Blaine v. Lyle

• Decision Date: 04 May 1938
• Docket Number: 31.
• Citation: 196 S.E. 833,213 N.C. 529
• Parties: BLAINE v. LYLE et al.
• Court: North Carolina Supreme Court

196 S.E. 833

213 N.C. 529

BLAINE v. LYLE et al.

No. 31.

Supreme Court of North Carolina

May 4, 1938

Appeal from Superior Court, Macon County; H. Hoyle Sink, Judge.

Action by Louise Blaine, a minor, by her guardian, J. Norman Blaine against Etta T. Lyle, administratrix of the estate of Dr. S H. Lyle, deceased, and others for injuries caused by deceased's negligence in allowing a metal probe to drop through a draining sinus into plaintiff's plural cavity while treating her for empyema. Judgment for plaintiff, and defendant administratrix appeals.

New trial.

Civil action for damages, tried upon issues raised by the pleadings, on allegations and denials that plaintiff suffered great injury by reason of the negligence of Dr. S. H. Lyle since deceased, in allowing a metal probe to drop through a draining sinus into her plural cavity while treating her for empyema.

On February 16, 1932, Louise Blaine was taken ill with influenza. She was then eleven years old. Double pneumonia followed, and this later developed into empyema. About the middle of March, 1932, Dr. Lyle made an incision in her left side and inserted a tube for drainage. In treating the plaintiff thereafter, the incision was probed from time to time with a metallic probe to determine whether there was any pus in the plural cavity. The process of probing was begun in the summer of 1932, and continued until the early spring of 1933. Dr. Lyle died November 13, 1933, just after dismissing the plaintiff as well.

In August, 1934, there was a recurrence of the empyemic condition. In February, 1935, another operation was performed by Dr. Van Schaick of Florida who states that he then removed two pieces of metal from plaintiff's side, which plaintiff says is the probe used by Dr. Lyle in 1932 or 1933.

Over objection, plaintiff's mother was allowed to testify as follows: "Q. About how much was the cost of it (her treatment from the time she was taken sick until she was brought back from Florida)? A. $1,500, I would say. I paid Dr. Lyle $582.00, or the estate. That was in the $1,500.00. I included that in the $1,500.00."

In instructing the jury on the issue of damages, the court said "You will recall the various contentions with respect to the suffering and the condition that prevailed from and after February, 1932, through July 4, 1936." Exception.

There was a verdict for plaintiff, the jury awarding her damages in the sum of $3,500, and from judgment thereon, the defendant administratrix, appeals, assigning errors.

Error in instruction, allowing plaintiff in action for injuries caused by physician's negligence in allowing metal probe to drop into plaintiff's plural cavity while treating her for empyema to recover hospital and medical expenses from time she was taken ill, was not cured or rendered harmless by instruction to allow such expenses to extent that they were proximate result of injuries complained of, where court immediately added that plaintiff contended that they amounted to sum which her mother testified was total cost of her entire illness.

Jones & Jones and G. L. Houk, all of Franklin and Jones, Ward & Jones, of Asheville, for appellant.

George B. Patton, of Franklin, and J. N. Moody, of Murphy, for appellee.

STACY Chief Justice.

Conceding that the evidence is sufficient...