Kuglich v. Fowle

• Decision Date: 11 November 1924
• Citation: 185 Wis. 124,200 N.W. 648
• Parties: KUGLICH v. FOWLE ET AL. (TWO CASES.)
• Court: Wisconsin Supreme Court

185 Wis. 124

200 N.W. 648

KUGLICH

v.FOWLE ET AL. (TWO CASES.)

Supreme Court of Wisconsin.

Nov. 11, 1924.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

Action by Mary Kuglich against Irving H. Fowle and the Ogden Hospital, and by Lucas Kuglich against the same defendants. Judgment for plaintiff, and defendants appeal. Affirmed as to defendant Fowle, and reversed, with instructions to dismiss complaint, as to defendant hospital.Geo. J. Carroll and Schroeder & Walmsley, all of Milwaukee, for appellants.

Henry J. Bendinger, of Milwaukee (Robert R. Freeman, of Pensacola, Fla., of counsel), for respondents.

OWEN, J.

This action was brought against the defendants Dr. Fowle and the Ogden Hospital to recover damages for injuries resulting from a burn sustained by the plaintiff while she was a patient in said hospital under the care of Dr. Fowle. Dr. Fowle was called to the home of the plaintiff and found her extremely ill of uremic poisoning. He caused her to be removed to the hospital, where she was put to bed and packed with hot water bottles to induce perspiration. Two hot water bottles were placed on either side of her and a fifth was placed between her legs, while she was in an unconscious condition. The bottles were filled with hot water and wrapped in blankets to prevent them from burning the patient. The fifth bottle became unwrapped and seriously burned the plaintiff about her legs. While nurses of the hospital assisted the doctor in wrapping the other bottles, it is conceded that the bottle which caused the burning was wrapped by Dr. Fowle.

[1] This case was here upon a former appeal (176 Wis. 60, 186 N. W. 188), and it was held that the evidence sustained a finding that the defendant negligently wrapped the hot water bottle in question, which negligence was the proximate cause of plaintiff's injuries, but the judgment was reversed and the case remanded for a new trial, because of the improper exclusion of evidence affecting the hospital's liability. The case is now here upon an appeal by the defendants from a judgment against them as a result of a second trial, wherein the jury found that the defendant Fowle failed to exercise ordinary care in wrapping the fifth hot water bottle, which failure was a proximate cause of the injury to the plaintiff. Unless the evidence bearing upon Dr. Fowle's liability is different upon this trial, the former judgment of this court is res adjudicata upon his liability.

[2] The appellant Fowle claims that the former judgment is not res adjudicata, because certain physicians testified, as experts upon this trial, that it was entirely possible for the patient, though unconscious, to subconciously unclasp the safety pin with which the wrappings of the bottle were fastened. It is contended that this...