O'Connor v. Bonney

• Decision Date: 24 June 1930
• Docket Number: 6926.
• Citation: 231 N.W. 521,57 S.D. 134
• Parties: O'CONNOR v. BONNEY.
• Court: South Dakota Supreme Court

231 N.W. 521

57 S.D. 134

O'CONNOR v. BONNEY.

No. 6926.

Supreme Court of South Dakota

June 24, 1930

Appeal from Circuit Court, Brown County; Howard Babcock, Judge.

Action by Julia O'Connor against T. C. Bonney. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Reversed.

Corrigan & Walton, of Aberdeen, for appellant.

Campbell & Fletcher, of Aberdeen, for respondent.

BROWN P. J.

In April, 1928, plaintiff employed defendant to extract eight teeth. In the operation defendant administered to plaintiff nitrous oxide as an anaesthetic which rendered plaintiff entirely unconscious during the operation. As soon as the teeth were extracted plaintiff began coughing, and this coughing continued throughout the following summer. One lung became abscessed after the extraction of the teeth. On the trial of this action for damages she testified that about a month after the operation, during a coughing spell, there was expelled from her lung a portion of a tooth and some absorbent cotton, and, in the following September, during another coughing spell, she coughed up another piece of tooth. She says that these foreign substances were allowed to get into her lung through the negligence of defendant while extracting her teeth. From judgment on a verdict in her favor, and from an order denying a new trial, defendant appeals.

In the conduct of the operation defendant used cotton packs at the back of the mouth to prevent blood or other foreign matter from getting into the stomach or lungs. It appears that bleeding was much more profuse than is ordinarily the case and defendant changed the packs a number of times during the operation, which lasted in all about seven minutes. Testimony in the case is to the effect that, under the anaesthetic administered by defendant, physical control is relaxed and it would be easier for foreign matter to be swallowed or inhaled while under the anaesthetic. During the operation plaintiff was tilted back in the chair in a semireclining position, and it is the contention of her counsel that when defendant saw that there was such an unusual quantity of blood he should have tilted the chair slightly forward so as to lessen the likelihood of any foreign substance being inhaled or swallowed. It is also claimed that defendant was negligent in using cotton packs instead of gauze packs. It is contended that with gauze packs portions of the packing could not have been inhaled or swallowed and that other substances such as the pieces of teeth could not so easily get past the gauze pack into the throat or lungs as with cotton packing. However, a number of dentists who had quite extensive practice testified that cotton packs were usually employed in such an operation and one of them, an expert from St. Paul, testified that after long experience with both gauze and cotton packing he had abandoned the gauze and used cotton packing exclusively because he deemed it the better practice. A number of the witnesses who testified that the use of gauze packing was the better practice were not dentists but practitioners making a specialty of surgery of the nose and throat, and defendant contends that, as they were not dentists, it was error to admit their testimony. We do not think that it is necessary to be a dentist in order to be able to express an opinion in regard to the proper practice of packing the mouth to prevent blood or other foreign matter getting into the stomach or throat of a patient. One practicing any form of surgery that would cause extensive bleeding in the mouth or throat would be as competent to testify to proper methods of packing to prevent such blood getting into the throat or lungs as a dentist.

The case was tried twice. On the first trial, the jury disagreed. On that trial three dentists, Dr. Willson, Dr. Fisher, and Dr. Weidenbach testified as witnesses for defendant; none of them were called by either side on the second trial. But on the second trial on cross-examination of defendant plaintiff's counsel asked: "Q. You heard Dr. Willson who was called as a witness for you in the other trial of this case?"

An objection to this as "not proper cross examination, Dr. Willson not having testified before this jury," was overruled.

"A. I did, yes, sir.

"Q. You heard him testify that he thought the best method would be to pack each one of these apertures as soon as it was opened to stanch the flow of blood and keep a clear field to work in?"

This question was not objected to and defendant answered, "Yes, I heard him say that." On examination of plaintiff as a witness in her own behalf she was asked if, on the former trial, she heard Doctors Willson, Fisher, and Weidenbach, "who were called by defendant as witnesses in the case, testify," and she answered that she did. The record then shows the following:

"By Mr. Fletcher (plaintiff's counsel): Q. Did you hear what Dr. Willson said with reference to the procedure he would have followed if he found a patient in the condition you were, with reference to bleeding?

"Mr. Corrigan: This line of testimony is objected to as being wholly hearsay, wholly incompetent, not admissible for any purpose in this case at this time and not the best evidence. (Objection was overruled and exception taken.)

"A. Yes, Sir.

"Q. You heard Dr. Willson state as one of the witnesses for Dr. Bonney, if he had been handling the case, he would have made some effort to stop the blood before he proceeded with the operation.

"Mr. Corrigan: This is objected to as not the best evidence, wholly incompetent, no foundation laid and leading. (Objection was overruled, to which ruling the defendant excepted.)

"A. Yes, I did.

"Q. I will ask you if you heard Dr. Fisher testify in that case as a witness for Dr. Bonney:

"Q. What do you think of the suggestion of Dr. Willson as to the packing of these different openings where this blood was coming as fast as it did, do you think that would have been a good idea in this case, even for a general practitioner? A. Perhaps it would, yes. Q. Did you hear that?

"Mr. Corrigan: We object to the question as not the best evidence, no foundation laid and as leading, incompetent and not tending to prove or disprove any of the issues. Which objection was overruled by the court and exception taken.

"A. Yes, sir, I did.

"Q. Did you hear him further testify:

"Q. What would be the object of or benefit of it? A. It would help keep the field of operation clear.

"Q. The more blood there is the more danger there is of aspirating foreign matter. Did you hear Dr. Fisher so testify on the trial of this case?

"Which question was objected to on the following grounds: We object to this line of testimony and to the attorney reading to the witness a part of the purported record of the last trial for the reason same is not the best evidence, and there is no foundation laid for its introduction in evidence and it does not tend to prove or disprove any issue and is wholly incompetent and leading. (Objection was overruled to which ruling the defendant excepted.)

"A. Yes, sir.

"Q. Did you hear Dr. Weidenbach testify as a witness for the defendant on the former trial? A. I did.

"I will ask you if you heard his testimony about as follows:

"Q. What do you think of packing the teeth to stop further bleeding? A. I never done that, myself.

"Q. What do you think of the idea? A. It is a good idea.

"Which question was objected to upon the same grounds as to the last preceding question. (Objection was overruled, to which ruling the defendant excepted.)

"A. Yes, sir."

Dr. Wells, an Aberdeen dentist, was a witness for defendant and the following cross-examination took place.

"By Mr. Fletcher:

"Q. You testified before in this case, did you not? A. Yes, sir.

"Q. Did you hear Dr. Willson's testimony? A. Yes, sir.

"Q. Did you hear him say he thought it might be a good idea to stop the flow of blood, stanch the flow of blood, by packing the apertures that were open?

"Mr. Walton: This is objected to as incompetent, irrelevant, immaterial and not the best evidence no foundation laid for the introduction of Dr. Willson's evidence in this case. (Objection was overruled and an exception taken by the defendant.)

"A. Yes, sir. I heard his testimony. I heard him say that."

Another witness for defendant was Dr. Stephens, a dentist in Aberdeen, and on...