Garrison v. Everett

• Decision Date: 26 May 1924
• Docket Number: 22787
• Citation: 199 N.W. 30,112 Neb. 230
• Parties: MINNIE M. GARRISON, APPELLEE, v. HARRY H. EVERETT ET AL., DEFENDANTS: SULPHO-SALINE BATH COMPANY, APPELLANT
• Court: Nebraska Supreme Court

199 N.W. 30

112 Neb. 230

MINNIE M. GARRISON, APPELLEE, v. HARRY H. EVERETT ET AL., DEFENDANTS:

SULPHO-SALINE BATH COMPANY, APPELLANT

No. 22787

Supreme Court of Nebraska

May 26, 1924

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.

AFFIRMED.

Reavis & Beghtol and J. L. McPheely, for appellant.

W. B Comstock and Tyrrell & Westover, contra.

Heard before MORRISSEY, C. J., LETTON and GOOD, JJ., BLACKLEDGE and REDICK, District Judges.

OPINION

REDICK, District Judge.

This action is brought by Minnie M. Garrison, the plaintiff, against the Sulpho-Saline Bath Company, a corporation, and Dr. Harry H. Everett, the operating surgeon, to recover damages occasioned by the negligence of the doctor in failing to secure a drainage tube by fastening one end of it to the dressing so as to prevent its slipping into the wound; and negligence in failing to discover and remove the drainage tube before allowing the wound to heal. The result was that the drainage tube, about eleven inches long, composed of rubber, slipped into the wound and remained there and was not discovered by the surgeon and nurses at the time the stitches were taken out, and the wound was closed and healed over with the tube remaining inside. The case was submitted to the jury, who found in favor of Dr. Everett and against the corporation in the sum of $ 6,500, and from the judgment rendered thereon the defendant appeals.

Four points are made by the defendant as grounds for reversal: (1) That the evidence does not sustain the verdict; (2) that the verdict is inconsistent upon the theory that the liability of the corporation depended entirely and exclusively upon the negligence of the operating surgeon; (3) that the district court, having excluded the Carlisle table of expectancy, erred in instructing the jury that they might consider whether the injuries of the plaintiff were temporary or permanent; (4) that the only injuries resulting were those attributable merely to a proper performance of the operation, namely, adhesions of the intestines and other portions of the abdominal region.

Upon the first point the argument of appellant is: "That the inconvenience suffered by plaintiff was not due to leaving the tube in her body, in any degree, but was due entirely to the formations of adhesions which did not come, and could not come, from the tube, but which came as a natural result of her infected appendix. There is no evidence whatever that any of the trouble experienced by plaintiff resulted or could have resulted from the presence of this tube in the abdominal wall." We do not think the facts upon which this argument is based are the proper inferences from the testimony. The operation was for a pus appendix; that is, one which was inflamed to such an extent that pus was formed in considerable quantities. In such cases all the experts called agree that artificial drainage is necessary to carry off the pus and thus prevent infection. There is evidence that the purpose of inserting the tube was to secure proper drainage; that, where the tube disappeared entirely into the pelvic cavity and the wound healed over, all drainage would be stopped; that such treatment was improper; that plaintiff's appendix was badly inflamed; that inflammation produces serum, and serum produces fibrin, and that adhesions are the result of fibrin; that some adhesions are generally present in operations on a pus appendix; that where there is improper drainage there would be more adhesions; that irritation caused by the presence of the rubber tube in the body might cause adhesions. Defendant's contention that the adhesions in this case were solely the result of the operation and prior condition of the appendix cannot be sustained; at least it was a question for the jury. It further appears from the evidence for plaintiff that plaintiff's health prior to the operation was good, but that since then and up to the time of trial, January, 1922, she had lost weight, from 158 to 132 pounds, became weaker and more nervous, was sick, could not eat anything without vomiting, is on a milk diet, is in bed half the time, and suffers pain, complains of soreness through the stomach, and at times has swelling around the wound. An X-ray examination in January, 1922, established the existence of adhesions "down in the right lower quadrant, or right lower abdomen, involving the terminal ileum, caecum, and the ascending colon." The physicians who examined plaintiff attribute her present condition of health to these adhesions.

We think the evidence above summarized made a question for the jury and affords sufficient ground for the inference that with proper drainage a normal recovery would have resulted, but that the failure to provide proper drainage after the operation and permitting the wound to heal without removing the tube were the proximate cause of plaintiff's condition of ill health.

As to the second point, there is no doubt but that upon the trial of the case plaintiff's principal reliance was upon the negligence of Dr. Everett, and with one exception (in the statement of the allegations of the petition) the instructions of the court have to do entirely with the negligence of Dr. Everett. If the only negligence charged was that of Dr. Everett, the inconsistency of the verdict is beyond dispute. Where the liability of the principal depends entirely upon the negligence of the named agent or employee, a verdict in favor of the employee and against the principal cannot be sustained. Chicago, St. P., M. & O. R. Co. v. McManigal, 73 Neb. 580, 103 N.W. 305; Young v. Rohrbough, 86 Neb. 279, 125 N.W. 513; Forsha v. Nebraska Moline Plow Co., 89 Neb. 770, 132 N.W. 384.

It appears, however, that the allegations of the petition are sufficiently broad to let in evidence of negligence of other servants of the defendant corporation. After alleging negligence of the...