Rhodes v. Lamar

• Decision Date: 09 September 1930
• Docket Number: Case Number: 19112
• Citation: 1930 OK 391,292 P. 335,145 Okla. 223
• Parties: RHODES v. LAMAR et al.
• Court: Oklahoma Supreme Court

1930 OK 391

292 P. 335

145 Okla. 223

RHODES v. LAMAR et al.

Case Number: 19112

Supreme Court of Oklahoma

Decided: September 9, 1930

Syllabus

¶0 1. Physicians and Surgeon--Liability in Tort of Two Physicians Co-operating in Operation Where Guilty of Negligence.

Where plaintiff's petition alleged that two defendants, practicing physicians, were employed to remove his tonsils, and that after putting him under an anaesthetic 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.

2. Torts--Joint and Several Liability of Joint Tortfeasors.

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.

3. Appeal and Error--Discretionary Rulings of Trial Court--Motion to Make Petition More Definite and Certain.

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.

4. Same--Denial of Motion not Error.

Record examined; held, that the denial of defendants' motion to require plaintiff's petition to be made more definite and certain was not error.

5. Same--Discretion of Court as to Extent of Voir Dire Examination of Juror.

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.

6. Same--Discretion Held not Abused.

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.

7. Physicians and Surgeons--Action for Damages for Negligent Operation--Evidence--Statement by Codefendant Physician.

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 defendant 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.

8. Same--Plaintiff's Testimony as to Treatment in Hospital after Suit Brought Held Admissible.

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.

9. Same--Pleading--Sufficiency of Allegations of Loss of Time from Injuries.

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.

10. Same--Petition and Evidence of Plaintiff Held not Vulnerable to Demurrer.

Record examined; held, that demurrers to petition and evidence in support thereof were properly overruled.

11. Same--Requested Instruction that Defendants Were not Chargeable with Negligence in not Caring for Plaintiff after Operation Held Properly Refused.

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.

12. Appeal and Error--Instructions--Reading from Pleadings Held not Reversible Error.

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.

13. Same--Instructions Confusing Words "Negligence" and "Injury" Held not Material Error.|

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.

14. Same--Instruction on Permanency of Injury and Future Pain as Elements of Damage Held not Prejudicial.

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.

Commissioners' Opinion, Division No. 2.

Error from District Court, Tulsa County; Luther James, Judge.

Action by Francis C. Lamar against R. E. L. Rhodes and P. C. Geissler, Judgment for plaintiff, and defendant Rhodes alone appeals. Affirmed.

A. J. Biddison, Harry Campbell, Valjean Biddison, and John H. Cantrell, for plaintiff in error.

A. F. Moss and H. R. Young, for defendants in error.

BENNETT, C.

¶1 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 globe to find its way into plaintiff's lung by which he was gravely injured. The jury found against the defendants, and R. E. Rhodes alone appealed.

¶2 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 anaesthetic 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 symtoms 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, under advice of defendants, went to Mayo's Hospital at Rochester, Minn., for treatment, and there underwent two operations, one in November, the other in December, 1926, at which time the discoverable portions of the glass were removed; that prior to the removal of plaintiff's tonsils, he was a strong robust man, but by reason of the foregoing his left lung became highly inflamed, lacerated, and torn, and its functions greatly and severely impaired, and that he has suffered continuous and excruciating pain, and that his general health has been substantially undermined; that he has expended in necessary physicians' fees, railroad transportation for himself and attendant, and hospital fees, the sum of $ 727; that his damage is $ 30,727.

¶3 The answers of defendants set up general denial coupled with an admission that they are practicing physicians.

¶4 Twenty-six assignments of error are made. These are presented under eight propositions:

1. It is contended that the trial court erred in overruling the motion of defendants to require plaintiff to make his petition more definite and certain. This motion sought to require plaintiff to set out whether he had a joint or separate contract as to the operation with defendants and the terms thereof. In answer plaintiff contends with force that there, is no proper record showing the overruling of defendants' motion; that same is evidenced only by minutes of the clerk, citing Apple v. American National Bank, 104 Okla. 69, 231 P. 79; Randall v. Wadsworth (Ala.) 130 Ala. 633, 31 So. 555; Courtney v. Moore, 51 Okla. 628, 151 P. 1178; Jackson v. Fennimore, 104 Okla. 134, 230 P. 689; and Lillard v. Meisberger, 133 Okla. 228, 240 P. 1069.

¶5 Our decision adverse to defendants on this point is sustainable upon the broader ground that this is not an action upon breach of contract, but is essentially one in tort based upon negligence in the performance of a medical operation. Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308; Wetzel v. Pius (Cal.) 78 Cal. App. 104, 248 P. 288; Krebenios v. Lindauer...