Owens v. McCleary

• Citation: 281 S.W. 682,313 Mo. 213
• Parties: WILLIAM OWENS v. A. S. McCLEARY, Appellant
• Decision Date: 12 March 1926
• Court: United States State Supreme Court of Missouri

281 S.W. 682

313 Mo. 213

WILLIAM OWENS v. A. S. McCLEARY, Appellant

Supreme Court of Missouri

March 12, 1926

Appeal from Jackson Circuit Court; Hon. Charles R. Pence Judge.

Reversed and remanded.

Frank M. Lowe for appellant.

(1) When the competent evidence fails to support the allegations of the petition, it is the duty of the court to take the case from the jury. The court, therefore, erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence. Spain v. Birch, 169 Mo.App. 94; Fausette v. Grim, 186 S.W. 1179; Connelly v Cone, 224 S.W. 1011; Nevinger v. Haun, 196 S.W 39. (2) The court erred in giving plaintiffs' instruction number 1, for the reason that said instruction fails to cover the pleadings and the evidence in the case, in the following particulars: (a) It failed to require the jury to find from the evidence what negligent or careless act of the defendant caused plaintiff's injury, if any. Young v. Wolff, 190 Mo.App. 48; Hales v. Raines, 162 Mo.App. 57; Allen v. Transit Co., 183 Mo. 432; Benjamin v. Railroad, 245 Mo. 612; Schaaf v. Basket Co., 151 Mo.App. 46; Mulderig v. Railroad, 116 Mo.App. 667. (b) It left the jury to speculate upon the meaning of "proper treatment" when the record shows that expert medical men cannot and do not agree upon the significance of that term. McGee v. Railway, 124 Mo. 530; Kelly v. Railway, 258 Mo. 62; Leinbach v. United Rys. Co., 227 S.W. 848; Ostopshook v. Cohen, 227 S.W. 643; Cecil v. Wells, 259 S.W. 847; Waller v. Graff, 251 S.W. 733; Bonnarens v. Lead Belt Ry., 273 S.W. 1047.

Sam O. Hargus, W. H. Hallett and W. M. Bowker for respondent.

(1) In a malpractice case the question of the negligence of the defendant and the causal connection between such negligence and the injury may be established by circumstantial evidence. Eichold v. Poe, 217 S.W. 282; Krinard v. Westerman, 279 Mo. 680. (2) A physician holding himself out as having special knowledge and skill in the treatment of particular diseases, and sued as such, is bound to bring to the discharge of his duty as such specialist a special degree of skill and knowledge possessed by physicians who are specialists in the treatment of such diseases in the light of the present state of scientific knowledge. Krinard v. Westerman, 279 Mo. 680. (3) Mere non-direction in an instruction on the measure of damages because it does not include certain elements, is not error. It is the duty of defendant, if he desires the jury restricted to certain elements, to offer an appropriate instruction to that effect. Wheeler v. Bowles, 163 Mo. 398; Longan v. Weltmer, 180 Mo. 322; Reeves v. Lutz, 179 Mo.App. 61; Quick v. Williams, 271 S.W. 834.

OPINION

Ragland, P. J.

This is an action for malpractice. Plaintiff obtained judgment in the circuit court for $ 15,000, to reverse which defendant prosecutes this appeal.

The petition after setting out preliminarily that plaintiff was afflicted with a mild case of piles, that defendant represented and held himself out as a physician specially skilled in the treatment of piles and that as such physician undertook to treat plaintiff for that disease, charges negligence as follows:

"That in so doing [treating plaintiff] he negligently and carelessly caused to be inserted into the rectum of the plaintiff some sort of an instrument the exact character of which is unknown to the plaintiff, and carelessly and negligently inserted an injection, the character of which is unknown to the plaintiff, but that the said instrument and the said injection were either not adapted to the propor treatment of the plaintiff's disease, or that it was so negligently and carelessly administered that the plaintiff was then and there subjected to great pain, discomfort and injury, resulting in the formation of ulcers and abscesses in the rectum of the plaintiff.

