author: PARK, Judge.

text:
    O. J. SCHULZ, t/d/b/a Schulz’s Grocery and Donald A. Strothman, Appellants, v. Muriel CHADWELL, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1977.

      John G. Crutchfield, Ewen, MacKenzie & Peden, P.S.C., Louisville, for appellants.
    William A. Miller, Leon J. Shaikun, Louisville, for appellee.
    Before PARK, WHITE and WINTER-SHEIMER, JJ.
   PARK, Judge.

This appeal raises several questions respecting the damages which may be awarded to the plaintiff-appellee, Muriel Chad-well, as compensation for personal injuries suffered by her on July 17, 1971, when the automobile in which she was a passenger was struck from the rear. The trial court directed a verdict in favor of Mrs. Chadwell against the owner and operator of the other vehicle, the defendants-appellants O. J. Schulz t/d/b/a Schulz’s Grocery and Donald A. Strothman. On this appeal, no issue is raised with respect to liability. The appellants question only the damages awarded.

Under the instructions given by the court, the jury was permitted to award compensation for the following elements of damage: (1) for the mental and physical pain and suffering which Mrs. Chadwell had endured and which she would thereafter endure as a result of the accident; (2) for permanent impairment of her power “to labor and earn money” from the date of the trial, October 13, 1976; (3) for the fair and reasonable costs of “hospitals, physicians, appliances, drugs, and medical expenses” incurred by her as a direct result of the accident; (4) “for the fair value of the additional expenses to which the Plaintiff was put to hire additional help, both in the home and in the business;” (5) such sum as would reasonably compensate her “for her lost time from the date of the accident until the date of the trial.”

On a form verdict furnished by the trial court, the jury made the following award to Mrs. Chadwell:

Permanent impairment $ 17.250.00
Medical expenses $ 5.795.00
Additional help at home and in business $ 5.542.00
Lost time from date of accident to date of trial $ 7.022.00
Total Award $ 50.234.00

The appellants raise the following issues on appeal: (1) whether the jury’s award was a quotient verdict; (2) whether Mrs. Chadwell was entitled to recover for “lost time” when she continued to receive partnership income; (3) whether the instruction on lost time and the instruction on additional expense for help in business constituted double recovery; (4) whether Mrs. Chadwell was entitled to recover for additional help at home; (5) whether the evidence justified an instruction on permanent impairment; and (6) whether the court’s instruction permitted a recovery for medical expense not the result of the accident.

QUOTIENT VERDICT ISSUE

In support of their motion for a new trial, the appellants asserted that the verdict of the jury was a quotient verdict. Upon examination by the court and counsel, the jurors testified that there had been disagreement respecting the amounts to be awarded; that each juror stated an amount for each element of damage, and that the total for each element of damages was then divided by twelve. The jurors then voted whether they would accept the result as their verdict on each element of damage. Ten jurors did agree and signed the verdict. There was no antecedent agreement by the jurors to be bound by the quotient. The average of the jurors’ views was obtained merely as a basis for further deliberation. The trial court did not err in overruling the motion for a new trial on the ground that the jury returned a quotient verdict. Louisville and N. R. Co. v. Marshall’s Adm’x, 289 Ky. 129, 158 S.W.2d 137 (1942); Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242 (1946); District Union Local 227 v. Fleischaker, Ky., 384 S.W.2d 68 (1964).

ISSUE OF EFFECT OF PARTNERSHIP INCOME ON RECOVERY FOR LOST TIME

At the time of her injury, Mrs. Chadwell and her daughter were equal partners in the operation of the Parkmoor Restaurant. This partnership was dissolved in September 1973. Mrs. Chadwell and her husband continued the operation of the restaurant as equal partners for another six months before the restaurant premises were turned back to the lessors. While her daughter carried on the Parkmoor Restaurant business, Mrs. Chadwell continued to receive her share of the profits from the partnership. The appellants contend that the instruction on lost time was erroneous because it did not allow a credit on Mrs. Chadwell’s claim for the amount of income received by her from the partnership. The appellants argue that Mrs. Chadwell will obtain a double recovery if she is permitted to retain the award for lost time without any deduction for the partnership income received by her. This claim is without merit.

In Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963), the injured plaintiff was an equal partner with his son in the operation of a metal fabricating and welding business. The trial court refused to submit to the jury the plaintiff’s claim for lost time from the partnership business because the plaintiff continued to receive 50% of the net profits from the business during the period of time he was disabled. The Iowa Supreme Court reversed, holding that the plaintiff was entitled to recover for loss of time from the partnership business. The court stated:

We think it was error not to submit plaintiff’s claim for loss of time from his business and occupation as a result of his injur[y]. It is obvious and the authorities agree there is a difference between loss of time or earnings and loss of profits. Earnings are the fruit or award for labor, while profits are the gain from an investment or business after payment of all expenses.

121 N.W.2d at 535. Whether the partnership profits following the accident were relevant to the issue of lost time depends upon the nature of the partnership business.

As stated in the Restatement (Second) of Torts, § 924, Comment c (Tentative Draft No. 19, 1973):

When the injured person was not receiving a salary, but owned and was operating a business which was deprived of his services by the injury, his damages are the value of his services in the business during the period. If his services, rather than the capital invested or the services of others, were the predominant factor in producing the profits, evidence of the diminution of profits from the business will be received as bearing on his loss of earning capacity . . . . If, however, the income of the business is chiefly the result of capital invested or the services of others, the damages are determined by the market value of the services which the plaintiff was prevented from giving, that is, the amount commonly paid for such services in businesses of like nature. In this case, evidence as to the extent of the business and the nature of his services is admissible, but not evidence as to the amount of profits before and after the loss.

If invested capital did not play an important part in the profits of the Parkmoor Restaurant, the appellants would be entitled to argue to the jury that the continued profits of the restaurant indicated that Mrs. Chadwell’s prior services to the partnership were of little value. However, it does not follow that there was no jury issue with respect to lost time.

Mrs. Chadwell’s daughter testified that additional help was employed as a replacement for Mrs. Chadwell. The cost of the replacement help was relevant to the issue of the value of Mrs. Chadwell’s services rendered in the partnership business. Shewry v. Heuer, supra, 121 N.W.2d at 535-36; cf. Burke v. Fischer, 298 Ky. 157, 182 S.W.2d 638 (1944); Chesapeake & O. Ry. Co. v. Shanks, 260 Ky. 416, 86 S.W.2d 128 (1935). The partnership itself had no claim for the expense of hiring additional help to replace Mrs. Chadwell. See the cases collected in the annotation, 36 A.L.R.3d 1375.

Prior to the injury, neither Mrs. Chadwell nor her daughter drew a salary from the partnership. Both worked an equal amount of time per week in the business. When it became evident that Mrs. Chadwell could not return to work, the daughter was paid a salary of $150.00 per week. Because the daughter was performing the same work that Mrs. Chadwell had performed prior to the injury, we conclude that this was additional evidence upon which the jury could determine the reasonable value of the time lost by Mrs. Chadwell from work. There was sufficient evidence of probative value on the issue of lost time. The trial court did not err in submitting that issue to the jury.

ISSUE OF DOUBLE RECOVERY FOR LOST TIME AND EXPENSE OF ADDITIONAL HELP IN BUSINESS

The appellants assert that the trial court erroneously permitted Mrs. Chad-well double recovery when it authorized damages for both lost time and the expense of the additional help in the business. We agree. As explained in the Restatement (Second) of Torts, § 924, Comment f (Tentative Draft No. 19, 1973), an injured person is entitled to damages for the reasonable expense of hiring substitute help to do his work, but, to the extent that a claim for substitute help is made, there cannot be any recovery for loss of time.

In Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960), the injured plaintiff and his wife operated a pet and sport supply store. Because the profits of the business depended in large part upon the plaintiff’s personal management, the Pennsylvania Supreme Court held that evidence of declining earnings was properly admissible on the issue of the plaintiff’s loss of earnings. However, the court held that the plaintiff could not also recover for the additional expense of employing a person in the business to perform work which the plaintiff had done previously. The claim for expense of additional help was a partial duplication of the claim for loss of earnings. In the same way, Mrs. Chadwell’s claim for additional help in the business was a partial duplication of her claim for lost time.

We conclude that the trial court erred in authorizing the jury to award damages to Mrs. Chadwell for the expense of the additional help in the business without any corresponding decrease in the award for lost time.

ISSUE OF RECOVERY FOR EXPENSE OF HOUSEHOLD HELP

Mrs. Chadwell sought to recover the sum of |3,230.38 for the expense of persons employed by her to come into her home to perform housework and to provide for her personal needs. When asked what work was performed for her, Mrs. Chadwell testified:

They would help me bathe and take whirlpool baths, bathe me, you know, I mean fix my meals and do my housework. Mrs. Chadwell testified that she was unable to do these things for herself and that she had never employed household help prior to the accident.

The appellants assert that Mrs. Chadwell is not entitled to recover for household help. Based upon a statement in Russell v. Lawless, Ky., 458 S.W.2d 176, 179 (1970), the appellants contend that damage instructions should not include impairment of a plaintiff’s power to perform normal household duties. However, it has also been held that a married woman is entitled to recover for permanent impairment of earning capacity although her only occupation was that of homemaker and housekeeper. Spurlock v. Spurlock, Ky., 349 S.W.2d 696 (1961). In the present case, Mrs. Chadwell is seeking to recover for the expense of additional household help as a result of her injury, rather than for impairment of her earning capacity as a homemaker. There is no Kentucky case directly in point and very little authority on the issue from other jurisdictions.

