Telanus v. Simpson

• Citation: 12 S.W.2d 920
• Decision Date: 31 December 1928
• Docket Number: No. 26846.,26846.
• Parties: EDWARD TELANUS v. ARTHUR J. SIMPSON and H.M. GRACE, Appellants.
• Court: United States State Supreme Court of Missouri

12 S.W.2d 920

EDWARD TELANUS v. ARTHUR J. SIMPSON and H.M. GRACE, Appellants.

No. 26846.

Supreme Court of Missouri. Division One.

December 31, 1928.

Appeal from Caldwell Circuit Court. — Hon. Arch B. Davis, Judge.

REVERSED AND REMANDED.

Kitt & Marshall and Brown, Douglas & Brown for appellants.

(1) The court erred in refusing to sustain the demurrers interposed by the defendants at the close of all the evidence in the case. (a) Plaintiff's cause of action accrued on September 4, 1920. Suit was not instituted until March 8, 1924. The bar interposed by the Act of 1921 was duly pleaded, and under plaintiff's own evidence, more than two years had elapsed after the enactment of the statute before suit was instituted. Laws 1921, p. 197; Weber v. Manning, 4 Mo. 229; Callaway County v. Nolley, 31 Mo. 398; Forcht v. Short, 45 Mo. 377; Seibert v. Copp, 62 Mo. 182; Investment Co. v. Curry, 264 Mo. 483; Falvey v. Hicks, 315 Mo. 442; Howser v. Hoffman, 32 Mo. 334; Tice v. Fleming, 173 Mo, 49; 37 C.J. 695; Tabolsky v. Crandon, 155 N.E. 657; Sohn v. Waterson, 17 Wall. 596; Union Pac. Railroad v. Stockyards Co., 231 U.S. 190; Lewis v. Lewis, 7 How. 778; United States v. Morena, 245 U.S. 392; In re Lee, 236 Fed. 987; Button v. Ry. Co., 1 Fed. (2d) 709; Crothers v. Electric Co., 149 Fed. 607; Southgate v. Frier, 8 Okla. 438; Swamp Land District v. Glide, 112 Cal. 90; Garrison v. Hill, 81 Md. 557; Moore v. Brownfield, 7 Wash. 26; Cranor v. School District, 151 Mo. 119. Statutes of limitation, being mere rules of procedure, affecting the remedy only, neither deny due process of law, nor impair the obligations of contracts if applied to causes of action in existence when such statutes are passed, provided only the new statutes which shorten the limitation period are not so drawn as to either bar or unreasonably shorten the time for instituting suits upon causes of action in existence when the statutes take effect. Terry v. Anderson, 95 U.S. 628; McCullough v. Virginia, 172 U.S. 102; Clark v. Railroad, 219 Mo. 524; Roenfeldt v. Railroad, 180 Mo. 554; Coe v. Ritter, 86 Mo. 282; Haarstick v. Gabriel, 200 Mo. 244; O'Bryan v. Allen, 108 Mo. 227. (b) The court erred in overruling the demurrers, because there was no evidence from which the jury would have been warranted in finding that the defendants, or either of them, cut the anterior crural nerve in plaintiff's right leg. Plaintiff in his petition alleged specific acts of negligence, and the negligence complained of was that the defendants had cut and thereby destroyed certain "nerves, muscles, blood vessels, tendons, arteries, veins, tissues," and other parts of his anatomy. The burden was upon him to prove that certain nerves, muscles, etc., had been negligently cut by the defendants. Weber v. Milling Co., 242 S.W. 985; Williams v. Wabash Ry. Co., 175 S.W. 900; Borowski v. Biscuit Co., 229 S.W. 424; 29 Cyc. 597, 600; Williams v. Modern Woodmen, 204 Mo. App. 135; Downs v. Horton, 287 Mo. 432; Menzenworth v. Life Ins. Co., 249 S.W. 115. The jury was left to arrive at its conclusion that the anterior crural nerve had been cut, solely by conjecture, by speculation and by guessing. This the law does not permit. Moon v. Transit Co., 247 Mo. 227; Dyer v. Building Contr. Co., 258 S.W. 48; Courter v. Mercantile Co., 266 S.W. 340; State ex rel. Bush v. Sturgis, 281 Mo. 598; Mullery v. Tel. Co., 180 Mo. App. 128; Rohr v. Gas Lighting Co., 67 So. 361; Cowan v. Brick Co., 222 S.W. 926; Small v. Ice Co., 179 Mo. App. 465; Turnbow v. Durham, 272 Mo. 53; Nevinger v. Haun, 196 S.W. 42; Tate v. Tyzzer, 234 S.W. 1038; Tinke v. Hess, 174 N.W. 466; Taby v. Warta, 196 N.W. 91; Coombs v. Janes, 144 Pac. 635; Matushka v. Murphy, 180 N.W. 821. If, for any reason, it should be urged that plaintiff's petition alleged general negligence, instead of specific acts of negligence, even under such circumstances no cause of action was made out for the jury. No negligence was shown, and the doctrine of res ipsa loquitur has no application in malpractice cases of this character. Pate v. Dumbald, 250 S.W. 49; Wilt v. McCallum, 253 S.W. 156; Hill v. Jackson, 265 S.W. 859; Barker v. Lane, 23 R.I. 224; Bigney v. Fisher, 26 R.I. 402; Bonnett v. Foote, 47 Colo. 282; Dawson v. Allen, 191 Ill. App. 399; Miller v. Blackburn, 185 S.W. 864; Goodman v. Bigler, 133 Ill. App. 301. (2) The court erred in giving plaintiff's Instruction 1. (a) The court authorized the jury to find its verdict against defendant Grace when there was no evidence tending to create liability against that defendant. Nelson v. Sandell, 209 N.W. 440; Nett v. Linville, 259 S.W. 43; Stokes v. Long, 159 Pac. 28; Lamson v. Crane, 74 Atl. 614; Brown v. Bennett, 122 N.W. 305. (b) Plaintiff's petition alleged specific acts of negligence in cutting nerves, muscles, etc., and the instruction authorized a finding against the defendants if the jury should believe from the evidence that the operation performed by them was performed in a negligent and careless manner, and that plaintiff was thereby "cut, wounded and injured in the performance of said operation." Stid v. Railroad, 236 Mo. 382; Degonia v. Railroad, 224 Mo. 564; Lauff v. Carpet Co., 186 Mo. App. 123; Sparkman v. Railroad, 191 Mo. App. 463; Clark v. Motor Co., 177 Mo. App. 623; Whitlock v. Crowe, 278 S.W. 789; Moss v. Fitch, 212 Mo. 484; Jennings v. Cherry, 257 S.W. 441. (3) By Instruction 2 given in plaintiff's behalf, the court erred in instructing the jury that "by `reasonable skill and diligence' in these instructions is meant that skill and diligence which is usually possessed and exercised by ordinarily skillful surgeons in the community in which such operation was performed." This instruction, as Instruction 1, instead of instructing the jury as to the care and skill that should have been exercised in the performance of the operation, instructed the jury as to the skill that should have been possessed by the defendants, when they were not charged with being unskillful or incompetent. (4) Instruction 4 went astray and far beyond the allegations of the petition or any evidence in support thereof. Under it the jury were not confined to the alleged wrongful cutting of nerves, muscles, etc., as charged in the petition. They were not limited to the alleged cutting of the anterior crural nerve, the only negligence plaintiff attempted to prove. They were authorized to find against the defendants if they should find that plaintiff's right leg was in any way negligently injured and atrophied. Plaintiff's petition in no way charged the defendants with injuring plaintiff's leg, except by cutting nerves and muscles; and by his evidence he did not even attempt to show that the leg had been injured for any reason other than that the anterior crural nerve had been cut.

