Dolan v. O'Rourke

Decision Date04 February 1928
Docket Number5460
Citation217 N.W. 666,56 N.D. 416
CourtNorth Dakota Supreme Court

Appeal from the District Court of Burke County, Moellring, J.

Affirmed.

Order affirmed, and case remanded.

McGee & Goss and B. L. Wilson, for appellant.

"Specific instances of conduct, especially where these have developed the regularity and force of a habit, may be independently relevant; as to establish consent, motive, belief or probable cause in an action for malicious prosecution; and such an act will not be excluded simply because it tends also to show character." 22 C. J. 484; People v. Kuches, 120 Cal. 566, 52 P. 1002; McHugh v. State (Tex.) 170 S.W. 280 Ann. Cas. 1918C, 674.

A conclusion of fact derived from observation and knowledge of the subject-matter on the part of a witness may not be construed as being an opinion merely; nor is it a correct proposition of law that no one but an expert can give an opinion before a jury. Hanna v. Barker, 6 Colo. 303.

In an action against a physician to recover damages for negligent or unskilful treatment of a patient, the result alone is not evidence of negligence; but an expert witness may give an opinion, based on the result, that the treatment must have been improper, and such opinion is evidence on which the court or jury may find negligence. Sawyer v Berthold, 116 Minn. 441, 134 N.W. 120.

Possession of the skill necessary to do a certain act may be an attendant circumstance of probative value in identifying the doer of the act. Existence of such skill may be shown by prior acts indicative of its possession. 22 C. J. 764.

In determining what constitutes reasonable and ordinary care skill, and diligence the test is that which physicians and surgeons in the same general neighborhood ordinarily have and exercise in such cases and an instruction which does not so limit the degree of skill and care is erroneous. 21 R. C. L 385.

The rule governing the duty and liability of physicians and surgeons is applicable to dentists. Black v. Bearden, 167 Ark. 455, 268 S.W. 27; note in Ann. Cas. 1914A, 273.

E. R. Sinkler, G. O. Brekke, and H. A. Hanson, for respondent.

"The doctrine is that when a thing, which causes injury without fault of the person injured, is shown to be under the exclusive control of defendant and would not cause the damage in ordinary course if the party in control used proper care, it affords reasonable evidence in the absence of an explanation, that the injury arose from the defendant's lack of care." San Juan Light & Transit Co. v. Requena, 224 U.S. 89.

"The great weight of authority holds that a verdict rendered by a jury any of whose members have been treated by one having an interest in the case, must be set aside, and in nearly all cases the rule is applied without regard to its actual influence on the verdict." McGilvery v. Lawrence, 35 S.D. 443, 152 N.W. 692; Godfrey v. Dalquist, 27 S.D. 373, 131 N.W. 299.

Reference to writers and books on medicine and science are inadmissible on a murder trial, being mere hearsay. People v. Millard, 18 N.W. 562.

"When the precise act or omission of a defendant is proved, the question whether it is actionable negligence is to be decided by the character of the act or omission, and not by the character for care and caution that the defendant may sustain." Tenny v. Tuttle, 1 Allen, 105; Leighton v. Sargent, 64 Am. Dec. 323; Holtzman v. Hoy, 59 Am. Rep. 390.

In using a dangerous instrumentality it is necessary that extraordinary care be used. 10 L.R.A. (N.S.) 921.

BURKE, J. NUESSLE, Ch. J., and BURR, BIRDZELL, and CHRISTIANSON, JJ., concur.

OPINION

BURKE, J.

The plaintiff brings this action to recover damages against the defendant for alleged negligence in the administering of an anesthetic, claimed to be the proximate cause of the death of plaintiff's wife.

The defendant is a dentist, and practiced his profession at Bowbells, North Dakota, for seven and one half years prior to March 13, 1926, on which date, the plaintiff, William Dolan, and his wife came to the defendant's office for the purpose of having two of Mrs. Dolan's teeth extracted. The teeth were badly abscessed. The patient had suffered much pain and had been unable to eat or sleep for a couple of days. The defendant states, that on account of the badly infected condition of Mrs. Dolan's teeth he told her that a general anesthetic would be better than a local one. He further states, that the patient then told him that she had taken chloroform several times, the last time about six months previous. The chloroform was administered, the teeth extracted, and it was then noticed that the anesthetic had had a bad effect on the patient. Dr. Hilts was immediately called, and everything that could be done was done but the patient never came out from under the influence of the anesthetic.

