Waters v. Crites
| Decision Date | 15 December 1942 |
| Docket Number | 38162 |
| Citation | 166 S.W.2d 496,350 Mo. 553 |
| Parties | Owen Waters v. Dr. A. B. Crites, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Emery H. Wright Judge.
Affirmed.
Alfred B. Couch, Watson, Ess, Groner, Barnett & Whittaker and Carl E. Enggas for appellant.
(1) The court erred in giving plaintiff's Instruction 1 because (a) Said instruction purports to cover the entire case and directs a verdict for plaintiff on a pleaded charge of negligence -- performing surgery upon plaintiff when surgery was not necessary and would result in injury -- without any finding upon the issue of whether it was negligence to perform such operation. McDonald v. Crider, 272 S.W 980; Nevinger v. Haun, 197 Mo.App. 416, 196 S.W. 39; Gottschall v. Geiger, 207 Mo.App. 89, 231 S.W. 87; 41 Am. Jur., p. 200; 48 C. J., p. 1134; Gramm v. Boener, 56 Ind. 497; Snyder v. St. Louis S.W. Ry. Co., 228 Mo.App. 626, 72 S.W.2d 504; Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620; Logan v. Field, 75 Mo.App. 594, 90 S.W. 127; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Griffith v. Delico Meats Products Co., 347 Mo. 28, 145 S.W.2d 431. (b) There was no evidence in the record justifying the submission to the jury of the issue that the operation performed by defendant was likely to result injuriously to plaintiff. Fausette v. Grim, 193 Mo.App. 585, 186 S.W. 1177; Gandy v. St. Louis-S. F. R. Co., 329 Mo. 459, 44 S.W.2d 634. (c) Said instruction requires the jury to find as a fact that plaintiff's skin pigmentation (for which he was operated upon) was not due to illness or disease, when his evidence and the theory upon which he tried his case was to the contrary -- that this condition was due to illness or disease. Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24. (d) Said instruction is broader than the pleadings -- the petition charged negligence in performing an operation which would result injuriously to plaintiff, while the instruction broadened the issue by merely requiring a finding that the operation would likely (might) result in injury. Hensley v. Kansas City Rys. Co., 214 S.W. 287; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286. (2) The court erred in failing to sustain defendant's motion to discharge the jury each time plaintiff's counsel referred to or asked questions concerning the insurance company in which defendant carried liability insurance covering operations performed by him, which motions were made, overruled and exceptions saved during (a) plaintiff's opening statement, (b) during the direct examination of plaintiff, (c) during the cross-examination of defendant, (d) during the cross-examination of defendant's witness, Deltha Crowley, and (e) during the cross-examination of defendant's witness, Dr. Eugene Wise. The intentional injection of insurance into the case by plaintiff was not relevant or material upon any issue and constituted reversible error. Allen v. Wilkerson, 87 S.W.2d 1056; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 251 S.W. 477; Nolen v. Halpin-Dwyer Const. Co., 225 Mo.App. 224, 29 S.W.2d 215; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Jones v. Mo. Pac. Freight Transit Corp., 225 Mo.App. 1076, 40 S.W.2d 465; Vesper v. Ashton, 233 Mo.App. 204, 118 S.W.2d 84; Paepke v. Stadelman, 222 Mo.App. 346, 300 S.W. 845; Robinson v. McVay, 44 S.W.2d 238; Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883; Crapson v. United Chautauqua Co., 27 S.W.2d 722; Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; State ex rel. Tramill v. Shane, 161 S.W.2d 974. (3) The court erred in refusing to sustain defendant's motion for new trial upon the ground that the verdict of the jury was excessive and so excessive as to indicate passion and prejudice upon the part of the jury against the defendant. Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885; Gore v. Brockman, 138 Mo.App. l. c. 235, 119 S.W. 1082.
Harvey Burrus, Rufus Burrus and Johnson & Garnett for respondent.
