Waddle v. Sutherland

Decision Date17 February 1930
Docket Number28430
Citation156 Miss. 540,126 So. 201
CourtMississippi Supreme Court
PartiesWADDLE v. SUTHERLAND

Division B

1 TRIAL. Instruction limiting jury, in determining negligence of physician in administering X-ray treatment, to testimony of experts, held erroneous.

In action to recover damages against physician for loss of legs alleged to have been caused by negligence in treating plaintiff with an X-ray machine, instruction limiting jury in determining negligence to consideration of testimony of experts, and necessarily excluding from consideration of jury not only doctrine of res ipsa loquitur embodied in instruction given, but also evidence of plaintiff and wife in respect to injury, held erroneous.

2. NEGLIGENCE. Generally, mere proof of injury raises no presumption of negligence in tort action.

Generally in actions of tort mere proof of injury complained of raises no presumption of negligence.

3 NEGLIGENCE. "Res ipsa loquitur" means that facts of occurrence warrant inference of negligence.

"Res ipsa loquitur" means that facts of occurrence warrant inference of negligence, not that they compel such inference, but that they furnish circumstantial evidence of negligence where direct evidence may be lacking.

4. PHYSICIANS AND SURGEONS. Instruction on res ipsa loquitur held applicable in action to recover damages against physician for alleged negligence in administering X-ray treatments.

Instruction, in action to recover damages against physician for loss of legs alleged to have been caused by negligence in administering X-ray treatments, submitting doctrine of res ipsa loquitur held applicable to particular facts of case, in view of evidence establishing that patient's hypersensitiveness to X-ray treatment could always be detected before third degree burn occurred.

5. TRIAL. Instructions should be read together and read into each other if possible, and construed to modify and add to each other.

All instructions given in a case should be read together and read into each other if possible, and if it can be consistently and intelligently done, instructions should be construed to modify and add to each other.

6. TRIAL. Apparent conflicts in instructions which, when construed together, embody principles of applicable law, are harmonized.

In cases instructions construed together embody principles of law applicable to case, apparent conflicts in instructions considered separately are harmonized.

7. TRIAL. Instruction in positive terms excluding from consideration of jury material evidence is controlling and misleading.

Where an instruction is given which in express and positive terms excludes from consideration of jury material evidence, such an instruction is controlling and is misleading to jury.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Prentiss county HON. C. P. LONG, Judge.

Action by Otho Waddle against Dr. W. H. Sutherland. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Friday & Windham, of Booneville, for appellant.

An instruction limiting the jury to a consideration of the testimony of experts in determining negligence, where there was testimony of other witnesses, was improperly granted.

21 R. C. L., pages 406 and 407, sec. 49; Samuels v. Willis, 19 Ann. Cases, 188.

T. A. Cook, of Iuka, for appellant.

The doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events, does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.

20 R. C. L., page 187; Burnette v. Layman, 133 Tenn. 323, page 329.

Where the evidence shows an injury inflicted, and also the physical thing inflicting it, and that thing does not usually or in the ordinary course produce such result, where due care is exercised by those in charge of it, it may be inferred that those so in charge of the thing inflicting the injury failed to exercise such due care--that is, that they were guilty of negligence.

North Memphis Savings Bank v. Union Bridge Co., 138 Tenn. 161; Lewis v. Casenburg, 2nd, 808; Hamilton v. Harris, 223 S.W. 533; Shockley v. Tucker, 103 N.W. 360; Jones v. Tri-State Tel. Co., 136 N.W. 741; Johnston v. Marshall, 241 Ill.App. 80.

W. C. Sweat, of Corinth, for appellee.

As a matter of substantial law, only the testimony of experts in the school to which the defendant physician belongs is competent to prove the error committed in an ordinary matter of practice. The doctrine of res ipsa loquitur is inapplicable in such cases.

