Robertson v. Wenger

• Decision Date: 25 May 1908
• Citation: 110 S.W. 663,131 Mo. App. 224
• Parties: ROBERTSON v. WENGER et al.
• Court: Missouri Court of Appeals

110 S.W. 663

131 Mo. App. 224

ROBERTSON v. WENGER et al.

Kansas City Court of Appeals. Missouri.

May 25, 1908.

1. PHYSICIANS AND SURGEONS — ACTIONS FOR MALPRACTICE — PETITION.

In an action for malpractice, a petition which alleges that defendants held themselves out to the world as healers of diseases and physical injuries, and that they undertook to heal plaintiff, raises the implied obligation that defendants possessed the skill and knowledge necessary for the purpose.

2. SAME — OBLIGATIONS OF PHYSICIANS — USE OF SKILL.

A physician in accepting a patient undertakes to use skill, and implies that he has such skill.

3. SAME — ACTIONS FOR MALPRACTICE — INSTRUCTIONS.

Where, in an action for malpractice, in which there was a verdict for defendant, the court charged that defendants were not charged by plaintiff with being unskillful or not properly trained, but that in the treatment of plaintiff's injuries defendants did not use ordinary skill, and that, if the jury found that in the treatment of plaintiff defendants used such reasonable care as was customarily used by physicians of ordinary skill under similar circumstances, plaintiff could not recover, the instruction was not prejudicial to plaintiff, though the petition raised the implied obligation that defendants possessed the skill necessary for the purpose of treating plaintiff, since the finding that defendants did not fail to exercise proper skill warranted the inference that they possessed such skill.

Appeal from Circuit Court, Callaway County; E. W. Hinton, Special Judge.

Action by Booker M. Robertson against Henry U. Wenger and another. From a judgment for defendants, plaintiff appeals. Affirmed.

J. W. Tincher, D. P. Bailey, and Silver & Rown, for appellant. Harris & Hay and N. D. Thurmond, for respondents.

BROADDUS, P. J.

This is an action for malpractice. The petition charges that defendants, at or about the 7th day of September, 1906, held themselves out as healers of physical injuries, ailments, and diseases, their treatment being commonly known as that of osteopathy; that at the date mentioned defendants undertook to treat plaintiff for injuries he had theretofore suffered by a fall; and that while so treating plaintiff it was their duty to use reasonable care and skill; that defendants failed in their duty, in that they negligently treated plaintiff for a dislocation of the hip joint, when in fact no such dislocation existed, and defendants in treating plaintiff for said supposed dislocation of the hip joint did so violently, unskillfully, and negligently manipulate, handle, and deal with plaintiff's body that they fractured and broke plaintiff's left femur or thigh bone in two places, one place being at or near the juncture of the neck and shaft of the femur, and the other in the shaft proper of the femur about three inches below the great trochanter; and that defendants after breaking the femur did so negligently and unskillfully treat said fractured parts that they were viciously and faultily healed and joined together, that is to say that they were not joined and united in apposition, but were permitted to heal in a misshapen and malformed manner. The answer of defendants admitted that they were osteopathic physicians, but denied all the other allegations of the petition. The case is here as to the evidence on a short bill of exceptions pursuant to rules 8, 9, and 10 of this court (67 S. W. v). The evidence of plaintiff tended to prove the allegations of his petition, and that of the defendants to controvert that of the plaintiff. The cause was tried before a jury, which, after being instructed by the court, returned a verdict for defendants. The plaintiff appealed from the judgment.

The error complained of was the action of the court in giving in behalf of the defendants' instruction No. 1, which is as follows: "The jury are instructed that in this case the defendants, Drs....