Rhodes v. Lamar
| Decision Date | 09 September 1930 |
| Docket Number | 19112. |
| Citation | 292 P. 335,145 Okla. 223,1930 OK 391 |
| Parties | RHODES v. LAMAR et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 14, 1930.
Syllabus by the Court.
Petition held to state cause of action in tort against surgeons for negligently permitting light bulb to go down patient's throat and lodge in lung; each surgeon taking part in operation became liable for own conduct and wrongful acts or omissions of other observed without objection.
Where plaintiff's petition alleged that two defendants practicing physicians, were employed to remove his tonsils and that, after putting him under an anæsthetic, they so negligently handled themselves and their instruments that one of said instruments--a glass light bulb--passed down plaintiff's throat and lodged in his lung, causing grave injury, that all said acts of negligence of defendants were concurrent and commingled and caused said injury, the action is one in tort; and since defendants served together by mutual consent, each became liable for his own conduct and for the wrongful acts or omissions of the other which he observed and let go on without objection, or which, in the exercise of reasonable diligence, under the circumstances, he should have observed.
Persons whose combined negligence causes injury are jointly and severally liable.
Where an injury is the product of the combined negligence of several persons, such persons are jointly and severally liable to the person injured, and suit may be maintained against either one or all of such wrongdoers.
Motion to make petition more definite and certain is addressed to trial court's sound discretion, exercise of which is reviewable only for abuse.
A motion to make a petition more definite and certain is addressed to the sound judicial discretion of the trial court, and a ruling thereon, in the absence of an abuse of such discretion which results prejudicially to the party complaining, will not be disturbed.
Petition based on surgeons' negligence in permitting light bulb to become lodged in patient's lung held sufficient as against motion to make more definite.
Record examined; held that the denial of defendant's motion to require plaintiff's petition to be made more definite and certain was not error.
Extent of examination of juror on voir dire is largely within trial court's sound discretion, exercise of which is reviewable only for clear abuse.
The extent to which the examination of a prospective juror on his voir dire may be pursued is, in large measure, within the sound discretion of the trial court, and its action thereon except in a clear case of abuse, will not be disturbed.
Permitting plaintiff to ask juror on voir dire if he would be willing to award compensation adequate to cover damage shown held not abuse of discretion.
Record examined; held that the court did not abuse its discretion in allowing the examination on voir dire of the prospective juror in this case.
Permitting testimony of statement by one of surgeons as to how light bulb might have come into patient's lung held not reversible error.
Under the circumstances in paragraph 1 hereof it is not reversible error for the court to permit the plaintiff to detail a statement of one of defendants as to how the glass light bulb might have gotten into plaintiff's lung, where this statement was made to plaintiff in the presence of the other defendant.
Permitting plaintiff suing surgeons for negligence to testify respecting his treatment in hospital after suit brought held not error.
Under the facts and circumstances set out in paragraph 1 hereof, it was not error for the court to permit the plaintiff to testify as to his treatment in a hospital after suit brought under the record in this case
Where injuries alleged are of such severity as necessarily to import loss of time, direct averment thereof is unnecessary.
Where the injuries described in a petition are of such nature and of such severity as to necessarily import a loss of time, the direct averment thereof in the pleadings may be dispensed with.
Petition alleging surgeons' negligence in permitting light bulb to lodge in patient's lung held not demurrable.
Record examined; held that demurrers to petition and evidence in support thereof were properly overruled.
Refusing instruction that no charge of negligence could be maintained against surgeons for not caring for patient after completing operation and removing tonsils held not error.
Under the facts and circumstances set out in paragraph 1 hereof, it was not error for the court to refuse defendant's requested instruction to the effect that no charge of negligence could be maintained against either of defendants for not caring for plaintiff after the completion of the operation and removal of his tonsils.
Generally it is not good practice to formulate issues by reading at large from pleadings; trial court's action in formulating issues by reading from petition held not to require reversal, where defendants offered no instructions and were not prejudiced.
