Reeves v. Lutz

• Decision Date: 02 December 1913
• Citation: 179 Mo. App. 61,162 S.W. 280
• Parties: REEVES v. LUTZ.
• Court: Missouri Court of Appeals

162 S.W. 280

179 Mo. App. 61

REEVES v. LUTZ.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

Rehearing Denied January 7, 1914.

1. PHYSICIANS AND SURGEONS (§ 14)—DEGREE OF CARE REQUIRED.

Defendant, holding himself out as a surgeon, is bound to exercise the skill and diligence ordinarily possessed by the average members of that profession in good standing, in similar localities; regard being had to the state of medical and surgical science at the time.

2. PHYSICIANS AND SURGEONS (§ 18)—ACTION FOR NEGLIGENCE — QUESTIONS FOR JURY.

In a husband's action for the loss of his wife's services, companionship, and society as the result of a burn inflicted on her ankle by a hot-water bag placed there by defendant physician during an operation, held that the question of the defendant's negligence in causing the burn was for the jury.

3. PHYSICIANS AND SURGEONS (§ 15)—DEGREE OF CARE—INCIDENTS OF OPERATION.

A surgeon operating for cancer, and following the usual practice of placing hot-water bags about the patient to sustain circulation during the operation, is bound to exercise ordinary care in that respect, as well as in respect to the operation itself.

4. PHYSICIANS AND SURGEONS (§ 18)—ACTION FOR NEGLIGENCE — MISLEADING INSTRUCTIONS.

In a husband's action for loss of the services and society of his wife as the result of a burn from a hot-water bag placed on her ankle during an operation for cancer, where there was evidence that patients sometimes struggle while undergoing an operation so as to bring parts of the body in contact with hot water bags, resulting in burns, but no such evidence as to the particular patient, an instruction that if defendant exercised reasonable skill and care in the operation, plaintiff could not recover, although during the operation a hot-water bag came in contact with her body and caused a burn, was misleading as referring defendant's care to the operation apart from his use of the hot-water bag, and also in its reference to the contact of such appliance with the patient.

5. PHYSICIANS AND SURGEONS (§ 18)—ACTION FOR NEGLIGENCE—INSTRUCTIONS—"INADVERTENCE."

Instructions that, though defendant may have been guilty of inadvertence in the use of the hot-water bag, that would not justify a verdict for plaintiff unless such inadvertence amounted to a failure to use ordinary care and skill in its use were misleading as instructing the jury that, though defendant was negligent, something more than such negligence was essential in order to make him liable; the word "inadvertence" itself signifying inattention and negligence.

6. NEGLIGENCE (§ 13)—DEGREES OF NEGLIGENCE.

Degrees of negligence are not recognized in Missouri.

7. TRIAL (§ 252)—ACTION FOR NEGLIGENCE— INSTRUCTIONS—"ACCIDENT."

In a husband's action for the loss of his wife's services and society as the result of a burn from a hot-water bag during an operation, where it was shown that defendant himself placed the bag on the patient's ankle, an instruction that if the burn was the result of an accident, and not of defendant's negligence, plaintiff could not recover was misleading, as submitting a theory of the case, and not justified by the evidence; the word "accident" meaning the happening of an unforeseen event, and not the happening of an event which defendant was bound to foresee.

8. PHYSICIANS AND SURGEONS (§ 15)—NEGLIGENCE—OPERATION.

For a surgeon operating for cancer to insert a drainage tube in the wound and allow such wound to completely heal up over it so as to cause great pain and suffering and require

a subsequent operation for its removal was negligence.

9. APPEAL AND ERROR (§ 1001)—REVIEW— VERDICT—CONFLICTING EVIDENCE.

The credibility of witnesses and the weight of their testimony are for the jury, and none the less so because the evidence preponderates in favor of one party, and if there is substantial evidence tending to support the theory advanced by the party recovering, it suffices, and a finding thereon is conclusive.

10. PLEADING (§ 58)—MATTER OF INDUCEMENT — ACTION FOR MALPRACTICE — CONTRACT OF EMPLOYMENT.

In an action against a surgeon for malpractice, it was proper to set out the contract of employment as matter of inducement.

11. PHYSICIANS AND SURGEONS (§ 18)—ACTION FOR MALPRACTICE—ADMISSIBILITY OF EVIDENCE—AMOUNT AND PAYMENT OF FEE.

Under a petition in an action for malpractice, setting forth the contract of employment by way of inducement, whereby it was averred that plaintiff employed defendant, who held himself out as a skillful surgeon to perform an operation on plaintiff's wife and to treat her until the wound was healed, and then proceeding as in tort for the surgeon's negligence, which contract not being admitted, but denied by genral denial, evidence that plaintiff paid defendant $250 for the operation was competent.