The case was tried, and the jury returned a verdict for the defendant. The plaintiff then moved for a new trial, which was granted and from the order granting a new trial the defendant appeals, specifying that the court erred in granting plaintiff's motion for a new trial on the ground set forth in plaintiff's specification of error number 10.

"The court erred in overruling plaintiff's objection to the following question: Q. What would you say now as to his ability to give anesthetics? Is he careful in that or not in your opinion?" on the grounds as being immaterial and calling for a conclusion of the witness, establishing a criterion from the opinion of another surgeon, and incompetent and immaterial."

The trial court granted the motion for a new trial on the theory that the evidence introduced under objection and in answer to the question in No. 10, viz.: "What would you say now as to his ability to give anesthetics? Is he careful in that or not in your opinion?" was error.

It is the contention of the appellant that the evidence was admissible and as showing a foundation for the introduction of such testimony appellant quotes from the testimony as follows:

"Q. Now, by the way, before I overlook it, are you a surgeon? Do you operate?"

"A. Yes, sir.

"Q. And have you operated on a good many people during the time you have been here?

"A. Yes, sir, I have.

"Q. Who has administered anesthetics for you in all major operations?

"A. Dr. O'Rourke.

"Q. This defendant?

"A. Yes, sir.

"Q. How many administrations of anesthetics would you say, doctor, of course you can't tell exactly, but approximately how many administrations of anesthetics for you has Dr. O'Rourke, this defendant, made during the time you have been practicing here?

"Mr. Sinkler: That is objected to as being immaterial, incompetent, and not tending to prove any of the issues in this case.

"The court: Overruled. You may answer.

"A. Well he has given over a thousand, I know that, but to give the exact number I couldn't do it.

"Q. And given anesthetics for you as a surgeon in many difficult cases?

"A. Yes, sir.

"Q. What would you say now as to his ability to give anesthetics? Is he careful in that or not in your opinion?

"Mr. Sinkler: That is objected to as being immaterial and calling for a conclusion of the witness, establishing a criterion from the opinion of another surgeon, and incompetent and immaterial.

"The court: Overruled. He may answer.

"A. Yes, sir.

It is well settled that, "the rules governing the duty and liability of physicians and surgeons in the performance of professional services are applicable to practitioners of the kindred branches of the healing art, such as dentists, oculists, and manipulators of X-ray machines." 21 R. C. L. 386, § 31. It is also well settled, that "a physician is bound to bestow such reasonable care, skill, and diligence as physicians and surgeons in the same neighborhood, in the same general line of practice, ordinarily exercise in like cases." Hanson v. Thelan, 42 N.D. 617, 173 N.W. 457; Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480; Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487, and notes on pages 1493-1495; 21 R. C. L. 385, § 30.

Respondent insists, that it is not claimed by the plaintiff that the defendant was unskilful, and that the only question upon which he seeks to recover damages, is, that defendant was negligent, and did not exercise any care in the administration of the anesthetic. The question of care being in issue it was one for the jury to say upon the whole evidence, whether in the administration of the anesthetic the defendant exercised the ordinary degree of care, exercised by other physicians, in administering anesthetics in the same locality. The question, "What would you say now as to his ability to give anesthetics?" "Is he careful in that or not in your opinion?" is a double question and the jury would understand from the answer, "Yes, sir," that the doctor was qualified to give anesthetics and that he was careful in doing so.

In Jones on Evidence, Vol. 2, p. 1279, § 687, the rule is stated as follows:

"And when the question relates to the degree of care used at the time of a given accident, the evidence must be confined to that issue and it is irrelevant to show that the party is ordinarily careful. Glass v. Memphis & C. R. Co. 94 Ala. 581, 10 So. 215; Price v. Charles Warner Co. 1 Penne. 462, 42 A. 699; Central R. & Bkg. Co. v Kent, 87 Ga. 402, 13 S.E. 502; Illinois C. R. Co. v. Borders, 61 Ill.App. 55; Stafford v. Oskaloosa, 64 Iowa 251, 20 N.W. 174; Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608, 5 Am. St. Rep. 780, 17 P. 54; Junction City v. Blades, 1 Kan.App. 85, 41 P. 677; Chesapeake & O. R. Co. v. Riddle, 24 Ky. L. Rep. 1687, 72 S.W. 22; Lawrence v. Mt. Vernon, 35 Me. 100; Carr v. West End Street R. Co. 163 Mass. 360, 40 N.E....

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