Loveland v. Nelson

Decision Date22 July 1926
Docket Number20.,Nos. 19,s. 19
Citation209 N.W. 835,235 Mich. 623
PartiesLOVELAND v. NELSON. ALLEN v. SAME.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Consolidated cases by Lula Ferguson Loveland and by Florence Allen against James A. Nelson. Judgments for defendant on directed verdicts, and plaintiffs bring error. Reversed, and new trial granted.

Argued before Entire Bench. Walter M. Nelson, of Detroit (Lawrence Brown, of Detroit, of counsel), for appellants.

Douglas, Barbour, Brown & Rogers, of Detroit, for appellee.

FELLOWS, J.

These cases were tried together, and were submitted in this court on one record, and will be disposed of in one opinion. Both plaintiffs were office employés at the Detroit Graphic Company's office in Detroit. Each wanted a wisdom tooth extracted. They went together at the noon hour to the office of defendant, a dentist in general practice. Miss Allen occupied the operating chair first. When the defendant injected the supposed anaesthetic fluid into the gum she experienced a burning sensation, which extended into her throat. It is her claim that the injection did not deaden the pain. The tooth was extracted, and her face commenced to swell immediately. Mrs Loveland experienced the same trouble in the extraction of her tooth. The after results to both ladies were the same. Their faces were badly swollen, so much so as to make it extremely difficult to take nourishment. There was an accumulation of pus and sloughing off of the membrane. Both suffered much pain, and were unable to work for some time. Both were under the care of physicians and other dentists, and both paid out considerable money for such services. These actions for malpractice resulted. At the close of plaintiffs' proofs, the trial judge directed a verdict for defendant on the ground that the testimony left the question of the proximate cause of plaintiffs' condition too conjectural to authorize the submission of the case to the jury, and that without adopting the rule res ipsa loquitur no negligence of defendant was established.

This court has not adopted the rule res ipsa loquitur, but this does not prevent a plaintiff making a case by circumstantial evidence. In Burghardt v. Detroit United Ry., 206 Mich. 545, 173 N. W. 360, 5 A. L. R. 1333, this court, with the citation of numerous sustaining authorities, said:

This court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made.’

And it is the province of the jury to draw the legitimate inferences from the established facts in this character of cases. Marx v. Schultz, 207 Mich. 655, 175 N. W. 182;Wood v. Vroman, 215 Mich. 449, 184 N. W. 520. The Wood Case was a malpractice case, and it was said by Mr. Justice Sharpe, speaking for the court:

‘The plaintiff was not required to prove to an absolute certainty that the infection was caused by the introduction of the germs in the pus. He was required to establish facts from which such an inference might fairly have been drawn by the jury.’

So, if the plaintiffs' testimony, taken in its most favorable light, tends to make such a case that, by excluding other causes, and the establishing of the cirucmstances surrounding the incident, the jury would, by drawing the legitimate inferences from the established...

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19 cases
  • Whetstine v. Moravec
    • United States
    • Iowa Supreme Court
    • April 2, 1940
    ... ... or should not have been done. This court has spoken to that ... effect, and that is ordinarily the rule. Nelson v ... Sandell, 202 Iowa 109, 209 Iowa 440, 46 A.L.R. 1447, and ... cases cited. But there are exceptions to the rule of evidence ... just ... Dunbar v. Adams, 283 Mich. 48, 276 N.W. 895.The ... court referred to that fact in Loveland v. Nelson, ... 235 Mich. 623, 209 N.W. 835, but stated that the court had ... uniformly held that negligence may be established by ... ...
  • Whitmore v. Herrick
    • United States
    • Iowa Supreme Court
    • March 6, 1928
    ...Cannon, 110 Minn. 438, 126 N. W. 67; 2 Jones on Evidence, § 184, pp. 182 and 183; Johnson v. Marshall, 241 Ill. App. 80;Loveland v. Nelson, 235 Mich. 623, 209 N. W. 835;Holcomb v. Magee, 217 Ill. App. 272;Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 136 N. W. 741, 40 L. R. A. (N. S.) ......
  • Barnes v. Mitchell
    • United States
    • Michigan Supreme Court
    • November 29, 1954
    ...of his master and not while on any affair of his own. The case should have been left to the jury.' This Court in Loveland v. Nelson, 235 Mich. 623, 209 N.W. 835, 836, considered a malpractice suit involving the extraction of a tooth. At the close of plaintiff's proofs the trial judge direct......
  • Whitmore v. Herrick
    • United States
    • Iowa Supreme Court
    • March 6, 1928
    ... ... 67); 2 Jones Commentaries on Evidence [205 Iowa 624] ... (1913) 182, 183, Section 184; Johnson v. Marshall , ... 241 Ill.App. 80; Loveland v. Nelson , 235 Mich. 623 ... (209 N.W. 835); Holcomb v. Magee , 217 Ill.App. 272; ... Jones v. Tri-State Tel. & Tel. Co. , 118 Minn. 217 ... ...
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