceptions saved, unless such amendment is warranted by some record entry, or is evidenced by some written notation in the files. Thus, the amendment may not be made at a subsequent term upon matters resting merely in the memory of the judge, nor upon parol proof by others; but, to the contrary, something must appear in the bill itself, the judge's minutes, the clerk's entries, the stenographer's notes, or some proper paper in the case, to form the basis for the allowance of an amendment nunc pro tunc. [Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927; Ross v. Kansas City, F. S. & M. R. Co., 141 Mo. 390, 38 S.W. 926, 42 S.W. 957; Coy v. Landers, 146 Mo.App. 413, 125 S.W. 789; Brown & Biglow v. Heier (Mo. App.), 194 S.W. 1070; State ex rel. Cammann v. Tower Grove Turn Verein (Mo. App.), 206 S.W. 242; Ramsey v. City of Poplar Bluff (Mo. App.), 286 S.W. 159.]

It is equally well established that, where no exceptions were actually saved, and the bill recited no exceptions saved, the trial court is not authorized to amend the bill nunc pro tunc by reason of the fact that it had in force a rule which did not require exceptions to be saved, and to the effect that exceptions were deemed to be saved to any adverse ruling of the court. [Reed v. Colp, 213 Mo. 577, 112 S.W. 255; Green v. Terminal Railroad Ass'n, 211 Mo. 18, 109 S.W. 715; State ex rel. v. Tower Grove Turn Verein, supra.] In this connection, however, it is well to mention that the situation now confronting us must not be confused with that before the Supreme Court in the case of State ex rel. v. Miller, 241 S.W. 920, wherein the validity of such a rule was upheld. The distinction to be made between the two situations is apparent. The one is a case where the bill shows no exceptions to have been saved, and it is sought to have the bill amended by reason of the rule. The other is a case where the bill shows that exceptions were duly saved, but, nevertheless, the right of the appellate court to consider what is actually disclosed in the bill is questioned, on the ground that a rule permitting a blanket saving of exceptions to all adverse rulings is invalid, and in contravention of statute.

Manifestly, the discussion heretofore has been largely by way of elimination, and for the purpose of clarifying the issues. We are now brought directly to the question of whether, in contemplation of law, the motion for a new trial was such a paper in the case as to be the basis for the amendment allowed by the court. The answer must be in the negative. As a matter of fact, the motion for a new trial did not recite that exceptions had been saved by defendant to the giving and refusal of instructions; but, even if it had, the result would be the same, for the reason that a statement in a motion as of a fact is not evidence of the thing stated. Such is the undoubted rule. [Manthey v. Kellerman Contracting Co., supra; Dougherty v. Whitehead, 31 Mo. 255; Keet & Rountree Dry Goods Co. v. Williams (Mo. App.), 202 S.W. 620.]

Consequently since that character of evidence was not introduced which could justify the...