In actions for personal injury, recovery for expenses incurred has usually included only expenses incurred in the treatment or cure of the injury. E. g., Louisville & N. R. Co. v. Logsdon, 114 Ky. 746, 24 K.L.R. 1566, 71 S.W. 905 (1903). However, the rule is sometimes stated more broadly to include “reasonable medical and other expenses.” Restatement (Second) of Torts § 924(c) (Tentative Draft No. 19, 1973). In comment f to that section, it is stated:

The injured person is entitled to damages for all expenses and for the value of services reasonably made necessary by the harm (See § 919). This includes reasonable expenses for physicians, for nurses, or hospitalization, and for medical supplies. It may also include reasonable expense for substitute help hired by the injured person to do his work .

In this case, the jury could believe from the evidence that all of the household expenses incurred by Mrs. Chadwell were made necessary by injuries suffered by her in the accident. Much of the household help was in the form of nursing services, for which she was clearly entitled to recover. If a person is disabled from performing essential household tasks as a direct result of a tortious injury, the injured person should be able to recover the reasonable expense of hiring substitute help. See Chavez v. United States, 192 F.Supp. 263, 272-73 (D.Mont.1961).

When the injured person is married, the spouse’s claim for loss of consortium includes the loss of the household services of the wife or husband. Beauchamp v. Davis, 309 Ky. 397, 217 S.W.2d 822, 825 (1948). See also Kotsiris v. Ling, Ky., 451 S.W.2d 411, 412 (1970). In the Restatement (Second) of Torts § 693, comment f, the rule is explained as follows:

The traditional action running to the husband has included recovery for loss of services of the wife in the home on the theory that he was legally entitled to them. Less attention is given today to the question of whether there is a formal legal right to household services, the emphasis being placed upon those mutual contributions that are normally expected in the maintenance of a household.

If Mr. Chadwell had paid for the expense of household help and filed a claim for loss of consortium, he would have been entitled to recover for that expense. Because Mrs. Chadwell actually paid for the expense of additional household help, we cannot see any reason why she should not be permitted to recover for that expense. Her recovery for that item of expense would, in effect, be for the benefit of the family unit. In cases such as this, the danger of double recovery is not serious because the defendant may require the spouse to be made a party to the action. See Greyhound Corporation v. Dowling, Ky., 334 S.W.2d 259, 260-61 (1960). We do not intend to suggest that a recovery for the expense of additional household expense is limited to cases in which the injured party is married. The inability to perform essential household tasks might impose a greater burden upon a single person who could not call upon the assistance of other family members.

Recovery for the expense of household help should be limited to those cases in which it is clear that the expense would not otherwise have been incurred, and it should be limited to the period of recuperation. If there is permanent impairment of a person’s ability to perform household tasks, that item of damage would be included within the claim for permanent impairment of earning capacity. See Spurlock v, Spurlock, supra. In the present case, it was not error to permit Mrs. Chad-well to recover the expense incurred by her for additional household help. However, because this item was lumped with her claim for additional expense for help employed in the partnership business, the issue must be resubmitted to the jury upon a retrial of the case.

ISSUE OF RECOVERY FOR PERMANENT IMPAIRMENT

The appellants contend that Mrs. Chadwell was not entitled to an instruction on permanent impairment of her earning capacity. The appellants do not assert that she does not have permanent impairment of earning capacity, but they claim that any such impairment is attributable to conditions which are completely unrelated to the accident. According to the appellants, any disability is attributable to diabetes, osteoporosis, or emotional problems which are unrelated to the accident.

The jury was instructed not to award Mrs. Chadwell any sum for “injuries” which the jury believed “were caused at some other time or by some other means.” This instruction given by the court followed an instruction on the issue tendered by the appellants. Based upon our examination of the record, we conclude that there was a jury issue respecting the existence and effect of any pre-existing diabetes, osteoporosis, or emotional problem. This item of damage was properly submitted to the jury. The appellants were not entitled to a direct verdict on this issue.

ISSUE OF RECOVERY OF MEDICAL EXPENSES UNRELATED TO ACCIDENT

The appellants assert that the bill of Dr. Shanklin in the amount of $778.00 included services for complaints unrelated to the accident. This argument is without merit. The bill itself reflects that unrelated charges were eliminated. Mrs. Chadwell testified that she made separate payments for the services rendered for matters unrelated to the accident. We conclude that the bill was properly introduced in evidence. It was for the jury to determine whether the entire bill from Dr. Shanklin was a direct result of the accident.

RULING

The judgment of the circuit court is reversed with directions to grant a new trial on the following issues: (a) the reasonable value of Mrs. Chadwell’s services for the time lost by her from work in the restaurant business; and (b) the reasonable and necessary expenses incurred by Mrs. Chad-well as a direct result of the accident for help in the home in performing nursing services and essential household tasks. There being no error with respect to the award for pain and suffering, for medical expenses or for permanent impairment of her earning capacity, a new trial need not be granted on those issues.

All concur.

      . Under the Motor Vehicle Reparations Act, such expenses can be recovered. KRS 304.39-020(5)(c).


source: Caselaw Access Project

author: MARTIN, Chief Judge.

license: Public Domain

text:
    OLD RELIABLE INSURANCE COMPANY, Appellant, v. Horace W. BROWN, Administrator of the Estate of Lenore Brown, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1977.
    Galen J. White, Jr., William P. Swain, Thomas H. Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    Reford H. Coleman, Collier, Arnett, Coleman & Cooper, Elizabethtown, for appellee.
    Before MARTIN, C. J., and COOPER and HOWARD, JJ.
   MARTIN, Chief Judge.

This is an appeal from a Hardin Circuit Court judgment in the amount of $10,000 for appellee, the plaintiff below. Appellee’s wife was killed as the result of an auto accident caused by an uninsured motorist, on January 23, 1973. In the circuit court proceedings appellee was allowed to recover from appellant under the “Family Protection Coverage" of the Browns’ daughter Bonnie Sue’s auto insurance policy.

The major question for our determination is whether the trial court erred in finding that coverage existed because the deceased was a “resident of the same household” as her daughter. It is unquestioned that Bonnie Sue was not living at her parents’ home in Brandenburg, Kentucky, at the time of the accident. She had departed in October, 1971 for Houston, Texas, to seek employment and live with her sister. After the sister and her husband moved to Chicago, Bonnie Sue rented her own apartment and kept her job with an insurance company. This was her situation at the time of the accident.

The term “residence” is defined as a factual place of abode or living in a particular locality. Black’s Law Dictionary, 4th ed., p. 1473. Since appellee concedes that Bonnie Sue was not an actual resident of the same household as her deceased mother, appellee bases his argument in support of coverage on the indefinite nature of Bonnie Sue’s plans and her lack of intention to abandon her home.

We are of the opinion that Bonnie Sue’s “floating intentions” are typical of the recently emancipated young adult. Her vague intention of returning “home” does not support the conclusion that she and her mother were residents of the same household. She was not dependent on her parents for support and had maintained a separate residence in a distant locale for over a year at the time of the accident.

The trial court further based its conclusion of coverage on the fact that Bonnie Sue’s brother John, who still resided with his parents, was listed on Bonnie Sue’s application for insurance as using the insured vehicle 50% of the time. By virtue of this and because John became the family’s principal driver upon Bonnie Sue’s departure, the trial court concluded that John occupied the status of an additional insured under the policy.

The trial court erred in reaching this conclusion because the court may not read into a policy of insurance conditions and terms which are not incorporated therein. United States Fidelity and Guarantee Co. v. Lairson, Ky., 271 S.W.2d 897 (1954). Bonnie Sue Brown was the sole named insured on the face of the policy. The policy further defined “insured” as: “(1) The named insured as stated in the policy . and any other person designated as the named insured in the schedule.” John Brown’s name does not appear on any portion of the policy. Therefore, John was not a principal insured under this contract, and coverage for his mother could not attach through him.

For these reasons, the judgment of the circuit court is reversed.

All concur.


author: RENDLEN, Judge. WEIER, Judge,

text:
    Bernece DEPPER, Plaintiff-Respondent, v. James R. NAKADA, Executor of the Estate of Fred Emmert, M.D., Defendant-Appellant.
    No. 36776.
    Missouri Court of Appeals, St. Louis District, En Banc.
    June 21, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      George E. Lee, Doris J. Banta, St. Louis, for defendant-appellant.
    Hanks & Taylor, W. Morris Taylor, Clayton, for plaintiff-respondent.

       Rendlen, J., not participating.

   RENDLEN, Judge.

James R. Nakada, Executor of the Estate of the Deceased, Fred Emmert, M.D., appeals from the judgment awarding plaintiff $25,000 for Emmert’s medical malpractice. We affirm.

In May of 1945, plaintiff suffered throm-bophlebitis in her left leg and was bedridden for approximately eight weeks. The swelling and soreness of the leg disappeared three weeks later and she had no “flare-up” or recurrence of the condition until July 1966. Plaintiff consulted Dr. Emmert professionally in October 1945 and continued as his patient until 1966, except for a period 1963 to 1965 when he temporarily retired from practice. As early as 1955, while attending the birth of plaintiff’s son, Emmert was made aware of her history of thrombo-phlebitis.

In June of 1966, Dr. Emmert prescribed medication for plaintiff’s overweight condition “[a]nd maybe some blood pressure, but mainly weight conditions.” Certain treatment consisting of three alleged injections of mercuhydrin which gave rise to this litigation was administered in July of that year.

