Palmer v. Humiston

• Decision Date: 25 February 1913
• Docket Number: 12888
• Citation: 87 Ohio St. 401,101 N.E. 283
• Parties: Palmer v. Humiston.
• Court: Ohio Supreme Court

101 N.E. 283

87 Ohio St. 401

Palmer v. Humiston.

No. 12888

Supreme Court of Ohio

February 25, 1913

Issues of case confined to the pleadings - Plaintiff pleaded contract of defendant - To perform surgical operation - Involving use and removal of sponges - Custom or usage in particular business - Must be specially pleaded - Evidence as to care of nurse inadmissible, when - No issue of agency - Charge of trial court as to defendant's liability - Not prejudicial error, when - Law of pleadings.

1. The issues of a case are defined by and confined to the pleadings.

2. Plaintiff pleaded that defendant contracted to perform a certain abdominal surgical operation, and as a part of such operation, the surgeon used certain sponges and that there was negligence in the use and failure to remove one of said sponges. The answer admits the contract to perform said surgical operation and admits that "in the performance of said operation it was necessary that certain sponges be used."

Held That under the pleadings of this case the use, care and removal of such sponges are a part of the operation contracted for.

3. A special custom or usage in any particular trade, business, or profession, to be available to either party, must be specially pleaded.

4. In the absence of any averment in the answer specially pleading a professional usage or custom as to the care and accounting of sponges by a nurse or other attendant, evidence for the purpose of showing such professional usage or custom is incompetent and inadmissible.

5. In this case there was no issue of agency. The charge of the trial court in that behalf tended to relieve the defendant of his full liability under his contract, therefore he cannot thereafter complain of it as prejudicial error.

The plaintiff, Sarah V. Palmer, avers in substance in her petition that the defendant, William H. Humiston, was a physician and surgeon in the city of Cleveland, county of Cuyahoga, state of Ohio; that she employed the defendant as such physician and surgeon to perform an abdominal operation to reduce a certain abdominal inflammation or remove certain internal organs as might be necessary to bring about the recovery of her health. She further says that the defendant accepted said employment and entered upon the discharge of his duties on or about the 30th day of September, 1907; that defendant ordered plaintiff to be removed to a hospital in the city of Cleveland for the purpose of performing upon her a surgical operation; that thereafter, on or about the first day of October, 1907, he undertook to and did perform a surgical operation upon the body of the plaintiff, opening by the use of surgical knives the abdomen, and, among other things, removed the ovaries and Fallopian tubes from her body.

That defendant, while performing said operation, used and inserted in the opening of her abdomen so made, a gauze or cheese-cloth sponge, for the purpose of said surgical operation, which sponge was made up of and consisted of several layers of cloth gauze, or cheese-cloth; that it then and there became and was the duty of said defendant, in furtherance and performance of said employment, to remove said sponge from said opening and from said abdomen when the purpose for which it had been applied was accomplished.

That the defendant, without the knowledge or consent of plaintiff did carelessly and negligently, and in violation of the obligations and duties of said employment leave said sponge in the opening so made and permitted the same to remain in the abdomen of plaintiff, after its use and purpose in said body had been fully served; that defendant continued to treat plaintiff for a period of about six months during which time he carelessly, negligently, and in disregard of his duties and obligations, failed to remove said sponge and permitted the same to be and remain imbedded in her said abdomen during said period of about six months that by reason thereof she was subjected to and did suffer acute and intense bodily pain and mental anguish during the said period of six months; that said sponge had abraded, worn through, and severely ruptured her intestines, with which it came in contact, and caused her fearful pain and suffering, such as to compel her to suffer a second operation at the hands of another surgeon for the purpose of relieving her condition; that said second operation resulted in finding and removing said sponge; that as the direct result and consequence of defendant's gross negligence and carelessness aforesaid, plaintiff has suffered intense physical pain and mental anguish and become a totally helpless invalid, and been wrecked and ruined physically and mentally, for the rest of her life, all to her damage in the sum of $25,000, for which amount she prays judgment.

The defendant answered to such petition in the following words and figures, to-wit: "Now comes the defendant and for answer admits that at the times mentioned in the petition and for some time prior thereto, he resided and pursued his pro- fession as physician and surgeon in the city of Cleveland, Ohio. That on or about the 23d day of September, 1907, plaintiff was ill by reason of the diseased condition of certain organs, and that on or about said date he was employed by plaintiff and her husband as such physician and surgeon to perform a certain operation upon plaintiff; that afterward, on or about the 30th day of September, 1907, plaintiff was removed to a hospital in the city of Cleveland for the purpose of performing said operation, and that thereafter, on or about the 1st day of October, 1907, said operation was by him performed; that in the performance of said operation it was necessary that certain gauze or cheese-cloth sponges be used; that said sponges consisted of several layers of gauze cloth or cheesecloth; that for a time after the performance of said operation he continued to treat plaintiff. Further answering, defendant denies each and every allegation of the petition, except such as are herein specifically admitted."

Upon these issues the case was tried to a jury in the court of common pleas of Cuyahoga county and a verdict returned in behalf of the plaintiff for the sum of $5,000. A motion for new trial was filed by the defendant, assigning some eleven separate grounds of error. This motion was overruled by the trial judge, and proceedings in error were brought in the circuit court of Cuyahoga county to reverse the judgment of the court of common pleas. The circuit court, after carefully examining all the errors complained of, including "the verdict of the jury herein is not sustained by sufficient evidence and is against the weight of the evidence," found no error in the trial court save and except that "said court of common pleas erred in its charge to the jury concerning the 'right of control as a test to establish agency.' No other error appearing in the record, this cause is remanded to said court of common pleas for further proceedings."

Thereupon Sarah V. Palmer prosecuted error to the supreme court to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.

Mr. F. J. Wing and Mr. E. J. Thobaben, for plaintiff in error.

Messrs. Cook, McGowan & Foote, for defendant in error.

WANAMAKER J.

The pivot of this case is in the particular pleadings, especially the defendant's answer wherein he admits and avers that "on or about said date, to-wit, September 23, 1907, he was employed by plaintiff and her husband as such physician and surgeon to perform a certain operation upon plaintiff; that afterward, on or about the 30th day of September, 1907, plaintiff was removed to a hospital in the city of Cleveland, for the purpose of performing said operation, and that thereafter, on or about the 1st day of October, 1907, said operation was by him performed; that in the performance of...