Hansen v. Isaak

• Decision Date: 13 July 1945
• Docket Number: 8693.
• Citation: 19 N.W.2d 521,70 S.D. 529
• Parties: HANSEN v. ISAAK.
• Court: South Dakota Supreme Court

19 N.W.2d 521

70 S.D. 529

HANSEN v. ISAAK.

No. 8693.

Supreme Court of South Dakota

July 13, 1945

Parliman & Parliman and Danforth &amp Danforth, all of Sioux Falls, for appellant.

Owen C. Donley, of Elk Point, for respondent.

ROBERTS Judge.

This is an action to recover for injuries sustained by Dorene Hansen the infant named as plaintiff, as a result of alleged negligence on the part of defendant. The appeal is from the judgment entered on a directed verdict for defendant.

It is claimed on the part of the plaintiff that defendant was negligent in the manner of giving a diathermy treatment. Defendant admits that a treatment by means of an electrical apparatus was applied to the back and abdomen of the plaintiff and that she sustained a burn, but denies that the injury was caused by his failure to use reasonable skill and care for the safety of the child.

A motion for directed verdict raises a question of the legal sufficiency of the evidence to sustain a verdict against the moving party. It is not the function of the court to weigh the evidence. It is to decide if there is any substantial credible evidence to support a verdict against the moving party, considering the evidence in the light most favorable to the opposite party. Lohr v. Watson, 68 S.D. 298, 2 N.W.2d 6.

The burden was on the plaintiff to prove that an act or omission of the defendant caused the injury and that such act or omission was negligent. Dean v. Seeman, 42 S.D. 577, 176 N.W. 649; Hanson v. Harris, 44 S.D. 457, 184 N.W. 262; Feltman v. Dunn, 52 S.D. 187, 217 N.W. 198. The law requires that a physician shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the same community and negligence of a doctor consists of his failure to conform to the standard of care which the law establishes for members of his profession, that is, the obligation to have and to use the skill and care which members of his profession commonly possess and exercise under similar circumstances. Warwick v. Bliss, 46 S.D. 622, 195 N.W. 501.

The evidence shows that plaintiff's parents and the defendant, a regularly licensed chiropractor, reside in Elk Point. During the morning of April 12, 1942, defendant in response to a call went to the Hansen home and found the plaintiff in a convulsive condition. He gave the child a chiropractic treatment by manipulation. The child recovered from this attack, but in the afternoon had another convulsion. According to the testimony of the defendant he attempted for an hour a chiropractic manipulation, but was unable to give an effective treatment because of 'the rigidity and jerky condition of the muscles of the child's body' and 'in order to make a chiropractic manipulation or adjustment more effective' a diathermy treatment was given by means of a short wave machine. One of the padded electrodes was applied to the child's back and the other to its abdomen. Defendant then turned on the electric current into and through the electrodes. We understand from the record that the machine used by defendant is of a type common to both regular physicians and chiropractors. It differs from electric pads and the like. It does not emit heat from elements, but produces heat within the body by resistance offered to passage of short waves between the electrodes placed on opposite sides of the body. The jury might have found that plaintiff received what is termed a third degree burn of her back. There is no serious dispute in the evidence concerning the extent of the injury. The basic issue is the cause of the injury, that is, whether there is in the record a basis for believing that the injury was caused by the negligence of the defendant.

The instrumentality producing the injury in this case was exclusively under the control of the defendant. Counsel for plaintiff contend that the doctrine of res ipsa loquitur was applicable requiring the cause to be submitted to the jury. 'The doctrine of res ipsa loquitur may be stated to be that, whenever a thing which has caused an injury is shown to have been under the control and management of the defendant charged with negligence, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of the accident itself is deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.' Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97, 98; Midwest Oil Co. v City of Aberdeen, S.D., 10 N.W.2d 701. There is much authority applying this doctrine to third degree burns caused by X-ray. 13 A.L.R. 1414; 26 A.L.R. 732; 57 A.L.R. 269; 60 A.L.R. 259. We agree with counsel that the facts of this case do not distinguish it from cases involving injuries received from use of X-ray, but it is unnecessary to determine whether the doctrine is or is not applicable in this case. The fact, however, that plaintiff was seriously burned is some evidence in itself and may...