State ex rel. American School of Osteopathy v. Daues

• Decision Date: 18 May 1929
• Citation: 18 S.W.2d 487,322 Mo. 991
• Parties: The State ex rel. American School of Osteopathy v. Charles U. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

18 S.W.2d 487

322 Mo. 991

The State ex rel. American School of Osteopathy v. Charles U. Daues et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

May 18, 1929

Rehearing Overruled June 7, 1929.

Certiorari to St. Louis Court of Appeals.

Writ quashed.

Higbee & Mills and S. H. Ellison for relator.

(1) The opinion clearly shows that the court arrived at its conclusion that the relation of agency existed between the school and scholar, by pure speculation, or, as stated in the opinion, "by no wide stretch of the imagination." Laughlin v. Gorman, 239 S.W. 550; Morrell v Lawrence, 203 Mo. 370. (2) The opinion conflicts with the decisions of this court, and errs in holding that Noren was "laboratory equipment" of the school. (a) There is not claimed to be evidence to base it on, and it is therefore, speculation. Authorities, supra. (b) It is not the theory of the petition, or of the plaintiff's instruction, nor is such claim hinted at in Noren's testimony. State v. Ellison, 223 S.W. 673. (c) Noren's secret understanding on this subject, if he had one, would have no force. Beheret v. Myers, 240 Mo 75. Miesser v. Ry. Co., 211 Mo. 133. (d) There is no claim of evidence to support the finding that the school was benefited by Noren's submitting to student treatment. And, even if there had been, such benefit would not create, or evidence, principal and agent. McDonald v. Matney, 82 Mo. 365. Mining Co. v. Swope, 204 Mo. 58. (e) There was no claim, or evidence, that Abramson was not obligated to furnish his own "laboratory equipment." The evidence shows he did furnish it. The opinion presumes he was not to do so. Menter v. Fruit Co., 240 Mo. 186. (3) The conclusion reached by respondents is reached by one presumption being based on another. Phillips v. Travelers Co., 288 Mo. 175. (4) The opinion shows that a personal, private contract was made between Abramson and Noren, and that the school was not a party to the contract, nor was it understood to be a party by Noren. Carr v. Mo. Pac., 195 Mo. 225. (5) Noren's contract with Abramson was a personal contract with him, and there is no claim of evidence to support the idea that the school was involved in it. Feebach v. Railroad, 167 Mo. 215; Oatman v. Railway, 263 S.W. 143. (6) The opinion finds liability against relator because Abramson did not possess, or use, the skill possessed by the ordinary physician. This holding conflicts with the decisions of this court, because Noren did not contract for such skill. He contracted for student treatment. Liggett v. Bank, 233 Mo. 601. (7) Instruction 1 is erroneous because Noren contracted for student treatment, yet it undertakes to require him to possess the skill of the ordinary physician. Pate v. Dumbauld, 250 S.W. 52. (a) Said instruction uses the words "negligence" and "carelessness" without defining their meaning. Owens v. McClary, 281 S.W. 685. (b) It assumes many facts necessary to be proven. Gorder v. O'Neil, 270 Mo. 646-7. (8) The opinion holds that defendant's refused Instruction 5, which was offered after a demurrer had been refused, conceded agency. Everhart v. Bryson, 244 Mo. 516. (9) Plaintiff's Instruction 1 assumes Abramson was treating under Dr. Platt's direction; it assumes the treatment complained of was given for lumbago; it assumes the relation of physician and patient existed between the school and Noren; it assumes the treatment complained of was one of the required number; it assumes the treatment complained of was one in contemplation of Dr. Platt six months before; it assumes the treatments given Noren were required to be reported by Abramson. Corder v. O'Neil, 270 Mo. 646; Moon v. Tea Co., 247 Mo. 237. (10) It also attempts to cover the whole case, yet it fails to submit these important and vital issues: (a) Was Abramson's neck treatment for lumbago? (b) Was he the agent of the school? (c) Was the treatment in question required by the school? State ex rel. v. Trimble, 236 S.W. 653.

