Gunning v. Cooley

• Citation: 30 F.2d 467,58 App. DC 304
• Decision Date: 07 January 1929
• Docket Number: No. 4682.,4682.
• Parties: GUNNING v. COOLEY.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

58 App. DC 304, 30 F.2d 467 (1929)

GUNNING v. COOLEY.^*

No. 4682.

Court of Appeals of District of Columbia.

Submitted April 10, 1928.

Decided January 7, 1929.

Rehearing Denied January 19, 1929.

Benj. S. Minor, H. P. Gatley, and A. P. Drury, all of Washington, D. C., for appellant.

Alvin L. Newmyer, Milton W. King, and Ralph A. Cusick, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This is an appeal from a judgment recovered by the appellee, as plaintiff below, for damages for personal injuries alleged to have been sustained by her in consequence of certain negligent medical treatment administered to her by the defendant as a physician.

It is conceded that at the time in question the defendant was a physician in general practice, and that he treated plaintiff as a patient. It is claimed by plaintiff that as part of the treatment defendant undertook to inject a drop or two of sweet oil into each of her ears, but that, because of his negligence and lack of skill, he actually injected into her ears a solution which was not sweet oil, but was a harmful, dangerous and destructive solution, which injured the drums of her ears, in consequence whereof she suffered great pain, and her ears were seriously and permanently injured, and she was made permanently deaf in her right ear, to her great damage. Defendant claims that he actually placed only a drop or two of pure mineral oil in the external ear of plaintiff; that this was harmless, and caused no injury to her ears, and was proper professional treatment. The jury rendered a verdict against defendant, and judgment was entered accordingly; whereupon this appeal was brought.

At the close of all the evidence the defendant moved for a directed verdict upon the ground that plaintiff had failed to establish her case. The court overruled the motion, and that ruling is assigned as error. This assignment necessitates a brief reference to the evidence.

The evidence on behalf of the plaintiff is to the effect that on October 21, 1922, she first consulted the defendant for a trouble in her throat and received treatment therefor; that a few days later she again called upon defendant, who advised her that mouthbreathing had caused her throat trouble, and there was something wrong with her nose, and that it needed treatment, which he accordingly gave her; that soon afterwards she again went to defendant's office and told him she had a slight cold and felt "wax or something" in her right ear; that, after an examination, defendant said he would drop a little mineral oil in her ear; that there were twelve or thirteen bottles of medicine on defendant's cabinet, all alike in appearance, and but a single dropper for use with all of them; that defendant by means of this dropper then injected some fluid into her right ear, whereupon she instantly became dizzy and suffered horrible pain in her ear, and heard roaring sounds like the firing of cannon; that she told defendant of this but he assured her it would be all right, and undertook to put some of the fluid into her left ear, but she succeeded in knocking his arm away before much got into that ear; that defendant became greatly excited because of plaintiff's condition, but attempted no further treatment; that plaintiff immediately became ill and lost control of her whole body, and was put to bed at the doctor's house and kept there until late in the evening, when she was carried to a cab and taken to her home, where she was carried from the cab and put to bed; that for a time she was totally deaf, and consulted an ear specialist, who treated her every day for two months, and three times a week afterwards, and that she was still taking treatment; that at the time of the trial she could not hear at all with her right ear, but suffered a roaring sound in it, and that she heard what she could hear with her left ear; that up to the time of the treatment in question plaintiff's hearing was perfect; and that she had never suffered from any abscess of the ears or any complaint or disease affecting them. The evidence furthermore tends to show that in February, 1927, plaintiff's ears were examined by a specialist who found that the eardrum of the right ear was practically all gone, and that of the left ear from one-third to one-half gone, and that the tissues were scarred. The specialist testified that various diseases or injuries might cause such a condition, or that it might be caused by the injection of some destructive substance into the ears, and that he was unable to state from his examination the cause of plaintiff's condition, but, in answer to a hypothetical question based upon his examination, together with the evidence submitted on behalf of plaintiff, he gave his opinion as follows: "Why, she had to have something in there to destroy the eardrums. They were destroyed. My opinion is that they were destroyed by something that was put in the ear."

The defendant introduced evidence, including the testimony of experts, tending to sustain the claim that the fluid which he injected into plaintiff's ears was pure mineral oil; that it caused no injury, and that it was proper treatment; that plaintiff was not prostrated by the treatment as claimed by her but was dizzy and nauseated before the treatment, and was relieved and benefited by it; and that plaintiff told defendant that she had taken treatment for her ears from other physicians. The defendant stated that when he examined plaintiff's ears he saw that her eardrums were perforated and that he "dropped in a viscid oil, a viscid mineral oil for the purpose of closing up the external eardrums in order to prevent the noise from penetrating into the middle ear"; that "the noise" then subsided and plaintiff became composed and shortly afterwards left the house; that defendant diagnosed plaintiff's ear trouble as a disease of the inner ear.

The rules applicable to motions filed by defendants for a directed verdict in cases like this are well settled. "The rule supported by the great weight of authority and by reason is that it is only where the court must say that, as a matter of law, no recovery can be had under any reasonable view of the evidence, that a verdict for the defendant will be directed." 39 Cyc. 1577. "It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because the facts being undisputed, fairminded men will honestly draw different conclusions from them." Richmond & Danville R. Co. v. Powers, 149 U. S. 43, 45, 13 S. Ct. 748, 749 (37 L. Ed. 642). "The right to have the facts determined by the jury ceases only when but one reasonable view can be taken of the evidence and of its every intendment, and that view is utterly opposed to the plaintiff's right to recover." Baltimore & P. R. Co. v. Carrington, 3 App. D. C. 101, 108. "Where there is testimony of a substantial character to go to the jury, it is always for the jury to determine the question of the preponderance of evidence, subject to the revisory power of the court to order a retrial." Mr. Justice Morris in Warthen v. Hammond, 5 App. D. C. 157, 173. "The court is never justified in directing a verdict except in cases where, conceding the credibility of the witnesses and giving full effect to every legitimate inference that may be deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon." Adams v. Washington & G. R. Co., 9 App. D. C. 26, 30. "A motion to direct a verdict is an admission of every fact in evidence, and of every inference reasonably deducible therefrom. And the motion can be granted only when but one reasonable view can be taken of the evidence and the conclusions therefrom, and that view is utterly opposed to the plaintiff's right to recover in the case." Glaria v. Washington Southern R. Co., 30 App. D. C. 559, 563. "In other words it is only where all reasonable men can draw but one inference from the facts that the question is one of law for the Court." Chesapeake B. R. Co. v....