# Wingfield v. Wabash Railroad

> Supreme Court of Missouri · April 2, 1914 · 257 Mo. 347

URL: https://www.frixlaw.com/law-library/cases/8018773

## Case

- **Full name:** ANNIE WINGFIELD, Administratrix of Estate of ROBERT WINGFIELD v. WABASH RAILROAD COMPANY
- **Court:** Supreme Court of Missouri
- **Decided:** April 2, 1914
- **Citations:** 257 Mo. 347; 166 S.W. 1037; 1914 Mo. LEXIS 293
- **Precedential status:** Published
- **Opinion:** Dissent by Woodson
- **Judges:** Baris, Bond, Brack, Brown, Eaves, Jconcurs, Jnot, Lamm, Norton, Paragraph, Portion, Reasons, Walker, Woodson
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8018773

## How later opinions describe it (automated extraction)

- holding that where legislature had expressly vested in the school district the power to determine interior sanitary arrangements for ventilating water-closets, city regulations based upon the police power would not apply

## Opinion text

DISSENTING. OPINION
WOODSON, J.
When this case was in Division No. 1, I wrote a dissenting opinion upon two propositions; first, regarding the scope of the instructions; and second, regarding the opinion of the medical expert testimony. I acknowledge I was partially wrong upon the former, but adhere to my views expressed as to the latter.
In Division my learned associate, Judge Bond, who wrote the divisional opimon, correctly applied to this case the familiar rule of practice, that when the plaintiff, in submitting Ms case to the jury, omitted from the instructions one of the ingredient elements necessary for a recovery, and .thereby induced the court to'give the same, he should suffer the penalty of Ms error by having the judgment of the circuit court in his favor reversed and the cause remanded; but in doing so he stated the rule too broadly, as my learned associate Judge Graves has done in this case, in Banc, in this: that where the plaintiff undertakes to cover his entire case by instructions and omits therefrom the theory of the defense imposed, then he commits the same error that he would have done, and did actually commit, in this case, by omitting from Ms instructions a necessary element in Ms own ease. My meaning is this: In this case after the plaintiff sustained the injuries complained of he entered into an accord and *373 satisfaction of Ms canse of action with the defendant. The defendant paid him a certain snm of money in consideration therefor and the plaintiff accepted the same, and in writing receipted for the same and acknowledged full and complete satisfaction for . all damages he claimed he was entitled to on account of said injuries. In all such cases, prior to the enactment of section 1812, Revised Statutes 1909, the plaintiff could not sue and recover upon a cause of action so settled, because the law reqmred him to go into a court of eqmty and have the accord and satisfaction set aside for some just ground; but after the passage of that statute, and in pursuance to its provisions, such a settlement may be attacked for fraud or other equitable grounds in the same action. But in each instance the burden of proof rests upon the plaintiff to establish the fraud, etc., before the law will permit him to recover damages for the injuries received.
In the case at bar, Judge Bond so held, and properly ruled, that the plaintiff’s instructions were erroneous because they omitted the element of fraud mentioned, and there being no express aider in that regard in defendant’s instructions, the judgment should be reversed and the cause remanded, and it was accordingly so done. I dissented upon the two grounds previously mentioned: first, because I erroneously assumed that the burden of proving the fraudulent release was upon the defendant and not upon the plaintiff, where it properly belonged; and I was, therefore, of the opinion in that case that it was not necessary for the plaintiff’s instructions to submit the question of fraud to the jury, but that it should have been submitted by the defendant’s instructions. That was where I erred. The fraud being a part of plaintiff’s case and not of defendant’s, it became the duty of the former and not that of the latter to instruct upon that issue.
*374 Having tiras disposed of my own error, and stating these preliminary matters, I will now pay my respects to the errors, as I conceive them, of my associates, Judge Bond in Division and Judge G-raves in Banc, regarding this rule of evidence.
I maintain upon hoth principles and authority, that under our system of jurisprudence all that is required by the law of this State to entitle the plaintiff to recover in an action at law is: (1) to state in his petition the facts which are necessary to constitute his cause of action; (2) to prove those facts by a preponderance of the evidence introduced; (3) and to submit those facts, and those alone, to the jury, under fair and proper instructions. If under those conditions the jury should find for the plaintiff, I insist he is entitled to a recovery. I also maintain upon both principle and authority that before the defendant can defeat the plaintiff’s right to a recovery in the case supposed, he must: (1) plead a legal defense to the cause of action stated in the petition: (2) if it is a general denial, to counteract the evidence of the prima-facie case made by plaintiff by competent evidence; (3) if an affirmation plea of new matter is filed then he must establish the truthfulness of the facts of the new matter by a preponderance of the evidence; and (4) in order to intelligently present the defense so made to the jury he should submit those facts to the jury by proper instructions.