Plaintiff’s husband testified she received an injection on July 6 and shortly thereafter her arm and shoulder became sore, “swollen, discolored and the skin looked kind of shiny like . . . .” A second injection on July 13 was followed by a reaction in plaintiff’s left leg with symptoms similar to those observed in the arm. After a third visit to Dr. Emmert and a third injection on July 20 or 21, plaintiff» became ill and in a few days her left leg was painfully swollen and feverish. On July 26, 1966, plaintiff consulted Dr. Allen Klippel and was admitted to St. Luke’s Hospital August 2 where she remained under treatment for five days. After her release plaintiff continued to experience discomfort and occasionally inflammation accompanied by severe pain in her leg.

In July, 1966 Dr. Emmert knew of Mrs. Depper’s prior disabling experience with thrombophlebitis and her predisposition to this ailment. It is also undisputed that mercuhydrin can trigger allergic reactions, typically thrombophlebitis in one with Mrs. Depper’s medical history. Dr. Emmert apparently realized this because the first shot of mercuhydrin administered on July 6, 1966 was a small test dose of ½ c.c. Throm-bophlebitic symptoms soon appeared and though they persisted he administered a second and later a third shot of the offending drug eventuating in her hospitalization.

Plaintiff and her husband filed suit jointly for malpractice on February 2, 1969, but dismissed that action without prejudice after Emmert’s death in 1970. In the present suit plaintiff’s husband dismissed his claim at the commencement of trial for the announced purpose of avoiding disqualification of his testimony under the Missouri Dead Man’s Statute, § 491.010. The cause was tried and a plaintiffs verdict rendered.

Defendant for his allegation of error, contends: (1) the evidence was insufficient to establish any negligent act or omission of Dr. Emmert as a cause of plaintiff’s throm-bophlebitis because plaintiff’s medical expert testimony did not establish negligence or causal connection between Emmert’s treatment and plaintiffs phlebitis; (2) the trial court erred permitting plaintiffs expert witness to express opinions based upon the hypothetical questions addressed to him, as facts assumed in those questions were not supported by the evidence; and (3) the trial court erred in permitting Earl Dep-«per’s testimony as to conversations with Dr. Emmert.

In ruling defendant’s challenge to the sufficiency of the evidence in this jury-tried case, we consider “the evidence in the light most favorable to plaintiff. The evidence favorable to plaintiff is considered as true, and plaintiff is given the benefit of every reasonable inference therefrom; and defendant’s evidence, unfavorable to plaintiff, is disregarded.” Boyd v. Terminal Railroad Ass’n of St. Louis, 289 S.W.2d 33, 35[1] (Mo.1956). The plaintiff is entitled to a view of the evidence “from a viewpoint most favorable to plaintiff and [we] give plaintiff the benefit of every reasonable inference which the evidence tends to support . . . . On the other hand, we disregard defendant’s evidence unless it aids plaintiff’s case.” Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App.1974). Guided by these standards we examine appellant’s second allegation of error concerning sufficiency of the proof of facts assumed in the hypothetical questions propounded to plaintiff’s expert Dr. Barrow. Barrow had been plaintiff’s treating physician after her hospitalization in July 1966. The hypothetical questions propounded and the answers concerning Emmert’s negligence were as follows:

“Q. Now, Doctor, ... I want you to assume that the plaintiff was injected with a drug . . . called mercuhyd-rin; that she received three injections, one on July 6, 1966, one on July 13, 1966, and one on July 21, 1966 . . . that the sole reason for Mrs. Depper being treated at this particular time was for weight loss and that she was being treated, as her history explained to you, by Dr. Fred Emmert . . . Now, Doctor, . Do you have an opinion based upon a reasonable degree of medical certainty as to whether or not Dr. Emmert used that degree of skill and learning ordinarily used by other doctors in 1966 under the same or similar circumstances by using this drug for weight loss? (Emphasis added.)
S£ sfs sjs ⅜8 # 5⅜
A. I have an opinion, yes.
Q. Would you tell us what that opinion is please?
A. That mercuhydrin — that at that time and now, mercuhydrin would not be considered an appropriate drug for treatment of excessive weight or obesity.
Q. . The question is, based on a reasonable degree of medical certainty, whether or not you feel that Dr. Emmert was exercising that degree of skill and learning normally exercised by other doctors in 1966 under the same or similar circumstances .
A. Not in giving three injections of mer-cuhydrin for weight reduction.”

Testifying further, the witness described mercuhydrin as a drug ordinarily used as a diuretic in treatment of heart failure but not as treatment for obesity. He explained that in some instances the drug produced undesirable effects such as patient dehydration, allergic reaction, hives or skin rashes and these effects “[ujsually occur after the drug had been used more than once.”

The witness was then asked by hypothetical question for his opinion of the causal relation between the treatment administered and plaintiff’s thrombophlebitis. The question assumed as fact plaintiff’s 1945 thrombophlebitis which remained dormant until 1966 when defendant had administered three injections of the drug mercu-hydrin followed by the recurrent illness; the question continued:

“Q. . . . based upon a reasonable degree of medical certainty as to the competent producing cause of Mrs. Dep-per’s condition as you first observed it in 1966 and as you know the condition today?
⅜ ⅛ ⅜ * * *
A. I have an opinion that something caused the thrombophlebitis suddenly to flare up.
Q. Will you tell us what that something was, Doctor, in your opinion?
A. I think it was the three injections that she received.
Q. Would that be from the drug mer-cuhydrin you are referring to?
A. Yes.”

Appellant argues there was no evidence of Dr. Emmert’s having given plaintiff three injections of mercuhydrin and thus no evidentiary support for the hypothetical questions posed. We do not agree. The following testimony of Mr. Depper concerning his phone conversation with Dr. Em-mert on the day plaintiff entered the hospital as Dr. Klippel’s patient in July of 1966 goes to this point: (The questions and answers are numbered for convenient reference.)

[1] “Q. Please tell us the nature of the conversation, Mr. Depper.
[la] A. [Mr. Depper] I said to the doctor, I said, my wife has been put in the hospital. He said, what for? Her leg is so bad she can’t walk on it. I said, what did you give her?
[2] Q. Did he reply to you?
[2a] A. Yes. He said, I gave her a shot of mercuhydrin. I said, what did you do that for? He said, to take the fluid out of her body and make her slim and trim.
[3] Q. That was his answer to you?
[3a] A. Right.
[4] Q. Now, did he indicate to you whether or not he had given her a shot or more than one shot?
[4a] A. He told me he had given her two in the hip and one in the arm.” (Emphasis added.)

In addition, Emmert’s records confirm that a one-half c.c. mercuhydrin injection was administered July 6 and, as pointed out above, other testimony indicates that injection was followed by an adverse reaction in plaintiff’s arm; similar adverse reactions followed each visit to Emmert’s office culminating in her severe illness and hospitalization.

It has been argued that Mr. Dep-per’s testimony is not sufficient to make a jury issue of whether vel non three shots of mercuhydrin were administered. The foregoing excerpt of Mr. Depper’s testimony occurred early in the trial, appearing at pages 74 and 75 of the 247 page transcript but it is significant that from that testimony the trial judge believed counsel and witness had referred to three shots of mercu-hydrin and so interpreted questions and answers, # 1 through # 4. The following statement of the trial judge appears during a conference at the bench shortly after Mr. Depper testified:

“Now, you do have testimony through the husband that Dr. Emmert admitted giving three injections of this mercuhydrin” (Emphasis added.)

Additionally, the fact that three shots had been given was reaffirmed during cross-examination of Mr. Depper when defense counsel attempted to impeach Mr. Depper by confronting him with records of Dr. Em-mert which showed only “one shof ’ of mer-cuhydrin had been administered as contrasted with the witness’ contrary testimony of three shots.

(Cross-examination of Mr. Depper)
“Q. If Dr. Emmert’s records show that he only gave her one shot of mer-cuhydrin and that was one-half c.c. on July 6, 1966, does that refresh your recollection as to what he told you?
A. That isn’t what he told me. (Emphasis added.)
⅜ sfc # ¾: ⅝: ⅝5
Q. (By Mr. Lee) Are you telling the jury that his record is incorrect if it says he gave her one-half c.c. mer-cuhydrin for fluid on July 6, 1966?
A. I am saying that either his record is incorrect or what he told me is incorrect; one of the two don’t match, that’s for sure.”

From this it is apparent that defense counsel also believed that Mr. Depper’s testimony on direct examination established a basis for finding three shots of mercuhydrin had been administered, as the thrust of the cross-examination was an attempt to impeach such testimony and show that “he (Emmert) only gave her one shot of mer-cuhydrin” but witness Depper, withstanding the impeachment effort, stated “That isn’t what he (Emmert) told me.” Further, defense counsel did not object or question the sufficiency of proof that three shots of mercuhydrin had been given, when this factual element was included in plaintiffs hypothetical question to the expert witness, Dr. Barrow. Though defense counsel, during Barrow’s testimony, did object that there was “no evidence in this case concerning the quantity or the volume” of the injections. It may be fairly argued that three shots of mercuhydrin was postulated in the hypothetical without objection because the proof warranted its inclusion. It cannot be said there is “a complete absence of probative fact” to support the verdict so the appellant court should interfere. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 496[3] (Mo.App.1973). The matter of one shot versus three shots became a question of credibility for the jury to determine.

Defendant argues that the phone conversation indicates only one injection of mer-cuhydrin was administered and the other two (if given at all) were not that drug. Further, the records of Dr. Emmert introduced by plaintiff show that on July 6, 1966, he gave plaintiff “one-half c.c. mer-cuhydrin for fluid” and that on July 13, 1966, he gave her two c.c. premerin (for female disorders) and on July 21, 1966, he gave her an injection of two c.c. of estrone (also for female disorders) arguing that plaintiff is bound by the records of Dr. Emmert which plaintiff had introduced and urging that conclusions favorable to defendant be drawn from that evidence. This we may not do.

