Peck v. Henderson

Decision Date05 June 1928
Docket Number8 Div. 682
Citation22 Ala.App. 541,118 So. 258
PartiesPECK v. HENDERSON.
CourtAlabama Court of Appeals

Rehearing Denied June 26, 1928

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Action for malpractice by J.S. Henderson against Cicero F. Peck. Judgment for plaintiff, and defendant appeals. Affirmed.

Certiorari denied by Supreme Court in Peck v. Henderson, 118 So. 262.

Physician is not liable for honest mistake or reasonable error of judgment.

The third count of the complaint is as follows:

The plaintiff claims of the defendant the sum of $50,000, as damages, for that on, to wit, October 26, 1925, the defendant was a practicing physician and surgeon in Somerville, Morgan county, Ala., and as such undertook to remove a cotton seed from the ear of plaintiff's minor son, Leldon M Henderson, a child of eight years of age, and to treat and care for said ear after the removal of said cotton seed, and plaintiff alleges that the defendant, in attempting to remove said cotton seed, so negligently or unskillfully probed or gouged into said ear as to rupture or lacerate the same, and did negligently or unskillfully treat or omit to treat said ear after said rupture or laceration, that, as a proximate consequence of the defendant's said negligent or unskillful conduct in that regard, said minor child's ear rose and became so infected that the said minor child lost his life.

The following are grounds of demurrer addressed to said count:

11. Same is uncertain, and in the alternative, in that it is averred that the defendant either negligently treated the decedent, or omitted to treat the decedent after the rupture or laceration; the two alternatives not being the same in substance, or in legal effect.
12. Said count is duplicitous, in this: It charges that the defendant negligently and unskillfully probed or gouged into decedent's ear so as to cause injuries thereto, which constitutes a complete cause of action, and it further charges another complete cause of action in negligently or unskillfully treating, or omitting to treat said ear, after the wrongful injury.
13. It is averred that the defendant either negligently or unskillfully treated said ear, or omitted to treat the same after the rupture or laceration, thereby constituting an alternative cause of action, without charging that the defendant negligently omitted to treat said ear.
14. Said count proceeds against the defendant for omitting to treat the ear of decedent, but fails to charge that said omission was negligent, and fails to charge any negligent action.
14-a. The count is no stronger than its weakest averment, and fails to state that negligently or unskillfully, or wrongfully, or wantonly omitted to treat said ear.
14-b. It is not averred that death was caused by failure to treat the ear.

The following charge was given at plaintiff's request:

A. No matter how much skill Dr. Peck may have possessed, yet if he so negligently or unskillfully undertook to remove the cotton seed, or if he negligently or unskillfully treated or omitted to treat the ear, and such negligence or unskillfulness proximately contributed to the child's death, then Dr. Peck is liable.

Plaintiff's evidence tended to show that his eight year old son complaining of having a cotton seed in his ear, was carried to the office of the defendant, Dr. Peck, soon after daybreak on a Monday morning; that defendant, when told of the trouble, said he had a pair of "alligator forceps" which he had bought for such purposes, and began searching for them, finally locating them in the bottom of a trunk containing "pieces of bridles, bridle bits, back bands trace chains, and things like that, old discarded worn-out stuff, *** found the forceps in there among all of that stuff"; that the forceps were "so rusty you could scrape it off with a knife"; that an old table was cleared and moved to the back porch of the office, an old coat laid over the table, and the child placed on the coat; that chloroform was administered by Mrs. Mary Peck, defendant's sister-in-law; that defendant, without wiping off the forceps or in any manner cleaning them, inserted them into the boy's ear; that when withdrawn they had blood on them; that they were inserted again and probed, and when withdrawn were covered with blood and had at the tip end a small piece of "meat"; that Mrs. Peck suggested that a young man standing by--one Grizzard--be allowed to take the seed out; that defendant handed him the forceps and walked away; that Grizzard swabbed away the blood until he could see the seed, and, after some attempts succeeded in removing the seed; that the boy remained on the table for some 30 minutes, and defendant did not attend him any more; that plaintiff requested some medicine to be used on the ear, but did not receive it until he had carried the boy home and returned to defendant's office; that he was given some cotton, glycerine, and listerine by Mrs. Peck and told how to use it; that the boy apparently got along all right for several days, and defendant did not see him; that on Tuesday night week the boy woke up crying; that plaintiff's wife applied the medicines given by defendant; that the following morning the ear burst and discharged, the boy seeming to do very well that day; that on the following day she went to see defendant, telling him the condition of the ear and that the boy was suffering; that defendant gave her no medicine, but told her the child was suffering from neuralgia and told her to use the cotton and stuff, which she did; that the child suffered all the time, and the mother sent for defendant the following Sunday morning; that defendant came, but made no examination nor took the boy's temperature, directing her to apply hot-water cloths to the boy's head to reduce the inflamed condition, and she followed his directions; that she sent for defendant again the following Tuesday; that he came, but did not go near the boy and did not tell her anything to do except to keep using the hot-water cloths; that defendant did not come back any more, although she sent and called for him several times and saw him at his home; that another doctor was called and came to see the boy and treated

