Jackovach v. Yocom

• Decision Date: 20 June 1931
• Docket Number: No. 40749.,40749.
• Citation: 212 Iowa 914,237 N.W. 444
• Parties: JACKOVACH v. YOCOM.
• Court: Iowa Supreme Court

212 Iowa 914

237 N.W. 444

JACKOVACH

v.YOCOM.

No. 40749.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Lucas County; George W. Dashiell, Judge.

Action at law for damages for alleged misconduct on the part of the surgeon in amputating an arm. Trial to a jury. Verdict for the defendant. Plaintiff appeals. The facts appear in the opinion.

Affirmed.

Mabry & Mabry, of Albia, for appellant.

Dutcher, Walker & Ries, of Iowa City, and George C. Stuart, of Chariton, for appellee.

GRIMM, J.

On the 21st day of March, 1929, the plaintiff, Albert Jackovach, by his father and next friend, brought a suit at law in the district court of Lucas county, Iowa, for the April, 1929, term of the district court, asking damages for $15,000.

It appears that on the 10th day of March, 1929, plaintiff, then a boy of about seventeen years of age, living with his parents at Williamson, a mining town in Lucas county, Iowa, in company with a young man of about the same age, boarded a freight train at Williamson to ride the same to Chariton, some eight or ten miles away. As the freight train approached Chariton, it became apparent it was not going to stop, and thereupon both boys arranged to jump off the train as it passed through Chariton at a rate of speed variously estimated at from fifteen to thirty-five miles per hour.

William Wood, the plaintiff's associate, jumped first.

Apparently the boys were riding oil tank cars, and, as the plaintiff jumped off, he left the car upon which he had been riding in such a way as that an iron step on the car immediately behind the car upon which the plaintiff was riding struck the plaintiff on the head.

In attempting to save himself as he fell to the ground, he lit on one of his hands. This was between two parallel tracks, the space between which was filled with cinders. The plaintiff was either dragged or rolled, and the evidence does not very clearly show which, a considerable distance, possibly fifty to eighty feet.

When he jumped, he had on an overcoat, undercoat, shirt, and a long-sleeved undershirt.

A disinterested witness described his condition as follows: “When picked up, his overcoat was pretty badly shredded, his hat was gone, his face was all scratched and his hand dangled.”

He was helped into the waiting room of the station, and the defendant, Dr. Yocom, was immediately called and responded at once.

The boy was taken to a hospital, known as the Yocom Hospital, and operated by the defendant.

On examination, it was found that he had a long scalp wound, two or three inches in length, from which he was bleeding profusely. It was discovered that he had a crushed elbow joint; there being what is known as a compound, comminuted fracture thereof.

After an examination, the boy was removed to the operating room of the hospital, two other physicians were called, an anæsthetic administered, and the wound on the head was treated by stopping the flow of blood and sewing up the cut. After a consultation of the doctors, the arm was amputated.

This suit is brought on the theory that the defendant was employed and instructed to “reduce and mend” the said fractured arm, and not to amputate the arm, and that the amputation was without the express consent of the plaintiff or of his parents. The cause was tried to a jury; all of the issues having been withdrawn from the consideration of the jury except the charge that the amputation was performed without the consent of the plaintiff or his parents. The jury returned a verdict for the defendant, and the plaintiff appeals.

[1] I. The appellant contends that the lower court erred in not granting a change of venue upon the plaintiff's application.

As has been stated, the petition was filed on the 21st day of March, 1929, for the April, 1929, term of court. The defendant made an appearance at the April, 1929, term of court, and, upon request of defendants' attorneys, the time for answer was extended until the 11th day of April, 1929, on which day an answer was filed. By that time the condition of the trial work at that term of court was such that it became necessary to continue the cause over the April term.

On the 20th day of August, 1929, the plaintiff filed a motion for change of venue, the substance of which is that the defendant had for many years been a leading physician and surgeon of Lucas county, where he had practiced for many years, and that his influence extended throughout the county; that he had patients from all parts of the county; that he was connected with various lodges and organizations; and that plaintiff could not obtain a fair and impartial trial in said Lucas county for the trial of his cause. It is also alleged that the attorneys of Lucas county would exercise their influence in behalf of the defendant.

