Zoski v. Gaines

• Citation: 271 Mich. 1,260 N.W. 99
• Decision Date: 08 April 1935
• Docket Number: No. 92.,92.
• Parties: ZOSKI v. GAINES et al.
• Court: Supreme Court of Michigan

271 Mich. 1

260 N.W. 99

ZOSKI

v.GAINES et al.

No. 92.

Supreme Court of Michigan.

April 8, 1935.

Action by Tony Zoski, a minor, by his next friend, Paul Zoski, against Claude Gaines and others. From a judgment for plaintiff in part, he appeals, and defendants cross-appeal.

Affirmed. Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.

Argued before the Entire Bench.

Chas. A. Svenson and Harry Cohen, both of Detroit (Samuel Shimans and John Sklar, both of Detroit, of counsel), for plaintiff.

Wm. Rolston Brown, of Detroit, and Rodgers & Dunn, of Grand Rapids, for defendants.

BUSHNELL, Justice.

In September, 1927, Tony Zoski was a 9 1/2 year old normal boy, in the fourth grade of his school. There being some suspicion of infected tonsils, he was taken by a visiting nurse to the city physician and later sent to the Shurly Hospital. At the same time there was delivered to the hospital a written memorandum from the city physician requesting the removal of the boy's tonsils and adenoids. The boy went to the hospital on Saturday, September 24, 1927, accompanied by his 15 year old brother Theodore, where his tonsils were removed by Dr. Gaines, an associate of Dr. Shurly. Neither the city physician, Dr. Shurly, Dr. Gaines, nor any one acting for them, obtained the consent of either parent to operate. They did not know their son was in the hospital until Theodore, apparently frightened by Tony's appearance on his return from the operating room, reported the facts. The father, who appears in this action as next friend, immediately went to the hospital and remained with the boy until about 9:30 p. m. On Sunday morning he returned, discovered blood on the floor near Tony's bed, dried blood on his face, and a bump on his forehead between the eyes. Tony claims he became frightened during the night because of bleeding from his throat, and when the nurse failed to respond to his cries, tried to get out of bed, struck his head against another bed, and then lost consciousness. The father went home to dinner at 1 o'clock on Sunday when Tony said he was feeling better, returning about three, and remained until 9 o'clock. He came back early Monday morning, dressed Tony, who was still weak, and took him home in a taxi.

The record does not disclose any medical attention being required at home for the boy, although he was apparently slow in regaining his strength and suffered from headaches. On the morning of either the 2d or 10th of October (the father claiming the 2d and the hospital records showing the 10th), it was discovered that Tony had become blind. He was immediately again taken to the Shurly Hospital, where he was kept under observation for about six weeks and examined by members of the staff. Drs. Neff, Gaines, Bullock, Hewitt, Parker, and others were called in as consultants, in an attempt to ascertain the cause of the blindness. Dr. Walter Parker,according to the records, agreed with the diagnosis of others and noted on the medical chart, ‘that if vision does not recover in ten days following onset, recommend sub-temporal decompression.’ The father, although requested by Dr. Shurly, refused to consent to the operation required to remove the intra-cranial pressure, which was thought to be the cause of the blindness, and the boy has since remained completely blind. Neither the headaches nor any other impairment of any bodily function afterwards appeared.

Plaintiff's claim for damages is predicated upon two theories: First, that the operation being unauthorized by the parents, or either of them, was in law an assault and battery for which damages may be assessed; second, that the blindness is the result of the unauthorized operation and should be considered by the court as a factor in determining the amount of damages.

The trial court found that the operation was unlawful and the defendants were therefore guilty of an assault, but that the blindness which developed after the operation could not be traced back to such operation; that the operation could not be considered as having either a causal or precipitating relationship to the blindness, and plaintiff was therefore not entitled to recover any damages for such blindness. The court allowed damages for the unlawful assault in the amount of 6 cents, but in a supplemental opinion changed the damages from 6 cents to $600.

Plaintiff appeals, alleging seven grounds of error, which may be grouped as follows:

1. Where the infant's representative neglects to file demand for jury trial within the time required by the rule, should the infant be denied a jury trial?

2. Where the defendants at all times retained in their sole possession all charts and data relative to treatment and operation upon the infant, symptoms, subsequent history, X-rays, diagnosis, and care, should application by infant for examination of defendants and for charts and records prior to trial under court rule 41, be quashed?

