Stewart v. Rudner

• Decision Date: 04 September 1957
• Docket Number: No. 39,39
• Citation: 84 N.W.2d 816,349 Mich. 459
• Parties: Celie Lois STEWART, Plaintiff-Appellee, v. Murray A. RUDNER and Paul C. Bunyan, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 816

84 N.W.2d 816

349 Mich. 459

Celie Lois STEWART, Plaintiff-Appellee, v. Murray A. RUDNER and Paul C. Bunyan, Defendants-Appellants.

No. 39.

Supreme Court of Michigan.

Sept. 4, 1957.

Burroughs & Milliken, Flint, Snider, Feikens, Dice & Thompson, Robert E. Dice, Detroit, for appellant.

Donald R. Freeman, Flint, for appellee.

Before the Entire Bench.

SMITH, Justice.

Mrs. Stewart, plaintiff herein, had conceived. Though she was a relatively young woman, at least in comparison with her husband, who was 63 (she was only 37), she was disturbed and apprehensive that she might not be able to have the child. She had had two previous stillbirths and she was convinced that she could not normally deliver. As she put it, 'I know I couldn't go through normal.' Yet more than anything else, she testified, she 'wanted a sound, healthy baby.'

A solution, however, suggested itself to the couple. They would have the baby delivered by a Caesarean section, ¹ thus avoiding what they conceived to be the hazards of a normal delivery. (We will, in this resume of the facts, construe the controverted testimony most favorably to plaintiff under the assignments of error here made. Dempsey v. Miles, 342 Mich. 185, 69 N.W.2d 135.) Consequently, when she and her husband consulted the defendant, Dr. Paul Bunyan, licensed in Michigan as an osteopathic physician and surgeon, they told him that they 'thought that a Caesarean operation would be absolutely necessary.' (As a matter of fact the record contains language much more suitable to the urgency and the apprehension felt. 'We demanded,' testified Mr. Stewart, 'that Dr. Bunyan perform a Caesarean operation.') The doctor replied that he was not qualified to perform it but that 'Dr. Kesten was the operating physician in the hospital,' and, he said, according to Mr. Stewart, 'he would see to it that Dr. Kesten was available and that a Caesarean would be performed.' Mrs. Stewart, plaintiff, is equally clear. 'We told him,' she said, 'we wanted it taken; he said I would labor for a while and that the other doctor would take--Dr. Kesten would take.' There can be no doubt that such a contract was made. The subject of Caesarean section was discussed not once, but 'each and every time' that Mr. and Mrs. Stewart consulted with the defendant. Dr. Bunyan himself testified, 'I knew Mrs. Stewart wanted a Caesarean. I knew also of the possible problems in the delivery of this child.'

During the period of gestation Mrs. Stewart saw Dr. Bunyan regularly. In June of 1953 he told her to have X-rays taken. The X-ray specialist, Dr. Brammick, reported as follows:

'Exhibit D. (Bearing the signature of Paul C. Brammick).

'June 27, 1953--'Obstetrical consultation is suggested to evaluate this patient because of the age.''

Dr. Brammick also reported, at this time, 'that the baby was eight months in development.' It was only in the preceding month, however, on May 8, 1953, that the defendant had finally concluded that Mrs. Stewart was in fact pregnant. Although his office records listed October 13, 1952 (some 7 months prior thereto), as the first day of her last menstrual period, Dr. Bunyan explained that he was not sure she was pregnant ('I don't stick my neck out until I know for sure') since she might merely have been going through her menopause 'and this fools many doctors.' There was an additional X-ray examination on August 11th. At this time Dr. Brammick reported that 'it was not exactly at term, but it was approaching term, which would bring it in at a two or three week period.' (By 'term' the doctor meant 'the time in the carrying of the baby when the baby has reached its full growth and it would be about ready to deliver.') He also reported that 'the mother had average measurements on her pelvis and that the head was a borderline case at the mid-plane.' He again advised obstetrical consultation (Ex. E: 'O. B. Consultation is recommended'), but again no such consultation was had.

We come now to the date of September 4th. It was the belief of Mr. and Mrs. Stewart, that, at this time, she was long overdue. As a matter of fact, it was their belief that the baby had come to full term in July, and they so informed defendant. 'We visited Dr. Bunyan in July of 1953 and we gave him the lapsed period of time and told him that we were very much concerned because the time was at hand, practically so.' He told them not to worry, 'that everything was normal and in good condition.' They were back in August, 'my wife had not yet delivered.' Again the Caesarean was discussed, but the operation was not performed.

