Frisk v. Cannon
| Decision Date | 22 April 1910 |
| Docket Number | 16,364,16,365 - (154,155) |
| Citation | 126 N.W. 67,110 Minn. 438 |
| Parties | HULDA E. FRISK v. CHARLES M. CANNON and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county against Charles M Cannon and F. E. Balcome to recover $5,000 damages for personal injuries sustained from an electrical machine while being treated by defendant physicians. The substance of the complaint is stated in the opinion. The separate answer of defendant Cannon denied that he had ever treated plaintiff for any ailment; denied any partnership with defendant Balcome as to plaintiff, and alleged that plaintiff was a patient of defendant Balcome. The separate answer of defendant Balcome alleged that plaintiff was his patient and was treated with a static electrical machine, a well known appliance in the medical profession; that defendant directed plaintiff to remove from her head all pins and combs whether of iron, steel or celluloid; that he discovered the remains of a steel hairpin at the point where the scalp was burned and that if any injury accrued it was due to her failure to remove the hairpins. The replies were denials of the new matter alleged.
The case was tried before Orr, J., who at the close of the evidence directed the jury to return a verdict in favor of defendant Cannon. The jury thereafter returned a verdict in favor of plaintiff for $1,200. Plaintiff's motion for judgment in her favor against defendant Cannon notwithstanding the verdict, or for a new trial, was denied. Defendant Balcome's motion for judgment in his favor notwithstanding the verdict was denied.
From the judgment entered pursuant to the verdict, defendant Balcome appealed. Affirmed.
From the order denying plaintiff's motion for judgment in her favor against defendant Cannon or for a new trial, she appealed. Affirmed.
Malpractice -- Use of Electricity -- Question for Jury.
Plaintiff was placed by one of defendant physicians on an insulated platform, a conical cap was put above and in front of her head, and electricity was caused to be discharged by a static machine through the cap upon plaintiff's head. Defendant left the room. No attendant was present. Plaintiff's head was seriously burned. It is held that actionable negligence on part of defendant was shown.
Richard & Coe, for plaintiff.
C. D. & R. D. O'Brien, for defendants.
Plaintiff and appellant charged the defendants and respondents, as partners engaged in the practice of medicine, with having negligently treated plaintiff with static electricity, to her injury. It was alleged: Plaintiff was placed on an insulated platform connected with the electrical machine. Above and in front of her head was put a conical cap, in a position subsequently described in detail. Static electricity was caused to be discharged from the machine, through the cap, in, upon, and through plaintiff. Defendant then left the room. No attendant was present. After the lapse of eight or ten minutes, plaintiff screamed. Defendant immediately entered the room, and discovered that her head was smoking. Through the negligence of defendant a large portion of the top and sides of plaintiff's head was seriously burned, whereby she was damaged in the sum of $5,000. Defendant admitted the fact of burning, but denied negligence. The case was tried to a jury, which returned a verdict of $1,200 for plaintiff. This appeal was taken from judgment entered against defendant Balcome.
Plaintiff made out a prima facie case of negligence. Plaintiff's only expert testified that, if the cap were brought close to the head and there was volume enough, there would be a continuous spark and harm would result. His testimony to the effect that the distance the cap was placed from plaintiff's head would determine whether a burn was likely to occur, together with the testimony of plaintiff that it was not adjusted as on former occasions, and also the conduct of defendant in leaving the plaintiff in the room unattended, while the machine was working, for the space of ten minutes, during which time the burn occurred in connection with the other evidence in the case, was sufficient to take the question of defendant's negligence to the jury.
The trial court was justified in concluding that defendants were not partners, and that defendant Cannon was not liable for the negligence of defendant Balcome.
Order and judgment affirmed.
O'BRIEN, J., took no part.
DISSENT BY: JAGGARD
The evidence in my opinion rebuts the inference of negligence, to which it may be conceded the circumstances gave rise. It appears that this plaintiff had been subjected to the same treatment by the same machine on seven or eight previous occasions without harm. Defendant called a number of wellknown experts of the highest character. The effect of their testimony is: The amperage or the quantity of electricity generated by the machine in question is infinitesimal. It figures at some one-millionth of an ampere, but the electromotive force is large. The effect resembles shooting a piece of eiderdown from a gun. There is great force, but the missile is so slight in character that it can do no harm. No case has ever been known of injury to a person by a static machine, nor is one known in the literature of the profession. The occurrence was "unique in experience," "a perfect mystery contrary to all laws of physics." It could...
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