12. TRIAL (§ 82)—OBJECTIONS TO EVIDENCE —SUFFICIENCY.

A mere general objection to the reception of evidence is unavailing on appeal if the evidence was competent for any purpose in the case.

13. DAMAGES (§ 168)—ACTION FOR NEGLIGENCE—EVIDENCE.

In a husband's action for the loss of his wife's services and society by the negligence of defendant in leaving a drainage tube in the wound after an operation, and thus requiring another operation for its removal, evidence as to the wife's suffering therefrom and for a time thereafter was admissible.

14. HUSBAND AND WIFE (§ 209)—RIGHT OF ACTION BY HUSBAND—LOSS OF "CONSORTIUM."

A husband's right of "consortium" at common law includes the right to the services of the wife to be rendered him, together with the right to her society and the comfort incident to her companionship, for the wrongful deprivation of which he may recover, though the wife was not accustomed to do any physical labor for the husband, and though the pecuniary value of such services may not be accurately ascertained.

15. DAMAGES (§ 172)—ACTION FOR LOSS OF CONSORTIUM — QUESTION FOR JURY — DAMAGES.

In a husband's action for the loss of the services and society of his wife by defendant's negligence in allowing a drainage tube to remain in the wound after an operation, and to be healed over, evidence that the wife was disabled from performing the duties of a housewife, and that the husband was obliged to employ another to keep house for him, without any direct proof of the value of the wife's services and society, warranted the submission of the value of such services to the jury.

16. APPEAL AND ERROR (§ 216)—INSTRUCTIONS—WAIVER OF OBJECTIONS.

Defendant, through omission to request a limiting instruction, may waive the right to complain of an instruction on the measure of damages sufficient in its general scope, and which contains no element of misdirection.

17. PHYSICIANS AND SURGEONS (§ 18)—MALPRACTICE—DAMAGES—LOSS OF CONSORTIUM.

A verdict of $1,500 in a husband's action for loss of the services, companionship, and society of his wife, from January 13th to March 25th, occasioned through the negligence of defendant physician in treating a wound left by an operation, was not excessive.

Appeal from St. Louis Circuit Court; Wm. B. Homer, Judge.

Action by Albert L. Reeves against Frank J. Lutz. From a judgment for defendant on the first count, plaintiff appeals, and from a judgment for plaintiff on the second count, defendant appeals. Reversed and remanded on the first count, and verdict on the second held in abeyance until final disposition of the first count; final judgment to be rendered on both counts.

Douglas W. Robert, of St. Louis, for plaintiff. Edwin Silver, of Jefferson City, and Morton Jourdan and Jno. Cashman, both of St. Louis, for defendant.

NORTONI, J.

These are cross-appeals. The suit is for damages accrued to plaintiff on account of the loss of service of his wife through the negligence of defendant while performing and in treating a surgical operation upon her. The petition proceeds in two counts. On the first count the finding and judgment were for defendant, while plaintiff prevailed on the second. Plaintiff prosecutes an appeal from the judgment against him on the first count, and defendant prosecutes an appeal from the judgment against him on the second count.

Defendant is a practicing physician and surgeon in St. Louis, and was employed as such to remove a cancer from the breast of plaintiff's wife. It appears that for the purpose of the operation plaintiff brought his wife from Jefferson City to St. Louis, and placed her in the Josephine Hospital under the care of defendant December 13, 1910. The operation was performed there on that date, and Mrs. Reeves, the patient, discharged by defendant about January 13, 1911. It appears that in performing such an operation it is the usual practice to place hot-water bags about the patient, with a view of sustaining the circulation during the ordeal and thereafter. Then, too, after the operation is performed, it is a proper practice, where the wound is of considerable area, to place drainage tubes therein for the purpose of emitting such secretions as accumulate and might otherwise retard or impede the healing process. At the time plaintiff's wife was placed upon the operating table, and while the anæsthetic was being administered, defendant personally placed a hot-water bag against her limb immediately above the ankle, and permitted it to remain there during the operation which ensued. The operation, which was an extensive one, in that the entire right breast of the patient, together with the glands under the arm, was removed, consumed about two hours. It appears that this hot-water bag so placed inhered with unusual heat, for it made a deep burn on the patient's leg about three inches in breadth and five or six inches in length. The burn was not discovered, however, by defendant until the following day when his attention was directed to it by an assistant. Thereupon defendant immediately set about treating it, but it seems to have continued in a painful and threatening condition...