Baxter v. Snow

• Decision Date: 31 July 1931
• Docket Number: 5011
• Citation: 2 P.2d 257,78 Utah 217
• Court: Utah Supreme Court
• Parties: BAXTER v. SNOW

2 P.2d 257

78 Utah 217

BAXTER v. SNOW

No. 5011

Supreme Court of Utah

July 31, 1931

Appeal from District Court, Third District, Salt Lake County; D. W Moffat, Judge.

Action by John L. Baxter against L. W. Snow. From a judgment in favor of plaintiff, defendant appeals.

REVERSED AND REMANDED.

Young &amp Boyle, of Salt Lake City, for appellant.

Herbert B. Maw, of Salt Lake City, for respondent.

STRAUP J. CHERRY, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

STRAUP, J.

The plaintiff brought this action against the defendant, a physician and surgeon at Salt Lake City, to recover damages alleged to have been sustained by him through the negligence of the defendant in removing wax from and treating the left ear of the plaintiff. That the defendant was a licensed physician and surgeon of long practice and experience and in the treatment of diseases and disorders of the eye, ear, nose, and throat had special training with the best recognized specialists of this country, Vienna, Berlin, and London, and for many years at Salt Lake City specialized in such treatments and was a physician and surgeon of high standing in his profession, were clearly shown and not questioned.

In the complaint it is alleged that on December 15, 1924, "the plaintiff went to the defendant for the purpose of having wax cleared out of his left ear and for no other purpose," and instructed the defendant to remove the wax and nothing more, but that the defendant, "in addition to taking wax from the plaintiff's ear, placed instruments into the said left ear of the plaintiff and also through the nose and into the left ear of the plaintiff, and did carelessly, negligently and wantonly treat said plaintiff's ear with said instruments to the extent that he did so injure plaintiff's left ear with said instrument that he did permanently deprive the plaintiff of his hearing in said left ear"; that when he went to the defendant, the plaintiff normally could hear through the left ear but "while the instruments of the defendant were in the plaintiff's ear and nose he was deprived of hearing in his left ear through the carelessness, negligence and wantonness of the defendant so that he has been continuously deaf in said ear ever since."

A special demurrer was interposed to the complaint on the ground of uncertainty and indefiniteness as to the alleged acts of negligence and wantonness and as to the nature and character of the injury claimed to have been inflicted, and the manner in which it was inflicted. On the same ground, a motion was also interposed to require the plaintiff to make the complaint more specific. Both the demurrer and the motion were overruled. The defendant answered denying the alleged negligence, injury, and damage, and all the allegations of the complaint in such respect and that the plaintiff's hearing when he first visited him was in a healthy or normal condition, and to the contrary alleged that it was in an impaired and in a chronic condition; that the plaintiff first visited him, not in December, 1924, as alleged in the complaint, but on January 12, 1925, and that the defendant periodically treated him for several months thereafter, and that in doing so he followed and gave him the usual and approved treatment followed by practicing otologists of good standing.

The case was tried to the court and a jury. At the conclusion of plaintiff's evidence, the defendant interposed a motion for nonsuit, which was overruled. He thereupon adduced evidence in denial of the allegations of the complaint and in support of his answer, and at the conclusion thereof and when both parties rested, interposed a motion for a directed verdict in his favor, which also was overruled. The case was submitted to the jury, who rendered a verdict in favor of the plaintiff in the sum of $ 2,000.

The defendant thereafter filed a motion for a new trial on grounds, among others, of insufficiency of the evidence to support the verdict, that the verdict was against law, errors in law occurring at the trial, and of newly discovered evidence which was supported by affidavits of persons well acquainted with the plaintiff to the effect that he had defective and impaired hearing long before he was treated by the defendant. Such motion also was overruled. From the judgment entered on the verdict, the defendant has prosecuted this appeal.

The assignments of error present for review the various rulings referred to, and also exceptions taken to portions of the charge to the jury, and of the court's refusal to charge as requested by the defendant. To a great extent, such rulings may be considered together.

