Ball v. Skinner

• Decision Date: 17 May 1907
• Parties: CHARLES E. BALL, Appellee, v. G. R. SKINNER, Appellant
• Court: Iowa Supreme Court

111 N.W. 1022

134 Iowa 298

CHARLES E. BALL, Appellee, v. G. R. SKINNER, Appellant

Supreme Court of Iowa, Des Moines

May 17, 1907

Appeal from Linn District Court.--HON. B. H. MILLER, Judge.

Reversed.

Henry Rickel and P. W. Tourtellot, for appellant.

Grimm Trewin & Moffit, for appellee.

OPINION

THE opinion states the case.--Reversed.

WEAVER C. J.

It is the claim of the plaintiff that on April 10, 1900, he suffered an injury to his ankle and employed the defendant, a physician and surgeon for many years at Cedar Rapids, Iowa to treat it. In the course of such treatment he alleges that the defendant undertook to place a cast upon or about the injured ankle, and in so doing carelessly and negligently made use of a caustic preparation or solution which had the effect to burn and injure the flesh; that later upon the same day, plaintiff experiencing great pain in and about his ankle, he recalled the defendant, who made but a slight examination, and did not remove the cast, but gave the plaintiff an opiate causing him to sleep several hours; and that as a result of this careless and negligent treatment the plaintiff's ankle and foot were so burned and injured that the flesh fell from the bones and tendons, crippling and confining him for many months, and causing him to suffer great pain and to sustain permanent injury to his limb, for all of which he seeks to recover damages. The defendant answers in denial. There was a verdict and judgment for plaintiff in the sum of $ 2,500, and defendant appeals.

The evidence, which in most respects is without serious dispute, tends to establish the following facts: The defendant, who is an experienced physician and surgeon, was called upon at his office by the plaintiff, who complained of some injury to his ankle, and desired, if possible, to have it treated in such manner as to permit him to go out upon the street and attend to his business. Defendant told him he could incase the ankle in a tight cast which would not prevent his moving about upon crutches. It appears that for the making of such casts or fixed bandages surgeons sometimes employ a solution of silicate of soda, a preparation commonly known as "liquid glass" or "soluble glass." A plain cloth bandage is first wrapped about the injured member, and over this bandage is placed several thicknesses of other cloths or bandages soaked in the solution, which soon harden into a cast which holds the joint quite rigidly in the desired position. Surgeons do not ordinarily manufacture this solution, or keep it in stock, but rely upon druggists or chemists to furnish it upon call. The defendant, having decided to use a cast of this kind, telephoned to the place of business of one Whelihan, a pharmacist doing business in the city and of whom he was in the habit of purchasing such materials, to send him a quantity of the solution. Whelihan replied that he had none on hand, but could make some, and was told to proceed to do so. The solution is a mixture or compound of soda and silica and water, and when these elements are used in the proper proportion the compound so made may be applied to the skin of a person without injurious results; but, some of these elements being of a caustic nature, if they are not compounded in the right proportions to neutralize such quality, its application to the skin or flesh is liable to produce serious injury. Whelihan, with his assistant, proceeded to prepare the solution, and when completed sent it to the office of the defendant, who thereupon made use of it in bandaging and fixing the plaintiff's injured ankle. This treatment was concluded about one or two o'clock in the afternoon, after which plaintiff returned home. About six o'clock in the evening plaintiff sent for the defendant, who responded to the call, and, upon complaint of the plaintiff that his foot was paining him, defendant cut the bandage part way down from the top. Upon this being done, plaintiff seemed to be relieved, and defendant left him for the night. On the following morning, the defendant repeated his visit and removed the cast and bandages from the injured limb. It was then revealed that the flesh upon the defendant's foot and ankle had been severely burned and injured, as if by a caustic application. Immediately thereon defendant applied remedies to arrest the injurious results of the application, and continued to attend the plaintiff thereafter for several months, till he was substantially recovered. It is not denied that the injury is one of considerable severity, or that the plaintiff suffered pain and loss of time therefrom, and the question to be settled in this litigation is whether, conceding such injury, the same is properly chargeable to negligence on part of the defendant. It is the claim of the appellant that in the trial of this question in the court below there were several errors entitling him to a reversal of the judgment rendered against him, and to a new trial.

