Moehlenbrock v. Parke, Davis & Company
| Decision Date | 29 November 1918 |
| Docket Number | 21,034 |
| Citation | 169 N.W. 541,141 Minn. 154 |
| Parties | FRED J. MOEHLENBROCK v. PARKE, DAVIS & COMPANY AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Blue Earth county by the administrator of the estate of Albert R. Moehlenbrock deceased, against Parke, Davis & Company, a corporation, John P. Rosenwald and Roy M. Andrews, to recover $7,500 for the death and funeral expenses of his intestate.
The complaint, among other matters, alleged that the individual defendants, as physicians and surgeons, undertook to operate upon the intestate and for such purpose they administered to him certain ether as an anaesthetic which had been manufactured by defendant corporation as safe and suitable for such use; that the ether was in an unsafe, poisonous and deadly condition, was dangerous to human life and not fit for use as an anaesthetic, as defendant corporation knew or ought to have known, and by reason of its condition the use of the ether was one of the contributing causes of the death. It also alleged that the individual defendants disregarded their duty to perform the operation skilfully and without negligence, and so unskilfully and negligently administered the ether and performed the actual operation that the negligent and unskilful use of the instruments and ether was one of the contributing causes of the death of the intestate that the negligent acts of the defendant corporation and the unskilful conduct of the individual defendants concurred in causing the death.
The separate answer of the defendant corporation specifically denied that it at any time manufactured, advertised and exploited as safe and suitable for use as an anaesthetic, or sold or placed on the market, any ether whatever save only ether intended to be used only by physicians, surgeons dentists and veterinarians duly qualified and competent to determine in each instance whether it would be proper and safe to administer ether. The answer specifically denied that the death of the intestate was caused, or contributed to, by the presence in the ether of any ingredient which it should not have contained.
The case was tried before Comstock, J., and a jury. When plaintiff rested the motion of defendant corporation for dismissal of the action or for a directed verdict was denied as was the motion of defendant corporation for a dismissal of the action against the individual defendants or for a directed verdict in their favor. At the close of the testimony motions for directed verdicts in favor of the various defendants were denied. The jury returned an affirmative answer to the question whether defendant corporation was negligent in the preparation and marketing of the ether administered to the intestate, and to the question whether the death of the intestate was due to the negligence of the individual defendants, and returned a general verdict for $5,000 in favor of plaintiff. From an order denying its motion for dismissal of the action, or for judgment notwithstanding the verdict, or for a new trial, defendant Parke, Davis & Company appealed. Affirmed.
Assignments of error -- references to printed record.
1. The assignments of error and appellant's brief should refer to the place in the printed record where the challenged ruling may be found.
Witness -- cross-examination of hostile witness.
2. Appellant and the other defendants, two doctors, occupied antagonistic positions, to a certain extent, in that plaintiff charged that the separate and distinct acts of negligence of the appellant in furnishing unfit anaesthetic ether, and of the doctors in administering the same, in operating on plaintiff's intestate, caused and contributed to cause his death. And because of such antagonistic positions appellant was accorded a wide range in cross-examining the doctors, even though called by plaintiff for cross-examination, and no just complaint can be made that appellant was unduly restricted in this respect.
Witness -- cross-examination after party has rested.
3. The doctors offered no evidence, resting when plaintiff rested. The court ruled correctly, that after they had so done appellant could not call them for cross-examination. If it desired their testimony they should have been called as appellant's witnesses.
Cause of death -- opinion evidence of attending surgeon.
4. A doctor who has examined a person or has noted his appearance at the time such person goes upon the operating table, who has performed the operation or has been present thereat, who has observed the effects of the anaesthetic administered, and who has been present at intervals until death ensues, is competent to express an opinion as to the cause of death. This is so, even if the doctor admits that the opinion expressed has been corroborated by the information he has obtained from others as to a subsequent analysis of the ether.
