Hill v. Jackson , 220 Mo. App. 1302 ( 1927 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 829, n. 35 New; p. 844, n. 66; Evidence, 22CJ, p. 534, n. 72 New; New Trial, 29Cyc, p. 983, n. 5. This is an action against a dentist for malpractice. The cause was filed in Vernon county, but the venue was changed to Jasper county where plaintiff recovered and defendant appealed.

It is alleged that while extracting plaintiff's teeth defendant negligently dislocated her jaw and negligently failed to discover that he had done so and negligently failed to replace and reset it and failed to advise plaintiff that her jaw was dislocated. The answer is a general denial and a plea of contributory negligence. The reply is a general denial.

August 8, 1921, plaintiff consulted defendant about her teeth. He advised that they be extracted and on that date he extracted the upper teeth. September 6th thereafter he extracted the lower teeth, and while doing so plaintiff claims that her jaw was dislocated. This cause has twice been before the Kansas City Court of Appeals. [See Hill v. Jackson, 218 Mo. App. 210,265 S.W. 859, and Hill v. Jackson, 272 S.W. 105.] The general scope of the cause is covered in the statements in the opinions referred to, and it will not be necessary to make a general statement here. Such additional facts as may be necessary we shall state in the course of the opinion.

Defendant assigns error (1) on the refusal of his demurrer at the close of the case; (2) on the admission of evidence; (3) on the refusal of the court to permit the interrogation of the jury relative to two articles that appeared in a newspaper in Jasper county while the trial was in progress; (4) on plaintiff's instructions; and (5) on the refusal of defendant's instruction A.

The Kansas City Court of Appeals has twice ruled the assignment based on the demurrer against defendant. Plaintiff's case on the facts here is as strong as in either of the previous cases. When measured by a demurrer there is no argument to support this assignment. An appellate court is not the judge of the weight of the evidence. That province is for the trier or triers of the facts. We could add nothing that would be of consequence by further considering the demurrer. We think that it was properly refused.

The evidence complained of is the statement of plaintiff that defendant dislocated her jaw. The objection made was that plaintiff was not competent to answer the question as to the dislocation; that such question was "a matter for expert testimony and she is not qualified as an expert." The Kansas City Court of Appeals ruled this assignment against defendant (Hill v. Jackson, 265 S.W. l.c. 860), and we agree with that ruling. We ruled to the same effect on a similar question in Seewald v. Gentry, 286 S.W. 445, l.c. 452. In addition to the objection that plaintiff was not competent to testify that her jaw was dislocated defendant made the further objection that such evidence was a mere conclusion. To hold that such evidence is a conclusion would, we think, be substantially equivalent to holding that plaintiff could not testify that her jaw was dislocated because she was not qualified to speak as an expert. Such evidence, we think, should be considered in the nature of a statement of a fact within the knowledge of plaintiff. [City of St. Louis v. McCully Const. Co., 184 S.W. (Mo. App.) 939.]

The facts respecting the newspaper incident are about these. On the morning of the second day of the trial the Joplin Globe, a newspaper in Jasper county of general circulation, carried a news item about this cause. The news item stated that the petition charged that "the dentist dislocated Mrs. Hill's jaw while extracting the teeth and since that time she has been unable to eat solid food." It also recited that the trial then in progress was "the third time the suit had been tried," and gave what purported to be the amount of each previous verdict, to-wit, $1500 and $1525. On the morning that this news item appeared counsel for defendant asked permission to interrogate the jury to ascertain if any of them had read the article, and if so would they be influenced by having read that two previous juries had found for plaintiff. Counsel for plaintiff objected to getting before the jury that part of the article which gave the amount of each of the previous verdicts, but made no objection to any inquiry so that the amounts were not disclosed. The court ruled that no necessity had arisen to make such inquiry. When the court adjourned on the second day of the trial the jury was specially instructed not to read any newspaper accounts concerning the case, and to keep their minds free and not make up their minds until they retired to the jury room. On the morning of the third day of the trial another similar article appeared in the Joplin Globe wherein the two previous trials were mentioned and the amount of the verdicts returned. Defendant's counsel again asked to interrogate the jury as in the first instance. Counsel for plaintiff made no objection to the court making any inquiry desired, but mentioned the fact of the special instructions about not reading newspaper accounts of the case, and suggested that there was nothing before the court tending to show that the jury had disregarded the instructions. The court again ruled that no occasion had arisen for such inquiry. Defendant filed with his motion for a new trial the affidavits of two of the trial jurors to the effect that the news items above mentioned were discussed in the jury room and that said news items did influence the jury in returning a verdict for plaintiff.

According to the affidavits defendant was prejudiced by the newspaper articles, but, under the facts, it is one of those instances where there is no remedy except in the trial court. The affidavits of the jurors are not competent to impeach their verdict. Defendant made no offering when his request to interrogate the jury was refused. We considered a similar question in Bank of Malden v. Stokes, 280 S.W. 1055, and there said:

"Because of the protection which the law gives to the manner by which a jury reaches a verdict, the injured party, when misconduct on the part of the jury occurs, is most frequently without a remedy. In instances where grave misconduct on the part of the jury or jurors has occurred, and the losing party has been, because thereof, deprived of a fair and impartial trial, and is, because of the barriers, unable to establish for appellate review the fact of misconduct, we think, in such cases, the trial court should exercise the great discretion it has and, ex necessitate rei, grant a new trial on the weight of the evidence if no better reason can be found. To grant relief as suggested in such cases would always be within the power of the trial court, and would be in accord with sound reason and substantial justice."

Defendant challenges plaintiff's instructions 1, 2, 3, 4, and 5. We do not think it necessary to enter upon a discussion of the instructions given. The court gave five for plaintiff and eight for defendant. There is no support for the contention that there is error in plaintiff's instructions. The issues were clearly and fairly submitted.

Defendant complains because of the refusal of his instruction A which is as follows:

"The court instructs the jury that plaintiff has failed to prove any negligence whatever upon the part of the defendant in the extraction of plaintiff's teeth, and that the acts done, and means used, by defendant in the extraction of said teeth, under the evidence in this case, were such as any reasonably prudent and skillful dentist might have done or used. Therefore, even though you may find that plaintiff's jaw was dislocated by defendant, plaintiff cannot recover any damages herein due to the dislocation alone; but before plaintiff is entitled to recover in this case, it must be proven not only that her jaw was dislocated by defendant, but also that defendant was negligent in failing to discover and treat said dislocation, if any, and unless you so find, your verdict must be for defendant."

It is contended that there was no substantial evidence that defendant was negligent in the extraction of plaintiff's teeth. This same point in principle was before the Kansas City Court of Appeals when this cause was last before that court. [See Hill v. Jackson, 272 S.W. l.c. 108.] There the court said that there was affirmative evidence in the second trial that defendant was negligent in dislocating plaintiff's jaw and quoted from the record. The same character of evidence is here. There was no error in refusing instruction A.

Other questions are raised under points and authorities in the able and extensive brief of defendant, but there are no reversible errors. The judgment should be affirmed and it is so ordered. Cox, P.J., and Bailey, J., concur.