Stokes v. Dailey

• Decision Date: 18 October 1957
• Docket Number: No. 7692,7692
• Parties: Arthur W. STOKES, Plaintiff and Appellant, v. Walter C. DAILEY, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 745

85 N.W.2d 745

Arthur W. STOKES, Plaintiff and Appellant, v. Walter C. DAILEY, Defendant and Respondent.

No. 7692.

Supreme Court of North Dakota.

Oct. 18, 1957.

Rehearing Denied Nov. 15, 1957.

Syllabus by the Court.

1. Where upon a motion for a directed verdict of dismissal made by the defendant, the plaintiff states, 'I'd like the record to show that we resist the motion', such statement constitutes an objection thereto within the meaning of Section 28-1509, NDRC 1953 Supp., and in absence of a request by the plaintiff to submit to the jury a specific issue or issues within the pleadings on which any evidence has been taken, all issues on which evidence has been taken are to be submitted to the jury.

2. A motion for a directed verdict will not be granted where there is an issue for the jury to pass upon under the evidence. Section 28-1509, NDRC 1953 Supp. In determining the validity of the ruling on such motion, the evidence must be considered in the light most favorable to the party against whom the motion is made.

3. Negligence, whether contributory or primary, is a question of fact, never of law, unless the facts from which inference can be drawn admits of but one conclusion.

4. In a jury case, the weight of the evidence and the credibility of the witnesses are for the jury.

5. While a jury may not resort to conjecture or surmise or be permitted to fancy or imagine situations and circumstances which do not appear in the evidence, a jury may consider facts and circumstances proved, and make such just and reasonable inferences therefrom as the guarded judgment of reasonable men would ordinarily make under like circumstances.

6. If a fair preponderance of the evidence discloses facts and circumstances proving a reasonable probability that the defendant's negligence or want of skill was the proximate cause of the injury, the plaintiff has supported his burden of proof sufficiently to entitle him to have the case submitted to the jury.

7. To establish a prima facie case of alleged malpractice where the negligence or want of due care is based upon nontechnical matters, expert medical evidence is not essential.

8. It is held for reasons stated in the opinion that under the evidence appearing in the record it was prejudicial error to direct a verdict for dismissal of the plaintiff's action.

Lyche & Lyche, Grand Forks, for appellant.

Nilles, Oehlert & Nilles, Fargo, for respondent.

JOHNSON, Judge.

This is an action to recover damages for alleged malpractice. Plaintiff is a licensed and practicing attorney in the city of Grand Forks, and the defendant is a licensed and practicing physician in that city. The action is based upon negligence, want of skill or want of due care on the part of the defendant. Defendant denies any negligence and asserts that he performed services for the plaintiff according to his best knowledge and ability and that in so doing he 'conformed to the standard of practice prevailing in the vicinity and area surrounding Grand Forks, North Dakota.' He further alleges that if the plaintiff sustained any loss, injury or damage, the same was due to his own carelessness, negligence and contributory negligence, and asked that the plaintiff's action be dismissed.

This case was tried to a jury. At the conclusion of the presentation of the plaintiff's evidence, the defendant made a lengthy motion in nine parts that the court direct the jury to return a verdict of dismissal of the action. Without setting forth the entire motion, we will refer to those parts of it that are pertinent to the issues involved. The motion generally stated that the plaintiff had wholly failed to prove facts to constitute a cause of action for alleged malpractice. It also dealt with matters that the defendant claimed must be proven in order to state a cause of action for malpractice. We will quote those parts of the motion that go directly to the issue before us.

'(6) That there is no evidence whatsoever that the defendant failed to exercise the ordinary care, diligence and skill in treating the plaintiff that is ordinarily possessed and exercised by general medical practitioners in the Grand Forks, North Dakota area. That there is a complete dearth of medical testimony, and that this is the kind of a case that medical testimony is absolutely necessary to set up a standard of medical practice and care which is to be used in judging Dr. Dailey, the defendant in this case; and in the absence of that medical evidence to show that standard of care or a breach of it, there is a complete failure of proof of any alleged malpractice in this case.

