Young v. Wolff
| Decision Date | 06 April 1915 |
| Citation | 175 S.W. 248,190 Mo.App. 48 |
| Parties | BERTHA D. YOUNG, Respondent v. A. STRATTON WOLFF, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
Judgment reversed and cause remanded.
Watts Gentry & Lee for appellant.
(1) The court erred in overruling defendant's demurrers to the evidence, offered at the close of plaintiff's case and also at the close of all the evidence in the case. (a) The facts testified to by plaintiff as to the manner in which the defendant separated her teeth are so preposterous and so contrary to all human experience as to be absolutely unbelievable and therefore the case should be treated as if no such evidence had been offered. This rule has been frequently recognized by the courts of this State. Weltmer v. Bishop, 171 Mo. 116-117; Nugent v Milling Co., 131 Mo. 252; Kelsay v. Railroad, 129 Mo. 374; New v. Railroad, 114 Mo.App. 385; Scroggins v. Railroad, 138 Mo.App. 220, 221, 222; Schaub v. Railroad, 133 Mo.App. 444-448; Paine v. Railroad, 130 Mo. 575. (b) The testimony as to the causal connection between defendant's alleged negligent act and plaintiff's present condition is so vague, speculative and uncertain that the judgment should be reversed. It is necessary to show clearly that the negligence shown caused the injury. Harper v. Railroad, 187 Mo. 575; Goransson v. Mfg. Co., 186 Mo. 300. (2) The court erred in permitting the plaintiff to prove her case all over again, after the defendant's testimony was in. While the trial court has some discretion in the admission of evidence out of order, it is a judicial discretion, must not be exercised arbitrarily, and the appellate court will correct any improper exercise of it. Christal v. Craig, 80 Mo. 367, 375; Beyer v. Herman, 173 Mo. 295, 305-306. Glenn v. Stewart, 167 Mo. 584, 593; Copper & Iron Mfg. Co. v. Railroad, 230 Mo. 59; 38 Cyc. p. 1355 (top of page), and cases cited under notes 23, 24, 25 and 26; People v. Van Ewan, 111 Cal. 144; Robishaw v. Piano Co., 179 Ill.App. 163; Campbell v. Campbell, 30 R. I. 63. (3) Plaintiff's instruction number 1 was erroneous in that it was broader than the evidence. Hales v. Raines, 162 Mo.App. 46; Allen v. Transit Co., 183 Mo. 411; Mulderig v. Railroad, 116 Mo.App. 655; Sommers v. Transit Co., 108 Mo.App. 319; Miller v. Railroad, 155 Mo.App. 528; Schaaf v. Box Co., 131 S.W. 937; Schroeder v. Transit Co., 111 Mo.App. 75; Casey v. Bridge Co., 114 Mo.App. 64; Delo v. Mining Co., 160 Mo.App. 45. The vice of this instruction is that it does not limit the finding of defendant's negligence to the specific act charged to have been committed by him which plaintiff's evidence tended to show.
S. P. Bond for respondent.
(1) The defendant's demurrer was properly overruled. Wheeler v. Bowles, 163 Mo. 398, 405; Carperter v. McDavid and Cottingham, 53 Mo.App. 393. (2) Dr. Baer testified wherein the treatment of the plaintiff by Dr. Wolff was improper. It was the proper way to prove the improper treatment. Wheeler v. Bowles, 163 Mo. 398, 405; Carpenter v. McDavid and Cottingham, 53 Mo.App. 393. (3) The opinion of Drs. Baer, Smith and Dietz whether the plaintiff's condition could reasonably follow from the injuries proved was proper. Taylor v. Railroad, 256 Mo. 191, 207, 209; Baehr v. Casualty & Surety Co., 133 Mo.App. 541; Moore v. Transit Co., 226 Mo. App., 703, 705. (4) Physicians, surgeons and dentists are liable for malpractice. 22 Am. & Eng. Ency. Law (2 Ed.), p. 798; Wheeler v. Bowles, 163 Mo. 398; Carpenter v. McDavid & Cottingham, 53 Mo.App. 393. (5) There is no error in plaintiff's instruction number 1. Wheeler v. Bowles, 163 Mo. 398, 406. (6) The court did not err in refusing to give defendant's instruction number 3: First, because is erroneously signaled out a particular fact or circumstance, not in itself controlling, and sought to make the whole case turn on it. Spohn v. Railroad, 87 Mo. 74, 81, 82; Iron Mountain Bank v. Murdock & Armstrong, 62 Mo. 70, 73, 74; Steinwender v. Creath, 44 Mo.App. 356, 366. Second, because the instruction ignored material facts at issue in the case. Crews v. Lockland, 67 Mo. 619, 621; Iron Mountain Bank v. Murdock & Armstrong, 62 Mo. 70, 73, 74.
This is a suit for damages accrued on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Defendant is a dentist, practicing his profession in the city of St. Louis, and plaintiff was treated by him as his patient. The evidence tends to prove that plaintiff called on defendant about the middle of December, 1910, for the purpose of having him treat her teeth. Defendant examined her teeth and went about the matter of killing the nerve in one before filling it. She returned on several different days to his office and he administered treatment toward killing the nerve and took the nerve out. On December 2, plaintiff says defendant told her that three of her teeth had moved forward and it would be necessary to push them back. Thereupon he took an instrument with a couple of prongs and placed it between those teeth--that is, the first molar and the one in front--and wedged them back and put some cotton in between them. Plaintiff says that defendant pushed the three back teeth backwards for as much as one-eighth of an inch or more all at one sitting and placed cotton between. Thereafter, on Monday, the 26th, plaintiff returned to defendant's office and he inserted gutta-percha between the teeth, and inserted gutta-percha between the teeth a second time on December 27, in order to hold them thus separated, until, on the 29th of December, enough separation was established between the teeth to squirt a stream of water through. Thereupon defendant placed the same or a similar apparatus between the teeth for the purpose of keeping the first molar tooth from moving forward, and then filled the first molar so as to prevent them from returning to the natural position. As a result of this treatment and while she was yet undergoing it, plaintiff says she began to suffer from a nervous affliction in the lower jaw which entailed not only great pain but a disfigurement upon her. It is said that the nerves in plaintiff's lower jaw and about it, have become so afflicted that she can scarcely control it and the suffers a constant twitching thereabout.
Plaintiff put on several expert witnesses, all of whom answered the same hypothetical question, to the effect that such treatment was improper. So much of the hypothetical question as is necessary to consider here is as follows:
This, the experts answer, was improper treatment and probably occasioned the nervous trouble complained of.
It is to be noted that the hypothetical question reckons with the state of facts detailed by plaintiff, to the effect that defendant moved plaintiff's teeth an eighth of an inch or more by means of the instrument employed and this, too, on the one day, 24th of December; moreover that, after having separated them, they were continued in that position by means of guttapercha for the several days referred to in the question.
On the part of defendant the evidence is, that he separated plaintiff's teeth in the ordinary manner, but only slightly, so as to insert two thicknesses of rubber dam, and that such rubber dam is very thin--scarcely thicker than paper. Defendant positively asserts that he did not separate the teeth unduly and that the separation was so slight he could not even estimate it except to say that it was an infinitesimal portion of an inch. All of the experts--both for plaintiff and defendant--testifying to the same effect that the treatment as described by defendant was entirely proper in every respect and such as is employed by a competent, skillful dentist in every case of the kind. Then, too, a number of witnesses,...
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