While it is generally true that the party who has adduced evidence is bound thereby, Williams v. Cavender, 378 S.W.2d 537, 541[5] (Mo.1964), this rule does not apply when the same party introduces testimony which contradicts that evidence. Dodwell v. Missouri Pacific R. R. Co., 384 S.W.2d 643, 650[9] (Mo.1964). “Plaintiff, who put the [records] in evidence, is not ‘bound’ by the statements in such record . . Having put the record in evidence, plaintiff could not impeach it as such, but she could contradict the facts which were related in such record.” Steele v. Woods, 327 S.W.2d 187, 196—97[14] (Mo.1959). Such is the case here.

Defendant next argues the evidence was insufficient to prove the injections were given plaintiff “solely” for obesity as assumed in plaintiff’s hypothetical question, thus it was error to permit the answer. This contention is not well-taken for several reasons. The answer to the hypothetical question concerning Emmert’s negligence appears nonresponsive, as the witness did not confine his answer within the scope of the question asked. The question included the assumed fact that the shots were administered “solely” for an overweight condition. The doctor answered, by stating that use of mercuhydrin for excessive weight is not approved medical practice and somewhat differently, that mercuhydrin was inappropriate treatment for weight reduction. From this the jury could believe that even though the shots may have been intended by Emmert as treatment of “blood pressure” or to “remove fluid,” that if “obesity control” was also one of his purposes, such treatment constituted malpractice. Defendant did not object to this apparently nonresponsive answer and once in, plaintiff is entitled to its benefit. Further there was abundant evidence from which the jury could conclude such “fact” had been proved. The negligent conduct of Dr. Emmert occurred in July, 1966, and plaintiff testified she was being treated by him during June, 1966, for a “weight problem.”

“Q. Now, were you still being treated by Dr. Emmert in, say, June of 1966?
A. Yes.
Q. For what condition were you being treated at that time?
A. Weight problem.”

She further testified that Emmert had put her on a diet for this “weight problem.” The questioned shots of mercuhydrin were administered between July 6 and July 21 of 1966, and the thrombophlebitis caused her to consult Dr. Allen Klippel at his office in Clayton, Missouri on July 26, who hospitalized her shortly thereafter. On July 26, Mrs. Depper told Dr. Klippel she was being treated by Dr. Emmert and explained it was for a “weight” condition. Dr. Barrow, who assumed responsibility for her treatment after she was hospitalized testified that Mrs. Depper told him she was seeing Dr. Emmert “because she wanted to lose weight.” Mrs. Depper testified on direct examination that the treatment given her on July 13 by Dr. Emmert was for “weight loss, for fluid”. The record is replete with testimony that her health problem in 1965 and 1966 was one of obesity. Mrs. Depper gave Dr. Emmert her medical history in May, 1965 and at that time she was overweight; as her husband described it, she was “heavy”. Dr. Emmert’s records show he followed her serially with weight checks and in September of that year her weight was 181 pounds, in December, 183 pounds and on December 29,187 pounds. On January 7, 1966, she weighed 189 pounds and stayed around 187 pounds through July of 1966. As previously noted herein, Dr. Em-mert told Mr. Depper he had administered “mercuhydrin” to take fluid from Mrs. Dep-per and “make her slim and trim.” This constitutes an admission that the'mercuh-ydrin injection was to “make her slim and trim” to control the obvious overweight condition which he had followed so closely during 1965 and 1966. In the year 1966, her weight was in the 180 to 190 pound range. All of this belies appellant’s contention that the evidence was insufficient to permit the jury to find defendant’s decedent administered the drug solely for weight loss.

In his brief appellant contends the testimony of Mr. Depper, that the doctor administered the mercuhydrin “to take fluid out of her body” indicates conclusively that the drug was not administered solely for weight reduction. This argument ignores the fact that the ultimate purpose of removing fluid and the purpose of administering the mercuhydrin is “to make her slim and trim” which was the direct testimony of plaintiff’s witness, Mr. Depper in answer # 2a supra. This factual question, too, is one for the jury.

Appellant, in a further attempt to impeach the testimony that the mercuhyd-rin was administered solely for weight loss, argues that Mrs. Depper had been seeing Dr. Emmert for female problems and not “weight problems”. However, a review of the record shows that the instance to which appellant refers concerned consultations in 1950 and again in 1962, some 15 and 4 years respectively, prior and unrelated to the negligent administration of mercuhydrin in 1966. Though appellant argues that somehow the “female problems” occurring in 1950 and 1962 might be connected to the 1966 mercuhydrin injections he does not tell us how or in what manner they are related. Mrs. Depper saw Dr. Emmert in 1965 after he returned to active practice and when asked about the doctor’s 1966 treatment of Mrs. Depper, Mr. Depper explained she had a weight problem “at that time”. This testimony supports the postulation in the hypothetical question to plaintiff’s expert that the mercuhydrin had been administered by Dr. Emmert solely for Mrs. Dep-per’s obesity.

We turn now to defendant’s Point I in which he contends there was no showing that Dr. Emmert was negligent in his treatment or that such negligence if any was the proximate cause of plaintiff’s thrombophle-bitis.

As previously discussed, there was sufficient evidence for the jury to find that plaintiff was treated for obesity by three injections of mercuhydrin during July 1966 and these injections were the competent producing cause of the plaintiff’s thrombo-phlebitis. The hypothetical question to plaintiff’s expert as to Emmert’s negligence inquired' if mercuhydrin was appropriate treatment for obesity. He testified it was not. However, the hypothetical question did not ask if mercuhydrin could reasonably be expected to cause the phlebitis or whether in the exercise of the proper degree of professional skill Dr. Emmert, knowing of plaintiff’s pre-existing condition, should have been aware of that possibility and guarded against it. Though this aspect of plaintiff’s theory was not included in the hypothetical question, such was not required as the proof was otherwise sufficient to support submission of the issue. There was substantial probative evidence of the following: Emmert had been treating plaintiff from 1945 to 1966; he was aware of her prior experience with phlebitis; he knew or should have known that phlebitis can be triggered by a number of causes; mercuhydrin can produce an adverse allergenic reaction; a treating physician should watch for patient “reaction, expected or unexpected” after administering mercuhyd-rin; following the first injection of mercuh-ydrin on July 6, 1966, a readily apparent adverse reaction occurred, yet he gave the second injection; a similar reaction of phlebitis-like symptoms in the leg followed the second shot; still he administered a third and shortly thereafter plaintiff was hospitalized for thrombophlebitis. From this and other evidence, a submissible case was made and we find the trial court did not err in submitting the case to the jury. Frazier v. Stone, 515 S.W.2d 766, 767[2] (Mo.App.1974); Odum v. Cejas, 510 S.W.2d 218, 225[5] (Mo.App.1974).

Appellant finally argues that the only measurable quantity of the drug administered as shown by the evidence was one-half c.c. on July 6, 1966. There was evidence and the jury found that three shots of mercuhydrin were administered. Dr. Emmert’s records contained the admission that a one-half c.c. shot of mercuhydrin had been administered on July 6, 1966. Dr. Barrow testified that the one-half c.c. shot indicated it was probably a test shot to determine if there was any allergic reaction which is consistent with the fact that Mrs. Depper had a prior history of thrombophle-bitis. According to Dr. Barrow, mercuhyd-rin can produce an allergic reaction in one with a propensity for such condition and following the July 6 shot Mrs. Depper experienced such reaction with thrombophlebitic symptoms in her arm. Nevertheless, Dr. Emmert persisted with another shot on July 13 closely followed by further adverse reaction and another shot on July 20, with even more severe results. Simply put, the quantity of the drug administered appears unimportant because the one-half c.c. triggered the first reaction and the jury could find it was negligent to continue such drug in any amount. Also the second and third shots, regardless of their quantity, disabled the patient.

There was sufficient evidence for the jury to find, as it in fact did, that Dr. Emmert was negligent in administering the drug under the conditions here.

Defendant’s final contention that “the trial court erred in ruling that plaintiff’s husband, Earl Depper, was not disqualified as a witness and in permitting him to testify as to conversations with Dr. Em-mert” fails to comply with the requirements of Rule 84.04(d), V.A.M.R., in that it fails to state “wherein and why” the court’s ruling is erroneous, Thigpen v. Dodd’s Truck Lines, Inc., 498 S.W.2d 816, 818[5] (Mo.App.1973); and defendant’s brief fails to cite relevant authorities. Cox v. Lee, 530 S.W.2d 273, 275[5] (Mo.App.1975). It preserves nothing for review and is therefore denied.

The judgment is affirmed.

WEIER, J., dissents in separate opinion.

SIMEONE, C. J., and DOWD, SMITH and GUNN, JJ., concur.

McMILLIAN, J., dissents and concurs in dissent of WEIER, J.

WEIER, Judge,

dissents.

I respectfully dissent. In order to support plaintiff’s charge of negligence it was necessary for her to adduce evidence of the doctor’s treatment, its adverse effect upon plaintiff, expert opinion that the treatment so given caused the condition for which plaintiff seeks damages, and further that the course of treatment violated the standards expected of ordinarily careful, skillful and prudent doctors acting under similar circumstances. Haase v. Garfinkel, 418 S.W.2d 108, 113[3, 4] (Mo.1967).

On appeal, defendant contends the trial court erred in refusing to direct a verdict in his favor because there was insufficient evidence to establish that any negligent act or omission of Dr. Emmert caused plaintiff’s thrombo-phlebitis. Plaintiff relied upon the testimony of Dr. Jack Barrow who had treated plaintiff after her hospitalization in July, 1966, to prove that Dr. Emmert’s treatment was negligent and had caused the recurrence of the thrombo-phlebitis. Defendant contended the evidence did not support the hypothetical questions propounded to Dr. Barrow in that no evidence proved that Emmert had administered three shots of mercuhydrin to Mrs. Depper.

