Finke v. Hess

• Decision Date: 04 November 1919
• Citation: 174 N.W. 466,170 Wis. 149
• Parties: FINKE v. HESS.
• Court: Wisconsin Supreme Court

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.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]...