The plaintiff was 57 or 58 years of age. When he first visited the defendant he was and for a year or more prior thereto had been, in the employ of a street car company at Salt Lake City as a helper and laborer in and about the car barns of the company sacking sand and delivering supplies from the storeroom to the shop, and was a sort of "roustabout." As he testified, he was not certain when he first visited the defendant, whether it was in 1924 or in 1925, nor was he certain as to the number of times he visited the defendant and was treated by him, he testified probably 15 or 25 times until several months prior to October, 1925, when he moved to San Francisco. In telephoning, he, as he testified, discovered he did not hear well through the left ear, but it had not pained him. He visited the defendant's office, and, as he testified, asked him to look in his left ear to see if he had wax in it. On request of the defendant, he took the doctor's chair. The doctor inserted "a little funnel-shaped thing" in his ear and looked through it; that he pushed it in a little way, but it did not hurt him. The doctor then took two little pieces of wax about the size of a wheat kernel from his ear. He thought he took that out with a little instrument two or three inches long, or by syringing the ear, he was not sure which. However, neither hurt nor pained him. The doctor did not tell him that the ear was diseased. Then the doctor examined his throat and nose and inserted an instrument six or seven inches long up his nose. That, he testified, pained him some, but he did not say anything about it to the doctor. The pain ceased when the doctor removed the instrument, which was shown to be a catheter. After the catheter was removed, the plaintiff stated to the doctor, "I cannot hear out of that ear, you have made me deaf." The doctor said, "Well, now, it will take two or three treatments or applications to fix you up." The plaintiff testified he noticed a change in his hearing through the left ear, and after that could not hear through it. The doctor treated him on that occasion 15 or 20 minutes. The doctor put some cotton dipped in "black medicine" in his ear, told him to leave it in through the night, and return in a day or two. The plaintiff paid him $ 2 on that visit. After that he returned to the office for further treatment. On the second treatment, he thought the doctor merely syringed his ear and put in more cotton dipped in medicine, and did not use any instrument in his nose on that occasion. When asked if the plaintiff should pay him at each treatment, the doctor told him he could wait until he got through treating him. The plaintiff testified that after that he went back for further treatment, he thought 15, 20, or 25 times, covering a period of 8 or 10 months, and on each occasion was treated by the doctor. He described the treatments as syringing his ear and using "some kind of air pressure to put air through my ear and I thought he put the same thing up my nose," and used "a little hand bulb" and "a long pipe" which "went up through my nose, and seemed to be elastic," and that he had "an instrument on his air machine to see if there was air escaping through my ear and a long rubber tube ending in a hard rubber tip which rested inside my nostril and the doctor used that bag for the purpose of forcing air up my nostril," and used such instrument on two occasions, but he experienced no pain while the doctor was using it, nor any nausea, and did not blame the use of that instrument for the loss of his hearing. He further testified that the treatments were pretty much alike, that he could not tell one from the other.

He further testified that at the last treatment the doctor told him he had done all he could for him and that if he desired he was at liberty to see any other specialist. After that, the plaintiff testified, he received a bill from the doctor for $ 16. After receiving it he went to the doctor's office and said "Doctor, do you want me to pay for this statement," and the doctor replied, "Yes, I do." Plaintiff said, "Do you really want me to pay you this sixteen dollars" and he said, "Yes, I do, I want my money"; that the plaintiff then said, "I thought I would come to see you just to see if you wanted me to pay you for making me deaf," and the doctor said, "I did not make you deaf." The plaintiff told him he had, and the doctor said he could not prove it, and the plaintiff said "well, maybe I cannot, but if you are that kind of a man and want that sixteen dollars for leaving me in this condition I am going to try it," and the doctor said if he could prove it he could get "a lot of damages," and that the plaintiff stated "I am going to sue you for damages."

The plaintiff further testified that thereupon the defendant called in another ear specialist in the building and asked the plaintiff if he had any objections to the specialist looking in his ear, and the plaintiff said that he had not that the other specialist then examined his ear and after doing so he told the plaintiff that the defendant in the way he treated his ear could not...