"The plaintiff says that after the said careless and negligent treatment of the plaintiff by the defendant, as aforesaid, the said defendant failed and neglected to properly care for and treat the plaintiff in and about his said disease, but so negligently and carelessly neglected the treatment of plaintiff that infection in the rectum ensued, causing the plaintiff to suffer great pain and mental anguish for many successive weeks, during which time said ulcers and abscesses and infection continued to grow worse from day to day, during which time said defendant failed to make proper examination for the purpose of determining the condition of the plaintiff, as aforesaid, or attempting to discover and remove the cause of his said condition, and that by reason thereof, the said plaintiff was reduced in health to the point of death, during all of which time he suffered excruciating pain, and that by reason of said infection, ulcers and abscesses, the muscles and tissues in and about the rectum of the plaintiff were impaired and destroyed, so that he has thereby suffered a permanent injury, and is unfit to perform any manual labor, or labor of any character, and that he will be for the remainder of his life permanently injured and unable to perform labor."

The issue of fact as to the negligence was framed for the jury in plaintiff's Instruction One as follows:

"If you . . . believe and find from the evidence that the defendant did treat him for such disease by inserting some kind of an instrument into his rectum, and injecting some kind of serum or fluid into his rectum, and that, in making said treatment, the defendant carelessly and negligently injured the plaintiff and subjected him to great pain and discomforture, and thereby caused the formation of ulcers and abscesses in the rectum of the plaintiff; and that after said injury to the plaintiff as aforesaid, if you find he was so injured, the defendant carelessly and negligently failed to exercise reasonable care to provide proper treatment of plaintiff to relieve him from such injury caused, if any, and that, as a result thereof said abscesses and ulcers continued to form in his rectum and grew worse, and caused him great pain and suffering, and that, as a result thereof the plaintiff was greatly reduced in health and continued to grow worse until the muscles and tissues in and about the rectum of the plaintiff were injured or impaired, then your finding," etc.

Appellant's chief contentions are: (1) That the trial court should have directed a verdict for defendant on the ground that the allegations of the petition were not supported by the competent evidence in the case; and (2) that the giving of Instruction One was error because, as alleged, the evidence was insufficient to take the case to the jury, and for the further reason that it did not require a finding by the jury of some specific act of negligence. These propositions call for the facts which the evidence as a whole tended to show, either directly or by reasonable inference.

At the time respondent became a patient of appellant's he was afflicted with a mild case of piles. He was forty-six years of age, strong, robust and in good general health. During the preceding year he had been employed as a mechanic in a garage; his work had required at times heavy lifting and the exercise of considerable muscular strength. Prior to that he had worked at his trade of blacksmith. He had been afflicted with piles in a mild form for eight or ten years. While he had from time to time suffered some pain and inconvenience from it, it had never caused him any illness or loss of time from his work. Appellant had held himself out as a "rectal specialist." He was maintaining at Kansas City what his advertising matter designated as "the largest institution in the world devoted exclusively to treating rectal diseases." His slogan was: "Piles cured without surgery." Respondent received some of appellant's "literature" and wrote him. After a number of letters were exchanged respondent, on February 2, 1921, went from his home at Nevada, Missouri, to Kansas City, and put himself in appellant's hands for treatment. On the day of his arrival he was examined by appellant and told that he had a mild case of piles. On the second day thereafter the treatment began. As described by respondent it consisted of inserting into his rectum a speculum and then injecting some kind of fluid which burned, set him afire. One such treatment was administered each day. The pain caused by each exceeded that of the previous one. After a few days the pain became so constant and intense that respondent was unable to sleep at night. Presently he became very ill; he became bedfast; he developed a high fever. At the end of three weeks abscesses had formed in his rectum. On February 27th, appellant opened the abscesses with a sharp instrument. This he did again on March 3rd. Following each of the operations he did nothing further in the way of dressing and draining the wounds. On March 6th, appellant called an ambulance and sent respondent to a hospital. He remained in the hospital approximately two weeks, during which time he was extremely ill and suffered excruciating pain. He was then taken into a private home and attended by another physician. After five weeks he was removed to his home at Nevada, but remained bedfast for five weeks thereafter.

Since receiving "treatment" at the hands of appellant respondent has never been able to engage in manual labor which requires any physical exertion. He has at all times had to carry a cushion with him in order to be able to sit down. Just preceding the trial in February, 1923, he was subjected to a physical examination. The conditions disclosed are best described in the language of the specialist who made the examination: "Just to the right of the rectum, I find he has an indurated area -- or caked, to use the common...