Taylor v. Milton, 44
| Decision Date | 09 September 1958 |
| Docket Number | No. 44,J,44 |
| Citation | 92 N.W.2d 57,353 Mich. 421 |
| Parties | Willie TAYLOR, Plaintiff and Appellee, v. Samuel B. MILTON, Defendant and Appellant. anuary Term. |
| Court | Michigan Supreme Court |
Edward M. Turner, Detroit, for defendant and appellant.
Walter M. Nelson, Detroit, for plaintiff and appellee.
Before the Entire Bench.
An action of trespass on the case was brought by plaintiff, Willie Taylor, a laborer, to recover damages against the defendant and appellant, Dr. Samuel B. Milton, a practicing physician, resulting from his alleged negligence arising out of an operation performed on March 25, 1952, and his alleged concealment of that negligence from the plaintiff.
Plaintiff being unable to pass his urine went to see the defendant doctor, who inserted a catheter, to which was attached a filiform, through plaintiff's urethra for the purpose of relieving a stricture and thus giving plaintiff relief. During the operation a portion of the filiform broke off from the catheter and ultimately passed into plaintiff's bladder.
The trial court ruled that defendant was not negligent in performing the operation, but submitted to the jury the question of whether defendant concealed from plaintiff his knowledge of the filiform in plaintiff's bladder, and the further question of whether he neglected and failed to continue proper treatment after the mishap. The jury returned a verdict in favor of the plaintiff in the sum of $2,500. The trial court denied defendant's motions for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict. The case is here on appeal from that judgment.
We observe that defendant in his appeal alleges 52 separate grounds of error, most of which are irksomely repetitious. While this scatter-gun approach may possess a certain primitive effectiveness when a man seeks to persuade another to marry his daughter, it secarecely persuades this Court. Such time-consuming and vexingly repetitious matter not only fails to persuade us but could very well have been a serious ground for dismissal of this appeal had we felt disposed or had the appellee made a timely motion to that end. Court Rule No. 70, § 5 [1956]. We will accordingly not burden this opinion by undertaking to discuss all of the allegations of error submitted by the appellant, but only those possible grounds of error which we have painstakingly been able to dredge from appellant's endlessly repetitious presentation.
Appellant's first allegation of error, as thus boiled down, is that he was not apprised of the crucial question of concealment before the trial. This allegation is unfounded, as the question is clearly set out in paragraphs 7 and 9 of the declaration and the pretrial statement also takes cognizance of the question by referring to 'negligence and unprofessional conduct.' Further evidence of the fact that defendant was fairly apprised of the question of concealment is found in the defendant's own answer to the declaration and his extensive proofs on the precise subject in the trial court.
Appellant also claims error by the trial court in not granting him a continuance to enable him to prepare special questions and directions to the jury on the claimed suprise issue of concealment. Having already decided that the defendant had adequate notice of the question of concealment further discussion of the trial court's failure to grant a continuance would be irrelevant. There having been adequate notice, there were no grounds therefore on which to grant a continuance, and we find no abuse of discretion by the court.
Appellant's next claim of error concerns the admission in evidence of the filiform that had been removed from the plaintiff's bladder. Appellant claims this was error because the plaintiff had not preceded his offer with a proper foundation,...
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