While, as a general rule, it is not good practice for the court to formulate the issues by reading at large from the pleadings of the parties, nevertheless, where the complaining party has offered no instructions correctly setting out the issues to be submitted, and where it appears that no prejudice has been suffered on account of the method of stating the issues as above indicated, the cause will not be reversed.
Any error in using word "negligence" instead of "injury" in instruction defining surgeons' duty to patient held favorable to surgeons, and they could therefore not complain.
Where the court instructs the jury that to entitle plaintiff to recover for negligence and injury there must be first "the existence of a duty on the part of defendants to protect the plaintiff from negligence, ***" and where the defendant contends the charge should have been "the existence of a duty on the part of defendants to protect the plaintiff from injury," held that, since the word "injury" is a broader term than "negligence," there is no error of which the defendants may complain.
Giving instruction authorizing recovery for permanent injuries and future pain held not reversible error, notwithstanding lack of pleading or evidence thereon.
Under the facts and circumstances set out in paragraph 1 hereof, where the court instructed the jury that, if they shall find for plaintiff, they might consider as an element of damage whether or not the injury was permanent, and also whether or not the plaintiff would suffer future pain, held that, since no proper instruction to the jury was requested by the defendants on this point, no lack of pleading or evidence to support the same called to the attention of the court, and since the court is of the opinion that the jury was not misled thereby under this record, and since the amount of damage is not excessive, such instruction does not constitute reversible error.
Additional Syllabus by Editorial Staff.
$8,000 verdict for injuries to health, suffering, and loss of time to 24 year old man caused by surgeons' negligence held not excessive.
At time of his operation plaintiff was a robust young man of fine health. Almost immediately after removal of his tonsils he developed a persistent cough accompanied with expectoration of blood and mucous and frequent and dangerous hemorrhages. More than a month later it was discovered by X-ray examination that a broken electric light bulb was lodged in plaintiff's lung, as result of which foreign substance he was reduced from robust health to such a condition that he could not travel safely alone, but required the help of a practical nurse and was forced to undergo two major operations.
Commissioners' Opinion.
Appeal from District Court, Tulsa County; Luther James, Judge.
Action by Francis C. Lamar against R. E. L. Rhodes and another. Judgment for plaintiff, and named defendant appeals.
Affirmed.
A. J. Biddison, Harry Campbell, Valjean Biddison, and John H. Cantrell, all of Tulsa, for plaintiff in error.
A. F. Moss and H. R. Young, both of Tulsa, for defendants in error.
Francis C. Lamar, age 25 and by occupation a stenographer and clerk, sued R. E. L. Rhodes and P. C. Geissler, physicians and surgeons, to recover damages upon the theory that they, while removing plaintiff's tonsils, negligently permitted a glass light bulb to find its way into plaintiff's lung by which he was gravely injured. The jury found against the defendants, and R. E. L. Rhodes alone appealed.
The petition is in the usual form alleging that plaintiff employed defendants, duly licensed physicians in Tulsa, to remove his tonsils; that defendants placed plaintiff under an anæsthetic and negligently permitted an electric light bulb used by them in the operation to become unfastened from the instrument to which it was attached and pass into plaintiff's lung; that the defendants so negligently manipulated said device in the mouth and throat of plaintiff as to cause same to come loose; that after the bulb became detached they negligently failed to discover and properly remove same, and that defendants also negligently failed to advise plaintiff after they knew the bulb had passed down his throat, but wrongfully denied knowledge thereof; that after its escape into plaintiff's lung the glass bulb became broken into many pieces, set up extreme inflammation resulting in continuous coughing and expectoration of blood and sputum; that defendants advised plaintiff that these symptoms indicated that plaintiff's uvula was enlarged and advised its amputation, and this plaintiff had done without benefit. That on November 20, 1926, an X-ray disclosed the glass in the lung, and plaintiff,...
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