Rothschild v. Barck

• Decision Date: 07 April 1930
• Docket Number: 28869
• Parties: Marie Rothschild, Appellant, v. Carl Barck
• Court: Missouri Supreme Court

26 S.W.2d 760

324 Mo. 1121

Marie Rothschild, Appellant, v. Carl Barck

No. 28869

Supreme Court of Missouri

April 7, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed.

Earl M. Pirkey for appellant.

(1) It is reversible error to give an incorrect instruction at the request of the successful litigant or of the court's own motion which conflicts with a correct instruction given at the instance of the losing party. Mansur-Tibbetts Imp Co. v. Ritchie, 143 Mo. 612; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645; Easton-Taylor Trust Co. v. Loker, 205 S.W. 87; Flintjer v. Kansas City, 204 S.W. 951; Martmowsky v. Hannibal, 35 Mo.App. 70; Desnoyers Shoe Co. v. Lisman, 85 Mo.App 345; Sheperd v. Transit Co., 189 Mo. 373; Wallack v. Transit Co., 123 Mo.App. 167; Porter v. Ry. Co., 199 Mo. 83. Instruction 4 for defendant is erroneous because it conflicts with Instruction 1, and because he may have exercised ordinary care but not ordinary skill. (2) A juror who admits any bias or prejudice should be excused. He should be superior even to a suspicion of partiality. Theobald v. Transit Co., 191 Mo. 428; Billmeyer v. Transit Co., 108 Mo.App. 6; Burton v. Phillips, 7 S.W.2d 713; McFall v. Ry. Co., 185 S.W. 1158. The fact that a juror says that he can and will try the case impartially does not qualify him. Theobald v. Transit Co., 191 Mo. 418; Vessels v. Light & Power Co., 219 S.W. 86; Schwartzmann v. Fire Ins. Co., 2 S.W.2d 594; Gibney v. Transit Co., 204 Mo. 721. (3) Defendant testified that he had performed one hundred and fifty cataract operations and out of the lot he had but one bad result. Plaintiff undertook to show that he had other bad results, and this was excluded by the court, and this was error. (4) Plaintiff attempted to show the treatment following when her left eye was operated on for cataract successfully; that when the left eye was operated on, immediately before it was operated on, the left eye and eye brow adjoining the parts of the eye were washed with soap and water, and then with an antiseptic wash; that the eye was flushed out with an antiseptic wash; that all instruments used in the operation were disinfected immediately before the operation; that the doctors scrubbed their hands with soap and water thoroughly and washed them in a disinfecting solution, and that her gown and everything that she had were taken out of the packages that had been disinfected. The answer alleged that defendant's operation and treatment of plaintiff were in accordance with accepted medical knowledge and skill, and the above evidence was admissible and the court erred in excluding it. (5) The court prevented appellant's counsel from commenting on the failure of respondent to bring nurses to the trial of the case. The plaintiff being a mere patient did not know the nurses; she had no access to the records; a patient cannot see the hospital records, and she did not have the opportunity to learn the names of the nurses as respondent did and therefore it was proper to comment on respondent's failure to bring them.

Woodward & Evans for respondent.

(1) Instruction 4, does not conflict with plaintiff's Instruction. It is in all respects consistent, and correctly submitted defendant's side of the case. Grainger v. Still, 187 Mo. 213; Reeves v. Lutz, 179 Mo.App. 61; Krinard v. Westerman, 279 Mo. 680; Vanhooser v. Berghoff, 90 Mo. 487, 27 A. L. R. 1250, 37 L. R. A. 830. The terms "negligent" or "negligence" apply equally as well to the failure to use ordinary skill as to the failure to use ordinary care. Wencker v. Railroad Co., 169 Mo. 592; St. L. & St. P. Packet Co. v. Bridge Co., 31 F. 756. (2) The trial court did not err in overruling the challenge to the juror. Nothing said by the prospective juror would tend to disqualify him or to show any bias or prejudice against the plaintiff's case. Parlon v. Wells, 17 S.W.2d 528. (3) The trial court did not err in excluding certain testimony, which plaintiff's counsel sought to introduce. This testimony did not tend to prove or disprove any issue in the case; nor was it justified from the standpoint of impeaching evidence. (4) The court properly sustained the objection to plaintiff's proposed testimony as to the methods used during the operation on her other eye. (a) Such testimony did not tend to prove any issue in the case. (b) The witness (plaintiff) was a layman, not a physician specializing in treatment and diseases of the eye, and, therefore, was not competent to testify as to the customary methods used by physicians in such cases. 21 R. C. L. 405, sec. 47. (5) The court properly sustained the objection to appellant's counsel's comment on respondent's failure to bring nurses to the trial as witnesses. There is nothing in the record to show that the alleged witnesses were not equally available to both parties, nor that respondent was particularly acquainted with their testimony and that appellant was ignorant thereof. It does not show that the alleged witnesses were under the control of, or in the employ of, respondent. Atkinson v. Rys. Co., 286 Mo. 634.