'(7) That the evidence is undisputed by plaintiff's own witnesses, and particularly Dr. Lynch, that the standard of medical practice existing in the Grand Forks area does not require giving a patch skin test by a general practitioner, or even by a specialist in dermatology, before prescribing the use of histadyl and surfacaine in treating the dermatitis or eczemous condition with which the plaintiff was afflicted during the time of the alleged act of malpractice. The evidence of Dr. Lynch is specific, plain and undisputed to such effect, that even in the case of a specialist in dermatology, patch skin tests are not required under the rules, and that this is one of the specific charges of negligence in the complaint, and that such charge has not been proved; in fact, the evidence is directly to the contrary.'

On the basis of this motion the trial court determined that the plaintiff had failed in his proof and directed the jury to return a verdict of dismissal of the plaintiff's action. The jury accordingly rendered such a verdict.

Plaintiff appealed from the judgment of dismissal asserting that the court erred in directing a verdict in favor of the defendant and in ordering judgment of dismissal of the plaintiff's cause of action. At the time the defendant made his motion for a directed verdict of dismissal of the plaintiff's cause of action, plaintiff's counsel stated: 'I'd like the record to show that we resist the motion.'

Section 28-1509, NDRC 1953 Supp. provides:

'Motion for Directed Verdict. When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request.'

The sole and only issue before us is whether or not plaintiff presented evidence which constituted a prima facie case, which he was entitled to have the jury consider, and whether under the evidence it was prejudicial error to grant motion for a directed verdict of dismissal of the plaintiff's action without submitting the matter to the jury as required by the statute.

This action arises, as shown by the record, out of the following factual situation: Arthur W. Stokes, a licensed and practicing attorney in the city of Grand Forks for a period of about 21 years, consulted the defendant, Dr. Walter C. Dailey in April, 1952, about a skin affliction under his armpits that he had had for about 14 or 15 years. The plaintiff had known the defendant about 15 years and had social as well as professional contact with him. The defendant first examined the plaintiff on April 22, 1952. The defendant had practiced his profession in Grand Forks for approximately 16 years. When the plaintiff consulted the defendant in April 1952, the defendant prescribed drugs for his skin affliction known as 'histadyl and surfacaine' made up in the form of a cream-like ointment. This prescription was given to treat the plaintiff's dermatitis or eczema existing under his armpits. The plaintiff made no report to the defendant concerning the use of this prescription from April 22, 1952, to December 14, 1953. On that date he had an appointment for an examination and while there asked the defendant to look at his armpits.

After procuring the prescription in April 1952 he used it only once. It created a burning sensation on the afflicted parts of his skin, so he abandoned its use and went back to using remedies that he had used in the past such as Stag cologne, pragmatar, and rubbing alcohol. In November 1953 he ran out of pragmatar, so he again applied the contents of the prescription first obtained from the defendant in April 1952 to his armpits. He did not know the nature of the prescription. After so doing, he noted a redness which instead of being a small spot under the arm, had increased and gone down the arm partly onto the muscle. So he again threw the prescription back into the medicine cabinet and immediately went out and bought a new supply of pragmatar. He bought this on November 26, 1953.

On December 14, 1953, the plaintiff says he arrived at the doctor's office shortly before noon; that the doctor spoke to him and said that he did not have time to give a physical examination so the plaintiff states that he asked the doctor to look at his arms, that they were bothering him. He does not remember whether he had his shirt off or on, but he does remember that he was in the office only very briefly. The doctor said that he would give him a prescription. When he said that the plaintiff claims that he said, 'don't give me the same stuff you gave me before, because that drives my skin wild.' The defendant denied that the plaintiff ever made such a statement. The defendant, however, gave the plaintiff another prescription which was also 'histadyl and surfacaine'. The prescription contained no identification and the plaintiff used it two times, according to instructions. The first application of the so-called second prescription was used at noon on December 14, 1953, and again during the evening of that day. The plaintiff claims that he slept very little that night as the condition of his arms was bad. The plaintiff then called the defendant, went down to...