On the morning of September 4th Mrs. Stewart's pains commenced. (She entered the hospital late that night, complaining of labor pains which had become more severe.) She and her husband again returned to Dr. Bunyan. They told him of the onset of her pains and expressed concern over her failure to deliver. They asked Dr. Bunyan why delivery was not made 'at the regular period.' He told them not to worry and 'to go home.' At this time, testified Dr. Bunyan, 'the baby was alive.' The fetal heart tones were audible, were normal, and sounded 'quite strong.' They were, however, the last heard. Exhibit H tells the story: 'White female admitted to the hospital 9-5-53 at 2:30 a. m. Fetal heart tones not heard.' Dr. Bunyan testified that, 'As far as I know,' the interne did not call him at that time, or, in fact, at any time prior to his arrival at the hospital at nine that morning. He then, as he says, 'looked at the chart on Mrs. Stewart' and told Dr. Rudner (the head of the obstetrical department at the hospital) 'You take care of this case. It is a rather unusual case in that she needs a specialist on the case.' He did not, however, according to his own testimony, talk with Dr. Kesten about a Caesarean, nor, indeed, did he even apprise Dr. Rudner 'that there had been an discussion between myself and the Stewarts regarding a Caesarean operation. I did not consider it important to tell him that. I probably told him about the background of the case, but I can't guarantee that I did.' Dr. Rudner is equally vague. 'I do not remember,' he testified, 'whether Dr. Bunyan gave me a run-down on this case when we first conferred.' The hospital records, however, seem explicit as to whether or not there could be a successful normal delivery:

'Exhibit A. (Containing the signature of Paul C. Bunyan).

'Q. Do you expect a normal delivery in this case? A. No. Doubtful at least.

'Q. If not, why? A. Two previous stillborn babies, plus her age as a big factor.'

'Exhibit B. (Dated September 5, 1953).

'Q. Previous obstertric history, abortions, months of pregnancy cause. A. One stillbirth at 9th month, one miscarriage at 6 months.

'(In Dr. Bunyan's handwriting):

'Uterine pregnancy full term, outlook for labor fair to bad. Stillborn babe delivered.'

In the early afternoon of that same date, around one p. m., Dr. Rudner examined the plaintiff for the first time. 'At that time,' he testified, 'I could pick up no fetal heart tones and I considered that I had a dead fetus.' He left instruction for her care and about ten o'clock that night he delivered her, after performing what is described as an episiotomy, a surgical cut or incision to facilitate delivery and prevent tearing. The child was dead.

Suit was brought by plaintiff against Dr. Bunyan and Dr. Rudner. The declaration contained two counts. The first, against Dr. Bunyan alone, was for breach of contract, it describing, as well, the allegedly unauthorized operation (episiotomy) performed by the other defendant, Dr. Rudner. The second, against both doctors, sounded in tort for assault and battery. At the close of plaintiff's opening statement, motion to dismiss for misjoinder of parties defendant was denied. At the end of all proofs the court, upon motion, dismissed the second count 'and that part of the first count that has to do with the operation performed by Dr. Rudner.' The case went to the jury 'on the question of whether or not plaintiff has shown by by a preponderance of the evidence in spite of the experts' testimony that a Caesarean was agreed to and if agreed to should have been performed and whether or not the damages which the plaintiff received was a result of the failure to so do.'

The jury returned a verdict of $5,000 for the plaintiff against Dr. Bunyan, and he comes to us on a general appeal. He argues, primarily, that there is a fatal defect as to damages. 'The record is barren,' he says, 'as to any showing that (my) failure to have a Caesarean performed on this plaintiff in any way caused the loss of the baby.' Moreover, he says, the court was in error in denying his request that the jury be charged that they were 'not permitted to award damage to the plaintiff for whatever grief or injury she sustained because her baby was not born alive.' This is amplified in the brief. 'Damages, if any,' it is there said, 'are restricted to those damages which were the direct result of the breach, and such as may be fairly supposed to have been in the contemplation of the parties when the contract was made.' So, we agree, they are.

We will first consider appellants' assignments of error involving the award of damages, in an action ex contractu, for mental anguish, grief and sorrow. Specifically, it is claimed that the court erred in refusing the following charge to the jury:

'I charge you that damages, if any, cannot be awarded for sorrow and grieving caused by the loss of plaintiff's child in that such grieving and injured feelings are too remote to be considered an element of damages.'

There is ample support in the cases and in the texts for the proposition stated. Few areas of our law, however, are more shrouded in mists of history and of doubt than this area of recovery for mental distress, for grief, anxiety, or sorrow. Dean Pound reminds us (An Introduction to the Philosophy of Law, 241) that 'Law did not concern itself at first with...