Viland v. Winslow, Docket No. 10162

Decision Date24 June 1971
Docket NumberDocket No. 10162,No. 1,1
Citation191 N.W.2d 735,34 Mich.App. 486
PartiesLes VILAND, Plaintiff-Appellant, v. Max WINSLOW, Defendant-Appellee
CourtCourt of Appeal of Michigan — District of US

Reginald S. Johnson, Johnson, Campbell & Moesta, Detroit, for plaintiff-appellant.

Jon P. Desenberg, Detroit, for defendant-appellee.

Before V. J. BRENNAN, P.J., and GILLIS and T. M. BURNS, JJ.

GILLIS, Judge.

Plaintiff, Les Viland, brought this suit against defendant, Max Winslow, a periodontist, alleging malpractice. After the close of all proofs, the trial judge granted defendant's motion for directed verdict and dismissed the jury. Plaintiff appeals as of right.

When a motion for directed verdict is made at the close of all proofs, the trial judge, having heard all the evidence to be presented in the case, applies the same test for determining the sufficiency of evidence as in motions for judgment notwithstanding the verdict. See GCR 1963, 515.2; Yacobian v. Vartanian (1922), 221 Mich. 25, 190 N.W. 641; Hes v. Haviland Products Co. (1967), 6 Mich.App. 163, 148 N.W.2d 509; 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 530. Accordingly, the purpose of our review of the record is to determine whether the evidence presented, viewed in the light most favorable to the party opposing the motion, supplies any reasonable basis for a jury finding contrary to the requested verdict.

Plaintiff was referred to defendant, as a specialist in periodontics, by his own dentist, for treatment of an abscessed tooth. Defendant outlined a treatment program which included removal of the abscessed tooth, scaling of tartar deposits, and occlusal adjustment to prevent further trauma to remaining teeth.

Occlusal adjustment was prescribed because prematurities, or high points, were found to exist on defendant's molars which prevented proper alignment of the rest of the teeth when his jaw was closed. The treatment consisted of grinding away the high points to bring the teeth into proper alignment. There is no evidence presented that such treatment was improperly prescribed, or that the methods used by defendant did not meet the required standard of care. Rather, plaintiff predicated his cause of action on the results achieved by the treatment.

After the second session of tooth grinding, plaintiff complained of malocclusion caused by prematurities on his front teeth. He refused further treatment from defendant, and went to several other dentists, who subsequently testified as plaintiff's expert witnesses.

These expert witnesses were not in complete agreement as to whether the new malocclusion was caused by 'drifting' teeth, bruxism (a nervous, unconscious habit of clenching or gnashing teeth), or...

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5 cases
  • Tomei v. Bloom Associates, Inc.
    • United States
    • Court of Appeal of Michigan — District of US
    • May 17, 1977
    ...claim from it.' " Schedlbauer v. Chirs-Craft Corp., 381 Mich. 217, 229-230, 160 N.W.2d 889, 896 (1968). See also Viland v. Winslow, 34 Mich.App. 486, 191 N.W.2d 735 (1971) (malpractice action involving dentist), Pippen v. Denison Division of Abex Corp., 66 Mich.App. 664, 239 N.W.2d 704 (197......
  • Isom v. Farrugia
    • United States
    • Court of Appeal of Michigan — District of US
    • August 13, 1975
    ...upon a motion for directed verdict apply in the case of a motion for judgment notwithstanding the verdict. Viland v. Winslow, 34 Mich.App. 486, 487, 191 N.W.2d 735 (1971), Serinto v. Borman Food Stores, 3 Mich.App. 183, 190, 142 N.W.2d 32 (1966), Yacobian v. Vartanian, 221 Mich. 25, 190 N.W......
  • Bagherzadeh v. Roeser
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 31, 1987
    ...by Michigan courts over the ensuing decades. Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627, 629 (1963); Viland v. Winslow, 34 Mich.App. 486, 191 N.W.2d 735, 737 (1971). As recently as 1980 a Michigan Court of Appeals declared that "a jury instruction to the effect that a physician is not ......
  • Berwald v. Kasal
    • United States
    • Court of Appeal of Michigan — District of US
    • December 3, 1980
    ...277] Mich. 319, 330, 153 N.W. 692 (1915); Skeffington v. Bradley, 366 Mich. 552, 556, 115 N.W.2d 303 (1962); Viland v. Winslow, 34 Mich.App. 486, 488, 191 N.W.2d 735 (1971). While we need not decide whether the trial court's failure to so instruct constituted reversible error we caution the......
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