I. Several exceptions are urged to rulings of the trial court upon the introduction of evidence. We cannot take time to consider all these objections in detail, but will refer to the following as presenting questions of materiality and merit: The defendant, being a witness in his own behalf, and testifying also as an expert surgeon, was speaking with relation to his visit to the plaintiff on the evening after the cast had been placed on the ankle, and was asked the following question: "Q. Assuming that this preparation is as caustic as it has been shown to be by its effect upon this man's ankle, I will ask you whether or not the caustic had expended its force and done its damage by the time you got there and cut that down?" Answer to this question was ruled out on objection of the plaintiff as being incompetent, irrelevant, and immaterial. We think the answer should have been allowed. It will be observed, by reference to the appellee's claim, that he charges negligence in two respects: First, in the application of the solution to the plaintiff's ankle; and, second, in failing to discover the difficulty and remove the bandage at the time of the defendant's visit on the evening after the first treatment. Now, if the jury should find, as it well might find under the testimony, that the defendant was not chargeable with negligence in the first treatment, but was negligent in failing to see the character of the application and remove the bandage upon his visit to the plaintiff in the evening, it would be very material to ascertain whether the damage or injury of which complaint is made had already taken place before the defendant's said visit. The question asked by counsel was fairly well calculated to elicit relevant testimony on this point, and it was an error to exclude it.

The druggist Whelihan, testifying for the plaintiff, stated that he compounded the solution according to a formula found in the United States Dispensatory. On cross-examination a colloquy arose between witness and counsel over the fact and witness was asked to look at the book and see if the assumption of counsel was not right. On redirect examination plaintiff's counsel was permitted to read an extended extract from the book, not the formula in question, and ask the witness if he did not find it there. Objection to this question was overruled, and the witness answered in the affirmative. The objection should have been sustained. The witness having first testified concerning the book formula, it was proper to cross-examine him thereon; but such cross-examination did not open the door to plaintiff to place other contents of the book before the jury in support of his case.

The defendant, as a witness in his own behalf, was asked if he knew whether the druggist Whelihan at the time in question was holding himself out and advertising himself as a manufacturing chemist, and upon objection of the plaintiff, the answer was ruled out. We think the evidence sought by this inquiry was very material. If Whelihan was doing business as a reputable druggist or chemist and holding himself out to the world as a person skilled in such work, then under ordinary circumstances, the defendant would be justified in depending upon his reliability and competency and accepting the solution purchased of him as being what it purported to be; and, in the absence of any circumstance which should have put him on his guard, he would not be chargeable with negligence in using such solution upon the plaintiff's ankle. The matter inquired about had a direct bearing upon the first ground of negligence alleged by the plaintiff and should have been admitted.

II. Complaint is made of certain remarks by the court pending the trial and in the presence of the jury as having a clear tendency to disparage evidence offered by the defendant and to prejudice his defense in the minds of the jury. For instance, objection having been made by plaintiff to certain matter offered in evidence by defendant, the court ruled upon it in the following words: "I don't see where this testimony can do any harm." Again, defendant being asked whether physicians generally rely on the druggist for the purity, quality, and proper compounding of their drugs and medicines, and objection being made thereto, the court said: "Taking my own observation and knowledge of that matter, I think that most all surgeons and physicians in this country don't, as a rule, rely on ordinary druggists. All physicians that I am acquainted with buy their own remedies, and don't rely on the druggist." And, again, another Cedar Rapids physician, testifying for the defendant was asked substantially the same question, and again, an objection being made, the court interposed as follows: "Do they depend on the druggist? Most of them have their own drugs in our...