Matuschka v. Murphy

• Decision Date: 11 January 1921
• Citation: 173 Wis. 484,180 N.W. 821
• Parties: MATUSCHKA v. MURPHY ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 484

180 N.W. 821

MATUSCHKA

v.MURPHY ET AL.^a1

Supreme Court of Wisconsin.

Jan. 11, 1921.

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

Action by R. C. Matuschka against W. B. Murphy and Norvin Stromberg. From judgment for plaintiff, defendants appeal. Reversed and remanded.

The defendant W. R. Murphy was a dentist in the practice of his profession at Milwaukee and had been such for a number of years prior to December 1, 1918. The defendant Stromberg had been in his employ for about a year and a half prior to that date, at which time he was in charge of his office; the defendant Murphy being on his vacation. On Saturday, November 30th, the plaintiff, who was then suffering with a previously developed toothache, called at the office for dental advice and services. The plaintiff testified that there was a swelling of the gum in the region of the first molar of the left jaw. Stromberg extracted the tooth. Before extracting the tooth he injected a 2 per cent. novocaine solution for the purpose of deadening the peripheral nerves. Plaintiff testified that the needle was first injected into his lip and, without resterilization, was injected into the swollen gum. Stromberg denied that the needle was injected into plaintiff's lip and denied that the gum was swollen. He divided the tooth and took it out in two parts. A pus sac was attached to the first root, but none to the second. He did not curette the socket, but washed it out with boric acid and swabbed it liberally with iodine.

Plaintiff returned Monday morning and there was more swelling. The infection had traveled forward. Stromberg washed out the socket thoroughly and painted it with iodine, gave instructions to keep it clean, and directed plaintiff to return in the afternoon. In the afternoon the same procedure was followed. Tuesday morning plaintiff again called at the office; the swelling was still present down deep, but not alarming. He again washed it out with boric acid and painted it with iodine, and did the same thing on Tuesday afternoon. Plaintiff returned Wednesday, when it looked as though the swelling would open on the face, and Stromberg then referred him to Dr. Wenker. Dr. Wenker discovered a serious infection, with a high temperature and pulse. He curetted the socket from which the tooth had been extracted, made liberal incisions through the cheek and gum, put in packing, and, eventually, removed seven of the lower front teeth and portions of the jawbone.

This action was brought by the plaintiff against the defendants to recover damages, on the theory that the serious consequences resulting from the infection were due to the improper practice of the defendant Stromberg in the extraction of the tooth and subsequent treatment. The case was tried before a jury and the following special verdict returned: (1) That Dr. Stromberg in his treatment and care of the plaintiff failed to use such reasonable care and skill as was ordinarily possessed and exercised by dentists in good standing, of the same system or school of practice, in the city of Milwaukee in November and fore part of December, 1918; (2) that such want of care and skill was the proximate cause of plaintiff's injuries; and (3) damages $10,000. Upon motion made after verdict, the court gave plaintiff the option of taking judgment for $4,745 or a new trial. Plaintiff elected to take judgment for the reduced amount, and from the judgment so entered the defendants bring this appeal.

Lines, Spooner & Quarles, of Milwaukee, for appellants.

Martin J. Brennan, of Milwaukee (Timlin & Dean, of Milwaukee, of counsel), for respondent.

OWEN, J. (after stating the facts as above).

[1] The jury found that Dr. Stromberg, in his treatment and care of the plaintiff, failed to use such reasonable care and skill as was ordinarily possessed and exercised by dentists in good standing, of the same system or school of practice, in the city of Milwaukee in November and fore part of December, 1918. Fault is found with this question because it did not disclose the respect in which the jury found that Dr. Stromberg failed in the use of reasonable care and skill. Upon the trial it was contended that he was negligent in four respects: (1) Failure to resterilize the needle after injecting it into plaintiff's lip; (2) that the anæsthetic was injected into an infected area; (3) that he did not curette the tooth socket after extracting the tooth; and (4) in failing to send the plaintiff to a surgeon until the fourth day after the extraction. It is apparent that the form of the question is such that the jury might have agreed that Stromberg failed to use the requisite degree of care and skill and yet they might not have agreed on the particular in which he failed. Under the circumstances proper practice required that the question be so framed as to indicate in what respect the jury agreed that there was a failure on the part of the defendant Stromberg to use reasonable care and skill. As the question and answer stand, it cannot be said that the jury agreed that he was negligent in any one of the four particulars urged.

It is the function of a special verdict to secure a finding by the jury on each question litigated. In negligence cases each ground of negligence constitutes a distinct litigated question, and proper practice requires that the jury be given an opportunity to find specially with reference to each particular ground of alleged negligence. This cannot be accomplished by the submission of an omnibus question in which the jury is required to find generally upon the question of negligence. Such verdicts have been sustained in cases where negative answers have been returned to the general question of negligence and the jury were instructed that if they found certain facts to exist they should answer the question in the affirmative, as in Kadolph v. Town of Herman, 166 Wis. 577, 166 N. W. 433. In such cases the finding of an absence of negligence presents a different question from that resulting in case of an affirmative finding. The negative answer indicates that in the minds of the jury none of the alleged grounds of negligence was proven. In the case of an affirmative answer some of the jury might have concluded there was negligence upon one ground and some upon another, resulting in a situation where all of the jurors agreed that there was negligence but did not agree upon the grounds thereof. He who is charged with negligence in several particulars is entitled to have a finding of the jury upon the existence of every set of facts upon which negligence is predicated.

While we merely pause here to comment upon the form of this question, and to suggest that it would have been preferable practice to have subdivided the question or to have so framed it as to require the jury to indicate the particular respect in which the defendant failed to exercise proper care and skill, we find it unnecessary to determine whether the form of the question constituted reversible error, as our disposition of the case will...