Jackson v. Hansard

• Citation: 45 Wyo. 201,17 P.2d 659
• Decision Date: 04 January 1933
• Docket Number: 1751
• Parties: JACKSON v. HANSARD
• Court: United States State Supreme Court of Wyoming

17 P.2d 659

45 Wyo. 201

JACKSON v. HANSARD

No. 1751

Supreme Court of Wyoming

January 4, 1933

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by Fred V. Jackson, against J. R. Hansard. From the judgment plaintiff appeals.

Reversed and Remanded.

For the appellant there was a brief and oral argument by R. R. Rose of Casper, Wyoming.

Affirmative proof of negligence is not required where the cause of injury was under control of defendant and the accident would not happen in the exercise of proper care. In such cases, the rule of res ipsa loquitor applies, particularly where a foreign substance is left in the body during the course of an operation. 48 C. J. 1143; Sellers v. Noah, (Ala.) 45 So. 167; Alt v. Hall, (O. S.) 164 N.E. 518; Davis v. Kerr, (Pa.) 86 A. 1007, 46 L. R. A. (N. S.) 611; Evans v. Monroe, (R. I.) 83 A. 82; Shockley v. Tucker, (Ia.) 103 N.W. 360; Jones v. Tri State Tel. Co., (Minn.) 136 N.W. 741, 40 L. R. A. (N. S.) 485; Lewis v. Casenburg, (Tenn.) 7 S.W.2d 808; Bergeldt v. Hartzell, 1 F.2d 633; Evans v Roberts, (Ia.) 153 N.W. 923; Brown v. Shortlidge, 277 P. 134; McCormich v. Jones, (Wash.) 278 P. 181. A surgical operation begins when the incision is made and ends when the wound is sewed up and the responsibility of the surgeon continues throughout the operation. Akridge v. Noble, (Ga.) 41 S.E. 78; Barnett's Admr. v. Brand, (Ky.) 177 S.W. 461; Palmer v. Humiston, (Ohio) 45 L. R. A. (N. S.) 640; Gillette v. Tucker, (Ohio) 65 N.E. 865. The surgeon is liable for the negligence of nurses working under him. Aderholt v. Bishop, (Okla.) 221 P. 752; Spears v. McKinnon, (Ark.) 270 S.W. 524; Barnett's Admr. v. Brand, (Ky.) 177 S.W. 461; Palmer v. Humiston, (O. S.) 101 N.E. 283, 45 L. R. A. (N. S.) 640; Davis v. Kerr, (Pa.) 86 A. 1007, 46 L. R. A. (N. S.) 611; Pars v. Carter, (Wis.) 188 N.W. 68. On the question of sufficiency to sustain the verdict, the cases differ on the facts, but we submit the following: Ruth v. Johnson, 172 F. 191; Harris v. Fall, 27 L. R. A. (N. S.) 1174; Spears v. McKinnon, (Ark.) 270 S.W. 524; Moore v. Ivey, (Tex.) 264 S.W. 283. Where there is a substantial conflict in testimony, all questions of fact are for the jury, and unless but one inference can be drawn, the court should not direct a verdict or set aside a verdict rendered by the jury. 48 C. J. 1151-2; Phiffer v. Baker, 34 Wyo. 415; McCoy v. Clegg, 36 Wyo. 473; Samuels v. Willis, (Ky.) 118 S.W. 339. A motion for a judgment non obstante veredicto should not be sustained where there is a conflict in the evidence. 33 C. J. 1183-1186, 15 R. C. L. 606-7, Secs. 45-46, Ann. Cas. 1913 A, 1023--case note and cases cited; Higgs v. Higgs, 15 L. R. A. (N. S.) 1162; U. P. R. R. Co. v. Pacific Market Co., 27 Wyo. 501; U. P. R. R. Co. v. Pacific Market Co., 28 Wyo. 461. An objection to evidence which may be proper on one ground is improper if placed on other grounds. Vol. 6, Jones on Ev. (2d Ed.) 4990; Rush v. French, (Ariz.) 26 P. 816-22-23; Morris v. Sierra & San F. Power Co., (Calif.) 207 P. 262-9; Bailey v. C. M. & St. P. R. R. Co., (S. D.) 19 L. R. A. 653-6; Root v. Conlin, (Calif.) 223 P. 1023-4; Kahn v. Lucchesi, (Ark.) 46 S.W. 729; Healey v. Bowman, (Pa.) 115 A. 184; Plumb v. Curtis, (Conn.) 33 A. 998; Willey v. Portsmouth, (N. H.) 9 A. 220; Sandry v. Hines, (Mo.) 226 S.W. 646-9; Detzur v. Stroh Brewing Co., (Mich.) 44 L. R. A. 500-3; Lambert v. Murray, (Colo.) 120 P. 415-20; Evansville & R. R. Co. v. Swift, (Ind.) 27 N.E. 420; Mychel Co. v. Lashua, (Wash.) 213 P. 917; Cary Davis Towing Co. v. Spradley, (Wash.) 196 P. 655-8-9; Stebbins v. Duncan, et al., 27 L.Ed. 641-46; Gustin v. Jose, (Wash.) 39 P. 687; Reynolds v. Morton, 22 Wyo. 174-84; Thex v. Shreve, 38 Wyo. 285-92. Other errors assigned are not waived. The court erred in setting aside the verdict and rendering judgment for defendant. The cause should be remanded with instructions to enter judgment in favor of plaintiff.

