Pendergraft v. Royster

• Decision Date: 26 October 1932
• Docket Number: 249.
• Citation: 166 S.E. 285,203 N.C. 384
• Parties: PENDERGRAFT v. ROYSTER.
• Court: North Carolina Supreme Court

166 S.E. 285

203 N.C. 384

PENDERGRAFT v. ROYSTER.

No. 249.

Supreme Court of North Carolina

October 26, 1932

Appeal from Superior Court, Wake County; Cowper, Special Judge.

Action by Lottie McMillan Pendergraft against Dr. H. A. Royster. From the judgment for plaintiff, defendant appeals.

No error.

Jury and not court are triers of disputed facts.

This was a civil action for actionable negligence, instituted by plaintiff against defendant, in which she alleges damages. The plaintiff contends, and it is admitted by the defendant that in January, 1929, she submitted herself to Dr. W. B Dewar, of Raleigh, N. C., for a thorough examination, and that plaintiff consulted the defendant and after an examination by the defendant the defendant advised an operation, and that defendant operated upon plaintiff at Rex Hospital in the city of Raleigh.

The plaintiff testified, in part: "We have one little girl who is five years old; after the birth of this child I have had physical trouble. *** I went to see Dr. Dewar and he made a physical examination, and in consequence of what he told me Iconsulted Dr. Royster. When I went to Dr. Royster's office he gave me a physical examination, and he told me that my womb was misplaced, and in my then condition that it would be impossible for me to give birth to a child and he told me that the pain I was suffering was probably coming from my womb--that it was misplaced--fallen and I had lacerations that should be attended to, and several other things should be done, and that I should be operated upon as soon as possible. This was in January, about the middle of January, 1929, I believe, and I asked him if he thought it would be all right to wait until March and he said he thought it should be done immediately, and I asked him what he meant by immediately, and he said he thought if I could possibly do so I should go tomorrow night and he would operate on me Thursday morning. *** I went to the hospital on Wednesday night and was operated on on Thursday morning. *** He made an incision in my right side and it looked as though it might have been for the appendix; it is about four inches long. Before I was operated on I was told that it would be a middle line incision, and when I found that it was not I asked Dr. Royster about it and he said that he had made all repairs and done everything through that incision that could not be done through the vagina. I was carried back to the room. *** I seemed to be improving and went home in two weeks. After I got home I was in bed part of the time and up part of the time. I began to feel very much better and I was very well pleased with my condition, and I thought I was going to be rid of my suffering and I felt well for two or three months, and I think it was sometime in April. *** I walked out in the yard and picked up a rake, and ran a little trench for planting flower seed, and as I bent over I had a pain that struck me in the bottom of my stomach; in my body from the waist down, and it seemed to be in the very bottom of my stomach. *** I sat on the edge of a chair and placed my finger on the mouth of my womb and I felt something touch it it felt like a wiry hair, and I thought it was one of the things that they used in sewing up lacerations with, and I had taken them out before on several occasions, and I kept working it more and more and it went back so far I would not touch it at all, and then again I sat down in the same position and strained myself, and I worked at it until it slipped out in my hands, and I still thought it was one of those things that they used to sew up with, and when I looked at it I could not tell what it was, it was covered with a filmy mucus, and I wiped it off and it was a jagged piece of glass; it was a piece of glass almost an inch long with jagged ends, and it looked like it had been part of a tube, and it was rounded. It was concave and it was not flat, and almost one inch long with jagged edges. This was right after lunch. I took the piece of glass; I could not believe that it was glass, and I kept rubbing and looking at it, and I thought what should I do, and I was in the house alone. I think I laid the piece of glass on the mantel, and I wondered if I should call my husband, and it occurred to me that it would worry him. I laid the piece of glass down and I walked around the house all Sunday afternoon; I did not go out of the house, and just could not get myself composed. *** I went to bed about eight o'clock and I dropped off to sleep, and the next thing I knew my husband was standing over me, asking me what was the matter; this was between eight-thirty and nine o'clock. He brought Dr. Royster with him. Dr. Royster came that night about an hour after my husband telephoned. He brought Dr. Dewar with him. When they came in the room I was in bed, and Dr. Royster spoke to me kindly and asked me how I was feeling, and he asked me to tell him how I was feeling and how it happened, and I told him beginning with Saturday afternoon, and he said 'I will make a slight examination now and see if I can tell whether or not there is more glass,' and he did, and after he did that Dr. Dewar sat down by the side of my bed and Dr. Royster was at the foot, and after they sat there and talked about it, and they said they could not understand how it was, and what it was, they asked to see the glass; any way my husband brought it and started to put it into the hands of Dr. Royster and Dr. Dewar took it, and they both looked at it, and Dr. Dewar was by the table and he laid it down and he said it looked like a capsule, and I do not know what instrument he had in his hands, but he began to crunch that instrument with the piece of glass, and he talked about what it could be, and I reached over and took the glass up and handed it back to my husband, and Dr. Royster said 'you need not worry because there is no more there, and you just go to sleep and come to my office tomorrow and let me make a thorough examination.' The next morning I went to his office. When I got to his office he said there was no use to make an examination because an examination would not reveal anything, and he said 'the only reason I examined you last night was to relieve your mind, I wanted you to feel that it was all right,' and he was sympathetic and kind to me. *** I said how about having another operation, and he said I cannot guarantee that it would be found if it were there, and he said you can rest assured that there is no more glass. I went back home. About a month after that during a menstruation peried I felt a piece of glass in an article of clothing, and I looked at it and it was a small piece of glass of the same kind. At three or four other times more came. I suppose it has been a year ago since the last piece came, it continued for about a year. *** I think it was about the last of April this glass came from my womb. *** I was in bed and I proceeded to tell Dr. Dewar and Dr. Royster about my complaint, and exhibited to them the piece of glass which came from my womb. Dr. Dewar broke the glass; I don't remember what he used, he laid the glass down on the table and pecked off the end, and I do not know whether he did that with his thumb or knife. I did not pay any attention to what he did it with. I don't remember how much he crushed off but my first impression of the piece of glass was that it was almost an inch long, and it was about one-half inch long when he handed it back to me."

