Trask v. Dunnigam

Decision Date08 November 1927
Docket NumberNo. 19837,19837
PartiesTRASK v. DUNNIGAN.
CourtMissouri Court of Appeals

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. Louis, and, on July 21, 1926, as well as upon later occasions, he had a number of X-ray pictures taken of his arm by Drs. Martin and Van Raalte, although defendant had advised against such procedure. Dr Van Raalte testified for plaintiff that the picture showed a Colles fracture and posterior displacement of the distal fragment; that he believed that an X-ray should have been used by defendant for an immediatae diagnosis; and that, had one been used, and the fracture diagnosed exactly, it was possible that by manipulation a better result could have been obtained.

Dr. R. A. Keiffer, also called as a witness for plaintiff, testified that, upon examination of the X-ray pictures, he thought that defendant's treatment of plaintiff's injuries had been perfect, and open to no criticism; and that, without regard to any diagnosis defendant may have made, if he nevertheless treated plaintiff's wound, placed splints upon his arm, and removed them from time to time, and left the bones in the same condition as indicated by the pictures, he gave plaintiff the proper medical treatment. Dr. Keiffer pronounced the bones as having been properly placed in position, with better than the average recovery, and gave it as his opinion that whatever loss of motion plaintiff had suffered in his wrist had not been due to the injury sustained in that region, but was rather traceable to an injury to certain muscles in the shoulder.

Plaintiff's own evidence further showed that in localities similar to the city of Sullivan it was usually impossible for physicians to obtain X-ray pictures, and there was no dispute as to the fact that defendant had no X-ray machine among his equipment. It was expressly admitted by plaintiff that the charge in his petition that the splints had been improperly adjusted was unwarranted.

Eliminating the assignment in the petition respecting the alleged negligent use of splints, there...

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20 cases
  • Williams v. Chamberlain
    • United States
    • Missouri Supreme Court
    • September 8, 1958
    ...diagnosis the mistake must be a negligent one to create liability. Gottschall v. Geiger, 207 Mo.App. 89, 231 S.W. 87, 95; Trask v. Dunnigan, Mo.App., 299 S.W. 116, 117; McDonald v. Crider, Mo.App., 272 S.W. 980, 981-982; Sibert v. Boger, Mo., 260 S.W.2d 569. This wound was not of the type i......
  • Pedigo v. Roseberry
    • United States
    • Missouri Supreme Court
    • March 11, 1937
    ...a result of the so-called bedpan "accident." Gottschall v. Geiger, 207 Mo.App. 89, 211 S.W. 87; Bailey v. Ry. Co., 296 S.W. 479; Trask v. Dunnigan, 299 S.W. 117; Keehn v. D. R. F. Realty & Inv. Co., 43 S.W.2d 419; Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697; Norkett v. Martin, 63 Colo. 22......
  • Baird v. National Health Foundation
    • United States
    • Kansas Court of Appeals
    • July 1, 1940
    ...608. It is 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 Gunter v. Whitner, 75 S.W.2d 588; Spain v. Burch, 151 S.W. 172. The plaintiff's injuries,......
  • Baird v. National Health Foundation
    • United States
    • Missouri Court of Appeals
    • July 1, 1940
    ...608. It is 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 plai......
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