In the former case, if the jury should find for the plaintiff, then in my opinion neither this nor any other court should interfere with the verdict- of the jury or the judgment of the trial court; and in the latter case, should the jury find for the defendant, then this court, should not disturb the verdict of the jury on the judgment of the circuit court.
By the foregoing observations I do not mean to contend that in civil cases the court, in the absence of requests by the plaintiff or defendant, is required to *375 give instructions to the jury, nor that either the plaintiff or defendant is legally required to ask them; but what I do mean to state is this: That if the plaintiff does see fit to ask instructions embracing all the elements of his own case as stated in his petition, and which there is evidence tending to prove, then his instructions need not go further and cover the defendant’s theory of the case. In other-words, the defendant cannot stand idly by and thereby impose upon the court or the plaintiff the duty of instructing the jury upon his theory of the case, when perhaps neither of them is perfectly familiar with it.
The law is, and the practice in this State has uniformly been, to give instructions for the plaintiff, which present only his case to the jury, and to give instructions for the defendant which present only his defense to the case made by the plaintiff.
The only ruling of this court, in my opinion, to the contrary where the point was made, that I have seen or have been able to find, is found in the case of Sullivan v. Railroad, 88 Mo. 169 . There it was held, as the opinion here holds, that in an action for injuries resulting from the negligence of the defendant, and in which the issue of plaintiff’s contributory negligence was made, an instruction was erroneous which hypothecates the facts as to defendant’s negligence, and authorizes a verdict for plaintiff therein without in the same instruction limiting such right of recovery to the absence of such contributory negligence on the part of the plaintiff. (The word “hypothecates” is used because the court used it in that case.)
That opinion was by a divided court,
Brack and Norton, JJ., dissenting.
The writer had the honor of presenting the same question again to this court in the case of Owens v. Railroad, 95 Mo. 169 .
It was there insisted that the ruling in the Sullivan case was erroneous under the rules of pleading and *376 practice in force in this State, which do not require the plaintiff, as in some of the States, to charge in the petition or prove by the evidence, that he was free from contributory negligence, but imposes the duty upon the defendant to plead and prove contributory negligence. In other words, that the instructions for the plaintiff need be no broader that his petition and proof, and that if the defendant wished to rely upon contributory negligence or other facts as a defense, he must plead and prove them and ask the court if he deems proper to submit them to the jury by the instructions given on his behalf; but he cannot impose that duty upon the plaintiff.
The court in the Owens case accepted this view of the law, and in express terms overruled the Sullivan case and in doing so used this language:
“The instructions are to be taken as a whole, are so taken by men of common understanding, and can be understood in no other way. There is no necessity for qualifying each by an express reference to the others. They thus qualify themselves, when in the form these instructions are. The contrary ruling in Sullivan v. Railroad, 88 Mo. 182 , is not to be followed.”
The plaintiff’s instructions do not in mandatory language tell the jury to find for him, nor do those of the defendant tell them to find for the defendant; but do tell them that if they find the facts to be as stated in the petition to- be true, as plaintiff’s evidence tends to show, then they will find for him; but upon the other hand that if they find the facts to be as contended for by defendant, then they will find for him. Clearly there is no conflict between the two for the reason that if the jury find for the one, they must necessarily find against the other, as this court has many times so held.
The same question was presented again in the case of Meily v. Railroad Co., 215 Mo. 567 . On page 587 this court said:
*377 “Appellant assails the correctness of instruction numbered one given by the court in behalf of the respondent, for the reason assigned, that while it purports to cover the whole case it omits one of the defenses pleaded in the answer, namely, assumption of risk.
“We have been cited to no authority sustaining the position assumed by counsel for appellant, and we have been unable to find any case in this State lending color to that contention, excepting the case of Sullivan v. Railroad, 88 Mo. 169 . In that case by a divided court (Norton and Black, JJ., dissenting), it was held that an instruction which embraced all the facts which were necessary to be found by the jury, before the plaintiff would be entitled to recover, must also tell the jury that before a recovery could be had the jury must also find that the plaintiff was not guilty of contributory negligence. But no case has been found in this State or elsewhere, going to the full extent contended for by learned counsel for appellant; nor is the doctrine announced in the Sullivan case any longer the law of this State. That case has been overruled many times in express terms by this court, among which are the following: Owens v. Railroad, 95 Mo. 169 ; Dougherty v. Railroad, 97 Mo. l. c. 661; Burlington Bank v. Hatch, 98 Mo. l. c. 379; Reilly v. Railroad, 94 Mo. 600 ; State ex rel. v. Hope, 102 Mo. l. c. 426; Burdoin v. Trenton, 116 Mo. l. c. 372; Hughes v. Railroad, 127 Mo. l. c. 452; Meadows v. Life Ins. Co., 129 Mo. l. c. 97; Anderson v. Railroad, 161 Mo. l. c. 427.”
