Rothe v. Hull

• Decision Date: 02 May 1944
• Docket Number: 38684
• Parties: Nadine Rothe, a Minor, by Victor Rothe, her Next Friend, v. John S. Hull, Appellant
• Court: Missouri Supreme Court

180 S.W.2d 7

352 Mo. 926

Nadine Rothe, a Minor, by Victor Rothe, her Next Friend, v. John S. Hull, Appellant

No. 38684

Supreme Court of Missouri

May 2, 1944

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Reversed and remanded (with directions).

Hook & Thomas, Inghram D. Hook and Harry L. Thomas for appellant.

(1) The reviewing court will look only to the evidence which is most favorable to the appellant, the prevailing party under the jury's verdict, adding thereto all reasonable inferences of fact to be drawn therefrom to support the verdict and disregarding all opposing evidence. Wessel v. St. Louis Car Co., 235 Mo.App. 479, 136 S.W.2d 388; Hunt v Jeffries, 159 S.W.2d 23. (2) Evidence of consent is not destroyed by defendant-appellant's testimony, such testimony being as to a personal conclusion and mental reaction rather than as to any material fact in issue and such testimony not being in contradiction to his testimony as to the facts relating to consent. The rule of exclusion does not apply and case authorities heretofore urged by respondent are not in point. Griffin v. Mo. L. & P. Co., 99 S.W.2d 474; Long v. Brumiller, 63 S.W.2d 831; Murray v. St. Louis Transit Co., 176 Mo. 183, 75 S.W. 611. (3) The charge and submission being solely upon the theory of assault, lack or presence of consent, actual implied or presumed, is the controlling issue and the burden of proving lack of consent is upon the plaintiff-respondent. Wells v. Van Nort, 100 Ohio St. 101, 125 N.E. 910; Rolater v. Strain, 39 Okla. 572, 137 P. 96; Goldnamer v. O'Brien, 98 Ky. 569; LaRocque v. Conheim, 87 N.Y.S. 625; Courtney v. Clinton, 48 N.E. 799; Hunter v. Wheate, 289 F. 694. (4) Consent may be express or may be implied or presumed from the circumstances. McGuire v. Rix, 118 Neb. 434, 225 N.W. 120; Delahunt v. Finton, 224 Mich. 226, 221 N.W. 168; Jackovach v. Yocum, 237 N.W. 444, 76 A.L.R. 551; VanMeter v. Crews, 149 Ky. 335, 148 S.W. 40; Barfield v. Smith Highlands Infirmary, 191 Ala. 553, 68 So. 30; Brennan v. Parsonett, 83 N.J.L. 20, 83 A. 948; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12; King v. Carney, 85 Okla. 62, 204 P. 270; Knowles v. Blue, 209 Ala. 27, 95 So. 481. (5) During the incapacity of the patient, the surgeon, in some circumstances, may rely upon the consent of parents or spouse as implied or delegated authority of patient. Barfield v. South Highlands Infirmary, supra; Fausett v. Grimm, 186 S.W. 1177; Brennan v. Parsonett, supra. (6) When some action must be taken immediately for the preservation of the life or health of the patient and it is impracticable to obtain the consent of the patient or of anyone authorized to speak for her, the surgeon may lawfully, and it is his duty to, perform such operation as good surgery demands, without such consent. Pratt v. Davis, 224 Ill. 356, 79 N.E. 562; Delahunt v. Finton, supra; Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106. (7) The surgeon is not bound to secure such third-party consent under any conditions, if the patient consents in person, which is conclusive authorization. Janney v. Housekeeper, 76 Md. 162, 16 A. 382; Hunter v. Wheate, 289 F. 604; LaRocque v. Conheim, 87 N.Y.S. 625. (8) Instruction IV properly stated the applicable law under the pleadings, evidence and theory of submission. Authorities cited in points (3), (4), (5) and (6). (9) Instruction VII properly submitted the issue of plaintiff's specific consent; in fact, it imposed upon the defendant the unnecessary burden of proving consent. Authorities cited in points (3), (4), (5) and (6).

Chas. V. Garnett and Donald W. Johnson for respondent.

