Bollenbach v. Bloomenthal

• Citation: 341 Ill. 539,173 N.E. 670
• Decision Date: 11 December 1930
• Docket Number: No. 20165.,20165.
• Parties: BOLLENBACH v. BLOOMENTHAL et al.
• Court: Supreme Court of Illinois

341 Ill. 539

173 N.E. 670

BOLLENBACH

v.BLOOMENTHAL et al.

No. 20165.

Supreme Court of Illinois.

Oct. 25, 1930.

As Modified on Denial of Rehearing Dec. 11, 1930.

Error to Third Branch Appellate Court. First District, on Appeal from Superior Court, Cook County; Harry C. Stuttle, Judge.

Action by Lillian Bollenbach against Jacob Bloomenthal and another. A judgment for plaintiff was affirmed by the Appellate Court (255 Ill. App. 305), and defendants bring certiorari.

Reversed and remanded.Edward W. Rawlins, of Chicago, for plaintiffs in error.

Joseph H. Hinshaw and William A. Hanson, both of Chicago (Elmer M. Leesman, of Chicago, of counsel), for defendant in error.

ORR, J.

Lillian Bollenbach, defendant in error (hereinafter called plaintiff), recovered a judgment for $8,000 in the superior court of Cook county against Jacob Bloomenthal and Edgar R. Bennecke, copartners doing business as Bloomenthal & Bennecke, plaintiffs in error (hereinafter called defendants), for damages based on the alleged negligence of defendants in extracting a tooth on October 30, 1925. The Appellate Court for the First District affirmed this judgment, and the case was brought here for review by a writ of certiorari.

The cause of action was tried on four counts of the declaration, which, with slight differences in language, charged generally that defendants carelessly, negligently, and unskillfully handled and managed said tooth and the instruments used in its extraction so that a piece of metal filling and tooth passed down the throat of plaintiff and lodged in her lung, causing her injury. The plea of defendants were not guilty.

Plaintiff was suffering from a severe tooth-ache on October 30, 1925, and called upon Dr. Honoroff, a dentist, who examined the aching tooth and found it to be infected. It was a dead lower molar, with a large amalgam filling which embraced from one-third to one-half the crown. He advised the extraction of the tooth under a general anesthetic, not believing the condition of the tooth and patient favorable to an extraction under a local anesthetic. Since he did not administer gas in his office, Dr. Honoroff directed plaintiff to defendants, giving her a card on which the tooth to be extracted was marked. Plaintiff then went to the dental offices of defendants, where she met Dr. Bloomenthal, and after some conversation it was agreed that the tooth should be extracted by him under a general anesthetic. The other defendant, Dr. Bennecke, was not present. A prop was placed in patient's mouth to keep it open and the anesthetic administered. According to defendants, a mouth-pack was then inserted in the back part of plaintiff's mouth to make the induction of the anesthetic quicker and to prevent particles of filling or tooth passing down the throat. During the extraction the crown of the tooth fractured into a number of pieces but the roots came out intact. Some pieces of tooth and filling were picked up by Dr. Bloomenthal, while others were rinsed out of patient's mouth into the dental spittoon upon her revival. Dr. Bloomenthal testified that when he saw the roots were out he attempted to assemble the rest of the tooth and filling, but they were so fractured and had scattered so much that there was no way of knowing whether there were any missing fragments. He also testified that during the extraction plaintiff was restless under the anesthetic, several times slumping down in the chair, and the mouth-pack became dislodged and had to be replaced. He further testified that he did not know or suspect that any piece of tooth or filling had gone down plaintiff's throat, and it was almost a year before he heard anything about the matter. After coming out from under the anesthetic, the first thing plaintiff remembered was some one brushing out her mouth, after which she rinsed it and spit several particles of tooth into the basin. After a fifteen minutes' rest she went home. She testified that it was hard for her to get her breath and she felt like a person who had phlegm in his throat. From that time on she suffered with a persistent cough and a condition resembling asthma. In November, 1925, an X-ray disclosed the presence of a small foreign body in her bronchial tube. On January 24, 1926, during a severe coughing spell, she coughed up a small piece of tooth and filling, both of which were introduced in evidence.

The case proceeded to trial on the theory that the facts were sufficient to invoke the doctrine of res ipsa loquitur, and in affirming the judgment the Appellate Court has sustained the application of that doctrine. Defendants seriously contend that the doctrine of res ipsa loquitur is not applicable in this case, and our decision will rest upon the determination of this one question.

[2] The doctrine of res ipsa loquitur is that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. The presumption or inference of negligence raised by the application of this doctrine is not absolute or conclusive but is rebuttable, and vanishes entirely when even slight evidence appears to the contrary. As is said by this court in Coal Creek Drainage District v. Sanitary District, 336 Ill. 11, 167 N. E. 807, 816: ‘A presumption is not evidence, and cannot be treated as evidence. It cannot be weighed in the scale against evidence. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely.’ Substantially this same language was used by this court in Lohr v. Barkmann Cartage Co., 335 Ill. 335, 167 N. E. 35, and Osborne v. Osborne, 325 Ill. 229, 156 N. E. 306;People v. Tate, 316 Ill. 52, 146 N. E. 487.

The essential facts in the present case including the injury of the plaintiff are not in dispute. An accident happened in the extraction of a tooth, a small piece of tooth and filling going down plaintiff's trachea into her lung and being coughed up some months later. The tooth extracted was a dead one, with a large filling in it. The evidence shows that such teeth are brittle and often break to pieces under the forceps. The evidence also shows that Dr. Bloomenthal, a practicing dentist since 1898, for the past thirteen years had specialized entirely in the extraction and X-ray of teeth. Two other reputable and experienced dentists of Chicago testified that Dr. Bloomenthal, in doing plaintiff's work, followed the usual and customary method as approved and employed by extraction experts in Chicago at the time. As to this there is no conflict. No witness, either lay or expert, testified that anything done by Dr. Bloomenthal in extracting plaintiff's tooth was negligent or unskillful, or that he had omitted to do anything which a reasonably careful and skillful dentist would have done under the same or similar circumstances, or that in the exercise of due care and skill he should have known that a fragment of tooth and filling had gone down plaintiff's throat. This explanation by the defendants tending to show that the injury complained of, though unusual, was not due to any lack of care on their part, was sufficient to overcome the prima facie case of the plaintiff and rebut all presumptions of negligence, as such presumptions vanish when contrary evidence is produced. Coal Creek Drainage District v. Sanitary District, supra. The principle relied upon by plaintiff and contained in many cases cited in her brief is that the doctrine of res ipsa loquitur applies where the defendant was in sole control of the acts,...