Stratton v. Barnum

• Citation: 263 S.W. 476
• Decision Date: 26 May 1924
• Docket Number: No. 15035.,15035.
• Parties: STRATTON v. BARNUM.
• Court: Court of Appeal of Missouri (US)

263 S.W. 476

STRATTON v. BARNUM.

No. 15035.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Rehearing Denied June 10, 1924.

Appeal from Circuit Court, Johnson County; Ewing Cockrell, Judge.

"Not to be officially published."

Action by Dessa 2. Stratton against K. R. Barnum. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

David Irvine and John D. Wendorff, both of Kansas City, for appellant.

M. D. Aber and W. El. Suddath, both of Warrensburg, and Montgomery & Rucker, of Sedalia, for respondent.

ARNOLD, J.

This is an action to recover damages for alleged negligence in the performance of a surgical operation. There was an original suit in which Drs. K. R. Barnum and 0. L. Jordan were defendants, which resulted in a directed verdict for Dr. Jordan, and a mistrial as to Dr. Barnum. An amended petition was filed against Barnum, and a trial thereon resulted in a verdict and judgment for plaintiff in the sum of $5,000. The facts upon which the suit is based are as follows:

Plaintiff, a married woman, the mother of three children, who was living in Warrensburg, Johnson county, Mo., was suffering from a lacerated perineum, resulting from the birth of her last child. Previously she had suffered a like misfortune from the birth of another child, and had undergone two unsatisfactory operations therefore while living in the state of California. Because of her condition she suffered from frequent headaches, nervousness, and her general health was bad. She consulted Dr. 0. L. Jordan, an osteopath, who advised an operation Sand recommended Dr. Barnum, of Sedalia, as a skillful surgeon. Dr. Barnum was called, and performed an operation in plaintiff's home in Warrensburg,. being assisted by Drs. Jordan and Johnson, the latter administering the anesthetic. Defendant used Emmett's modified operation, which was described by experts testifying at the trial as a standard method, the exact technique of which is not disclosed by the record.

While defendant was denuding the tissues he encountered what is known as a blind fistula, according to his witnesses, the same being described as a tract opening into the rectum, and extending from the rectum in the general direction of the vagina. Upon finding said fistula he put a purse-string suture around it, and pushed it into the rectum. He then proceeded with the operation, raising the floor of the vagina and taking the necessary stitches. A few days after the operation infection set in, where said blind fistula was found, and caused a complete fistula with an exterior vent between the anus and vagina. This fistula did not respond to treatment, and defendant again went to Warrensburg and performed a second operation in an attempt to close the fistula tract. Infection again appeared, and at the request of defendant plaintiff entered a hospital at Sedalia, where another attempt was made to heal the fistula. The effort did not prove satisfactory to plaintiff's husband, and he removed her to their home in Warrensburg.

The negligence alleged in the petition is "that defendant so negligently and unskillfully conducted himself in and about the operation on plaintiff that, through his negligence and unskillfulness, the rectum or colon of plaintiff was torn, cut, lacerated, or punctured, causing a hole or opening between the rectum and vagina, or between the rectum and just outside and below the vagina, and said hole has remained open since and is now open, and since defendant has negligently and unskillfully operated for the purpose of healing said opening, and has failed, and has negligently and unskillfully treated said opening." It is further alleged that by reason of said negligence of defendant plaintiff was made sick, and for months was, and still is, kept from attending her proper work and affairs, and suffers great mental pain and anguish, trouble, and anxiety, and that she must be continually waited upon by others and is permanently disabled.

The answer admits that at the time of the operation defendant was a physician and surgeon, engaged in the general practice of his profession in Missouri, and that he performed the operation as stated in the petition, and further makes general denial of all other allegations contained in said petition.

The verdict and judgment were as above indicated. A motion for a new trial was unsuccessful, and defendant appeals. For his assignments of error, defendant charges: (1) That the trial court erred in refusing to sustain defendant's instructions in the nature of demurrers offered at the close of plaintiff's case, and again at the close of defendant's evidence, and at the close of all the evidence; (2) that the court erred in giving plaintiff's instructions 1, 2, 3, and 4; (3) in giving the court's own instruction D, as a substitute for instruction E offered by defendant; (4) in refusing defendant's instruction L and substituting therefore instruction J by the court; and (d) in refusing defendant's instruction M; (7) in refusing to discharge the jury on defendant's motion, when reference was made by plaintiff to liability insurance carried by defendant; in admitting evidence of conversations between plaintiff and defendant at a time when an effort was being made to compromise;

(9) in permitting plaintiff to offer evidence in chief after the close of defendant's evidence;

(10) In repeated remarks by the court in the nature of comments on the evidence; and

(11) in permitting, without rebuke, prejudicial remarks and statements by plaintiff's counsel during the course of the trial and argument to the jury.

In passing upon the ruling of the court upon defendant's demurrer to plaintiff's evidence, the evidence of defendant should be disregarded and only that tending to make a prima fade case for plaintiff considered. Peak v. Taubman, 251 Mo. 390, 158 S. W. 656. It is insisted that plaintiff was not entitled to go to the jury without direct and positive evidence of defendant's negligence. Such is not the rule. "A demurrer to evidence is sustainable only in the absence of material testimony or reasonable inference." Kelly v. Ross, 165 Mo. App. 475, 148 S. W. 1000.

In passing upon this point, it is necessary to review plaintiff's evidence. She testified that the first suffering she experienced after coming from under the anesthetic was from severe pains and misery in the rectum, which continued until the fourth day thereafter, when the painful pulling in the rectum gave way; that in a short time an enema was given, and she noticed the water passing through the opening caused by the breaking loose of the stitches between the rectum and the vagina; that the movements from the bowels came through the opening, and she had no control over the gas; and that this condition had continued up to the time of the trial. Plaintiff further testified that defendant admitted that the condition was his fault. There was also testimony by an expert, Dr. Hall, to the effect that in an ordinary case, cutting or stitching through, as alleged by plaintiff, would be a matter of carelessness. The further testimony of plaintiff bearing directly on this point is to the effect that just before the second operation when defendant was asked by plaintiff the cause of her condition, he replied:

"I don't know. I can't account for it, unless I stitched into a blind fistula and didn't know it."

We think this evidence affords a basis from which the jury reasonably might infer that defendant was negligent. The same ruling applies to the other demurrers offered by defendant, and we find the trial court committed no error in submitting the case to the jury.

It is urged that comments made by the court during the trial were highly prejudicial to defendant, and gave the jury the impression that the court was favorable to plaintiff. In support of this charge, defendant cites specific instances of remarks of the court alleged to be improper comments on the evidence, e. g., during the redirect examination of Dr. 0. B. Hall, plaintiff's witness, the following occurred:

"Q. The internal opening has reference to the opening into the rectum? A. Yes, sir.

"Q. That is what the...