Voter v. Newsalt, 5606.

• Decision Date: 03 May 1929
• Docket Number: No. 5606.,5606.
• Citation: 58 N.D. 154,225 N.W. 74
• Parties: VOTER v. NEWSALT et al.
• Court: North Dakota Supreme Court

58 N.D. 154

225 N.W. 74

VOTER

v.NEWSALT et al.

No. 5606.

Supreme Court of North Dakota.

April 1, 1929.

Rehearing Denied May 3, 1929.

Syllabus by the Court.

Where a surgical operation is performed on a patient in the office of a chiropractor and in his presence, and the testimony is conflicting as to his connection therewith, but there is testimony, which if true shows the chiropractor recognized the patient as his patient, assisted in the operation, and took charge of the patient thereafter, the verdict of the jury finding the chiropractor liable for the damages sustained by reason of such operation will not be disturbed.

The court should submit to the jury the issues arising on the trial, and the practice of reading the pleadings in their entirety to the jury, as a part of the charge of the court, is condemned; but such reading is not necessarily reversible error.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Nathaniel B. Voter against George A. Newsalt and another. Judgment for plaintiff against defendant named, and such defendant appeals. Affirmed.A. C. Lacy, of Fargo, for appellant.

Weston, La Bree & Shafer and T. D. Pierce, all of Fargo, for respondent.

BURR, J.

This is an action for damages arising out of alleged malpractice.

The complaint sets forth a cause of action against both defendants. No service was had on the defendant King. The defendant George A. Newsalt answered setting up a complete defense. After both parties rested, the defendant moved the court for a directed verdict, which motion was overruled, and the case submitted to a jury, who returned a verdict in favor of the plaintiff and against the defendant. The defendant appeals.

There are over 60 specifications of error, some of which have 4 or 5 subdivisions. Forty of these specifications deal with the reception or rejection of evidence, 16 with the charge to the jury, and the remainder with the refusal to direct a verdict and to remarks made by the court and opposing counsel.

The main issue in the case is the connection between the defendant Newsalt and one Dr. King. There is no dispute but what Dr. King performed an operation upon the plaintiff in defendant's office, and there is ample evidence to show that the operation performed was done carelessly and negligently so that infection set in and plaintiff suffered loss and damage. There is no issue taken as to the amount of damages recovered; but the defendant Newsalt strenuously contends he had no connection with the operation; that it was not performed by him nor did he assist in it; that the plaintiff was not his patient, and he was in no way responsible for the condition which developed.

[1] The evidence shows the plaintiff had a hernia of some years' standing, and learning that Dr. King of Omaha, Neb., claimed to cure hernia without an operation, he entered into correspondence with him. In the letters known as Exhibits 1 to 4, inclusive, and A, B, and C-exhibits offered by the plaintiff and re-offered by the defendant himself-we find Dr. King telling the plaintiff: “Dr. G. A. Newsalt of Fargo knows more of the success of my work than any other doctor in N. D. I have treated 20 cases for him in the past ten years. * * * Write Dr. Newsalt and ask about it.” Plaintiff wrote to Dr. Newsalt and got some reply from him indicating at what time Dr. King would be in Fargo at Dr. Newsalt's office and wrote King, saying: “Dr. Newsalt said you were going to Aberdeen before long. Please let me hear from you soon.” In another letter Dr. King says: “Now if you can arrange to come to Dr. Newsalt's in Fargo 5 or 6th of March, I will let you know the exact date to be there later.” The plaintiff writes: “I take it from your letter that you do your work at Dr. Newsalt's office. Please give full information in your next reply.':nd Dr. King replies: “Be in Fargo at Dr. Newsalt's office Sunday A. M. 6th. I think I will get there in A. M. The doctor will tell you.”

