Wells v. World's Dispensary Med. Ass'n

• Decision Date: 15 April 1890
• Parties: WELLS v. WORLD'S DISPENSARY MEDICAL ASS'N.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 630

24 N.E. 276

WELLS

v.WORLD'S DISPENSARY MEDICAL ASS'N.

Court of Appeals of New York, Second Division.

April 15, 1890.

Appeal from supreme court, general term, fifth department.

Adelber Moot, for appellant.

H. J. Swift, for respondent.

PARKER, J.

The complaint alleges, in substance, that the defendant, its agents and representatives, falsely and fraudulently represented to the plaintiff that she was suffering from a uterine tumor; that, relying thereon, and upon a further statement and assurance that its removal would make her a well woman, she was induced to undergo an operation which resulted in great pain and suffering; that defendant, and its servants and representatives well knew at the time of the making of such representation that plaintiff did not have a uterine tumor, or any tumor whatsoever, but the untruthful and fraudulent representations were made, and plaintiff subjected to the agony of an unnecessary operation, for the sole and only purpose of cheating and defrauding the plaintiff out of a large sum of money for the benefit of the defendant. As the complaint was not amended according to the judgment record, the allegations of fraud appear to have been sustained by a jury, and the damages assessed at $6,000.

We think the evidence did not authorize a finding that plaintiff did not have a tumor, or that the defendant or its representatives perpetrated a fraud upon her. Three physicians, whose characters are not in any respect assailed, testified unequivocally that there was an interstitial fibroid tumor in the neck of the womb, about the size of a Concord grape; that before its removal they felt it, and with the aid of a speculum saw it distinctly; that they removed it by means of a platinum knife heated to a white heat by a galvanic battery, and after its removal examined it. The evidence adduced by the plaintiff for the pupose of establishing that there was no tumor consisted of the testimony of a physician who made an examination about two months before the operation, and did not find it. Indeed, he did not suspect its existence, and was not looking for it. Certainly, upon such evidence, a jury will not be pemitted to aid in an assault upon the professional reputation of a physician by means of a finding that plaintiff has well borne the burden resting upon her to establish the non-existence of a tumor at the time of the operation. The record, therefore, unjustly assails the defendant and the personal reputation of each of the physicians making the examination and assisting in the operation. But no exception is presented authorizing, as we think, a reversal of the judgment. Had the evidence been confined to the issue tendered by the pleadings, the court would have been required to grant the motion to direct a verdict; for it is the duty of the court to direct a verdict where the proof of a fact is so preponderating that a verdict against it would be set aside as contrary to the evidence. Dwight v. Insurance Co., 103 N. Y. 359, 8 N. E. Rep. 654, and cases cited. And an exception to a refusal would have been error demanding a reversal of the judgment. When the motion to direct a verdict was made, however, it had been conclusively proven that there was a tumor, and that it was removed by defendant's representatives; and there was evidence,...