Pedigo v. Roseberry

• Decision Date: 11 March 1937
• Docket Number: 32635
• Parties: Jess Pedigo v. Dr. E. C. Roseberry and Dr. P. A. Holmes, Appellants
• Court: Missouri Supreme Court

102 S.W.2d 600

340 Mo. 724

Jess Pedigo v. Dr. E. C. Roseberry and Dr. P. A. Holmes, Appellants

No. 32635

Supreme Court of Missouri

March 11, 1937

Appeal from Greene Circuit Court; Hon. John Schmook, Judge.

Reversed and remanded (with directions to reinstate the verdict and enter judgment).

Frank B. Williams and Don C. Wray for appellants.

(1) Instructions D5 and D15 were not erroneous, since said instructions properly limited the jury to the expert testimony only in determining whether or not defendants had exercised the required care and skill (a) in performing the surgical operation, (b) in thereafter treating plaintiff, and (c) in the treatment and attention, if any, of plaintiff for the alleged fresh injury as a result of the so-called bedpan "accident." Gottschall v. Geiger, 207 Mo.App. 89 211 S.W. 87; Bailey v. Ry. Co., 296 S.W. 479; Trask v. Dunnigan, 299 S.W. 117; Keehn v. D. R F. Realty & Inv. Co., 43 S.W.2d 419; Stacy v Williams, 253 Ky. 353, 69 S.W.2d 697; Norkett v. Martin, 63 Colo. 220, 165 P. 256; McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870; Akridge v. Noble, 41 S.E. 79; Farrell v. Haze, 157 Mich. 374, 122 N.W. 197; Sly v. Powell, 123 P. 883; Paulick v. Nipple, 104 Kan. 801, 180 P. 773; Spaulding v. Bliss, 83 Mich. 31, 47 N.W. 210; Spensley v. Lancashire Ins. Co., 22 N.W. 740; Roberts v. Parker, 121 Cal.App. 264, 8 P.2d 908; Capolupo v. Wills, 116 Conn. 13, 163 A. 454; Jackovach v. Yocum, 212 Iowa 914, 237 N.W. 444; Fink v. Steele, 171 A. 49; Winters v. Rance, 251 N.W. 167; Van Epps v. McKenny, 189 N.Y.S. 910; Vaughan v. Memorial Hospital, 103 W.Va. 156, 136 S.E. 837; Lindloff v. Ross, 208 Wis. 482, 243 N.W. 403; Rossan v. Hylton, 22 P.2d 195. (a) The degree of care and skill required of defendants was that ordinarily possessed and exercised by members of the same profession in good standing practicing in the same or a similar locality. Telaneus v. Simpson, 12 S.W.2d 929; Mitchell v. Poole, 68 S.W.2d 839. (b) Competent affirmative evidence of defendants' negligence is essential; and, the jury may not substitute disbelief of uncontradicted evidence for such required affirmative proof. Nevinger v. Haun, 196 S.W. 41; Spain v. Burch, 169 Mo.App. 94; Fausette v. Grim, 186 S.W. 1180. (2) Instruction D15 was neither erroneous nor prejudicial, and the trial court was, therefore, not authorized to grant a new trial on account of the giving of said instruction. Sec. 1002, R. S. 1929; Cornelius v. Cornelius, 233 Mo. 38; Book v. Mo. Pub. Util. Co., 242 S.W. 435; Wilt v. McCallum, 253 S.W. 156; Coffey v. Tiffany, 182 S.W. 500. (3) The standard of due care of a surgeon is the conduct of the average prudent man of his profession in the community. Pate v. Dumbauld, 298 Mo. 447; Seeward v. Gentry, 220 Mo.App. 372; McDonald v. Crider, 272 S.W. 981; Hill v. Jackson, 265 S.W. 861; Fausette v. Grim, 193 Mo.App. 590; Snyder v. Ry. Co., 72 S.W.2d 512; Mitchell v. Poole, 68 S.W.2d 839; Connelley v. Cone, 205 Mo.App. 398; Telaneous v. Simpson, 12 S.W.2d 929; Coffey v. Tiffany, 192 Mo.App. 470. (4) To entitle plaintiff to recover, it devolved upon him to adduce substantial evidence tending to show negligence on appellants' part in failing to examine respondent's femur fracture for the purpose of ascertaining whether either the original fracture or the metal bone plate and screws were disrupted or disturbed by the alleged bedpan accident, or in failing to treat said alleged injury after said accident. Nevinger v. Haun, 197 Mo.App. 422; Connelley v. Cone, 205 Mo.App. 398; Mitchell v. Poole, 68 S.W.2d 839; Snyder v. Ry. Co., 72 S.W.2d 512; Trask v. Dunnigan, 299 S.W. 117; Gottschall v. Gieger, 207 Mo.App. 110. (a) There must be a causal connection amounting to negligence between the accident and the alleged injury. Spain v. Burch, 169 Mo.App. 107; Nevinger v. Haun, 197 Mo.App. 426. (b) Plaintiff carries the burden of adducing substantial evidence affirmatively establishing such causal connection. Nevinger v. Haun, 197 Mo.App. 427; Battles v. Rys. Co., 178 Mo.App. 615; Spain v. Burch, 169 Mo.App. 94; Trask v. Dunnigan, 299 S.W. 116. (5) The law will not hold a surgeon guilty of negligence as long as he uses his best judgment, even though his judgment may prove erroneous in a given case, unless it be shown that the course pursued was clearly against the practice recognized as correct by the profession generally. Snyder v. Railroad Co., 72 S.W.2d 512; Fausette v. Grim, 193 Mo.App. 590, 186 S.W. 1177; Gottschall v. Gieger, 207 Mo.App. 110, 231 S.W. 87; Trask v. Dunnigan, 299 S.W. 117; McDonald v. Crider, 272 S.W. 981; Coffey v. Tiffany, 192 Mo.App. 455, 182 S.W. 495; Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172; Bailey v. Railroad Co., 296 S.W. 477. (6) There being no evidence that the course pursued by defendants was different from that which an ordinarily careful and prudent surgeon would have followed under like or similar circumstances, defendants' demurrer to the evidence should have been sustained. Connelley v. Cone, 205 Mo.App. 398; Fausette v. Grim, 193 Mo.App. 590; McDonald v. Crider, 272 S.W. 981.

