Ruth v. Johnson

• Decision Date: 16 August 1909
• Docket Number: 2,967.
• Citation: 172 F. 191
• Parties: RUTH v. JOHNSON.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F. 191

RUTH v. JOHNSON.

No. 2,967.

United States Court of Appeals, Eighth Circuit.

August 16, 1909

H. C Kenline and W. C. Howell (R. P. Roedell, on the brief), for plaintiff in error.

W. R C. Kendrick and B. F. Jones, for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

Johnson brought this action against Ruth to recover damages which he claims he suffered by reason of the negligent performance of an operation upon himself by Ruth for appendicitis. The act of negligence specified in the petition is that Ruth unskillfully, negligently, and inattentively permitted a sponge or pad of gauze about 24 inches long and 9 inches wide to remain in the abdominal cavity of Johnson after the sewing up of the wound. Johnson recovered a judgment in the trial court, and Ruth has removed the case here to secure a reversal thereof. Numerous errors are assigned to the rulings of the trial court. The point most seriously urged for reversal is the refusal of the trial court at the close of all the evidence to direct the jury to return a verdict for the defendant. This renders it necessary to review the evidence given at the trial.

There is evidence in the record from which the jury would be fully justified in finding the following facts:

On March 30, 1907, at Keokuk, Iowa, Ruth for a consideration agreed upon, at the request of Johnson, performed upon the latter an operation for appendicitis. When Ruth opened the abdomen, he found extensive adhesions caused by frequent recurrences of the attacks of appendicitis. He immediately placed pads of gauze in the opening to wall off the infected area. The appendix was then brought up, the secum with it, and as the appendix was brought up the sack ruptured, and Ruth called to his assistant Blakenship to get a pad quick. The assistant got the pad, and Ruth called for another. Another pad was gotten and placed in the body. Ruth did not remember how many pads he put into the abdomen. Johnson's case is one known to surgery as a pus case. When Ruth had finished the operation, the sponges or pads of gauze that were removed from Johnson were dropped into a tub. At the time of the operation a stab drain was put in so as to give a direct outlet from the cavity. About two weeks after the operation while Johnson was still being treated by Ruth a lump formed at the lower end of the main incision, and kept getting larger until it was about the size of a hen's egg. Ruth was informed of the lump, and upon examination decided it was an abscess. The lump or abscess was opened by Ruth, and blood and pus came therefrom. Ruth mopped out the blood and pus ran the handle of his knife in the opening, probed open the stab wound, and placed a tube in the abscess wound. Johnson remained at the hospital until May 2, 1907. When Johnson left the hospital at Keokuk, he went home to Lockridge, Iowa, and was there cared for by one Dr. Morrow who examined his wounds, and found that the abscess wound extended down into the abdominal cavity. Pursuant to instructions contained in a letter which Johnson brought from Ruth, Morrow each day treated the abscess wound and the stab wound with pieces of gauze, one-fourth of an inch wide and four or five inches in length. Sometimes the pieces of gauze were eight or ten inches long, but narrow. The discharge from the abscess wound and stab wound increased until about four weeks after Johnson went home, when Morrow called Ruth over the telephone and told him that the wounds were discharging worse than when Johnson came home, and asked for advice. Ruth told him to keep the drain in and Johnson would get along all right. Morrow did so, but the discharge kept getting worse, and on June 1, 1907, Morrow did so, but the discharge telephone and told him Johnson's condition was getting worse, and that there certainly must be something wrong. About July 1, 1907 Johnson became deathly sick and began vomiting. The odor from the abscess wound was something awful. It was...