And in Lange v. Mo. Pac. Ry. Co., 208 Mo. 458 , l. c. 478, this court said:
“The third objection to this instruction is that it ignores the question of contributory negligence. While that is true, yet that question was presented to the jury in instruction numbered three given for respondent, which properly submitted that issue to the jury. [Schmitz v. Railroad, 119 Mo. 256 , l. c. 269 and 276, Court in Banc; Baker v. Railroad, 147 Mo. l. c. 168; *378 Blackwell v. Hill, 76 Mo. App. 53 ; Lange v. Railroad, 115 Mo. App. 589 .] ”
The same rule is announced in Anderson v. Union Terminal Ry. Co., 161 Mo. 411 , l. c. 428; Meadows v. Life Ins. Co., 129 Mo. 76 , l. c. 97; Hughes v. Railroad, 127 Mo. 447 , l. c. 452.
In State ex rel. v. Hope, 102 Mo. 410 , l. c. 426, this court in discussing this question said:
“The point of the only objection urged against plaintiff’s instructions is that they authorize a verdict for plaintiff upon his theory of the facts in the ease, without embracing in the same instructions other facts constituting defendant’s theory of the case. If, however, the legal propositions they contain are correct (and this is not disputed), and defendant’s theory was properly presented to the jury in their own instructions, this mode of instruction would not furnish cause for reversal. [Owens v. Railroad, 95 Mo. 169 ; Burlington First Nat. Bank v. Hatch, 98 Mo. 376 ; Dougherty v. Railroad, 97 Mo. 647 .] ”
And in Dougherty v. Railroad Co., 97 Mo. 647 , l. c. 661, this court said:
“The fifth given for plaintiff is complained of for the reason that it ignores the contributory negligence of plaintiff, and authorizes and directs a verdict for plaintiff, without regard thereto. A similar omission in an instruction of this sort was held fatal error in the case of Sullivan v. Railroad, 88 Mo. 169 , but the doctrine of that case has recently been overruled in the late case of Owens v. Railroad, 95 Mo. 169 , and upon the authority of the Owens case just cited, and under the views there adopted by a majority of my associates, the omission of the defense of contributory negligence from the instruction under review is not to be regarded as fatal error, requiring a reversal of the judgment in the cause. ’ ’
The same rule is announced in Burlington Nat. Bank v. Hatch, 98 Mo. l. c. 378-9.
*379 The case of Owens v. Railroad, supra, has been cited and followed by the courts of appeals in more than fifty cases, saying nothing about other cases cited, by those courts announcing the same rule.
It seems to me that the law as thus announced by this court and the courts of appeals should be followed and forever put this question at rest; if not, then they should be overruled in terms so they will no longer mislead the bench and bar, and act as pitfalls into which the profession and litigants must and will stumble and fall.
This court was. led into an erroneous ruling in the case of Sullivan v. Railroad, supra, by following the decisions of courts where the law of their States requires the plaintiff to allege and prove that he was free from contributory negligence; under such a law it was perfectly proper for such courts to hold that the instruction given for the plaintiff should call the attention of the jury to the question of contributory negligence for the reason that it was a part of the plaintiff’s case, but not so in this State, where contributory negligence is purely a matter of defense, and must be pleaded and proven by the defendant to be available.
II. The second ground for my dissent in this case is that the majority opinion holds that the opinion of Dr. McCandless given to the plaintiff, regarding the condition of his arm, was not the statement of an opinion merely, but “was the statement of a fact.”
Our learned associate cites some very respectable authority which seems to support him in that statement, nevertheless, I dissent from it, because the expression of an opinion, by a doctor regarding the condition of a person, is not the statement of a fact, but is, in the very nature of the case, nothing more or less than the opinion of the doctor who gives it, and the opinions of all courts in Christendom to the contrary will not *380 change the fact that an opinion is an opinion, and not a fact.
I have often heard that for all practicable purposes a court could decide that black is white, but this is the first time in my life where I have seen in black and white that principle decided by a court.