(1) On appeal from an order granting plaintiff a new trial after verdict for defendant, on the ground that instructions given at defendant's request were erroneous, the evidence must be viewed most favorably to plaintiff. Smith v. St. Louis, etc., Ry. Co., 9 S.W.2d 939; Powell v. St. Joseph, etc., Co., 336 Mo. 1016, 81 S.W.2d 957; Clarke v. Jackson, 342 Mo. 537, 116 S.W.2d 122; O'Malley v. St. Louis, 343 Mo. 14, 119 S.W.2d 785; Zickefoose v. Thompson, 347 Mo. 597, 148 S.W.2d 784. (2) Plaintiff's tubes were removed without her knowledge or consent; the evidence shows it and defendant admits it; and defendant's Instructions IV and VII were therefore misleading, confusing, and erroneous, as having no support in the evidence. Pratt v. Davis, 118 Ill.App. 166; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A. (N.S.) 439; 1 Kinkead on Torts, sec. 375; Fausette v. Grimm, 193 Mo.App. 585, 186 S.W. 1177; American Restatement of the Law, Torts, sec. 13; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Sullivan v. Un. Elec. L. & P. Co., 56 S.W.2d 97; Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612; State v. Buchler, 103 Mo. l.c. 207, 15 S.W. 332; Rearden v. Railroad, 215 Mo. l.c. 137, 114 S.W. 961; Partello v. Railroad, 217 Mo. 645, 117 S.W. 1138; Kirchof v. United Railway Co., 155 Mo.App. 70, 135 S.W. 98; Fulton v. Metro. St. Ry. Co., 125 Mo.App. 239, 102 S.W. 47; Steele v. K.C. So. Ry. Co., 265 Mo. 97, 175 S.W. 177; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Murray v. St. L. Transit Co., 176 Mo. 183, 75 S.W. 611. (3) Instruction IV is further erroneous and contrary to law because it advised the jury, in effect, that a general authority given by plaintiff to correct any condition found during the authorized appendicitis operation, justified and authorized the removal of her tubes which was an entirely different operation involving risks and results not contemplated in the authorized operation. American Restatement of the Law, Torts, sec. 50; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12; Rolater v. Strain, 39 Okla. 572, 137 P. 96; Hively v. Higgs, 12 Ore. 588, 253 P. 363; Keen v. Coleman, 20 S.E.2d 175; Paulson v. Gunderson, 260 N.W. 448; Valdez v. Percy, 96 P.2d 142; Franklyn v. Peabody, 228 N.W. 681. (4) Instruction VII told the jury, and the jury would so understand it, that if plaintiff's husband was authorized to act for her during the period of her mental inability to act for herself, if any, and her husband authorized the removal of plaintiff's tubes, defendant would be entitled to their verdict. The instruction was erroneous and contrary to law because it did not require the jury to find that plaintiff was in fact incapable of acting for herself at the time her husband acted for her, if he did. Burroughs v. Crichton, 48 App. D.C. 596; State use of Janney v. Housekeeper, 70 Md. 162, 16 A. 382; McClallen v. Adams, 19 Pick. 333; Barker v. Heaney, 82 S.W.2d 417; 48 C.J., 1130.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

PER CURIAM

This cause comes on reassignment after rehearing. Without quotation marks, we adopt a portion of the prior opinion.

Action to recover damages in the sum of $ 50,000 for an assault. In substance it is alleged that plaintiff employed the defendant, an osteopathic physician and surgeon, to remove her appendix; that in performing the operation he removed both her appendix and Fallopian tubes; that the removal of the tubes was without her consent and he thereby committed an assault. The answer is a general denial. Verdict for the defendant.

The court ruled that instructions Nos. IV and VII given at request of defendant were erroneous and for that reason sustained the motion for a new trial. Defendant appealed.

Plaintiff was suddenly stricken with a violent pain in her abdomen. Defendant called at her home to attend her. He made an examination, obtained a blood specimen and went to his office for an examination of the specimen. After the examination, and over the telephone, he directed that plaintiff be taken to the hospital, where he arranged for the operation. The husband and parents of the plaintiff went with her to the hospital. The operation resulted in the removal of the appendix and Fallopian tubes.

In substance, there was evidence tending to show that during the performance of the operation, the defendant informed plaintiff's husband that the tubes were in a diseased condition, would no longer function and should be removed. There also was evidence tending to show that the husband authorized the defendant to use his best judgment with reference to the matter.

Defendant contends, and plaintiff denies, there was evidence tending to show that the examination of plaintiff by the defendant at her home indicated, in addition to an acute appendix, an enlargement of the tubes and tenderness in the tube region; that the defendant so informed plaintiff, who stated that she wanted her condition taken care of and would leave it to his judgment. In other words, defendant contends that plaintiff gave him general authority to use his best judgment as to the extent of the operation, and thereby impliedly authorized him to remove the tubes, if he thought necessary under existing conditions.

Appellant assigns error on the court's ruling that instructions IV and VII were erroneous. Appellant contends they were correct under the pleadings, the law and the evidence.

Instruction IV is as follows: "The court instructs the jury that if the plaintiff consented to the operation which resulted in the removal of both Fallopian tubes by giving, if so, general authorization and permission to the defendant to use his reasonable care, skill and judgment to correct any condition found during the operation and if you find and believe that the removal of said tubes during said operation was necessary and advisable in his reasonable judgment for the preservation of her life or health, your verdict must be for the defendant."

The instruction conforms to defendant's theory of implied authority to remove the tubes, if in his judgment they should be removed, but respondent says the...