Accordingly, plaintiff went to Fargo on March 5, 1927. The next morning he went to Dr. Newsalt's office, and found the defendant there with Dr. King and a stranger. When he entered Dr. Newsalt said, “Here is our man,” and Dr. King commenced to examine him. Plaintiff says that Dr. Newsalt assisted in the operation, and, “if I remember right, he sterilized the instruments and held the light while Dr. King was performing the operation.” Again he says: “I am not sure whether Dr. Newsalt handled those instruments or not but I think he did.” His testimony summarized is that Dr. Newsalt was present in the operating room most of the time, held the light for Dr. King, assisted in other ways, and at times attended to other patients. Defendant asked Dr. King how he was getting on. The operation was performed by inserting a needle through the wall of the abdomen in an attempt to reach the hernia and sew the parts together. When the operation was performed and the plaintiff had paid Dr. King, Dr. King gave defendant instructions what to do. He told him to take the plaintiff down to the Dacotah Hotel, and if any swelling or infection appeared to get some witch-hazel and apply it and keep the parts bathed with a solution of epsom salts. Dr. Newsalt assisted plaintiff to a hotel, about 1 p. m. took him to a room, and told the proprietor to look after him and to take up his meals to him. That evening Dr. Newsalt called on him, lifted up the sponge, and examined the wound; the next morning he called again, asked him how he was getting on, and told him if he was not improving he would get some witch-hazel. The defendant came again that evening and on the next day inquiring about his condition, saying he had not much time then but would call again. That evening he came, got the witch-hazel, and bathed the wound. In the forenoon of Wednesday he again bathed the wound with witch-hazel, gave him a chiropractic treatment along the spinal column, and made an adjustment about the middle of the back, taking about 20 minutes in the operation. Coming again that evening, he brought a bottle of malt for plaintiff, and on Thursday morning, called to inquire about his condition. Plaintiff says he never sent for the defendant at any of these times, but nevertheless that defendant called.

Defendant says he had been acquainted with Dr. King for 10 to 15 years, that Dr. King had performed work for him before, but he did not know how many times, and at the time of plaintiff's operation defendant had a patient in the office on whom Dr. King operated immediately after he was through with plaintiff. He said Dr. King would come to his office whenever he told him there were cases to work on; that such work was done on persons who were his own patients, but being a chiropractor he did not operate himself, and he would get in touch with Dr. King and arrange for him to come and treat them. These patients were treated in his office, but he got no portion of the fees for the treatment that Dr. King gave. He said Dr. King gave him $10 for the use of the office in the plaintiff's case, but nothing for the operation. He admits calling on the plaintiff at the Dacotah Hotel as alleged by the plaintiff, but denies giving him chiropractic treatment, or that he did anything for him except to get him such things as he asked for, such as witch-hazel, etc., and denies ever prescribing for the plaintiff or attending him in a professional capacity. He says that after the plaintiff complained of swelling and pain he got into communication with King and wired him.

The testimony of Dr. King, a witness for the defendant, shows he is not admitted to practice in this state, but that “he had been specializing in the treatment of hernia for some ten or fifteen years.” He says he paid the defendant something for taking care of the case, but he is not sure how much, possibly $20; that he expected Dr. Newsalt to take care of the case; and that a few days after the operation he received a letter and telegram from the defendant relative to plaintiff's condition.

It is the contention of the defendant that even assuming all that the plaintiff says to be true, he is not connected with the operation in such a manner as to charge him with any of the effects, and that in the further light of his version it is clear he is not liable.

In giving this statement of the evidence we do not attempt to set forth a complete synopsis, but have indicated enough to show the issue involved. Both defendant and Dr. King deny that Dr. Newsalt had anything to do with the operation, and we do not set forth defendant's case in the entirety, but his connection with the case was a matter for the jury to determine from all of the evidence introduced. We are of the opinion that there is sufficient evidence connecting Dr. Newsalt with the operation to justify submitting the case to the jury, and this disposes of all the alleged errors based on the insufficiency of the evidence.

The 40 specifications of error based upon the exclusion or reception of evidence come from the assumption that the defendant was not connected with the case. For instance, the plaintiff, in stating why he went to Dr. Newsalt's office the morning after he reached Fargo, stated that when he went into the hotel “the girl at the telephone office said ‘Dr. Newsalt is calling you to the office,”’ and he went over there. It was alleged this is hearsay. When first offered, it was stricken out, but later in the case the plaintiff made a similar statement which was allowed to stand. It merely explained why he left the hotel at that time. It is true Dr. Newsalt denies calling him over the phone, but the defendant does not dispute he wrote plaintiff telling him when Dr. King would be at his office, that plaintiff came to the office, and that he himself was present when the plaintiff came there. If there was error it was without prejudice. The court required the defendant to answer a question referring to Dr. King to the effect, “Do you usually...