For the respondent there was a brief by Gillette & Clark, of Denver, Colorado, and Durham & Bacheller, of Casper, Wyoming, and oral argument by Mr. Henry H. Clark.

The general rules of liability of doctors in foreign body cases are reviewed in McGraw v. Kerr, (Colo.) 128 P. 870. The case is cited in Wright v. Conway, 34 Wyo. 1. The authorities hold that as to what is or is not proper practice in examination and treatment is a question for experts. Failure to prove that the sponge was left in plaintiff's body following the appendicitis operation defeats plaintiff's action. Mayer v. Hipke, (Wis.) 197 N.W. 333; Busse v. Murray Meat & Live Stock Co., (Utah) 147 P. 626; Mountain Motor Fuel Co. v. Rivers, (Colo.) 170 P. 1164; Dodo v. Stocker, (Colo.) 219 P. 222; Kern v. Payne, (Mont.) 211 P. 767. An inference must be drawn from the facts and cannot be based on another inference. Likewise a presumption cannot be based on a presumption, but must arise from facts. Kilroy v. Co., (Mo.) 218 S.W. 425; Sobolovitz v. Lubric Oil Co., (Ohio) 140 N.E. 634; Johnson v. Co., (Utah) 179 P. 61; Bennett v. Thurston, (Me.) 114 A. 459; Globe Acc. Co. v. Gerisch, (Ill.) 45 N.E. 563; Matuska v. Murphy, (Wis.) 180 N.W. 821. The res ipsa loquitor rule does not apply to this case. Cassingham v. Berry, (Okla.) 150 P. 139; Roark v. Peters, (La.) 110 So. 106, 108; Kay v. Ry. Co., (N. Y.) 57 N.E. 751 and Stewart v. Carpet Co., (N. C.) 50 S.E. 562. Defendant is not liable for oversight or negligence of nurses furnished by the hospital. Guell v. Tenney, (Mass.) 159 N.E. 451; Blackburn v. Baker, 237 N.Y.S. 611, 612; Funk v. Bonham, (Ind.) 151 N.E. 22. There being no causal connection established between plaintiff's ill health and the alleged leaving of a sponge in his body, plaintiff cannot prevail. Toy v. Mackintosh, (Mass.) 110 N.E. 1035; Searer v. Lower, (Ohio) 158 N.E. 199; Ruble v. Busby, (Ida.) 149 P. 722. When the evidence is insufficient to support a verdict for plaintiff or defendant, as the case may be, the court should direct a verdict for the other party. A mere scintilla of evidence is not enough to require the submission of an issue to the jury and when the evidence upon an issue is all on one side, or so nearly so as to leave no room to doubt what the fact is, the court should give a peremptory instruction. Gunning v. Cooley, 50 S.Ct. 231.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

The plaintiff in this case, Fred V. Jackson, brought this action to recover damages from the defendant, Dr. Hansard, on account of malpractice. He claims that on May 28, 1929, while the defendant performed an operation on him for appendicitis, he negligently left a large sponge in the plaintiff's abdominal cavity; that the sponge, or gauze--the terms being synonymous--gradually worked its way through the wall of the large intestines, about five feet in length, and was discharged from the intestines through the rectum on September 7, 1929, three months and ten days after the operation in May; that as a result of such negligence he suffered intense pain and became afflicted with tuberculosis. The jury brought in a verdict for the plaintiff for $ 10,820.00. Upon motion of the defendant the court directed a judgment notwithstanding the verdict, and from that judgment the plaintiff has appealed, claiming that the evidence in the case was such as to require the case to be decided by the jury.

The plaintiff, when on the witness stand, claimed that soon after his operation he commenced to have severe pains in his abdomen; that after remaining in the hospital for about ten days, he was thereafter removed to his home, where he remained about six weeks; that during that time he saw and consulted the defendant a number of times, complaining of his condition; that he was given medicine from time to time but that it had little effect; that until the gauze was removed he had no normal bowel-movement; that griping pains would generally set in whenever he ate anything; that he became afraid to eat at all; that he went back to work in a cleaner's establishment about six weeks after the operation, but that he was weak and could do but little work; that he remained at work about four months; that thereafter he sought relief at the hospital of Mayo Brothers; that he was thereafter at the hospital of the Veterans' Bureau at Sheridan, which appears to be a hospital for those somewhat mentally deranged; that he remained there about twenty-three days; that he then sought relief in California but found little; that in the summer of 1930 he worked at the Texas Refinery doing some manual labor in the yards and in a tin shop, but that he was so weak that he had to quit; that he was thereafter sent to a hospital at Fort Lyon, Colorado, and found that he was afflicted with tuberculosis.

1. The first point to be decided is as to the sufficiency of the evidence on the question as to whether or not a sponge was left in the plaintiff's abdominal cavity at the time of the operation in May, 1929. The defendant admitted that he performed that operation, and that large and small sponges were used in connection therewith; further, that he removed some gauze from the plaintiff's rectum on September 7 1929. Three nurses attending the operation all testified that the sponges used in connection therewith were checked and re-checked, and that none were missing. Dr. Morad, who assisted the defendant, testified that none were left in the plaintiff's body. The defendant's testimony is to the same effect. He further stated that he not only asked the nurses to count the sponges and that they told him that the count was correct, in which he was corroborated by the nurses, but that furthermore he carefully inspected the field of operation and that no sponges were left in the abdomen. Other...