(1) Defendant's criticisms of plaintiff's Instruction 1 are without merit. (a) Reasonable minds cannot differ in arriving at the conclusion that the hypothesized acts constitute negligence, and the fact that the instruction does not, in terms, require a finding of negligence cannot be made the predicate for error. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S.W.2d 1035; McCaffery v. Railroad, 192 Mo. 144, 90 S.W. 816; Prash v. Railroad, 151 Mo.App. 410, 132 S.W. 57; Borowski v. Loose-Wiles Biscuit Co., 229 S.W. 424; McCormick v. Jones, 278 P. 181; King v. Ditto, 19 P.2d 1100; Gill v. Selling, 267 P. 812; Hughes v. Weaver, 148 S.E. 12; Smith v. Zeagler, 157 So. 328. (b) The evidence abundantly supports the submission of the issue that the operation was likely to result injuriously to plaintiff. Kelly v. Laclede Real Estate Co., 155 S.W.2d 90. (c) The fact that plaintiff's skin pigmentation was not caused by illness or disease was not only uncontroverted, but was admitted by both parties, and the inclusion of that fact in the instruction does not render the same erroneous. (d) The instruction is not broader than the pleadings. Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286; Jordan v. St. Joseph Ry. L. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561; Wessel v. Lavender, 262 Mo. 421, 171 S.W. 331. (2) The evidence of defendant's statement with reference to insurance was competent and material to the issues, and the trial court properly overruled all of defendant's objections thereto and motions to discharge the jury based thereon. Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Robinson v. McVay, 44 S.W.2d 238; Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Edwards v. Smith, 286 S.W. 428; Boten v. Sheffield Ice Co., 280 Mo.App. 96, 163 S.W. 883; Garvey v. Ladd, 266 S.W. 727; Paepke v. Stadelman, 222 Mo.App. 346, 300 S.W. 845; Jablonowski v. Modern Cap Co., 312 Mo. 173, 279 S.W. 89; Blech v. Berzon, 61 S.W.2d 201; Grindstaff v. Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 679. (3) The verdict is not excessive.
Gantt, J. All concur except Hays, J., absent.
Action against an osteopathic physician and surgeon for malpractice. Defendant appealed from a judgment for $ 12,000. The material facts on this appeal follow:
On the 14th day of May, 1940, plaintiff consulted the defendant about dark circles under his eyes. On that day they discussed and considered the question of a surgical operation to eliminate said circles. Defendant informed plaintiff that he would charge $ 100.00 for the operation. Plaintiff stated that he would return the next day with the $ 100.00. On the said day (15th of May) plaintiff went to defendant's office and paid him the $ 100.00. On payment of the fee defendant presented to plaintiff a liability release for him to sign, which follows:
Plaintiff testified that on reading the release he told the defendant "that it was a rather tough thing to sign and if there was any danger at all in the operation he had suggested, I did not want to go through with it." He also testified that defendant answered: "that is a requirement of the insurance company, but so far as he himself was concerned, he knew that he could do me a neat and satisfactory job, the kind I really would like to have and he could do it." Thereupon plaintiff signed the release, which he introduced in evidence. Defendant did not plead the release as a defense. As a result of the consultation on the 14th of May and the payment of the fee and signing of the release on the 15th of May, the defendant, on the 16th of May, 1940, by surgical operation, removed the pigmented skin under the eyes in an effort to eliminate the dark circles. At the time plaintiff was twenty-two years old. It is admitted that the operation was unnecessary and not successful. On the 13th of June, 1940, defendant performed a second operation on the plaintiff by removing skin at the side of the eye in an attempt to remedy a dropping of the lower lid from the eyes. For the second operation plaintiff paid the defendant $ 50.00.
At the trial there was evidence tending to show that defendant advised against the operation and that the same was performed on the insistence of plaintiff. On this evidence and at the request of defendant, the court directed that if the jury believed defendant advised plaintiff that the operation was unnecessary and inadvisable and that plaintiff, after being so advised, still requested the operation, he could not recover.
On plaintiff's request, the court directed the jury as follows:
"The court instructs the jury that if you find and believe from the evidence that the dark areas or circles under plaintiff's eyes were not caused by any ailment or disease, and that an operation for the removal thereof would be likely to result in injury to him, and that defendant knew or by the exercise of ordinary care and skill could and should have known that the removal of such dark areas by an operation was so obviously unnecessary that an ordinary careful and prudent surgeon would not have performed it, and that such operation would be likely to result in injury to the plaintiff, and, notwithstanding such knowledge, if any advised such operation, and performed the same,...
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