Plaintiff introduced Dr. Emmert’s records and read into evidence that portion which established that Dr. Emmert gave Mrs. Depper a one-half c.c. injection of mer-cuhydrin on July 6,1966, “for fluid,” a 2 c.c. injection of premerin on July 13, 1966, (for female disorders) and a 2 c.c. injection of estrone on July 21, 1966, (also for female disorders). The record contained no reference to mercuhydrin except the one entry on July 6.

Based upon this evidence and the conversation of Mr. Depper with Dr. Emmert related in the majority opinion, plaintiff’s counsel then submitted to Dr. Barrow a hypothetical question in which he asked the doctor to assume that Mrs. Depper received three injections of mercuhydrin, one on July 6, 1966, one on July 13, 1966, and one on July 21, 1966, and that he further assume that the sole reason for her treatment at this time was for weight loss. Based on this assumption of facts, plaintiff’s expert was of the opinion that mercuhydrin would not be considered an appropriate drug for treatment of excessive weight or obesity; that in giving the three injections of mer-cuhydrin, Dr. Emmert was not exercising that degree of skill and learning normally exercised by doctors under the same or similar circumstances; and that the injections of mercuhydrin “caused that thrombo-phle-bitis suddenly to flare up.” In answer to a question as to whether one-half c.c. of mer-cuhydrin was a sufficient dosage for therapeutic reasons, Dr. Barrow replied: “No. I think that’s in the order of a test dose to see that the patient is not going to react to it.” Such an amount would have no therapeutic benefit. He had previously explained mercuhydrin was a diuretic enabling the body to get rid of excessive fluid. One undesirable result would be to get hives or skin rashes but usually these would occur after the drug had been used more than once.

Plaintiff’s evidence is insufficient to establish that defendant’s decedent, Dr. Em-mert, administered three shots of mercuh-ydrin to plaintiff or that the drug was given in any specific quantity and in turn the evidence fails to support the hypothetical questions addressed to plaintiff’s expert, Dr. Barrow, and his opinion that establishes Emmert’s negligence. With the evidence of Dr. Emmert’s records, one cannot logically reason that the jury should be able to infer from the testimony of plaintiff’s husband, Mr. Depper, that in his conversation with Dr. Emmert, Emmert admitted giving Mrs. Depper three shots of mercuhydrin. To the contrary, Depper’s testimony relates Em-mert as stating he had given Mrs. Depper only one shot of mercuhydrin. This conformed exactly to his records. Emmert’s further related statement that he had given three shots to plaintiff without specifying the drugs injected as the quantity thereof did not controvert the records. Reading into this statement an admission that he gave Mrs. Depper three injections of mer-cuhydrin reaches beyond the bounds of the simple language found in the evidence to find an intendment not there to be drawn. Juries are not permitted to speculate in this manner. Esmar v. Zurich Insurance Co., 485 S.W.2d 417, 421[2] (Mo.1972); Williams v. Cavender, 378 S.W.2d 537, 541[2] (Mo.1964); Graham v. Conner, 412 S.W.2d 193, 203[19] (Mo.App.1967); MAI 2.01.

Even if one were to reach the inference plaintiff seeks in Emmert’s conversation, plaintiff’s evidence points to two equally probable and inconsistent conclusions — that plaintiff was given one shot of mercuhyd-rin, or that she was given three shots of the drug. In such a situation, plaintiff has again failed to remove the case from the realm of speculation. Williams v. Cavender, supra, 378 S.W.2d at 541[4]; Lewis v. Hubert, 532 S.W.2d 860, 869[22] (Mo.App.1975); Straughan v. Asher, 372 S.W.2d 489, 493[4] (Mo.App.1963).

Plaintiff introduced the records of Dr. Emmert as a part of her case. It is true that she is not bound by the unfavorable portions of the evidence introduced by her if it is contradicted by other evidence. Dodwell v. Missouri Pacific Railroad Co., 384 S.W.2d 643, 649[9] (Mo.1964); Steele v. Woods, 327 S.W.2d 187, 196-97[14] (Mo.1959). But Emmert’s telephone conversation with Mr. Depper, as previously pointed out, does not contradict the records. Plaintiff is therefore bound by the uncontradict-ed records. Reece v. Reed, 326 S.W.2d 67, 71[5] (Mo.1959).

Furthermore, it should be pointed out that the only measurable quantity of the drug administered to Mrs. Depper as shown by the evidence was one-half c.c. on July 6, 1966. Such a small quantity would only be considered a test according to the testimony of Dr. Barrow; and as Dr. Barrow indicated, allergic reactions usually would occur only after the drug was used more than once.

Since the only evidence of negligence and causation was Dr. Barrow’s answers to the hypothetical questions and the evidence is insufficient to support the hypothetical questions, it follows that there is an absence of relevant expert medical testimony on the issue of negligence and causation. Even viewing the evidence in the light most favorable to plaintiff, according plaintiff the benefit of all inferences reasonably arising therefrom and disregarding defendant’s evidence unfavorable to plaintiff, as we must do when judging the sufficiency of the evidence in this jury-tried case, Boyd v. Terminal Railroad Ass’n of St. Louis, 289 S.W.2d 33, 35[1] (Mo.1956); Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App.1974), we still find that this necessary part of plaintiff’s case is missing. Without relevant expert medical testimony on negligence and causation in a case presenting questions beyond the ability and experience of average laymen, such as the case at bar, plaintiff has not made a submissible case. Haase v. Garfinkel, supra, 418 S.W.2d at 112-13[2-4]; Hart v. Steele, 416 S.W.2d 927, 981-33[7—10] (Mo.1967); Kappel v. Slickman, 401 S.W.2d 451, 453-54[2-4] (Mo.1966).

The judgment should be reversed.

      . Plaintiffs testimony relative to her treatment and illness were ruled inadmissible under the Dead Man’s Statute, § 491.010, RSMo 1969, V.A.M.S.

      . “It is not absolutely essential that a hypothetical question should include all material facts supported by evidence. The questioner may frame his hypothetical question on his own theory and may not necessarily include all the material facts shown in evidence. The questioner may elicit an opinion on any combination or set of facts he may choose, if the question propounded fairly hypothesized facts the evidence tends to prove and fairly presents the questioner’s theory so that the answer will be of assistance to the jury on the issue.” Huffman v. Terminal R. R. Ass’n of St. Louis, 281 S.W.2d 863, 870[9] (Mo.1955).

      . Plaintiffs expert testified that the one-half c.c. mercuhydrin administered on July 6 as shown in Emmert’s office record, was probably given in that small amount as a test, indicating Emmert’s concern with possible adverse reactions.


author: NORWIN D. HOUSER, Special Judge.

text:
    Marvin S. MARTIN, Plaintiff-Appellant, v. Dr. Gene P. BARBOUR and Dr. E. W. Egle, Defendants-Respondents.
    No. 37650.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 5, 1977.
    Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.
    Application to Transfer Denied Oct. 11, 1977.

      Frank B. Green, Charles A. Mogab, Morris A. Shenker and Cordell Siegel, St. Louis, for plaintiff-appellant.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John J. Horgan, Hullverson, Hullverson & Frank, Inc., Thomas C. Hullverson, Stephen H. Ring-kamp, St. Louis, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Nine jurors returned a verdict for $125,-000 in favor of Marvin S. Martin in his suit against Drs. Gene P. Barbour and E. W. Egle based on charges of negligent operation and treatment for a rectal condition allegedly resulting in chronic and permanent incontinence. Defendants filed a motion to set aside the verdict and render judgment in accordance with their motions for directed verdicts at the close of all the evidence, or in the alternative for a new trial. The circuit court sustained the motion and entered judgment for defendants, or in the alternative sustained their motion for a new trial. Plaintiff has appealed, praying for reversal of the order and entry of judgment for plaintiff for $125,000 in accordance with the verdict.

Plaintiff went to the jury on the theory that in the course of surgical procedures performed by defendant Barbour plaintiff’s internal sphincter muscle was damaged when it was not medically necessary to do so.

The first issue on appeal is whether plaintiff adduced sufficient evidence to make a submissible case on the issues of negligence and proximate cause. In making this determination we view the evidence in the light most favorable to plaintiff, giving him the benefit of all favorable inferences and disregarding defendants’ evidence except insofar as it may favor plaintiff. Swope v. Printz, 468 S.W.2d 34, 37 (Mo.1971).

The term “negligence” in this case means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendants’ profession. The parties agree this is the standard of care required of the surgeon performing surgery on plaintiff’s rectum. More particularly, the initial question is whether the surgeon negligently cut or damaged plaintiff’s internal sphincter muscle and if so whether the muscle was cut deeply enough or sufficiently to cause injury to plaintiff.

Plaintiff, having suffered for several weeks from stomach pains, first consulted Dr. Barbour on January 20, 1970. Suspecting stomach ulcer, Dr. Barbour placed plaintiff in Normandy Osteopathic Hospital for tests. After taking X rays and making other tests Dr. Barbour, an expert in the field of proctology, examined plaintiff’s rectum. None of plaintiff’s complaints was associated with his rectum. Plaintiff had never previously made any complaint with respect to or sustained any injury to or experienced any disease or treatment of any kind to his rectum. He did not complain of painful bowel movements in his interview with doctors at the hospital. Dr. Barbour tried to insert an examining pipe into plaintiff’s rectum. He reported to plaintiff that he was unable to do so; that he found some sort of blockage in his rectum which would have to be opened up; that otherwise it would close; that if it closed all the way it would be “like locked bowels” and this would kill him; that surgery “had to be done.” Dr. Barbour did not explain to plaintiff what surgery he proposed to perform; did not tell him he had hemorrhoids and a fissure; did not discuss the risks involved, the possibility of having the sphincter muscle cut or damaged, that if it were cut plaintiff might be incontinent, or that the operation might not be 100% successful. Having confidence in the doctor, plaintiff submitted to surgery on February 3, 1970. Following surgery his rectum was tight (a condition termed “steno-sis”). After the operation he was examined weekly, either by Dr. Barbour or Dr. Egle, at their offices, and treated by digital dilation of the rectum and attempts to stretch the opening with an instrument. Dr. Barbour finally advised a second operation. No mention was made of any dangers or risks involved in the second surgery. Trusting the doctor, plaintiff was operated on a second time on April 16, 1970. Following the second surgery plaintiff could no longer control his bowels; he was incontinent.

