Langis v. Danforth

• Decision Date: 02 April 1941
• Parties: LANGIS v. DANFORTH (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 508

33 N.E.2d 287

LANGIS

v.DANFORTH (two cases).

Supreme Judicial Court of Massachusetts, Essex.

April 2, 1941.

Exceptions from Superior Court, Essex County; Donahue, Judge.

Actions of tort by George R. Langis, a minor, by his next friend, and Evariste Langis, respectively, for injuries to minor plaintiff and consequential damages. Defendant's motions for directed verdicts were granted, and plaintiffs bring exceptions.

Exceptions sustained.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

J. J. Foley and W. E. Carey, both of Lynn, for plaintiffs.

J. W. Sullivan, of Lynn, and C. J. Dunn, of Boston, for defendant.

DOLAN, Justice.

These are two actions of tort. In the first action the minor plaintiff seeks to recover for personal injuries sustained as a result of the alleged negligence of the defendant. The second action was brought by the minor's father for consequential damages. The cases were tried to a jury and at the close of the evidence the judge allowed the motion of the defendant in each case for a directed verdict in his favor.The cases now come before us on the plaintiff's exceptions to the allowance of those motions and to the exclusion of certain evidence. The minor plaintiff will be referred to hereinafter as the plaintiff.

The evidence would warrant the jury in finding the following facts: On March 5, 1938, the plaintiff went to the office of the defendant, a dentist, for the purpose of having two teeth extracted. The defendant's offices were located on the second floor of a certain building in Lynn. The plaintiff was accompanied by two friends who left him when he entered the defendant's office, but who agreed to return and wait for him in the defendant's reception room.

After his arrival the plaintiff was seated in a dental chair in a room adjoining the reception room. The defendant administered nitrous oxide to him by inhalation. This treatment lasted for several seconds. The defendant also administered an injection of novocaine, and while waiting for it to take effect slipped into an adjacent room to attend another patient. Returning, he gave the plaintiff another injection of novocaine and again left the room where the plaintiff was seated, remaining absent for about twenty minutes, while the plaintiff's gums were in the process of becoming anaethetized. Returning, the defendant commenced to extract the two teeth. During this operation, which consumed some thirty or forty seconds, nitrous oxide was administered to the plaintiff. In the meantime, the plaintiff's companions had returned and entered the defendant's reception room, where they sat waiting for the plaintiff. They saw the defendant leave the office where the plaintiff was seated in a dental chair, on two occasions. On the second occasion they did not see him return to the office where the plaintiff was, and shortly after the defendant had left that office they heard a crash of glass and heard a woman scream, ‘He has gone through the window.’ A nurse rushed out of the room in which the plaintiff had been, and ran down the stairs to the street, followed by the plaintiff's two friends. The latter did not see the defendant from the time of his departure from that room prior to the accident. The window through which the plaintiff fell was ‘about five feet wide and about six and one-half feet tall and the sill of said window was about two feet up from the floor of the dental office,’ and was made of plate glass about one quarter of an inch thick. The dental chair in which the plaintiff had been seated faced this window. The sill of the window was low enough so that ‘if a person was in an unconscious state or in a hangover stage and were up against it, the sill would hit * * * [him] at the knee or slightly above it, but as to that it would depend upon the height of the individual; * * * if it hit about the knee the person * * * would be likely to be thrown up against the window.’ A nurse was in the room with the plaintiff when he fell or leaped through the window, which was twenty or twenty-five feet above the sidewalk. The plaintiff knew nothing after the ‘gas' was administered to him. The next thing he remembered was waking up in the hospital two and a half to three weeks later.

Certain evidence that was offered by the plaintiff through a practising dentist to show the effect upon a patient of the inhalation of nitrous oxide and the difference between its effects and those caused by the inhalation of ethyl chloride, which the witness had used for twenty-five years because the latter was ‘safer,’ was excluded by the judge, who refused to allow witness, who had not used nitrous oxide for twenty-five years, to testify as an expert, on the ground that he did not have the necessary qualifications.

We cannot say that there was error in refusing to admit this testimony although doubtless it could have been admitted. Its exclusion was based on the ground that the judge was not satisfied with the qualifications of the witness. Except in rare instances where, as matter of law, the exclusion of the proffered evidence would be unwarranted, the preliminary question of the qualification of a witness called as an expert must rest with the trial judge. Corrao v. Sears, Roebuck & Co., 298 Mass. 23,...