Finke v. Hess

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtKERWIN
Citation174 N.W. 466,170 Wis. 149
Decision Date04 November 1919
PartiesFINKE v. HESS.

170 Wis. 149
174 N.W. 466

FINKE
v.
HESS.

Supreme Court of Wisconsin.

Nov. 4, 1919.


Appeal from Circuit Court, Dane County; James O'Neill, Judge.

Action by Albertina Finke against C. F. Hess. From a judgment on a directed verdict for defendant, plaintiff appeals. Affirmed.

[174 N.W. 466]

Robert N. Nelson, of Madison, for appellant.

Lines, Spooner & Quarles, of Milwaukee, for respondent.


KERWIN, J.

Action to recover damages against defendant, a practicing physician and surgeon, for alleged malpractice in performing an operation on the plaintiff on July 7, 1915. It is insisted by plaintiff that the defendant in performing what is known as a mastoid operation severed the seventh or facial nerve, which was unnecessary, in consequence of which plaintiff sustained damages.

The case was tried to a court and a jury. At the close of the evidence the court directed a verdict for the defendant. The question involved turns on whether there is evidence sufficient to carry the case to the jury. It is contended by defendant that there is no evidence that the nerve was severed; hence a verdict was properly directed.

[1] Paralysis of the face was shown, and there is evidence that severance of the nerve would cause such condition. But the evidence also shows that the paralysis might well follow an operation skillfully and properly performed from various other causes. It was shown by the evidence that the paralysis might have been caused by a “dehiscence,” or by bandaging after the operation, or by cold drafts, and possibly other causes.

True, after the operation it appears one side of plaintiff's face was paralyzed, but in order to warrant the court in submitting the case to the jury there must be some evidence that the defendant severed the facial nerve; and we find none in the record. There is positive evidence, not only by defendant, but by Dr. Beck, a Chicago specialist, that the nerve was not severed. Dr. Beck opened up the old scar in an effort to relieve pressure on the nerve, and testified that the nerve had not been severed.

Claim is made by plaintiff's counsel that Dr. Beck admitted the nerve was severed. The evidence does not support this contention. The claim is based on evidence of one Mrs. Hagne, but her evidence as to what Dr. Beck said when he was not under oath was not competent, except as laying a foundation for impeachment. Moreover, Mrs. Hagne admitted on cross-examination that Dr. Beck might have said that the nerve was injured, not severed.

[2]...

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7 practice notes
  • Telanus v. Simpson, No. 26846.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1928
    ...v. Ice Co., 179 Mo. App. 465; Turnbow v. Durham, 272 Mo. 53; Nevinger v. Haun, 196 S.W. 42; Tate v. Tyzzer, 234 S.W. 1038; Tinke v. Hess, 174 N.W. 466; Taby v. Warta, 196 N.W. 91; Coombs v. Janes, 144 Pac. 635; Matushka v. Murphy, 180 N.W. 821. If, for any reason, it should be urged that pl......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...this position reference is made to Kuehnemann v. Boyd (Wis.) 214 N. W. 326;Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111;Finke v. Hess, 170 Wis. 149, 174 N. W. 466;Sweeney v. Erving, 35 App. D. C. 57, 43 L. R. A. (N. S.) 734;Antowill v. Friedmann, 197 App. Div. 230, 188 N. Y. S. 777;Runyan......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...reference is made to Kuehnemann v. Boyd, 193 Wis. 588 (214 N.W. 326); Wurdemann v. Barnes, 92 Wis. 206 (66 N.W. 111); Finke v. Hess, 170 Wis. 149 (174 N.W. 466); Sweeney v. Erving, 35 App. D.C. 57 (43 L. R. A. [N. S.] 734); Antowill v. Friedmann, 197 A.D. 230 (188 N.Y.S. 777); Runyan v. Goo......
  • Kuehnemann v. Boyd
    • United States
    • United States State Supreme Court of Wisconsin
    • June 20, 1927
    ...is not applicable to malpractice cases between patient and physician. Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111;Finke v. Hess, 170 Wis. 149, 174 N. W. 466. The reason for this rule is stated clearly and tersely by Judge Taft, in Ewing v. Goode (C. C.) 78 F. 442, in the following langua......
  • Request a trial to view additional results
7 cases
  • Telanus v. Simpson, No. 26846.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1928
    ...v. Ice Co., 179 Mo. App. 465; Turnbow v. Durham, 272 Mo. 53; Nevinger v. Haun, 196 S.W. 42; Tate v. Tyzzer, 234 S.W. 1038; Tinke v. Hess, 174 N.W. 466; Taby v. Warta, 196 N.W. 91; Coombs v. Janes, 144 Pac. 635; Matushka v. Murphy, 180 N.W. 821. If, for any reason, it should be urged that pl......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...this position reference is made to Kuehnemann v. Boyd (Wis.) 214 N. W. 326;Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111;Finke v. Hess, 170 Wis. 149, 174 N. W. 466;Sweeney v. Erving, 35 App. D. C. 57, 43 L. R. A. (N. S.) 734;Antowill v. Friedmann, 197 App. Div. 230, 188 N. Y. S. 777;Runyan......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...reference is made to Kuehnemann v. Boyd, 193 Wis. 588 (214 N.W. 326); Wurdemann v. Barnes, 92 Wis. 206 (66 N.W. 111); Finke v. Hess, 170 Wis. 149 (174 N.W. 466); Sweeney v. Erving, 35 App. D.C. 57 (43 L. R. A. [N. S.] 734); Antowill v. Friedmann, 197 A.D. 230 (188 N.Y.S. 777); Runyan v. Goo......
  • Kuehnemann v. Boyd
    • United States
    • United States State Supreme Court of Wisconsin
    • June 20, 1927
    ...is not applicable to malpractice cases between patient and physician. Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111;Finke v. Hess, 170 Wis. 149, 174 N. W. 466. The reason for this rule is stated clearly and tersely by Judge Taft, in Ewing v. Goode (C. C.) 78 F. 442, in the following langua......
  • Request a trial to view additional results

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