Evidence -- identity of ether.
5. The identification of the ether analyzed as that administered to plaintiff's intestate and to a patient of Dr. Liedloff the next day was sufficient.
Evidence -- analysis of ether.
6. The evidence furnished a proper foundation for the introduction of the testimony concerning the analysis of a can of ether by Professor Hortvet and the opinion of experts based thereon.
Introduction of textbook in evidence harmless error.
7. It was error to admit, over objection, pages from a standard textbook, the general rule being that scientific works are inadmissible as substantive evidence, either on direct or cross-examination. But the error must be held harmless for it is not pointed out, nor is it apparent, that the pages so received were at variance with other standard authors read to the jury, by consent, or with the expert testimony of appellant.
Experiments and demonstrations discretionary with court.
8. The admission of experiments and demonstrations is within the discretion of the trial court.
Negligence of surgeon -- imputed negligence -- joint enterprise.
9. The negligence of the surgeons operating cannot be imputed to the patient, so as to relieve a third party whose negligent act has contributed to the patient's injury. Nor is the patient as to such third party engaged in a joint enterprise with the surgeons.
Concurring negligence not a defense.
10. The concurring negligence of one not a party to this suit is not a defense.
Variance.
11. There is not a fatal variance between the complaint and the proof in respect to appellant's responsibility for the ether used.
Pleading and proof of negligence.
12. The jury found concurring negligence; but, even if the evidence did not justify a verdict against the doctors, the allegations of the complaint are such that, when supported by proof of appellant's negligence a recovery against it alone can be had.
Charge to jury.
13. No reversible error is found in the charge.
Verdict sustained by evidence.
14. The verdict cannot be said to rest upon inferences, there is direct and circumstantial evidence to prove the facts involved in the verdict.
Appeal and error -- excessive damages not reviewable.
15. That the verdict is excessive was not raised in the court below, in the manner prescribed by subdivision 5 of section 7828, G.S. 1913, and is not presented by a proper assignment of error in this court.
Daniel Carmichiel and Charles M. Woodruff, for appellant.
Leach & Leach, for respondent.
On March 26, 1914, while being operated on for the removal of his tonsils, plaintiff's intestate died. This action was brought, in behalf of the next of kin, against the two doctors who performed the operation and against Parke, Davis & Company, the manufacturer of the ether used, alleging that the death was caused by the negligence of the defendants. The verdict was against all. Parke, Davis & Company made a separate motion for judgment notwithstanding the verdict or a new trial. The appeal is from the order denying the motion.
It is not possible to notice each of the 128 errors assigned in this record without unduly extending the opinion. All have been examined, but only those deemed meriting attention will be discussed or referred to. Before so doing we must call attention to an omission of appellant's counsel to conform to the usual practice of noting in the assignments of error, and in the brief, the page or folio in the printed record where the error assigned or discussed may be found and examined. Here the assignments of error merely refer to the folios in the printed record where the motion for a new trial is found; and the references in the motion are to the folio or page in the settled case filed in the district court, and not to the folio or page in the settled case as printed. The purpose of the rule, requiring a printed record, is that each member of the court may therein find what did take place relating to the ruling upon which error is assigned. The rule should be observed in such a manner that its purpose may be attained, and especially in a case of the kind now before us where the printed record contains over 1,300 pages and appellant's brief nearly 400.
Plaintiff's intestate, Albert R. Moehlenbrock, was a young man, 21 years old, robust and apparently in good health except for diseased tonsils. He received a few simple treatments for the ailment from Doctor Rosenwald, and then, as a cure, an operation was resorted to. Dr. Rosenwald operated and Dr. Andrews administered the anaesthetic, using a brand of ether manufactured by Parke, Davis & Company. While the ether was being given, it was noticed that the patient became cyanotic, and it was necessary to stop and revive him to some extent before proceeding. After the tonsils were removed, he lapsed into the same condition several times, and...
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