Trask v. Dunnigam, No. 19837

CourtMissouri Court of Appeals
Writing for the CourtBennick
Citation299 S.W. 116
PartiesTRASK v. DUNNIGAN.
Decision Date08 November 1927
Docket NumberNo. 19837
299 S.W. 116
TRASK
v.
DUNNIGAN.
No. 19837
St. Louis Court of Appeals, Missouri.
November 8, 1927.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Putnam B. Trask against Dr. J. P. Dunnigan. Judgment for defendant, and plaintiff appeals. Affirmed.

Arthur Stahl and Eugene D. Andrews, both of St. Louis, and W. L. Cole, of Union, for appellant.

James Booth and Virginia J. Booth, both of. Pacific, Jno. W. Booth, of Union, and I. H. Gamble, of St. Louis, for respondent.

BENNICK, C.


This is an action for damages for malpractice, instituted by plaintiff against defendant, a physician and surgeon engaged in the practice of his profession in Sullivan, Mo. At the conclusion of the taking of testimony, the court sustained a demurrer to the evidence, whereupon plaintiff took an involuntary nonsuit, and, from the refusal of the court to set the same aside, he has duly perfected this appeal.

The petition recites that plaintiff sustained a fracture of his left forearm and left hand, and employed defendant to diagnose and treat the same; that defendant carelessly and negligently inspected plaintiff's fractures and injuries, and negligently diagnosed them as mere sprains and strains; that he negligently placed plaintiff's arm in splints adjusted upside down; that he assured plaintiff that no bones were fractured or broken; and that, as the result of such negligence, the fractured parts healed and knitted in an unnatural position.

The answer of defendant was a general denial.

While plaintiff presents three assignments of error, the sole issue involved is whether the court erred in taking the case from the jury; and in the determination of this question we are mindful that plaintiff must be given the benefit, not only of all testimony that was adduced in his behalf, but also of any favorable testimony that may have been given by defendant's witnesses, in addition to which he must be allowed the benefit of reasonable inferences of fact on all the proof. Larkin v. Wells (Mo. App.) 278 S. W. 1087; Scott v. Kline's, Inc. (Mo. App.) 284 S. W. 831; Walker v. Mitchell Clay Mfg. Co. (Mo. App.) 291 S. W. 180; Krummenacher Drug Co. v. Chouteau (Mo. App.) 296 S. W. 255.

Viewing the evidence in the light of the above rule, it appears that plaintiff, on June 10, 1926, while employed as a carpenter, fell from a trestle, striking his left arm and left side. He immediately sought treatment from defendant, who was his family physician, and informed him that in his opinion his arm was broken. Plaintiff was asked to be seated in a chair, and, while an attendant of defendant pulled upon his arm, defendant himself rotated it, and made his examination. Plaintiff's own testimony was that, defendant advised him that no bones were broken, despite the fact that defendant placed splints upon the injured member. On the following morning, plaintiff returned to defendant's office, whereupon defendant removed the splints, and, after placing fresh cotton upon the arm, replaced them. This process was continued almost daily thereafter for five weeks. Upon this occasion defendant again advised plaintiff that he had sustained no fracture, but only a bad sprain. Plaintiff continued his visits to defendant for a period of five weeks, at the end of which time defendant advised him that he might resume his work. At the time of plaintiff's first call upon defendant his wrist was not swollen, although by the second day it was swollen rather badly.

After a few weeks, plaintiff came to the city of St....

To continue reading

Request your trial
11 practice notes
  • Pedigo v. Roseberry, No. 32635.
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1937
    ...connection. Nevinger v. Haun, 197 Mo. App. 427; Battles v. Rys. Co., 178 Mo. App. 615; Spain v. Burch, 169 Mo. App. 94; Trask v. Dunnigan, 299 S.W. 116. (5) The law will not hold a surgeon guilty of negligence as long as he uses his best judgment, even though his judgment may prove erroneou......
  • Gates v. Dr. Nichols' Sanatorium, No. 31020.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1932
    ...to produce direct and positive evidence of the negligence of the defendant. Cazzell v. Schofield, 319 Mo. 1185; Trask v. Dunnigan, 299 S.W. 116; Stratton v. Barnum, 263 S.W. 476: Eicholz v. Poe, 217 S.W. 282; Kinard v. Westerman, 279 Mo. 688. (c) Under all the record facts, plaintiff made a......
  • Raleigh v. Raleigh, No. 20167.
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1928
    ...S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Metropolitan Street Ry. Co., 243 Mo. 305, 147 S. W. 1032; Trask v. Dunnigan (Mo. App.) 299 S. W. 116; Hayward v. People's Motorbus Co. (Mo. App.) 1 S. W. (2d) 5 S.W.2d 692 252. Otherwise stated, we must regard plaintiff's evidence as true, so ......
  • Baird v. National Health Foundation, No. 19687.
    • United States
    • Court of Appeal of Missouri (US)
    • July 1, 1940
    ...elementary that where no damages are proved or are presumed as a matter of law, there is nothing to submit to a jury. Trask v. Dunnigan, 299 S.W. 116. Mere proof of an incorrect diagnosis is insufficient, Gunter v. Whitner, 75 S.W. (2d) 588; Spain v. Burch, 151 S.W. 172. The plaintiff's inj......
  • Request a trial to view additional results
11 cases
  • Pedigo v. Roseberry, No. 32635.
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1937
    ...connection. Nevinger v. Haun, 197 Mo. App. 427; Battles v. Rys. Co., 178 Mo. App. 615; Spain v. Burch, 169 Mo. App. 94; Trask v. Dunnigan, 299 S.W. 116. (5) The law will not hold a surgeon guilty of negligence as long as he uses his best judgment, even though his judgment may prove erroneou......
  • Gates v. Dr. Nichols' Sanatorium, No. 31020.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1932
    ...to produce direct and positive evidence of the negligence of the defendant. Cazzell v. Schofield, 319 Mo. 1185; Trask v. Dunnigan, 299 S.W. 116; Stratton v. Barnum, 263 S.W. 476: Eicholz v. Poe, 217 S.W. 282; Kinard v. Westerman, 279 Mo. 688. (c) Under all the record facts, plaintiff made a......
  • Raleigh v. Raleigh, No. 20167.
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1928
    ...S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Metropolitan Street Ry. Co., 243 Mo. 305, 147 S. W. 1032; Trask v. Dunnigan (Mo. App.) 299 S. W. 116; Hayward v. People's Motorbus Co. (Mo. App.) 1 S. W. (2d) 5 S.W.2d 692 252. Otherwise stated, we must regard plaintiff's evidence as true, so ......
  • Baird v. National Health Foundation, No. 19687.
    • United States
    • Court of Appeal of Missouri (US)
    • July 1, 1940
    ...elementary that where no damages are proved or are presumed as a matter of law, there is nothing to submit to a jury. Trask v. Dunnigan, 299 S.W. 116. Mere proof of an incorrect diagnosis is insufficient, Gunter v. Whitner, 75 S.W. (2d) 588; Spain v. Burch, 151 S.W. 172. The plaintiff's inj......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT