Opinion
May 18, 1929.
1. CERTIORARI: Conflict of Decisions. In reviewing an opinion of a court of appeals in a case certified to this court on the ground that its opinion therein contravenes prior decision of this court, this court is concerned only with the conflicts.
2. PHYSICIAN AND PATIENT: Treatment by Student of School of Osteopathy. The Court of Appeals in holding that the relation of physician and patient existed between relator and plaintiff did not contravene any previous decision of this court, where the evidence showed that relator conducted a college for profit, in which was taught the science of osteopathy; that it maintained a clinic in connection with the college; that its clinical activities included the treatment of patients by its students in and outside its hospital; that on the request of one of the students the plaintiff consented to be treated by said student; that, after an examination by relator and the student, plaintiff's case was diagnosed, and the student assigned to treat him; that the relator assisted the student in giving plaintiff the first treatment, directed the student as to future treatment, and required him to report to relator, on blanks supplied for such purpose, his treatments of plaintiff.
3. INSTRUCTION: Defining Negligence. Absent a tender of an instruction defining "negligence" and "carelessness" the failure of the court to define them is not error. And it will be assumed upon certiorari to the Court of Appeals that no such instruction was tendered where its opinion did not rule on the question.
4. ____: Dislocation of Plaintiff's Neck: Negligence Warranted. An instruction for plaintiff in his action for damages which submits the sole act pleaded and relied upon as the ground of recovery, namely, that the student of defendant's college in treating plaintiff for lumbago had produced a partial dislocation of one of the vertebrae of his neck, is not erroneous because it does not in specific words tell the jury that such act was negligence. The partial dislocation of a patient's neck by an osteopathic treatment is so unusual where the treatment is given with ordinary care, that a finding of negligence against a defendant in control of the treatment is warranted in the absence of explanation.
5. STUDENT: Skill of Physician: Conflict. Where the evidence tended to show that plaintiff did not contract for student treatment; that he submitted himself as a subject for treatment in relator's clinic; that relator accepted him as its patient, assured him that the student was qualified to treat him and directed the treatment given him, the Court of Appeals contravened no previous decision of this court in holding that the student was required to use the skill of a physician.
6. INSTRUCTION: Interpretation: Concession. It will not be ruled on certiorari that the Court of Appeals held that defendant's instruction conceded agency where it appears from a reading of their opinion that they did not so hold.
Corpus Juris-Cyc. References: Courts, 15 C.J., Section 511, p. 1079, n. 42. Trial, 38 Cyc, p. 1689, n. 20.
Certiorari to St. Louis Court of Appeals.
WRIT QUASHED.
Higbee Mills and S.H. Ellison for relator.
(1) The opinion clearly shows that the court arrived at its conclusion that the relation of agency existed between the, school and scholar, by pure speculation, or, as stated in the opinion, "by no wide stretch of the imagination." Laughlin v. Gorman, 239 S.W. 550; Morrell v. Lawrence, 203 Mo. 370. (2) The opinion conflicts with the decisions of this court, and errs in holding that Noren was "laboratory equipment" of the school. (a) There is not claimed to be evidence to base it on, and it is, therefore, speculation. Authorities, supra. (b) It is not the theory of the petition, or of the plaintiff's instruction, nor is such claim hinted at in Noren's testimony. State v. Ellison, 223 S.W. 673. (c) Noren's secret understanding on this subject, if he had one, would have no force. Beheret v. Myers, 240 Mo. 75. Miesser v. Ry. Co., 211 Mo. 133. (d) There is no claim of evidence to support the finding that the school was benefited by Noren's submitting to student treatment. And, even if there had been, such benefit would not create, or evidence, principal and agent. McDonald v. Matney, 82 Mo. 365. Mining Co. v. Swope, 204 Mo. 58. (e) There was no claim, or evidence, that Abramson was not obligated to furnish his own "laboratory equipment." The evidence shows he did furnish it. The opinion presumes he was not to do so. Menter v. Fruit Co., 240 Mo. 186. (3) The conclusion reached by respondents is reached by one presumption being based on another. Phillips v. Travelers Co., 288 Mo. 175. (4) The opinion shows that a personal, private contract was made between Abramson and Noren, and that the school was not a party to the contract, nor was it understood to be a party by Noren. Carr v. Mo. Pac., 195 Mo. 225. (5) Noren's contract with Abramson was a personal contract with him, and there is no claim of evidence to support the idea that the school was involved in it. Feebach v. Railroad, 167 Mo. 215; Oatman v. Railway, 263 S.W. 143. (6) The opinion finds liability against relator because Abramson did not possess, or use, the skill possessed by the ordinary physician. This holding conflicts with the decisions of this court, because Noren did not contract for such skill. He contracted for student treatment. Liggett v. Bank, 233 Mo. 601. (7) Instruction 1 is erroneous because Noren contracted for student treatment, yet it undertakes to require him to possess the skill of the ordinary physician. Pate v. Dumbauld, 250 S.W. 52. (a) Said instruction uses the words "negligence" and "carelessness" without defining their meaning. Owens v. McClary, 281 S.W. 685. (b) It assumes many facts necessary to be proven. Gorder v. O'Neil, 270 Mo. 646-7. (8) The opinion holds that defendant's refused Instruction 5, which was offered after a demurrer had been refused, conceded agency. Everhart v. Bryson, 244 Mo. 516. (9) Plaintiff's Instruction 1 assumes Abramson was treating under Dr. Platt's direction; it assumes the treatment complained of was given for lumbago; it assumes the relation of physician and patient existed between the school and Noren; it assumes the treatment complained of was one of the required number; it assumes the treatment complained of was one in contemplation of Dr. Platt six months before; it assumes the treatments given Noren were required to be reported by Abramson. Corder v. O'Neil, 270 Mo. 646; Moon v. Tea Co., 247 Mo. 237. (10) It also attempts to cover the whole case, yet it fails to submit these important and vital issues: (a) Was Abramson's neck treatment for lumbago? (b) Was he the agent of the school? (c) Was the treatment in question required by the school? State ex rel. v. Trimble, 236 S.W. 653.
C.D. Stewart and G.C. Weatherby for respondent.
(1) On the facts as stated in the opinion, the Court of Appeals held that the student, Abramson, acted as the agent and servant of the school in the giving of the treatments in question. In certiorari to quash this holding, it is immaterial what the Supreme Court thinks of such holding as an original proposition. The sole question is whether or not the holding conflicts with the ruling of the Supreme Court on a similar state of facts. State ex rel. Ry. Co. v. Ellison, 204 S.W. 396. The Supreme Court has never decided whether or not the relation of principal and agent exists between a school and its student, where, as here, the school teaches and practices the healing art and requires and directs its students to treat patients under the supervision and direction of the school, after the school first examines the patient, diagnoses his case, gives specific directions as to the manner and course of said treatments, holds out to the patient that the student is competent and qualified to treat him, and requires the student to report such treatments to the school on blanks furnished by the school. This holding should not be quashed for two reasons: (a) because the Supreme Court has never decided that such facts did not create the relation of principal and agent, hence no conflict, and (b) such holding does not conflict with any general ruling of the Supreme Court as to what facts constitute the relation of principal and agent. (2) The conditions and circumstances under which Noren became a patient of the school, in effect amounted to him becoming a part of the equipment which the school used in teaching the student the art of giving osteopathic treatments, and justified the Court of Appeals in concluding that under the facts shown Noren was in reality "laboratory equipment for the school." Whether this conclusion of the Court of Appeals is right or wrong, is wholly immaterial in this proceeding, because such conclusion is not the announcement of a legal principle by such court, and necessarily could not be in conflict with any law announced by this court. (3) Relator's complaint seems to be that the petition did not plead that Noren was "laboratory equipment" and no witness so testified, and for that reason the conclusion that he was "laboratory equipment" is in conflict with rulings of this court in the cases cited to the effect that the findings of the court must be within both the pleadings, and evidence. The issue in the case and the issue decided by the Court of Appeals was not whether Noren could properly be called "laboratory equipment of the school," but was whether or not the school was liable for the act of the student while treating Noren. (4) Relator's next contention is that Noren made a private contract with Abramson, and there is no evidence that the school was involved in it, or that Noren so understood it. The cited cases are not in point. The facts in the case decided by the Court of Appeals show that the school did owe Noren a duty and violated that duty. Although the student did himself procure permission to treat Noren in the first instance yet the school did not permit him to treat Noren, until some member of its faculty or treating staff, examined him, diagnosed his ailment and gave specific directions as to treatment. (5) Relator's next contention is that the opinion of the court of appeals erred in holding that Abramson was required to use the skill of an ordinary physician, for the reason that Noren contracted for student treatment. The cited cases do not mention or discuss the point raised by relator's contention. Noren did not contract for student treatment. The school required Abramson to give two hundred treatments, and after he obtained permission to treat Noren, the school accepted Noren as its patient and superintended, directed and controlled the treatments given him, and assured Noren that the student was competent and qualified to treat him. (6) It is next insisted that instruction number one is erroneous because it used the words "carelessness" and "negligence" without defining their meaning. The cited case does not hold that it was error to fail to define the words "carelessness" and "negligence" when such words are used in an instruction. There is a wide difference between failing to define the word "negligence" and failing to inform the jury what facts would constitute negligence in a given case. Whether or not a given state of facts or circumstances amount to negligence is a question of law. Tarwater v. Railroad, 42 Mo. 193. Whether or not such facts exist in a given case, is a question of fact for the jury to determine. Yarnell v. Railway, 75 Mo. 583. It is not error to fail to define the words "carelessness" and "negligence" when used in an instruction, in the absence of a request that such definition be given. Russell v. Grocery Co., 288 S.W. 987; Anderson v. Sash Door Co., 182 S.W. 820; Duvall v. Cooperage Co., 275 S.W. 589; Malone v. Ry. Co., 213 S.W. 867; Sweeney v. Railway Co., 150 Mo. 401. Even if it were ordinarily necessary to define the words "carelessness" and "negligence," it would not be necessary to do so in this case because the partial dislocation of a patient's neck in the giving of an osteopathic treatment is sufficiently out of the ordinary course of what usually happens where ordinary care and skill is used, in the absence of any explanation by the school, to warrant the jury in finding that the treatment which dislocated Noren's neck was negligently given. Ercholz v. Poe, 217 S.W. 282.
Relator seeks to have quashed the opinion of the St. Louis Court of Appeals in Noren v. American School of Osteopathy, a corporation, No. 19495.
The facts as stated by said court are:
"This is an action for damages for personal injuries, alleged to have been sustained by plaintiff, while receiving certain osteopathic treatments at the hands of one Elmer C. Abramson, a senior student of defendant, American School of Osteopathy, an institution located in the city of Kirksville, Missouri, and engaged in the business of teaching and practicing the science of osteopathy. A trial was had to a jury, resulting in a verdict for plaintiff in the sum of $3500. In due course, a motion for a new trial, filed by defendant, was sustained by the court, upon the ground of error in the giving and refusal of certain instructions, from which order plaintiff perfected his appeal. . . .
"It was alleged in the petition, in substance, that, as a prerequisite to graduation from defendant school, Abramson, as agent and servant of defendant, was required to give a certain number of osteopathic treatments to members of the general public, under the direction and supervision of defendant; and that, while so treating plaintiff, Abramson, unskillfully, carelessly and negligently injured him.
"The answer was a general denial.
"The evidence disclosed that plaintiff became acquainted with Abramson in the fall of 1921, while the latter was engaged in giving osteopathic treatments to certain members of plaintiff's family. Plaintiff was aware that Abramson was not a graduate osteopathic physician, but that he was a student in defendant school, studying to qualify himself for the ultimate practice of his chosen profession. It appears that one of the requirements of the school leading to graduation was that each student, in his senior year, should administer two hundred treatments outside of the school, and an additional two hundred at the school's infirmary, to members of the general public. Such treatments were given under the direction of a member of defendant's faculty or staff, and were reported by the student to defendant on blanks supplied him for such purpose.
"Prior to Abramson's personal connection with the case, plaintiff had been examined at the school proper, and had been told at the time that he was suffering from lumbago, a progressive disease which first manifests itself in the lower part of the back, and gradually extends higher. For this examination he paid the school the sum of two dollars. Subsequently, during one of Abramson's visits to plaintiff's home, he sought permission from plaintiff to treat him, which request was granted. Four or five days later Abramson returned, in company with Dr. Platt, a member of defendant's faculty, and the director in charge of the treatments required to be given by the students; and, after an examination of plaintiff, conducted by both men, his ailment was again diagnosed as lumbago. After a conference with Abramson, Platt informed plaintiff that Abramson was competent to treat him, and the first treatment was, in fact, given by Abramson in Platt's immediate presence. Thereafter the treatments were administered at regular intervals by Abramson alone, until in March, 1922.
"The particular treatment complained of was given sometime in February, 1922. Upon such occasion, Abramson, after placing plaintiff upon the treating table, first manipulated his hips; and then, after taking hold of his head with both hands, twisted his head with such force as almost to throw plaintiff off of the table, causing his neck to crack with a loud noise, as a result of which plaintiff was caused to suffer very severe pain and permanent injuries.
"There was evidence that an adjustment of the neck was not necessarily a treatment for lumbago, although occasionally, when a specific affliction was being treated, general treatments, in addition to treatments of the particular area affected, were also given; that extreme pressure would be required to dislocate the neck, as happened in plaintiff's case; that, in adjusting the neck, the proper method was to place the operator's hands underneath and to the side of the neck, and not to place them under or upon the head, as Abramson did; and that to apply such force as to move the patient's body upon the table, and to give the head such a severe turn or jerk as to dislocate the neck, was not proper osteopathic treatment.
"Dr. Platt himself testified to the fact that Abramson was required to give certain treatments to patients, who were to be examined by a member of the faculty of the school; and that it was the duty of such faculty member to instruct the student as to the nature of the ailment, and to outline the exact manner in which the case should be treated. He admitted having examined plaintiff, and having given Abramson specific directions as to the course of treatment to be pursued; but stated that after the first treatment had been administered, he was not supposed to see plaintiff again, unless the treatments did not give relief, or some other complaint was made.
"There was evidence offered on the part of the defendant bearing upon its theory of defense, which tended to show that Abramson had reported certain of his treatments; but that he had not reported the one in February, 1922, inasmuch as he had at that time completed the number of treatments required of him by defendant."
I. The court held there was substantial evidence of the relation of physician and patient between defendant and plaintiff. Relator challenges this ruling as in conflict with Laughlin v. Gorman, 239 S.W. 548 l.c. 550; Morrell v. Lawrence, 203 Mo. 363 l.c. 370, 101 S.W. 571; Carr v. Mo. Pac. Ry. Co., 195 Mo. 214, l.c. 225, 92 S.W. 874; Feebach v. Relation of Railroad, 167 Mo. 206, l.c. 215-216, 66 S.W. 965; Physician Oatman v. Railway, 263 S.W. 139, l.c. 143-144; and Patient. Liggett v. Bank, 233 Mo. 590, l.c. 601, 136 S.W. 299; McDonald v. Matney, 82 Mo. l.c. 365; Mining Co. v. Swope, 204 Mo. 48, l.c. 58, 102 S.W. 561. Relator directs attention to no conflict, and an examination of the cases discloses none. In those cases the question of agency is neither discussed nor decided.
The evidence tends to show relator conducted a college for profit, in which was taught the science of osteopathy; that it maintained a clinic in connection with the college; that its clinical activities included the treatment of patients by its students in and outside of its hospital; that on the request of one of its students the plaintiff consented to be treated by said student; that, after an examination by relator and the student, plaintiff's case was diagnosed, and the student assigned to treat him; that the relator assisted the student in giving plaintiff the first treatment, directed the student as to future treatments, and required him to report to relator, on blanks supplied for such purpose, his treatments of plaintiff.
On this review we are concerned only with conflicts. However, it will be interesting to note that under similar facts it was held by the Supreme Court of Oklahoma, Carver Chiropractic College v. Armstrong, 103 Okla. l.c. 124 that:
"A corporation created for the purpose of maintaining and operating a school or college for gain or profit in which is taught the science of chiropractics, and maintains a clinic in connection with the college, wherein patients are treated by undergraduate students of the institution for a nominal charge, is liable for an injury sustained by a patient while being treated in the clinic by a student who has been assigned by the authorities of the institution to administer the treatment, where the injury complained of is the result of negligence, carelessness, or lack of ordinary skill on the part of the student administering the treatment.
"In that case, plaintiff, while undergoing the chiropractic treatment at the hands of the student practitioner, had two ribs broken, the breastbone dislocated, and her body otherwise bruised and torn. In affirming a judgment for the plaintiff against the corporation, the court said:
"A clinic, as an adjunct to a college of this character is a necessary and essential part of the institution, and is maintained, not for the benefit of charity, but for the benefit of the institution and its students, and the institution is a private corporation created for business purposes and for profit, and while those who practice and believe in the science may feel that it is an institution in the nature of a public beneficiary and should be regarded in the same light as charitable institutions, the law does not so consider it, and in our judgment the institution is clearly liable for any negligence or [lack of] ordinary care on the part of its servants, employees, and students, who are placed in charge of persons entering the institution for treatment." [Carver Chiropractic College v. Armstrong, 103 Okla. 123, 229 P. 641.]
II. Relator challenges the ruling on plaintiff's Instruction No. 1, which follows:
"You are instructed in this case that if you find and believe from the evidence that the defendant conducted its school of osteopathy in the city of Kirksville, Missouri, during the two years of 1921 and 1922, and through its agents and Instruction: servants taught and practiced the science and Stating system of osteopathy in said school during said Negligence. years and you further find that one Elmer C. Abramson was a senior student in defendant's school during the years 1921 and 1922 and that said school directed and required said Abramson to give two hundred osteopathy treatments to patients outside the rooms of defendant's school and under the supervision and direction of a member of the faculty of said defendant's school and you further find and believe from the evidence that one Dr. Platt was a member of the faculty of said defendant's school and that said Platt examined the plaintiff and directed the said Abramson to treat plaintiff for lumbago and that said Abramson did thereafter under said directions of said Platt treat the plaintiff and while treating plaintiff negligently and carelessly produced a partial dislocation of one of the vertebraes in plaintiff's neck and by reason thereof injured plaintiff, then your verdict should be for the plaintiff."
In reviewing the instruction, the court said:
"So far as concerns plaintiff's Instruction No. 1, we are of the opinion that it was within the purview of the pleadings and the evidence, and that it properly covered the entire case. It did not assume any controverted facts, as counsel contend; and while it is true that it did not, in express terms, require the jury to find that the relation of physician and patient existed between plaintiff and defendant, or that Abramson was the agent of defendant, it did submit the facts upon a finding of which the law would say that such relationships did exist, with all of the attendant obligations. Nor can it be said that it failed to give the jury any guidance as to the specific act which, under the law, would constitute negligence, inasmuch as it plainly submitted the sole act pleaded and relied upon; namely, that Abramson had produced a partial dislocation of one of the vertebrae in plaintiff's neck."
It is contended this ruling is in conflict with Owens v. McCleary, 281 S.W. 682, in that the words "carelessness" and "negligence" are not defined.
We assume the question was not presented to the Court of Appeals, for said court did not rule on the question, and an examination of the opinion in the Owens case discloses that the question was not ruled in that case. Absent a tender of an instruction properly defining said words, it was not error for the court to fail to do so. [Russell v. Grocery Co., 288 S.W. l.c. 987, and cases cited; Anderson v. American Sash Door Co., 182 S.W. l.c. 820; Duvall v. Cooperage Co., 275 S.W. l.c. 589; Malone v. Railway, 213 S.W. l.c. 867; Sweeney v. Railway, 150 Mo. 385 l.c. 401, 51 S.W. 682.]
The Owens case was an action for malpractice, and the instruction complained of did not inform the jury what specific acts or omissions would constitute negligence.
In the instant case plaintiff's Instruction No. 1 "submitted the sole act pleaded and relied upon, namely, that Abramson (the student) had produced a partial dislocation of one of the vertebrae in plaintiff's neck."
The partial dislocation of a patient's neck by an osteopathic treatment is so unusual where the treatment is given with ordinary care that a finding of negligence against a defendant in control of the treatment is warranted in the absence of an explanation.
In Ercholz v. Poe, 217 S.W. 282, the evidence tended to show that plaintiff's jawbone was broken by a dentist in extracting a tooth. In reviewing the case, we said:
"The proximate cause of the injury is established sufficiently by the testimony of plaintiff, who swears that his jaw was broken and fractured in the act of extracting the tooth, and in the light of the authorities, supra, we think the extraction of the tooth, being under the management and control of defendants, was sufficiently out of the ordinary course of that which usually happens where ordinary care and skill is employed, in the absence of explanation by defendants, to warrant the jury in finding that the tooth was negligently extracted."
It is next contended the opinion is in conflict with Moon v. Transit Co., 247 Mo. 227 l.c. 237, 152 S.W. 303; State ex rel. v. Trimble, 236 S.W. l.c. 653, for the reasons the instruction assumes controverted facts and fails to submit important issues. Those cases announce the rule that instructions Facts: must not be broader than the pleadings or the Assumed evidence and must require the jury to find every and Omitted. contested fact necessary to a recovery. The instruction assumes no controverted facts and requires a finding of facts which create a relationship of physician and patient.
III. It is next contended the opinion is in conflict with Liggett v. Bank, 233 Mo. 590, l.c. 601, 136 S.W. 299, and Pate v. Dumbauld, 250 S.W. l.c. 52, for the reason that plaintiff contracted for student treatment, and the court of Skill of appeals held that Abramson (the student) was required Physician. to use the skill of a physician.
There can be no conflict with those cases, for the reason the question was neither presented nor discussed. The evidence tends to show that plaintiff did not contract for student treatment; that he submitted himself as a subject for treatment in relator's clinic; that relator accepted him as its patient, assured him the student was qualified to treat him and directed the treatments given him.
In this connection it is contended that "the conclusion reached by respondents is reached by one presumption being based on another." Relator points to no violation of this rule, and we discover none.
IV. It is next contended the opinion is in conflict with Everhart v. Bryson, 244 Mo. 507, l.c. 516, 149 S.W. 307, for the reason the Court of Appeals held that defendant's refused instruction numbered 5 conceded agency. Interpretation of Instruction.
That case holds a defendant does not waive a demurrer by asking instructions on the merits after the demurrer is refused. There is no conflict.
Instruction No. 5 is as follows:
The court instructs the jury, that if you find and believe from the evidence in the cause that the witness Abramson had given all the treatments required by defendant school to be given prior to the giving by him of the treatment complained of by plaintiff, then your verdict must be for defendant."
The court in reviewing the instruction said:
"With regard to defendant's Instruction 5, we assume that it was requested by reason of Abramson's testimony that he had completed the required two hundred treatments, before the injury to plaintiff's neck was inflicted. It would seem that, by the language of such instruction, defendant should be held to have conceded that so long as Abramson was engaged in giving the treatments demanded of him by defendant, he was acting as defendant's agent, and that during such time defendant would be answerable for his negligence. But aside from this, it is the undoubted rule that unless the terms of the employment of a physician limit the extent of his service, or a reasonable notice is given the patient that he will not undertake subsequent treatment, the relation of physician and patient continues until the doctor's services are no longer needed, unless ended by mutual consent, or revoked by dismissal. [Marshall v. Brown, 205 Mo. App. 390, 224 S.W. 13; Nash v. Royster, 189 N.C. 408, 127 S.W. 356; 30 Cyc. 1573.]"
Thus it appears the court did not hold that said instruction conceded agency.
It follows our writ should be quashed. It is so ordered.
All concur.