George Thornberry and Hamlin, Hamlin & Hamlin for respondent.

(1) The defendants were negligent when they failed to examine plaintiff's hip at the point where it came in contact with the end of the board, and, when they failed to examine the limb after he reported to them the bedpan accident. Boyd v. Andrae, 44 S.W.2d 891; Reed v. Laughlin, 58 S.W.2d 440. "A surgeon in his treatment subsequent to an operation, is required to exercise reasonable and ordinary skill and care." 48 C. J. 1128, sec. 115; Logan v. Field, 75 Mo.App. 594; McDonald v. Crider, 272 S.W. 980; Cazzell v. Schofield, 8 S.W.2d 580. The demurrers were properly overruled. Mooney v. Monarch Gasoline & Oil Co., 298 S.W. 69; Bender v. Ry. Co., 137 Mo. 240; Young v. Webb City, 150 Mo. 333 "A causal connection between negligence and injury may be established by an inference which may be reasonably and legitimately deduced from the facts and circumstances shown in evidence, as well as by direct and positive testimony." Nevinger v. Haun, 197 Mo.App. 416; Frese v. Wells, 40 S.W.2d 652; Lally v. Morris, 26 S.W.2d 52; Dakan v. Mercantile Co., 197 Mo. 238, 94 S.W. 914; Combs v. Standard Oil Co., 296 S.W. 817; Mooney v. Monarch Gasoline & Oil Co., 298 S.W. 69, 317 Mo. 1255. (2) Instruction 5 singles out and comments on the opinion testimony of the expert witnesses, thereby usurping the functions of the jury. Scanlon v. Kansas City, 28 S.W.2d 84; Zeikle v. Railroad Co., 71 S.W.2d 156; Conduitt v. Trenton G. & E. Co., 31 S.W.2d 21. The same vice is apparent in Instruction 23 with the additional fact that the last paragraph of that instruction directs the jury not to consider the opinions of laymen but to consider the opinion of the medical surgical experts only. Scanlon v. K. C., supra.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Jess Pedigo, respondent, instituted a civil malpractice action against Drs. E. C. Roseberry and P. A. Holmes, appellants, for $ 40,000 damages. The jury returned a verdict for appellants. Respondent's motion for new trial was sustained and appellants appealed. The case reaches the writer upon reassignment.

Appellants filed the statutory affidavit for appeal, which (omitting matter not material here) stated the appeal was prayed for because affiant "considers defendants aggrieved by the judgment and decision of the court. . . ." The record recited appellants filed their affidavit "praying the court to grant them an appeal from the order sustaining the motion for new trial herein" -- an appealable matter under Section 1018, Revised Statutes 1929 (Mo. Stat. Ann., p 1286). Relying on Pence v. Kansas City Laundry Co., 332 Mo. 930, 936(1-8), 59 S.W.2d 633, 635(2-7), respondent contends the affidavit failed to identify the order sustaining respondent's motion for new trial as the matter appealed from and is insufficient to confer jurisdiction. In the Pence case defendant corporation's affidavit prayed for an appeal "because the affiant believes that the appellant is aggrieved by the decision and judgment of the court." The court, in overruling the motion to dismiss, found the affidavit to be in the form prescribed by statute (Sec. 1020, R. S. 1929, Mo. Stat. Ann., p. 1295), and held it sufficient to sustain an order granting an appeal from appealable matters and controlling over an accompanying application praying an appeal from the orders overruling the motion for new trial and in arrest of judgment. The instant affidavit is in the formula prescribed by Section 1020 for appeals allowable under Section 1018. The only ruling adverse to appellants on the case as a whole was the order sustaining the motion for new trial, and respondent could not have been misled. Affidavits following the wording of Section 1020 and seeking the review of an appealable matter mentioned in Section 1018 have been construed according to their spirit and intent. [State ex rel. v. Broaddus, 210 Mo. 1, 16, 108 S.W. 544, 547; cases cited in 2 Houts Mo. Pl. & Pr., sec. 497, n. 18 et seq.] Kennedy v. Bowling (Banc), 319 Mo. 401, 408, 4 S.W.2d 438, 441(1), held an application and affidavit referring to the matter appealed from and by which appellants were aggrieved as the "judgment and decision of the court" sufficient for the review of an order sustaining a motion for new trial. The motion to dismiss is overruled.

The trial court sustained respondent's motion for new trial on the ground of misdirection of the jury in the giving of appellant's instructions 5, 15 and 23. Appellants contend here, first, that the instructions were proper and, second that error, if any, in the instructions was not prejudicial as respondent failed to make a case for the jury. Preliminary to a...