Plaintiff worked at General Motors for several years prior to January 28, 1970, on which date he took sick leave to enter the hospital. Off work continuously until December 11, 1970, plaintiff drew sick leave benefits. Plaintiff was required to submit to examination by the insurer’s physician, a Dr. Richard Huck, for verification of disability. In July, 1970, Dr. Huck examined plaintiff digitally and with a “shiny tube.” He advised plaintiff that he thought the operation would have to be “all done over again,” but if it was his (the doctor’s) “rear end” he would have a specialist do it. Plaintiff did not understand the significance of what Dr. Huck was telling him because he thought he had been going to a specialist, and he had no suspicion at that time and no idea that there was any basis for criticism of Drs. Barbour and Egle. Dr. Huck made a report to the insurance company, the contents of which were not disclosed to plaintiff. In October, 1970 plaintiff asked either Dr. Barbour or Dr. Egle if he would have to have the work all done over again. The doctor advised plaintiff to exercise the muscles down there, which plaintiff had been doing but exercise did not seem to be working. Plaintiff decided to do something about his situation. In October, 1970 he called Dr. Huck for a recommendation of another doctor. Dr. Leo J. LeBlanc, a proctologist, was recommended. Plaintiff first saw Dr. LeBlanc November 23, 1970, complaining of lack of control over his bowels, leakage, and having stools in his shorts. The first time plaintiff came to personal knowledge that he had sustained some injury in surgery was when he went to see Dr. LeBlanc on November 23, 1970. On that date Dr. LeBlanc told him that the muscle had been cut. Following the examination Dr. LeBlanc advised plaintiff there was an operation that could be performed, to try to pull the muscles back together; that he had performed the operation many times; that sometimes people get back quite a bit of muscle control, and others do not. Plaintiff decided against an operation at that time and resumed work at General Motors December 12, 1970. He worked for several months. On July 11, 1971, unable to do the work satisfactorily because of his rectal problem, plaintiff took sick leave. Plaintiff then returned to Dr. LeBlanc in the hope that repairs could be made to enable him to regain some control and go back to work. Dr. LeBlanc operated on plaintiff on July 16, 1971. The operation was unsuccessful. Plaintiff returned to work September 14 and worked until October 20,1971, when he finally quit work for good, classified permanent total disability by Social Security and under the General Motors Retirement Plan. Plaintiff moved to Arizona, where on November 16, 1973 he submitted to an examination by Dr. Joseph McAndrew to verify his disability. Plaintiff filed suit for malpractice on September 6, 1972.

Dr. Barbour’s operative report of the first operation shows a diagnosis of internal and external hemorrhoids, multiple cryptitis, posterior fissure in ano with anal stenosis, and rectomembranous prolapse, Grade III. The operation performed was Ano Procto-plasty (Internal, External Hemorrhoidecto-my, Multiple Cryptectomy, Posterior Fissu-rectomy, with Anotomy for relief of anal stenosis, and plastic repair of rectomembra-nous prolapse, Grade III).

To make a submissible case of negligent malpractice and proximate cause the burden was on plaintiff to prove (1) that during the surgical procedures performed by Dr. Barbour plaintiff’s internal sphincter muscle was damaged; (2) that it was not medically necessary to damage that muscle in performing the surgery; (3) that damaging the internal sphincter muscle in the course of performing the surgery constituted a failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendants’ profession, and (4) that damaging the internal sphincter muscle caused plaintiff to be incontinent.

(1) Was plaintiff’s internal sphincter muscle damaged?

The sphincter muscle has three branches. Dr. LeBlanc testified that the sphincter muscle has to be “pretty well damaged in its three branches” before the result is no control (over bowel discharge). Some surgeons cut the muscle, but only the top branch of the muscle, which is done to defer healing — so healing will begin inside and come outside rather than form a pocket. There is evidence by way of admissions made by Dr. Barbour in the hospital records, and by his counsel in opening statement, that in fact he cut the sphincter muscle during the first operation. The hospital records relating to the second operation contain an admitting note over Dr. Barbour’s signature in which, after reciting that the patient had marked postoperative anal stenosis, Dr. Barbour wrote: “At the time of his first surgery division of the sphincter muscle at the posterior midline was accomplished, apparently inadequately because the patient still has too much steno-sis.” Dr. LeBlanc testified that this quotation means that the muscle was severed.

Dr. Barbour testified that during the first operation, in order to relieve the steno-sis and open up the canal “so you can get proper things to go through,” he inserted a speculum and took a scalpel and “divided down through the scar tissue, and whatever muscle was involved in that. I don’t always report this subcutaneous external sphincter muscle that is scarred up, you go through it. When you have one that needs to be gone through, you just go through that.” He testified that “some people” feel the external sphincter muscle must be divided in order to do an adequate fissurectomy “and if you have got a stenosis, you must divide the subcutaneous external sphincter muscle”; that he could not really tell whether he did it completely or not. “I did some, because in an anal stenosis that muscle is shallow, it’s not terribly deep. I may have divided that muscle. I can’t really tell you.” On cross-examination Dr. Barbour stated that when you are doing the stenosis “you have also got to get probably into some of these subcutaneous sphincter muscles.” Questioned whether he divided the external sphincter muscle he answered, “Not the whole one. I’m not sure, I don’t believe, I say.” Asked if in his report he mentioned cutting into the internal or external sphincter muscle, Dr. Barbour answered, “No, sir. I did not. However, that is a routine kind of operation which I suppose maybe I should record if I’m talking about the subcutaneous portion of the external sphincter muscle. I don’t necessarily record that. I do say in this operative report that I Marsupialized the wound edges, which makes me think I probably did do a sphincter incision in the subcutaneous external sphincter muscle, because if you are really scarred up and really tight, you don’t want the patient to seal up again. And, very often I will make an incision in that muscle and Marsupialize it down, or sew it down rather than bring it straight back together.” Further, “Q. Now, there is no mention in that report of your going into the internal or external sphincter muscle or cutting into that muscle, but, now, you say, you may have? A. I say, I probably did, the external subcutaneous sphincter muscle, and I say, since I Marsupialized it, I probably incised it, but I can’t tell you that for sure. Q. When you say you incised it, that means cut? A. Yes, sir. Q. And that the depth of the cut at this time you couldn’t tell us— A. You mean— Q. (continuing) — from your personal recollection or from any note that you made at the time? A. I will say that I could have cut through the entire subcutaneous external sphincter muscle.”

In defendants’ opening statement counsel stated that the evidence would show that “the sphincter muscle was cut.”

Plaintiff testified that at his first examination by Dr. LeBlanc on November 23, 1970 Dr. LeBlanc told him the sphincter muscle had been cut. That this happened is borne out by what Dr. LeBlanc found when he operated. There was a deficiency in the sphincter muscle of about one inch. Using forceps he “fished” in the tissue for the ends of the muscle, which were separated and retracted in the tissue. He “found two ends of the muscle” and “pulled them together,” threading them with a piece of wire later removed and making the repair with catgut. Unfortunately the ends did not reunite and the operation was unsuccessful.

With respect to the second operation there is direct evidence by way of an admission that Dr. Barbour cut deep to the internal sphincter muscle. In his operative report on the second surgery Dr. Barbour stated: “A Brinkerhoff speculum was introduced into the anus and scar tissue at the posterior midline was excised. * * * The incision was deep to the superficial fibers of the external sphincter muscle and the internal sphincter muscle. * * * An incision was also made at the lateral mid-line on both the right and left side deep to the superficial fibers of the internal and external sphincter musculature.” The report went on to say that it was not necessary to incise any fibers of the muscle; that the scar tissue excised lay above the muscle, and that the muscle was found to be in good condition. Dr. Barbour testified that he shouldn’t have said what he said in the last quoted sentence; that he did not mean the whole sphincter; that “we are doing these things all the time, and you go in and make a dictation, * * * and you are kind of hurrying” — -that paper work is one of your biggest headaches; that he said sphincter because it “is a common procedure to me to cut the external subcutaneous sphincter. I do not as common procedure cut the whole sphincter, I — so, I reported there what I shouldn’t have said.” When asked if there was any way of knowing how deep the incision went in the second operation Dr. Barbour answered that he could tell about his procedures in general; that he always goes as far as the scar tissue goes. In reviewing his operative report Dr. Barbour said, “ * * * I assume I did not cut the fibers in there. It’s probably a little bit impossible not to cut any, but I said I didn’t cut any.” After extensive cross-examination Dr. Barbour admitted the possibility that “the lower border of the internal sphincter muscle might have been incised.”

In addition to the admissions of Dr. Barbour there is circumstantial evidence that the internal sphincter muscle was cut. Dr. LeBlanc testified that if Dr. Barbour “just cut the top branch, I think, nothing would have happened”; that if plaintiff was not incontinent after the first operation and was incontinent after the second, the conclusion is that the muscle was not cut in depth in the first operation sufficiently to make him incontinent.

