Greeno v. Roark

• Decision Date: 01 January 1899
• Docket Number: 313. [*]
• Citation: 8 Kan.App. 390,56 P. 329
• Parties: L. M. GREENO v. W. S. ROARK
• Court: Kansas Court of Appeals

56 P. 329

8 Kan.App. 390

L. M. GREENO v. W. S. ROARK

No. 313. ^[*]

Court of Appeals of Kansas, Northern Department

January 1, 1899

Opinion Filed January 7, 1899.

Error from Geary district court; O. L. MOORE, judge. Reversed.

Judgment reversed and cause remanded.

Thomas Dever, and J. R. McClure, for plaintiff in error.

Jas. V Humphrey, G. W. Hurd, Robert I. Roark, and J. B. Rairden, for defendant in error.

OPINION

MCELROY, J.:

This action was brought by Roark against Greeno to recover $ 4000 damages alleged to have been sustained in the negligent careless and unskilful extraction by Greeno of one of Roark's teeth. The plaintiff alleged:

"That on the 14th day of March, 1896, defendant was engaged in the practice of dentistry in Junction City; that plaintiff, desiring to have a tooth extracted, applied to defendant in his professional capacity to perform the operation in such manner as in defendant's judgment was proper, which operation defendant engaged to perform with reasonable care and skill; that the defendant performed the operation for hire, but in so doing did not use reasonable care and skill; that on the contrary he negligently, carelessly and unskillfully used surgical or dental instruments which were then in an unclean, poisonous and septic condition, and did thereby injure, bruise, lacerate, puncture, poison and infect the flesh, tissues and membranes in plaintiff's mouth, throat, and in, about and near the angle of the right lower jaw, and did thereby and by means of certain poisonous and dangerous drugs and medicines, whose names and properties are unknown to plaintiff, employed by defendant and injected into plaintiff's flesh during said operation, in such quantities and in such strength as to be poisonous, injurious and dangerous to the life and health of plaintiff, and by the means aforesaid, poison and infect plaintiff's blood; that the plaintiff at the time of the operation was strong and robust, but immediately after the operation, by reason of the aforesaid careless, negligent and unskilful method and means by which defendant performed the operation the plaintiff became violently sick, suffering intense pain, which sickness and pain wholly prostrated plaintiff for many months; that the plaintiff's mouth, throat, face, lower jaw, and right ear, by reason of the injuries, became immediately diseased and impaired in their functions and are at this time, and will remain permanently crippled and impaired in their natural use, and thereby, and by reason of the long and severe illness aforesaid, plaintiff has become permanently impaired in general health and capacity for work."

The defendant's answer was a general denial, and an allegation that if plaintiff did sustain the injury of which he complains, the same arose from natural causes or pathological conditions, his own negligence, and causes other and different from those alleged in the petition. The reply was a general denial. A trial was had by the court and a jury, which resulted in a verdict and judgment for plaintiff for $ 2000. The defendant filed his motion for a new trial, which was overruled, and he presents the case to this court for review. As plaintiff in error, he sets out nine assignments of error, but confines his argument to four, which we shall consider in their order.

The first assignment is that the court erred in admitting incompetent, irrelevant and immaterial evidence, which was prejudicial to the rights of the plaintiff in error. Under this assignment of error, it is insisted that the hypothetical questions were improperly allowed, for the reason that they assume that the hypodermic needle had been treated to an aseptic process, and that they assume facts which are not supported by any evidence. Doctor King was asked:

"Ques. Now, if on the 14th day of March, 1896, the patient you have spoken of went to the defendant for the purpose of having a wisdom tooth on the right side of the lower jaw extracted, and if the defendant, setting about the extraction of the tooth, inserted a hypodermic needle which he had purchased, and which he did not treat to any aseptic process; if he inserted that needle behind the wisdom tooth mentioned, penetrating the gum as far down as the root of the tooth; and further proceeding to extract that tooth, he inserted in the gums of that patient around and about that tooth forceps which were contaminated with dry blood, and that some three or four hours after that time the patient was seized with an attack of chills and fever, and shortly thereafter was seized with an attack of vomiting, and a severe headache; and if on the next morning, on the 15th of March of that year, this patient so described was in the condition in which you found this plaintiff when you made the visit you have mentioned on that day, what would you say was the probable cause of his affliction or condition at that time?"

The objection to this question was that it was incompetent, irrelevant, and immaterial, and assumed a state of facts not proven.

Doctor Stone was asked:

"Ques. If the plaintiff in this case, prior to the 10th day of March, 1896, was a healthy and vigorous man in every respect and if he had not been subjected to any sort of a surgical operation and had not had his skin cut, incised or perforated for a long time prior to that time; if on the 11th or 12th day of March, the same year of course, he was suddenly seized with nervous or jumping toothache, there being no swelling in the gums surrounding that tooth, the only visible defect about the tooth being a slight decay in the crown of the tooth, and if in fact there were no ulcerations or abscesses inflicting the tooth; if that tooth after it first commenced to ache, ached at intervals for two or three days, it being alleviated at one time by oil of cloves, it coming on intensely whenever a drink of water was taken or the plaintiff attempted to masticate; if on the 14th of this month (I began the story on the 10th), if on the 14th...