Ralph Pendergraft, the husband of plaintiff, testified, in part "I know about this piece of glass my wife testified about. I was in the living room on Sunday night and my wife had gone to bed, and I was reading, and it was probably between eight and nine; it might have been a little later than nine, I am not positive, and I heard her sobbing, and I went in and she said she was worried, that she had passed a piece of glass that afternoon, and she showed it to me, and I went to the phone and called Dr. Royster right then. I told him that I wanted him to come to my house immediately and he said 'what is the matter,' and I said 'my wife has passed a piece of glass,' and he said 'that is a case for your family physician, Dr. Dewar, and not for the surgeon,' and then I told him that it came from the place where he operated on and he said 'where,' and then I told him that I rather not tell him over the phone, and he said he would come right then, and he came in about an hour and Dr. Dewar was with him. When they came in they asked me what was the trouble and I told them that she had found this piece of glass around the mouth of the womb. I think it was about an inch long. It was rounded on the bottom, and it was part of a glass tube, and the end tapered like a tube, I mean like a pen point. *** Dr. Royster came in and Dr. Dewar was with him, and sat down by the bed. Dr. Royster spoke to her and asked her how she was feeling, and she told him and he asked to make an examination and she let him make the examination, and Dr. Dewar said it was impossible to pass that piece of glass that way, and Mrs. Pendergraft said she took it out of the mouth of her womb, and he said 'You could not, you could not touch the mouth of your womb,' that it is impossible, and Dr. Royster said 'I guess she could' and he says that she knows her anatomy pretty well, and Dr. Royster said 'Let's see the piece of glass,' and Dr. Dewar took it and said 'I believe it is glass,' and he said it looked like a piece of capsule at first, and he sat down and started to break it up with some instrument, pick the edge off, and I was on the other side of the bed, and Mrs. Pendergraft reached over and got it and I put it in a little box and put it on the dresser. *** The piece of glass my wife showed me had evidence of blood on...