Pate v. Dumbauld
| Decision Date | 09 April 1923 |
| Docket Number | No. 23253.,23253. |
| Citation | 298 Mo. 435,250 S.W. 49 |
| Parties | PATE v. DUMBAULD. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.
Action by John Pate against B. A. Dumbauld. From order setting aside nonsuit and granting new trial, defendant appeals. Reversed and remanded, with directions.
Morrison Pritchett, of Webb City, and Haywood Scott, of Joplin, for appellant.
Pearson & Butts, of Joplin, for respondent.
Statement.
On December 3, 1920, plaintiff filed in the circuit court of Jasper county, Mo., a petition, in which he alleged that on the _____ day of August, 1920, while engaged in his regular employment, he suffered a serious and painful accident, resulting in the breaking of the front or shin bone of one of his legs. It is alleged that defendant was a practicing physician at Webb City,. Mo., where plaintiff sustained said injury and resides; that defendant held himself out as having, and professed to have, that degree of knowledge and skill which is ordinarily used and exercised by those who practice in the treatment of patients and injuries such as plaintiff sustained as aforesaid; that, by reason of the premises, plaintiff called defendant to treat his injuries; to set and care for the broken and injured bones of plaintiff's injured limb; that defendant undertook the treatment of plaintiff's limb as aforesaid, attempted to set and bind together the bone and broken ends thereof, and bind them in place, so that they might grow together, become strong, his leg be straight, and of service in about six weeks. He avers that defendant wholly failed to use the ordinary knowledge, skill, care, or diligence which it was his duty to exercise in the premises, but so negligently and carelessly conducted himself in and about the setting of said broken bones and the treatment of said injury that he carelessly and negligently failed to join or properly fit said broken bones, but wholly failed to set them at all, and carelessly and negligently bound up said broken limb without the setting of same as it should ordinarily and properly have been set, and carelessly and negligently allowed it to be so improperly bound up for nearly three weeks, and thereupon undertook again to set said limb, and carelessly and negligently failed to join the bones thereof, or properly adjust and set the same, and carelessly bound up in a cast the said injured limb without being or saving same properly set; that by reason of the premises, and as a direct result of defendant's negligence, plaintiff was caused to and did suffer great pain of mind and body, and will in the future suffer such pain; that he was confined unnecessarily to his bed for many weeks, said injured leg caused to be weak, shortened, and deformed, so that he can never use it effectively, as he should have; that he will be permanently impaired in the pursuit of his usual occupation as a laborer, all to his damage in the sum of $10,000, etc.
The defendant answered with a general denial.
Plaintiff's Evidence.
The evidence on behalf of plaintiff tended to show that both parties to this action resided at Webb City, Mo.; that respondent was employed as a laborer on the streets of said city; that on August 10, 1920, respondent, then 27 years old, was kicked on his right leg by a horse; that the shin bone was broken in two at a point about midway between the knee and the ankle; that it was a compound fracture, with two open wounds (according to the plaintiff, but only one wound according to plaintiff's expert witness, Dr. Slaughter), one on top of the shin and the other on the side, one of the broken bones protruding, at the time of the accident, through the respondent's pants leg; that immediately following the accident respondent was taken to the hospital at Webb City, and appellant called; that the latter there made a physical examination of respondent; that the leg of respondent was washed, cleansed with antiseptic solutions, and appellant, with the aid of the hospital nurses, dressed said wounds, set the broken bones, and bandaged the leg up in a woven wire splint (called a De Puy splint); that appellant called again at the hospital that evening, and saw that plaintiff was resting well; that he called again the following morning and examined respondent's leg; that on the afternoon of last-mentioned date plaintiff was moved to his home at Webb City, Mo.; that appellant called on respondent frequently at his house, attended him there, and treated the wounds on his leg until they healed; that as soon as the wounds were healed, which was about three weeks after the injury, appellant put the leg in a plaster cast; that during all the time the leg was in the wire splint, and at the time it was put in the plaster cast, it had remained in the same condition in which it had been placed when set by appellant; that while the cast was on respondent said he felt no sensation in the leg where it was broken, except "kind of grinding like the two bones rubbing together during the time I was laying in bed with the cast on"; that appellant called on respondent frequently after the plaster cast was put on; that on October 12, 1920, while the cast was still on, plaintiff discharged defendant from the case and called Dr. Slaughter, of Webb City, an osteopath, to treat the broken leg; that Dr. Slaughter removed the plaster cast; that there was evidence of motion or nonunion in the large bone between the ankle and knee; that on October 28, 1920, an X-ray photograph was taken, which disclosed that there had not been any union of the broken bones; that the X-ray showed the exudate, callus, or glutinous mass (which nature ordinarily causes to exude or be thrown out from the ends of broken bones within a few days after the breaking of the bones, and which make a bridge between the broken bones, and then hardens and becomes bone, thereby forming a union) had not exuded or been thrown out from the broken bones in respondent's case; and that the broken bones had the appearance of a fresh break, that is, they had the same appearance that they would have had if the X-ray had been taken immediately after the accident.
No expert witness testified in this case except the osteopath, Dr. Slaughter. His testimony was that there was no evidence that the broken bones had not been properly set; that the reason why no union had occurred was because nature had failed to throw out from the ends of the broken bones in respondent's leg the exudate or callus which is necessary to unite the bones, and that such failure was due to the condition of plaintiff's blood; that the plaintiff's health or physical condition was such that no bone-growing material was thrown out from the ends of his broken bones by nature; that it would have made no difference in this case whether the bones were put or held in apposition or not, as nature had not provided or thrown out the bone-growing material necessary to join or bridge between the broken bones; that, even if the bones were not put or held in apposition, the bridge of bone-growing material, in the case of a person in ordinary health, is thrown out anyway, and a union of the bones, of some kind, results; that in his treatment and examination of the respondent Dr. Slaughter learned why the broken bones were not in apposition and why no bone-growing material had been thrown out; he said the reason was because the respondent was afflicted with a form of epilepsy; that the respondent had been rejected from the army on account of his epilepsy; that respondent had an epileptic attack on one morning in October while Dr. Slaughter was treating him, although he did not see him during the attack, but did see him shortly afterwards, and saw his appearance and his exhausted condition following it; that during these epileptic convulsions the muscles contract to such an extent that the broken bones would separate unless there was enough bone-growing material there to hold them together. Dr. Slaughter testified that from his first examination of respondent, which was on October 12th, and also from his examination and treatment of him from that date afterwards, including the day he took the X-ray picture, there was nothing that he found there that he could say that r...
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