him several times; that the child died and was buried November 23d.

Plaintiff's evidence further tended to show that the boy was a normal healthy child prior to the time the seed was taken from his ear; that he had had earache as a little child, but not later than three years before the incident; that no effort was made to remove the seed before the child was taken to the defendant; and that only the treatment and medicines prescribed were used for the child.

Plaintiff's witness Dr. Russell, who attended the child prior to his death, testified that in his opinion the cause of the child's death was otitis media, an infection of the middle ear produced by the removal of the cotton seed.

The tendencies of defendant's evidence were that when defendant undertook to remove the seed he first carefully sterilized the forceps in alcohol, and that the forceps were not rusty, and were not taken from a trunk containing junk, but were bright and were taken from defendant's instrument case; that when he attempted to remove the seed a flashlight was held by Grizzard, and that defendant did not tear or rupture the ear; that when Grizzard used the forceps defendant held the flashlight; that proper medicines, glycothymolene and glycerine, and absorbent cotton were promptly furnished and their use directed; that there was only one occasion when defendant was called by plaintiff that he did not go.

Further, defendant's evidence tended to show that the child had a chronic head trouble from which he had suffered a long while, plaintiff and his wife having so stated to various persons; that plaintiff had himself attempted to remove the seed with a match before going to the defendant, and that the plaintiff's wife had stated that she had been unable to carry out the directions of the defendant in treating the boy.

Defendant's evidence tended further to show that the external communication of otitis media is highly improbable, if not impossible; that...

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5 cases
  • Hudson v. Weiland
    • United States
    • Florida Supreme Court
    • May 8, 1942
    ... ... skill and ability.' ... The rule supra was ... adopted by the Supreme Court of Alabama in Peck v ... Henderson, 22 Ala.App. 541, 118 So. 258, 259; Id., 218 ... Ala. 233, 118 So. 262. The defendant physician was employed ... to remove a ... ...
  • Poole v. State
    • United States
    • Alabama Court of Appeals
    • February 18, 1941
    ...charges at the request of the parties below." However, on certiorari to the Supreme Court, 218 Ala. 233, 118 So. 262, 263, in the Peck v. Henderson case, the court, on point, said: "The oral charge is omitted. Does such omission prevent a review of the action of the trial court in giving th......
  • City of Bessemer v. Clowdus
    • United States
    • Alabama Supreme Court
    • June 17, 1954
    ...when 'no one quite so well as appellant was in position to deny and refute' the contention of plaintiff. Peck v. Henderson, 22 Ala.App. 541(6), 118 So. 258, 261, citing the Talmadge case, supra, to the same effect. And in civil cases when the defendant offers no evidence, it is competent fo......
  • Piper v. Halford, 3 Div. 441.
    • United States
    • Alabama Supreme Court
    • January 17, 1946
    ... ... Lester v. Gay, 217 Ala. 585, 117 So. 211, 59 A.L.R ... 1561; Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 ... A.L.R. 1022; Peck v. Henderson, 22 Ala.App. 541, 118 ... So. 258, certiorari denied 218 Ala. 233, 118 So. 262; ... Sharp v. Clopton, 218 Ala. 140, 117 So. 647. This ... ...
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