Comeaux v. Miles
| Decision Date | 07 July 1928 |
| Docket Number | 10,889 |
| Citation | 118 So. 786,9 La.App. 66 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | COMEAUX v. MILES |
Rehearing Refused September 4, 1928.
Writ of Certiorari and Review denied by Supreme Court October 3 1928.
Appeal from Civil District Court, Div. "D." Hon. Porter Parker, Judge.
Action by Mrs. Adam Comeaux against James W. Miles.
There was judgment for plaintiff and defendant appealed.
Judgment amended and affirmed.
Arthur Landry, of New Orleans, attorney for plaintiff, appellee.
Paul W Maloney, of New Orleans, attorney for defendant, appellant.
This is a suit against a dentist for damages, alleged to have been sustained, owing to the unskillful and negligent extraction of a tooth. Plaintiff sued for $ 25,341.15 and was awarded judgment in the sum of $ 3841.45. Defendant appeals.
The petition charges the defendant, personally, with negligence, but on the trial evidence was introduced over the objection of defendant's counsel to show that an employee of defendant extracted the tooth and caused all the trouble, and plaintiff now seeks to hold defendant responsible under the law applicable to master and servant.
It is contended in this Court that this evidence should have been excluded because unresponsive to any allegation in the petition and violative of the fundamental rule concerning the necessity of alleging what is intended to be proven. We concede the force of this argument and are of opinion that the trial court should have excluded the evidence until the petition had been properly amended, but the rule is different on appeal.
Davis vs. Arkansas Southern R. Co., 117 La. 320, 41 So. 587; LeBlanc vs. United Irrigation & Rice Milling Co., 129 La. 196, 55 So. 761.
Moreover, defendant pleaded surprise, and was granted a delay of twenty-four hours to obtain his witnesses to overcome the evidence thus introduced and the case was fully tried with both sides presenting their testimony on all points.
Plaintiff who had been a patient of Dr. Capo, was induced to go to Dr. Miles' establishment by a friend of hers, Mrs. Kentzel. She was waited on by Dr. Mount, an employee of Dr. Miles. Dr. Mount, after some persuasion, pulled one of plaintiff's molar teeth. In doing so he broke the tooth, and left fragments of the roots in her jaw. Both plaintiff and her friend Mrs. Kentzel, who was present, insist that Dr. Mount claimed to have removed all the pieces of tooth. Dr. Mount, testifying, denied this statement and claimed to have told plaintiff to return the next day, when he would remove the broken root. In our opinion, the question of Dr. Mount's negligence turns upon the issue of veracity as between plaintiff and her friend, on the one hand, and himself on the other. Because, if he recognized the fact that the tooth was broken, under the evidence, he was guilty of no negligence, for all dentists who testify as experts are agreed that in extracting teeth it is not uncommon for the teeth to break, and without fault on the part of the operator. He testified that he knew the root was not extracted and...
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