Darling v. Semler

• Decision Date: 05 December 1933
• Citation: 145 Or. 259,27 P.2d 886
• Parties: DARLING v. SEMLER.
• Court: Oregon Supreme Court

27 P.2d 886

145 Or. 259

DARLING v. SEMLER.

Supreme Court of Oregon

December 5, 1933

Department 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Lillian Darling against Dr. Harry Semler. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

S. J. Bischoff, of Portland (E. L. McDougal and Lawrence Lister, both of Portland, on the brief), for appellants.

Junius V. Ohmart, of Portland, for respondent.

CAMPBELL Justice.

This is an action for personal injuries alleged to have resulted from the negligence of defendant in treating plaintiff while under his care as a dental patient.

On February 8, 1930, plaintiff regularly engaged the services of defendant, a duly licensed and practicing dentist in the city of Portland, to extract her teeth and prepare her mouth for and make her, an artificial set. She alleges that defendant in performing these services, was careless and negligent (1) in that he failed to make the plates in a reasonable skillful, competent, and good workmanlike manner, and that the same were crude, misshaped, did not fit, nor did they properly articulate; (2) that he had omitted and failed to administer treatment for an opening from the mouth into the antrum caused by extracting the teeth; (3) that with the knowledge of such opening into the antrum he directed her to wear an artificial plate; (4) that he failed to look for or find said opening into the antrum at the time of extracting her teeth; (5) that he directed her to wear the artificial plate before the opening into the antrum was closed; (6) that he failed to heed her complaints regarding the pain in her mouth and jaw caused by said opening; (7) that he failed to take care or precautions to prevent the inception aggravation, and continual development of the serious condition of plaintiff's mouth, gums, and antrum.

The cause was tried to a jury and the usual motions for a nonsuit and directed verdict were seasonably made by defendant, and overruled. The jury returned a verdict for plaintiff on which judgment was entered, and defendant appeals.

1. The appellant did not personally perform all the services rendered plaintiff in his office, but it is admitted that he or his agents or employees performed the services for which plaintiff employed him. We need make no further reference to the agents. On February 8, 1930, he extracted twenty-two of her teeth, being all she had, and that none of the teeth were infected. Immediately thereafter, he washed out her mouth and continued to treat her from time to time until about September 1, 1930, when he discovered that her antrum was so badly infected that he advised her to go to Dr. Simon, an eye, ear, nose, and throat specialist. Dr. Simon performed a surgical operation and in due time succeeded in effecting a cure of plaintiff's antrum. Plaintiff testified that about February 18, 1930, she discovered an opening into her antrum and she called this condition to the attention of appellant; that thereupon one of the nurses in appellant's employ in his office treated the opening with iodine, and a little later again administered the same treatment. She received her first set of plates about June 18th, but that they proved unsatisfactory, and thereafter a new upper plate was made, which was also unsatisfactory. About the last of August she received a new set which she was advised to wear, but that they hurt her so badly that she could not wear them. She further introduced testimony tending to show that, with the knowledge appellant had of the condition of her mouth, the treatment he administered during the time he had her under his care was not such as accorded with the average standard of the rules and practices of the dental profession in Portland and similar communities in respect to the things of which she complained as negligence.

Much of the discussion in appellant's brief and supplemental brief is directed to the weight of the evidence. For instance, appellant says: "There is not a scintilla of evidence that appellant knew or had any reason to believe that there was an infection in the antrum until the end of August."

Plaintiff testified that, a few days after her teeth were extracted, she discovered the opening into the antrum and called it to the attention of the nurse in appellant's employ in his office, and that the nurse treated it with iodine. She testified that thereafter she frequently called appellant's attention to the opening.

The testimony of the expert is to the effect that, unless there would be an infection, such an opening would quickly heal. A fair inference to be drawn is that there was such an infection and, in the exercise of reasonable care and skill, defendant would have discovered it. Plaintiff would not likely know whether there was or was not a discharge from such an opening. It was the duty of appellant to discover it if it existed.

We are not concerned with the weight of the evidence. If there is some competent evidence of any of the elements of negligence alleged in the complaint, and some competent testimony that tends to establish that such negligence was the proximate cause of plaintiff's injury, it would be a question of fact for the jury. The learned trial judge properly overruled appellant's motions for a nonsuit and directed verdict.

2. This assignment of error is based on the court permitting an expert witness to answer a certain hypothetical question propounded by counsel for respondent.

Dr Short was...