However, I for one, intend to cling to the old idea, that an opinion is but the judgment or belief of the party who gives expression to it; and in my judgment the character of .the opinion is not metamorphosed in a fact because perchance it is expressed by an expert upon the subject in question. The knowledge and wisdom of the person giving the opinion, if honest, adds weight to; but does not change the character of the expression. No doctor on earth can state as a fact what will be the result of a certain injury received, not even of a pin scratch. Ordinarily a doctor, or anyone else, for that matter, would tell you that such an injury would be trivial and would soon heal, but how often have we seen and heard of injuries no more serious in' character prove fatal, even under the care and treatment of the most learned and skilled physicians of the land.
That is common knowledge and everyone knows it; and there is not a man or woman, with ordinary intelligence, who does not' know that when he or she consults a physician, he will only express an opinion as to his or her condition, and all the assurances the physician may offer that he knows what he is talking about will not deceive him or her in the least in that regard, and if pressed too far, it is more than likely such assurances will cause them to consider him a quack, and instead of trusting him, will lose all confidence in his opinion and respect for his word. In other words, such matters are not embraced within the field or scope of human knowledge, but rest in opinion only, the same as the opinion of a lawyer. No man knows the law.
*381 "With these preliminary observations, let ns consider the plaintiff. He testified that he went to Dr. McCandless and stated to him that he had sustained an injury through the negligence of the defendant, and that he was thinking of settling with the company for the damages received in consequence thereof, and told him that he wanted his honest opinion as to his condition, in order to fix the amount of the damages. In response thereto, he further testified that Dr. Mc-Candless said, “Young man, I will guarantee you will have a good arm inside of six months,” and that the doctor further told him that there was a perfect union of the bone of the arm, which of course was but an opinion, as he could not see that fracture or its condition.
This language of the doctor must be construed in the light of the facts and circumstances that existed at the time he gave expression to it. The plaintiff did not ask the doctor to guarantee that he would have a good arm in six months or within any other period of time; consequently he was not expecting a guarantee, but asked him for Ms honest opinion as to his condition, and that was what he expected and what he received. The plaintiff never relied'upon the guaranty, but upon the opinion. The expression of the doctor, that he would guarantee that plaintiff’s arm would be as good as ever in six months, was made by him for the purpose of giving force and character to his opinion, and not in the sense that he was insuring the plaintiff’s arm in that regard, and the latter knew that the doctor used the word ‘ ‘ guarantee ’ ’ in that sense. While the use of that word, by the doctor might and probably did have weight with the plaintiff, nevertheless, he understood and knew that the doctor was expressing only his opinion as to his condition; and upon that opinion he settled with the company.
In effect, it is contended in this suit, that the doctor ’s opinion was in fact a guaranty that the fractured *382 arm had perfectly united and would be completely well within six months, and that the defendant is bound by that guaranty.
This contention is untenable for two reasons: first, because, as before stated, neither the doctor nor the plaintiff understood that the opinion was to operate as a guaranty; and, second, because if the plaintiff so understood it to be such, still he would not be entitled to a recovery for the reason that there is no evidence in this record which tends to show that the doctor had authority to make a contract of guaranty for the defendant, and having no such authority, if he makes such a guaranty, then he would be personally liable thereon; but who would ever think of suing him on such a pretended contract of guaranty? He and everyone else would say it was his opinion. !
In short, the plaintiff asked the doctor for an honest opinion as to his condition, and the doctor, so far as this record shows, gave him an honest opinion, and now since he was mistaken in that opinion, if he was, the plaintiff how seeks to set aside the settlement and hold the defendant liable for the original injury.
If the petition had charged and the plaintiff had proven by the evidence that the opinion of Dr. Mc-Candless was false and was knowingly and fraudulently made for the purpose of injuring the plaintiff and that it did so, quite a different question would be presented; but there is not a word of evidence in this case that tends to show that Dr. McCandless falsely, knowingly or fraudulently gave his opinion as to the condition of the plaintiff.
Under this state of facts, this case falls clearly within the rule of law announced by this court in the cases of McFarland v. Railroad, 125 Mo. 253 , and Homuth v. Street Ry. Co., 129 Mo. 629 .
That being true, the court should have sustained a demurrer to the evidence, unless there was other evi *383 denee to carry the case to the jury upon that point, of which I express no opinion.
For the. foregoing reasons I dissent from the majority opinion; bnt believe that the judgment of the circuit court should be reversed and the cause remanded for a new trial in conformity to the views herein expressed.
Walker, Jconcurs in paragraph one.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8018773. Public record. Not legal advice.