Roger Stone Miller and Scott J. Miller for respondent.

(1) This cause of action accrued on September 4, 1920, and the cause of action by limitation ceased on September 4, 1925, being under the five-year statute. The Act of 1921 shortened the time of actions to be brought that accrued after its passage. This action had accrued prior to the passage of this act and must be governed by the law at the time the action accrued. "The words then in force" have reference to the time the act took effect. Ingram v. Poston, 260 S.W. 777. (2) The rule is that the causal connection need not be shown by direct and positive evidence, but may be shown by other facts and circumstances and that every reasonable inference must be indulged in in favor of plaintiff in consideration of his demurrer. That is, the trial court in considering the demurrer at the end of plaintiff's case must consider everything in favor of plaintiff. And then the direct question is, would plaintiff have any testimony, however slight, to go to the jury? In the philosophy of the law of actionable negligence, the proof of negligence itself is but one step toward recovery. Another step is to show by direct testimony or by proof of such facts as logically create the inference, that the negligence proved was the proximate cause of or contributed to the injury. The evidence for the plaintiff showed that there was no neuroma until after the cutting by the knife, and the evidence for both plaintiff, and defendant showed that a neuroma would be formed by the cutting of this or any other nerve. The physical fact showed there was no neuroma until after the cutting or injury. The physical fact showed he had nothing the matter with him when he got on the operating table and that he was a wreck when he got off. Nature could not have taken this opportunity and time to have caused all of plaintiff's disaster and injury. Hill v. Jackson, 265 S.W. 860. (3) The instructions must be taken as a whole or read together, and as taken or read together they properly declare the law of this case. They are not contradictory and they cover every issue of the case, and are not subject to the criticism of being confusing. Williams v. Jenkins, 229 S.W. 402. (4) Under the testimony in this case, there was positive proof that the defendants in their operation negligently and carelessly cut the anterior crural nerve and injured it and that Dr. Grace, who was present and had charge of the operation and assisted in it, so admitted and so told the plaintiff and plaintiff's father. The evidence shows that after the cutting and injuring, a neuroma, nature's remedy, formed around it. And this was at the time of the trial testified to by the defendant's experts, four years after the operation. The plaintiff's expert and the plaintiff testified there was none at the time of the operation; therefore the defendant's expert's testimony is in favor of the plaintiff's theory of the case. If this happened this way, which the jury found it did after weighing the testimony, which binds this court, as this court cannot weigh the testimony, the defendant's testimony is positive proof of the plaintiff's contention that the nerve was cut...