OPINION

White, J.

The defendant was a physician and the plaintiff was his patient. In November, 1923, he performed an operation upon her right eye to remove cataract. After the operation her eye became infected and her eyesight, already almost gone on account of the cataract, was not restored. She brought this suit September 20, 1924, to recover damages caused by defendant's alleged negligence and lack of skill in connection with the operation.

The allegations of negligence are that the defendant unnecessarily cut and incised and punctured the parts adjoining the crystalline lens, and negligently failed to cleanse or have cleansed and sterilized his hands and instruments used in the operation, and negligently failed to cleanse or have cleansed the eye, eyelids, eyelashes and other parts adjoining the said eye or the rest of her face, either before or after said operation.

The answer of the defendant admitted the relation of patient and physician, the operation, the infection which followed the operation, denied that defendant was negligent in any manner in handling the case, and alleged that the operation and treatment were in accordance with the accepted medical knowledge, learning and skill.

Both eyes of the plaintiff were infected with cataract. On the right eye the cataract was "ripe," which means ready for the operation; on the left eye it was not ripe. Afterwards the left eye was operated upon successfully by another physician.

The plaintiff's testimony of the defendant's negligence was largely negative. She did not see him cleanse and scrub his hands. Defendant and Dr. Ehresmann, his assistant, testified to the sterilization of the instruments, their hands, and the washing of the plaintiff's face and eye with boric acid, and other treatment.

The defendant, also, offered evidence to show that absolute sterility of the conjunctiva sac was impossible. That certain germs, the names of which appear in the record, are always present in a normal eye, and it is not possible always to eradicate them for the purpose of such operation. Defendant also offered evidence to show that one to three per cent of operations for cataract fail on account of subsequent infection. Dr. Barck had graduated at Freiburg, Germany, in 1880, came to this country in 1883, had been practicing in St. Louis since that time. He had been lecturer on ophthmalogy at the St. Louis University; he had been back to Europe several times and visited the universities and clinics of London, Utrecht, Paris, Budapest, and many in Germany. Since St. John's Hospital was built in 1912 he had performed 350 operations. Of those 150 were cataract operations, and of the 150 in only one did infection take place, and that was this case. He explained at length all his precautions to prevent infection. He first examined the patient to find out if she was in a normal state of good health. He said "she was a poor patient; she didn't keep quiet, and didn't look down nicely," which it seems is necessary in an operation of that kind.

Several other physicians testified for the defendant that the method which he pursued in the case was an approved method.

The plaintiff introduced only one physician as a witness. He was a general practitioner and knew very little about the eye or operations for cataract. On this evidence the jury returned a verdict for defendant, judgment followed and the plaintiff appealed.

I. The appellant assigns error to the action of the trial court in overruling her challenge to juror number 15, on the ground that he was prejudiced and incompetent to sit. Juror 15 had been employed in some capacity by the United States Fidelity & Guaranty Company, a life insurance company. He testified on voir dire that he had a good deal of personal injury work to look after; that he sometimes settled personal injury claims and found claims that were unjust. Then these questions were asked and these answers given by the juror:

"Q. Perhaps in hearing a case of this character, these strong impressions that have been made would remain with you and might unintentionally affect your judgment in a case of this kind, would it not? A. I don't know as it should affect it at all."

Then after the juror had said that he might naturally form opinions from his experience, that he wouldn't want to, he was asked if his experience would affect his deliberations. He answered: "It may; I don't think so; I would try to do my best."

Then the following questions and answers were given:

"Q . . . You are afraid it might have some effect of that kind unintentionally, of course? A. I don't know. I think I could give a fair trial. I wouldn't want...