In the affidavits in support of the motion, it is claimed that the plaintiffs were unable to secure legal assistance at Chariton, the county seat of Lucas county. Affidavits of several residents of Lucas county were filed in support of the motion. A resistance was filed, objecting to the change upon the grounds, among others, that the application came too late; it having been filed after a continuance and denying the claims of prejudice. There is a showing by a half dozen or more attorneys living in Chariton to the effect that they had not been employed, and that no attempt had been made to employ them in the plaintiff's behalf. The court overruled the motion.

Section 11414 of the Code of 1927 is as follows:

“11414. Application for Change. The application for a change of place of trial may be made either to the court or to the judge in vacation, and if made in term time shall not be awarded until the issues are made up, unless the objection is to the court, nor shall such application be allowed after a continuance, except for a cause not known to the affiant before or arising since such continuance, and after one change no party is entitled to another for any cause in existence when the first was obtained.”

The fact of the long residence of the defendant in Lucas county, his occupation as a physician and surgeon, and the other statements, were matters of common knowledge or easily ascertained at or before the time of the continuance. There is nowhere in the application for a change of venue any claim or proof that the grounds for the requested change were not known to the affiant before the continuance or that they arose since such continuance, as provided in the statute.

There is a claim in the application for a change to the effect that it was impossible for the plaintiff to procure legal assistance in the county. This charge is abundantly met by counter affidavits of practically all, if not all, of the attorneys of that county.

Upon the whole record in reference to a change of venue, we think the lower court correctly ruled.

[2] II. It is next argued by the appellant that the court committed prejudicial and reversible error in relation to the admission of testimony and the instructions concerning X-ray pictures taken of the amputated stump of the arm. These X-ray pictures were taken by one Dr. Gutch several days after the amputation. The father of the plaintiff secured the amputated member from the defendant, and afterwards carried it to Dr. Gutch, who made the X-ray pictures thereof.

It appears, without contradiction, that before the amputated member had been turned over to the plaintiff's father, and while the member was still pliable, the defendant had “put the bones back in shape.” He had “moulded up the arm,” and thereafter stiffness set in. In other words, the X-rayed member was in an entirely different condition when X-rayed than it was at the time the defendant and his associates examined the member before the amputation, and it was in an entirely different condition from that in which it was immediately after the amputation. Moreover, the pictures were not excluded.

The court instructed the jury in relation to said exhibits, as follows: “There is no evidence that the condition of plaintiff's arm or the relation of the bones to each other as shown by said pictures were the same at the time the defendant was treating the plaintiff as at the time said pictures were taken.”

The court further instructed the jury that the said pictures were to be considered only “as evidence of the condition of plaintiff's arm and the situation of the bones therein at the time said pictures were taken.”

There was no error in this instruction. The jury had the benefit of the pictures for what they were worth. It being undisputed, it was entirely proper for the court to call the attention of the jury to the fact that the arm was not in the same condition when the pictures were taken as when the defendant diagnosed the case and performed the operation. The record conclusively shows that, at the time of the diagnosis and the operation, the elbow joint was very severely mangled, a portion of the fractured bone protruded through the flesh, the broken fragments of the bones in and about the elbow joint were separated and as widely scattered as the crushed and mangled flesh would permit. After the amputation, these scattered fragments were “moulded up” and pressed together, after which normal stiffness which followed the death of the member set in, making it an entirely different looking object when photographed than what it was at the time of the diagnosis and the amputation.

[3] III. One of the complaints of the plaintiff is that the amputation was made without taking an X-ray of the arm prior thereto. The court withdrew this question from the jury, and rightly so. As was said in Snearly v. McCarthy, 180 Iowa, 81, 161 N. W. 108, 111: “The purpose, of course, in using the X-ray is to diagnose the case, and if this may properly be done without the use of this modern appliance, then no negligence is to be inferred from failure to use one. Moreover, the record here shows that the nature of the fracture was discovered when de...