Following Dr. Huck’s examination of plaintiff Dr. Huck made the diagnosis: “Rectal incontinence secondary to division of rectal sphincter,” by which he meant “that the sphincter was cut.” From the patient’s history of inability to control his bowels following rectal surgery the “logical conclusion” in the doctor’s thinking was that the patient must have had his sphincter muscle cut.

From all of the foregoing the jury could find and believe that in the course of the first operation Dr. Barbour cut through the entire exterior sphincter muscle to relieve the stenosis; that Dr. Barbour considered such cutting routine and did not include it in his operative report; that the division of the muscle during the first operation was inadequate to properly relieve the tightened condition of the anus and a second operation became necessary; that in the course of the second operation further cutting was done to relieve the stenosis; that incisions made in the course of the two operations effected a separation of the sphincter muscle; that the two ends of the muscle retracted; that in his attempt in the second operation to further relieve the condition of stenosis Dr. Barbour cut deeper than he intended. The jury was not required to accept and evidently rejected Dr. Barbour’s sometimes conflicting testimony with respect to whether he cut various branches of the sphincter muscle and if so the extent to which the sphincter muscle was incised. The jury could and evidently did find that the internal sphincter muscle was incised by Dr. Barbour and incised deeply enough to injure and damage plaintiff.

(2) Necessity of damaging the muscle in performing this surgery?

Dr. Barbour testified that in performing a simple hemorrhoidectomy there is no cutting or tampering with the internal or external sphincters if the surgery is properly done, and that any cutting on the sphincter muscle in such an operation would be improper. The same is true of a multiple cryptectomy. He agreed that surgical damage to the anal rectal sphincter muscle is not a common and ordinary incident of anal rectal surgery; that it was not necessary to traumatize the rectal sphincter muscle for the operations performed—not necessary to incise the muscles further than the extent of the scar tissue. Asked “Was it medically necessary at all to cut into the internal sphincter muscle in any of your operations you performed?” Dr. Barbour answered, “I don’t believe so.”

Dr. LeBlanc testified that in doing a cryptectomy, hemorrhoidectomy and fissu-rectomy it is not necessary to cut on the muscle; that “you do your dissecting down to the muscle.”

From the medical evidence, including the admissions of Dr. Barbour, the jury had ample evidence to find that there was no necessity of damaging the sphincter muscle in performing this surgery.

(3) Did the damaging of the muscle constitute a failure to meet the required standard of care?

Dr. Huck testified that the total, unintended, accidental cutting of the sphincter muscle when it is not necessary to cut is not good medical practice.

Dr. LeBlanc testified that the unintended cutting of the sphincter muscle for reasons that are not medically necessary constitutes a failure to exercise the reasonable medical care (that degree of care other surgeons use); that he was familiar with what good medical practice is in this regard and it is not good surgical practice to cut the whole sphincter muscle without medical indication or medical basis for cutting the muscle.

Dr. Joseph McAndrew agreed that the unintentional cutting of a sphincter muscle in performing rectal surgery would be a failure to exercise that degree of care, skill and competence that other physicians would exercise. From his examination of plaintiff and his findings of scar tissue and incompetent anal sphincter he would say that “whatever surgery took place there, fell beneath the care ordinarily exercised by rectal surgeons.”

From this evidence the court could find an affirmative answer to the question propounded in (3).

(4)Did the damage to plaintiff’s sphincter cause incontinence?

Defendants’ counsel conceded in his opening statement that plaintiff has “mild” incontinency and in their brief agree he has “some degree of incontinence” but they contend there was no expert medical testimony that the incontinence results from damage to plaintiff’s sphincter muscle.

Dr. Huck’s diagnosis was “Rectal incontinence secondary to division of rectal sphincter.” The word “secondary” means dependent or consequent on, as used here, and this diagnosis tends to prove causal connection.

Dr. LeBlanc’s testimony reveals his conclusion that plaintiff had an incontinent rectal sphincter resulting from previous surgery. Dr. LeBlanc testified that plaintiff gave him a history of bowel control before surgery and no control after surgery; that he examined him, and upon digital insertion in his rectum plaintiff was unable to tighten up and squeeze the doctor’s finger; that this “tells you something has happened here.” He put it this way: “I don’t know how to phrase it any other way with the history of surgery and the patient tells you that he had control before surgery, and, now, he doesn’t. * * * If he tells you that he doesn’t have any control now, and you examine him and you find what I found, I only had one conclusion to draw that something happened there.” Before examining Dr. Barbour’s notation in the hospital record (admitting division of the sphincter muscle) Dr. LeBlanc testified that he was not present at the operation and did not know what happened there — didn’t know whether the muscle was damaged with a clamp, whether he was cut, or had an abscess. After seeing Dr. Barbour’s written admission, however, Dr. LeBlanc testified this meant the muscle was severed; that “He admits it here. It’s not my doing. It’s written here”; that if the severance of the muscle had been repaired immediately plaintiff would have had a better chance of making a full recovery, but that by the time Dr. LeBlanc “got him” the muscle had atrophied; that during the operation he performed Dr. LeBlanc “fished” for the two separated ends of the muscle; that it is a matter of judgment how deep a surgeon should go in the removal of scar tissue; that “the thing is the depth of the cut, and if you don’t know how deep to cut it, don’t cut it”; that if a surgeon knows where he is putting his knife and incontinence happens, the surgeon doesn’t know his anatomy. Dr. LeBlanc referred in his testimony to a report he signed for insurance purposes, reciting that “Physical exam reveals incontinent rectal muscle,” and ruled out all other causes of plaintiff’s incontinence. He reviewed the X-ray reports and hospital records and testified that there was nothing in the hospital findings (with reference to colitis, gastritis, duodenitis, hyperactive intestine or other upper G.I. diagnoses) to account for the man being incontinent, other than the finding he made of damage to the anal rectal sphincter muscle.

We find proof of causation sufficient to submit the case to the jury.

Plaintiff’s case against Dr. Egle, who did not assist or participate in either of the operations performed by Dr. Barbour and did not consult or treat plaintiff until after the operations, is based upon the contention that the two doctors were partners acting concurrently in treating plaintiff. There was evidence that on January 20,1970 they were partners, but that at the time of the trial Lackland Clinic, owned by defendants, was a corporation. There is no evidence to show if and when the partnership was dissolved or when Lackland Clinic was incorporated. Plaintiff claims it is immaterial whether defendants treated him as partners or as coemployees of a corporation, in view of the evidence patients are seen back and forth between the two doctors; that patients know that either one or both of the doctors will see them, and that both doctors make notations on the file cards of patients and all their records show entries either by Dr. Barbour or Dr. Egle, or both. Conceding that under Telaneus v. Simpson, 321 Mo. 724, 12 S.W.2d 920 (1928), the negligence of Dr. Barbour in surgery could be imputed to Dr. Egle, if defendants were partners during the entire course of plaintiff’s treatment, defendants say there was no evidence that defendants were partners beyond January, 1970. Further conceding that under Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850 (1940), defendants would be jointly liable as employees of a common employer if they were acting concurrently in treatment of plaintiff which caused him injury, defendants say they were not acting concurrently on February 3 and April 16, the only dates or occurrences upon which negligence was charged; that since there was no charge of negligence with respect to postoperative care, plaintiff failed to make a case against Dr. Egle on the issue of concurrent treatment. Defendants further contend that any fraudulent concealment by Dr. Barbour constituted a wrongful act outside the scope of the partnership business, which could not be imputed to Dr. Egle, and therefore the statute of limitations as to the vicarious liability of Dr. Egle expired before suit was filed.

Having proved that a partnership between the two doctors existed in January, 1970 an inference arises that the partnership continued to exist until the corporate form of practicing medicine was adopted. Martin v. Sloan, 377 S.W.2d 252, 256-257 (Mo.1964). The only evidence with respect to the corporate existence shows it in existence at trial time. There is no evidence that the corporation was in existence at any time prior to the filing of this lawsuit. For defendants to take the position that the law of partnership does not apply the burden was theirs to demonstrate when the partnership terminated. This they failed to do. “Pursuant to general rules, partners in the practice of medicine are all liable, for an injury to a patient resulting from the lack of skill or the negligence, either in omission or commission, of any one of the partners within the scope of their partnership business; * * 70 C.J.S. Physicians and Surgeons § 54b., p. 977. “And where several physicians are in partnership, they may be held liable in damages for the professional negligence of one of the firm.” 60 Am.Jur.2d Partnership § 166, p. 86. “It is plain, too, that when physicians and surgeons are in partnership, all are liable in damages for the professional negligence of one of the firm, for the act of one, within the scope of the partnership business, is the act of each and all, as fully as if each is present, participating in all that is done.” 61 Am.Jur.2d Physicians, Surgeons, Etc. § 166, p. 295. And see Anno: 85 A.L.R.2d 889. On this record Dr. Egle is liable for Dr. Barbour’s professional negligence on the basis of their partnership. There is no merit in the contention that fraudulent concealment by one partner may not be imputed to another partner. “The individual partners * * * are liable in a civil action for the fraudulent misconduct of a partner within the course or scope of the transactions and business of the partnership, whether such misconduct be by fraudulent representations or otherwise, even though the copartners had no knowledge of the fraud and did not participate therein; * * 68 C.J.S. Partnership § 170, p. 620; Kearns v. Sparks, 260 S.W.2d 353, 360[15] (Mo.App.1953).

The next question for determination is whether plaintiff is barred by the 2-year statute of limitations applicable to actions for malpractice (§ 516.140, RSMo 1969). The acts of alleged negligence occurred on February 3 and April 16, 1970. Suit was filed September 6, 1972.