3. Were defendants guilty of assault and battery by reason of the unauthorized operation upon plaintiff?

4. Was there sufficient causal relationship between operation, the postoperative care, and blindness to entitle plaintiff to damages therefor?

Defendants, in a cross-appeal, state the following additional question: ‘Where a city physician without first obtaining the parent's consent, issues a formal order to a private hospital to operate and the operation is performed in reliance upon that order and without any knowledge upon the part of the hospital authorities or the operating surgeon of such lack of consent, may the latter properly assume that the city physician had obtained the necessary consent before issuing the order for the operation?’

Rule 33, Michigan Court Rules of 1933, formerly rule 33 of 1931, and Circuit Court Rule 39, provides for a written demand for trial by jury, either attached to or noted upon the declaration, or, as would have been required prior to the 1931 rule, filed with the clerk within ten days after the issue is joined in the cause. Plaintiff argues that when this suit was instituted in 1929 the rule relative to filing of written demand for jury trial was not uniformly enforced; it was the custom in tort cases to order a jury, even though not demanded, and calls attention to Murphy v. Circuit Judge, 249 Mich. 438, 229 N. W. 1. Plaintiff's counsel have, however, overlooked our subsequent determination in Griffin v. Pere Marquette R. Co., 261 Mich. 50, 245 N. W. 566. See, also, Basmajian v. City of Detroit, 256 Mich. 539, 240 N. W. 87.

In the case at bar, no explanation or excuse was offered for the several years' delay in filing a demand, nor did the plaintiff object to the trial court's refusal to waive the rule. It is established policy to protect the rights of infant litigants, and such is the law in Michigan. But what rights has the infant lost in this case? No one complains that the trial was not a fair and impartial one. No one accuses the trial judge of bias or prejudice, nor could they, in the light of the learned trial judge's observation and application of the following quotation from Mr. Justice Graves to the tragedy herein presented:

‘In considering the testimony in this case it might be well for the Court and counsel to think of the statement of the Supreme Court in the case of Marquette, H. & O. Railroad v. Marcott, 41 Mich. 433, 2 N. W. 795, as a warning against viewing the testimony in an unwarranted light. The court said:

“There is something in a catastrophe of this nature (and especially where the victim is a little child) which at once stirs the heart and inflames the sympathies, and in the tumult of the feelings is very apt to cause a hasty inclination to consider the immediate apparent agency as in some way surely deservingchastisement for the dreadful event, and without any special reference to those conditions which in justice ought to decide the question of culpability.

“However general and noble the natural qualities from whence this trait proceeds, it is the apparent duty of judges and juries to repress it and withstand its influences.

“The law commands them to rise above such tendencies and to inflexibly apply the principles of cold and even-handed justice to the facts.

“The duty may be difficult, but the law is vigorous in its requisition of obedience, and it will withhold blame from the defendant unless it discovers there was fault so connected with the event as to have operated as the proximate cause of it.'

‘Certainly the tragedy of this boy's life can appeal to none more forcibly than it does to this court. It is a pitiable situation, but this is neither a court of sympathy, nor a court of pity, but a court of law. It is apparent at the outset that no one will ever, or can ever definitely and surely know the cause of this boy's blindness. The cause lies hidden in obscurity and mystery, and the most that the court or any one else can do is to learn all it can as to the possible way in which this misfortune may have stricken this child.’

Error to be reversible must be prejudicial. Sweeney v. Adam Groth Co., 269 Mich. 436, 257 N. W. 855.

Plaintiff filed a petition for discovery under rule 41, Michigan Court Rules 1931 (now rule 41 of 1933) and issued a subpoena duces tecum, requiring defendants Shurly, Gaines, and Hewitt to appear before a notary public for examination on the 14th of February, 1933, at 1:30 p. m. Defendants immediately filed a motion to vacate the petition for discovery and order, and noticed it for hearing. On February 16, 1933, before trial was commenced and under the authority of Gemsa v. Dorner, 256 Mich. 195, 239 N. W. 332, the court granted the motion and quashed the petition for discovery on the ground that the witnesses were then in court with the records desired by plaintiff and could be examined by counsel under proper supervision. Accordingly, both Dr. Shurly and Dr. Gaines, as well as Dr. Hewitt, were called for cross-examination by plaintiff's counsel. Rule 41 was adopted...