Emery v. Fisher

• Citation: 145 A. 747
• Court: Supreme Judicial Court of Maine (US)
• Decision Date: 22 April 1929
• Parties: EMERY v. FISHER.

145 A. 747

EMERY

v. FISHER.

Supreme Judicial Court of Maine.

April 22, 1929.

Exceptions from Supreme Judicial Court, York County, at Law.

Action by Basil C. Emery against Stanwood E. Fisher. Verdict for plaintiff. On defendant's exceptions and general motion. Exception sustained.

Argued before DUNN, STURGIS, BARNES, PATTANGALL, and FARRINGTON, JJ.

Emery & Waterhouse, of Biddeford, for plaintiff.

Locke, Perkins & Williamson, of Augusta, and Edward S. Titcomb, of Sanford, for defendant.

DUNN, J. Defendant is a throat specialist. He removed the plaintiff's tonsils. The present action was for malpractice. Plaintiff gained the verdict. The case is up on defendant's exception and motion.

Negligence was alleged in using a mouth gag, a rubber tube from one of the prongs of which became detached, during the surgical operation, and passed into and infected the bronchus of the plaintiff; also in the failure to discover the tube and relieve the pain and suffering its presence caused.

There was evidence by the defendant: The anesthetist said suddenly that the plaintiff, who was being prepared for the operation, was affected with cyanosis. Defendant hastened to plaintiff's assistance. When plaintiff was restored, defendant missed the tube. He suspected it to be in the body of the plaintiff. In consequence of this, and before proceeding to operate, continued the defendant, his instruction to the attending physician was that, after the operation, he examine the stools from the plaintiff, and any vomits, for the tube.

At the time of the trial the attending physician was dead.

Only rebutting evidence was in order when the plaintiff's turn came again. Rule XXXIX, 102 Me. 535; 103 Me. 534; Hathaway v. Williams, 105 Me. 565, 75 A. 129; Sweeney v. Cumberland County Power & Light Co., 114 Me. 367, 96 A. 385.

Plaintiff testified, against objection, and though cautioned that the particular testimony might be held remote, that he never had been told by the attending physician to search into the evacuation and vomits.

The objected evidence was not rebutting evidence. The noted exception must be sustained.

Definitions of rebutting evidence, gathered from various judicial sources, are collected in Words and Phrases, First, Second, and Third Series. Rebutting evidence repels or counteracts the effect of evidence which has preceded it. It replies directly to that produced by the other side. Evidence which does not contravene, antagonize, confute, or control the...