Section 516.280, RSMo 1969 provides: “If any person * * * by any * * * improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.” For plaintiff to submit fraudulent concealment under § 516.280 in avoidance of the 2-year limitation period he must have proved (1) that in performing the surgeries Dr. Barbour did or failed to do something which caused the incontinence; (2) that Dr. Barbour’s conduct failed to meet the required standards of professional competence and therefore constituted negligence; (3) that Dr. Barbour had actual knowledge that he caused the incontinence; (4) that with that knowledge Dr. Barbour intended by his postoperative conduct and statements to conceal from plaintiff the fact that he had a claim against him for malpractice by reason thereof; (5) that Dr. Barbour’s acts were fraudulent, and (6) that plaintiff was not guilty of any lack of diligence in not sooner ascertaining the truth with respect to his situation. Swope v. Printz, supra, 468 S.W.2d l.c. 38-39.

Under our previous analysis (1) and (2) were satisfied.

As to (3): Dr. Barbour testified that he cut the external sphincter muscle, perhaps through the entire muscle. He admitted that he might have excised the internal sphincter muscle. For the sphincter muscle to have no tone as a result of surgery it would be necessary for the muscle to have been considerably damaged in all three of its branches, according to Dr. Le-Blanc. Only Dr. Barbour had personal knowledge of how deeply he cut but the stark fact for the jury to consider was that prior to the cutting the muscle was working but afterwards it was incompetent, as testified to by Drs. LeBlanc, and McAndrew, whose digital examinations revealed that plaintiff was unable to contract or draw up the muscle. After only one routine office examination it was apparent to these two doctors that the muscle was affected and that the incontinence resulted from the surgery. Although Dr. Huck did not remember having made a digital examination it was his opinion that the incontinence resulted from the surgery. The jury could find that the true cause of plaintiff’s incontinence, so readily apparent to three disinterested doctors, was equally apparent to Drs. Barbour and Egle, eminent proctologists with wide experience in the field — professed experts fully acquainted with the surgery performed and intimately acquainted with plaintiff’s condition both before and after the surgery; could find that Dr. Barbour had actual knowledge not only that he cut and unintentionally cut too deeply but also that he knew his surgeries had caused the incontinence.

On (4) and (5) — fraudulent concealment — a submissible case was made. Plaintiff is not a highly educated person. His formal education consisted of eight years of grade school and four years of night school training in machine shop work. He had no information on matters of this nature. He did not know of his own knowledge how long it took “for anything like this to get well.” While in the hospital, immediately after the second operation, plaintiff found himself incontinent. After leaving the hospital and during the weekly visits to Lack-land Clinic plaintiff questioned Dr. Barbour concerning his inability to control his bowels. A fiduciary relationship of a highly confidential nature existed between plaintiff and Drs. Barbour and Egle, imposing upon them the duty to disclose known material facts to plaintiff. The jury found that defendants knew the sphincter muscle had been negligently damaged in the operative procedures. With that knowledge it was defendants’ duty to disclose this important fact to plaintiff. The jury could find not only failure to disclose — complete silence on the subject — but also affirmative misrepresentation of the situation by repeated assurance that the rectum was in good condition and attributing his condition to chronic colitis. Plaintiff had a right to and the jury could find that plaintiff did in fact rely upon, trust and believe defendants and their representations and advices; that he had implicit confidence in them. When plaintiff interrogated Dr. Barbour about his condition Dr. Barbour told him it would take a long time before his bowels would start working right; to keep exercising his muscles down there; and assured him that it would take quite a long while before his bowels would start functioning normally. Plaintiff asked what he meant by a long time and Dr. Barbour answered, “A year or more.” On August 4, 1970 Dr. Egle told plaintiff that his rectum was doing fine and it was explained to plaintiff that he had a chronic condition of colitis. On August 22, 1970 Dr. Egle wrote in his notes and told plaintiff his rectum was fine and all healed. Defendants kept telling plaintiff that he was improving and that his anal rectal ring was intact. (The anal rectal ring is not the same as the anal sphincter muscle; the anal rectal ring was not involved in any manner.) On September 19, 1970 Dr. Egle wrote in his notes: “Rectum perfect— sphincter good.” Following Dr. Huck’s examination, and in October, 1970 plaintiff questioned defendants about his progress and whether he would have to have the surgery done over again. He was told to exercise his muscles. Plaintiff told the doctor that the exercise “didn’t seem to be working,” whereupon the doctor slapped him on the back and said, “You have got better muscles than I have down there.” Dr. Egle recorded that his rectum was perfect; that he had good functional bowel syndrome and that on digital examination he found good tone in the sphincter muscle. On October 17, 1970 this notation appears: “Rectum healed * * * Sphincter excellent,” and advised plaintiff he could return to work.

The jury could find that these record entries, misrepresentations and reassurances given plaintiff, made in the face of plaintiff’s contrary experience and diametrically opposite to the findings of disinterested medical practitioners were falsely and fraudulently made; that they were made with intent to deceive plaintiff and conceal the true fact that he had been negligently damaged and made permanently incontinent by the surgeries.

(6) Whether plaintiff was not diligent in sooner ascertaining the truth was a jury question. From the date of his second operation until November 23, 1970, when for the first time he learned that his sphincter muscle had been cut, plaintiff received repeated assurances from defendants that he was improving; that he had chronic colitis to account for his loose bowels, and that it would take a long time — a year or longer — before his bowels would be working normally. As indicated, there was ample evidence of reliance by plaintiff upon the advices of these rectal specialists, who did not tell him his sphincter muscle had been severed. Dr. Huck, who examined plaintiff in July, did not inform him of this fact, although Dr. Huck did alert plaintiff sufficiently to cause him to seek further medical advice. In November, 1970 he for the first time learned that his sphincter muscle had been damaged, and he filed suit within two years after gaining that knowledge. Because of the pain and previous experience plaintiff did not undergo a third operation immediately after November 23, 1970. Instead, he went back to work. He wanted “to think it over and give it more time, maybe they would start working again.” Plaintiff pursued his employment until it became evident that his condition would not permit him to work any longer. Even then he clung to the hope that his condition would eventually get better, a hope fed by defendants. The jury could find that plaintiff was not guilty of lack of diligence in not sooner ascertaining the truth of his condition.

In the alternative order directing a new trial the circuit court sustained every one of the seventeen assignments of error in giving Instruction No. 4 (plaintiff’s main ver-diet director). We have read and considered each of the seventeen assignments of error which were sustained in this wholesale fashion and we find no merit in any of them. Many of the criticisms relate to claimed lack of evidence in the same respects complained of as failure to make a submissible case, which we have disposed of adversely to defendants. None of them is of sufficient value as a precedent to justify a seriatim treatment in this already too long opinion. Instruction No. 4 is MAI No. 21.01 properly modified to incorporate the factor of fraudulent concealment. It is simple, brief, impartial, free from argument, does not require findings of detailed evidentiary facts and properly submitted the issues tried.

Defendants assign as an additional reason why they are entitled to a new trial that Dr. Barbour was improperly cross-examined by use of certain medical textbooks, because they were not sufficiently identified. (Counsel for plaintiff merely stated that the books were from the Washington University Medical School Library.) That objection was not made at trial. Defendants’ counsel then objected “to that as not for cross-examination.” This general and obscure objection was insufficient to raise the point now pressed. Galloway v. Galloway, 169 S.W.2d 883, 887 (Mo.1943). In any event, no prejudice is shown. The witness was in basic agreement with the quotations from the books which were read to him.

Defendants further contend that the new trial order was justified for error in allowing personnel from the disability benefits insurance company and General Motors to testify that plaintiff was totally disabled according to their business files; that this testimony was hearsay upon hearsay and inadmissible under the Business Records Act.

Mr. Adams, an employee of General Motors, whose duty as an adjuster was to review and evaluate employees’ claims for disability benefits under the company’s insurance policy with Metropolitan Life Insurance Company, and to authorize payments, testified that the criterion for payment was that of total disability. He produced and identified the insurance file pertaining to plaintiff’s claim for disability benefits. It contained a number of documents, including reports of doctors following examinations of plaintiff. On objection the court excluded the contents of the file, but permitted Mr. Adams to testify to the amounts of money paid plaintiff for his disability and to state on what supportive basis it was determined that these payments were due, i. e., that benefits were “paid based on evidence of total disability.” This testimony was not admitted to show the substantive fact of total disability. It was competent on the issue of damages for plaintiff to show the basis of payments made to plaintiff under the disability program as bearing upon the calculation of plaintiff’s past and future loss of wages. The contents of the file, inadmissible as hearsay, were properly excluded. The amount of disability payments, however, was pertinent to the inquiry and there was no error in permitting Mr. Adams to testify that these amounts were based on evidence of plaintiff’s total disability, without detailing that evidence. Scott v. Missouri Ins. Co., 222 S.W.2d 549, 554[3] (Mo.App.1949). Indeed, it would have been impossible to introduce evidence of the payments without showing the basis, because total disability was the criterion for payment. The reference to total disability was therefore a necessary part of Mr. Adams’ testimony. Furthermore, the evidence was cumulative merely. Plaintiff’s testimony indicated total and permanent disability. There was medical evidence of that fact. Finally, this evidence benefited defendants, from the standpoint of mitigation of damages. Plaintiff’s counsel in final argument conceded that defendants should be credited with these payments.

Accordingly, the order of November 25, 1975 is reversed and the cause is remanded with directions to enter judgment in accordance with the verdict in favor of plaintiff and against both defendants as of October 24, 1975 in the amount of $125,000.

SMITH, J., and ALDEN A. STOCKARD, Special Judge, concur.