Ennis v. Banks

• Citation: 152 P. 1037,88 Wash. 237
• Decision Date: 20 November 1915
• Docket Number: 12599.
• Parties: ENNIS v. BANKS et ux.
• Court: United States State Supreme Court of Washington

152 P. 1037

88 Wash. 237

ENNIS v. BANKS et ux.

No. 12599.

Supreme Court of Washington

November 20, 1915

Department 2. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by Cora S. Ennis against Rush Banks and wife. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Geo. C. Congdon, of Seattle, and Forney & Ponder of Chehalis, for appellants.

Wedmark & Grimm and C. D. Cunningham, all of Centralia, for respondent.

MORRIS C.J.

This is an action by Cora S. Ennis to recover damages from the defendant for alleged malpractice in the treatment of her husband during an attack of typhoid fever, which resulted in his death. The defendant was called to attend Mr. Ennis on December 22, 1913, and on the following day removed him to his hospital at Centralia, where he remained under the defendant's care until January 14, 1914, when Mrs. Ennis being dissatisfied with the treatment, caused his removal to his own home and secured the services of another physician. Mr. Ennis failed to improve, and died on the morning of January 16th. Thereafter Mrs. Ennis began this action and from a verdict in her favor, the defendant has appealed.

The alleged malpractice on which the respondent based her right to recover is set out in paragraphs 5 to 8 of the complaint. The italics are ours. The charge of negligence in paragraph 5 is as follows:

'That thereafter, and on the morning of the 12th day of January, 1914, the condition of Donald Ennis, deceased husband of plaintiff, was improved and the said improved condition continued until the morning of January 14, 1914, at or about the hour of 9 a. m. of that day, and that at said time the said defendant, Rush Banks, negligently, carelessly, and unskillfully directed, prescribed, and commanded that the said Donald Ennis be given a diet of poached eggs and toasted bread.'

[88 Wash. 239] Paragraph 6 set out the result of that negligence as follows:

'Pursuant to the directions and prescriptions of the said defendant, Rush Banks, on the day and date aforesaid, the said bread and eggs were prepared and the same was given and fed to the said Donald Ennis, and that thereafter and within a few hours, the said Donald Ennis became very sick and suffered great pain in his stomach and bowels, and because of said carelessness, negligence, and unskillful treatment, as hereinabove mentioned, the bowels of the said Donald Ennis were perforated and torn.'

Paragraph 8 alleges that, by reason of the carelessness, negligence, and unskillful treatment of the said Donald Ennis by the said Rush Banks ' as heretofore set forth,' the respondent has sustained damages for which she asks judgment. It will be noticed that the allegations of negligence in paragraphs 6 and 8 expressly refer to the specific act charged in paragraph 5--the giving of a toast and egg diet. Paragraph 7 of the complaint is as follows:

'That thereafter, and on the afternoon of January 14, 1914, because of the careless, negligent, and unskillful treatment of the said defendant, Rush Banks, the said Donald Ennis was removed from the said defendants' hospital to plaintiff's home at Centralia, Lewis county, Wash., and that thereafter plaintiff summoned Dr. J. G. Sargent, a regular practicing physician to administer and prescribe for said Donald Ennis; but, at the time the said J. G. Sargent was secured to treat and care for Donald Ennis, the condition of the said Donald Ennis was so critical and so dangerous, because of the careless, negligent and unskillful treatment of the said defendant, Rush Banks, that the said Donald Ennis died on or about January 16, 1914.'

At the trial the respondent was allowed, over objection, to introduce evidence of the entire course of treatment of the deceased, including evidence of acts of negligence other than the specific act of giving the toast and egg diet. The court, being of the opinion that the complaint made a general charge of negligence, admitted the evidence and instructed the jury that, if they should find that the appellant did not exercise as high a degree of skill as is ordinarily exercised by physicians in the same or similar localities, but if in some respect he failed to exercise that degree of ability and judgment ordinarily exercised by members of the profession, and if such failure was the proximate cause of the death of deceased, then they should find for the respondent.

The admission of evidence of the appellant's...