C. D. Stewart and G. C. Weatherby for respondent.

(1) On the facts as stated in the opinion, the Court of Appeals held that the student, Abramson, acted as the agent and servant of the school in the giving of the treatments in question. In certiorari to quash this holding, it is immaterial what the Supreme Court thinks of such holding as an original proposition. The sole question is whether or not the holding conflicts with the ruling of the Supreme Court on a similar state of facts. State ex rel. Ry. Co. v. Ellison, 204 S.W. 396. The Supreme Court has never decided whether or not the relation of principal and agent exists between a school and its student, where, as here, the school teaches and practices the healing art and requires and directs its students to treat patients under the supervision and direction of the school, after the school first examines the patient, diagnoses his case, gives specific directions as to the manner and course of said treatments, holds out to the patient that the student is competent and qualified to treat him, and requires the student to report such treatments to the school on blanks furnished by the school. This holding should not be quashed for two reasons: (a) because the Supreme Court has never decided that such facts did not create the relation of principal and agent, hence no conflict, and (b) such holding does not conflict with any general ruling of the Supreme Court as to what facts constitute the relation of principal and agent. (2) The conditions and circumstances under which Noren became a patient of the school, in effect amounted to him becoming a part of the equipment which the school used in teaching the student the art of giving osteopathic treatments, and justified the Court of Appeals in concluding that under the facts shown Noren was in reality "laboratory equipment for the school." Whether this conclusion of the Court of Appeals is right or wrong, is wholly immaterial in this proceeding, because such conclusion is not the announcement of a legal principle by such court, and necessarily could not be in conflict with any law announced by this court. (3) Relator's complaint seems to be that the petition did not plead that Noren was "laboratory equipment" and no witness so testified, and for that reason the conclusion that he was "laboratory equipment" is in conflict with rulings of this court in the cases cited to the effect that the findings of the court must be within both the pleadings, and evidence. The issue in the case and the issue decided by the Court of Appeals was not whether Noren could properly be called "laboratory equipment of the school," but was whether or not the school was liable for the act of the student while treating Noren. (4) Relator's next contention is that Noren made a private contract with Abramson, and there is no evidence that the school was involved in it, or that Noren so understood it. The cited cases are not in point. The facts in the case decided by the Court of Appeals show that the school did owe Noren a duty and violated that duty. Although the student did himself procure permission to treat Noren in the first instance yet the school did not permit him to treat Noren, until some member of its faculty or treating staff, examined him, diagnosed his ailment and gave specific directions as to treatment. (5) Relator's next contention is that the opinion of the court of appeals erred in holding that Abramson was required to use the skill of an ordinary physician, for the reason that Noren contracted for student treatment. The cited cases do not mention or discuss the point raised by relator's contention. Noren did not contract for student treatment. The school required Abramson to give two hundred treatments, and after he obtained permission to treat Noren, the school accepted Noren as its patient and superintended, directed and controlled the treatments given him, and assured Noren that the student was competent and qualified to treat him. (6) It is next insisted that instruction number one is erroneous because it used the words "carelessness" and "negligence" without defining their meaning. The cited case does not hold that it was error to fail to define the words "carelessness" and "negligence" when such words are used in an instruction. There is a wide difference between failing to define the word "negligence" and failing to inform the jury what facts would constitute negligence in a given case. Whether or not a given state of facts or circumstances amount to negligence is a question of law. Tarwater v. Railroad, 42 Mo. 193. Whether or not such facts exist in a given case, is a question of fact for the jury to determine. Yarnell v. Railway, 75 Mo. 583. It is not error to fail to define the words "carelessness" and "negligence" when used in an instruction, in the absence of a request that such definition be given. Russell v. Grocery Co., 288 S.W. 987; Anderson v. Sash & Door Co., 182 S.W. 820; Duvall v. Cooperage Co., 275 S.W. 589; Malone v. Ry. Co., 213 S.W. 867; Sweeney v. Railway Co., 150 Mo. 401. Even if it were ordinarily necessary to define the words "carelessness" and "negligence," it would not be necessary to do so in this case because the partial dislocation of a patient's neck in the giving of an osteopathic treatment is sufficiently out of the ordinary course of what usually happens where ordinary care and skill is used, in the absence of any explanation by the school, to warrant the jury in finding that the treatment which dislocated Noren's neck was negligently given. Ercholz v. Poe, 217 S.W. 282.

OPINION

Gantt, J.

Relator seeks to have quashed the opinion of the St. Louis Court of Appeals in Noren v. American School of Osteopathy, a corporation, No. 19495.

The facts as stated by said court are:

"This is an action for...