21 R. C. L., sec. 47, p. 405; McDaniel v. Wolcott, 214 N.W. 296; Galliger v. Kermott, 216 N.W. 569; McGraw v. Kerr (Col.), 128 P. 870; Norkett v. Martin (Col.), 165 P. 256; Farrell v. Hayes (Mich.), 122 N.W. 197; Miller v. Toles (Mich.), 150 N.W. 118; Spaulding v. Bliss, 47 N.W. 210, 83 Mich. 31; Paulich v. Khipple (Kas.), 180 P. 771; Shy v. Powell (Kas.), 125 P. 881; Antowill v. Friedman, 188 N.Y.S. 777; Sweeney v. Irving, 43 L.R.A. (N.S.) 734, 33 S.Ct. 416; Nixon v. Pfahler (Pa.), 124 A. 1301; Stemons v. Turner (Pa.), 117 A. 922; Kueheman v. Boyd (Wis.) 214 N.W. 326; Ross v. Roberts (Wis.), 192 N.W. 308; Balance v. Dunnington (Mich.), 217 N.W. 329; McCoy v. Buck (Ind.), 157 N.E. 456; Butler v. Rule (Ariz.), 242 P. 436; 265 P. 757; Ewing v. Goode, 78 F. 442; Adolay v. Miller, 60 Ind.App. 566, 11 N.E. 313; Longfellow v. Vernon, 67 Ind.App. 611, 105 N.E. 178; Wilkins v. Brock (Vt.), 70 A. 572; Goodman v. Bigler, (Ill.), 133 Ill.App. 301; Robertson v. Wegner (Mo.), 110 S.W. 663; Sheldon v. Wright (Vt.), 67 A. 807; Staloch v. Holm. (Minn.), 111 N.W. 264; Ball v. Skinner (Iowa), 111 N.W. 1022; Farrell v. Haze (Mich.), 122 N.W. 197; Booth v. Andrus (Neb.), 137 N.W. 884; Phebus v. Mather, 181 Ill.App. 274; Moline v. Christie, 180 Ill.App. 334; Barker v. Lane (R. I.), 49 A. 963; Bigney v. Fisher (R. I.), 59 A. 72; Bonnett v. Foote (Colo.), 107 P. 252; Brown v. Goffe, 125 N.Y.S. 458; Houghton v. Dickson (Calif.), 155 P. 128; Moehlman v. Ransohoff (Ohio), 17 N. P. (N.S.) 241; Zottell v. Repp (Mich.), 153 N.W. 692; McGray v. Cobb (Minn.), 153 N.W. 736; Carsten v. Hanselman (Mich.), 28 N.W. 159; Kline v. Nicholson (Iowa), 130 N.W. 772; Lawson v. Crane (Vt.), 74 A. 641; Neifert v. Hasley (Mich.), 112 N.W. 705; Pettigrew v. Lewis (Kans.), 26 P. 458; Rogers v. Kee (Mich.), 137 N.W. 260; Sawyer v. Berthold (Minn.), 134 N.W. 120; Teft v. Wilcox, 6 Kans. 46; Walsh v. Sayre (N.Y.), 52 How. Pr. 334; Wurdeman v. Barnes (Wis.), 66 N.W. 111.

All of the instructions, both those given for the plaintiff and the defendant, are to be considered together as one instruction, and are to be interpreted as a whole. When so viewed, if they embody the law applicable to the case, there is no error, although some one or more instructions, taken alone, may be incompetent or erroneous.

Haynes Walker Lbr. Co. v. Hankins, 141 Miss. 55; Gipson v. A. W. Winneman & Son, 140 Miss. 573, 106 So. 826; Mutual Life Ins. Co. v. Vaughn, 125 Miss. 369, 88 So. 11; City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; A. & V. R. R. Co. v. Fontaine, 111 So. 153.

J. A. Cunningham, of Booneville, for appellee.

An examination of the authorities cited in brief of associate counsel for appellee sustains the action of the lower court on every proposition raised by counsel for appellant. Further citation of authorities is deemed unnecessary.

The doctrine of res ipsa loquitur only applies when all theories except that of negligence are by the facts and circumstances eliminated from the sum total of the action and reaction involved. Damaging results growing out of any state of facts and circumstances the relation of which to the results is certain, and where every theory except negligence is excluded by the facts and circumstances shown affords the proper basis of the res ipsa loquitur.

The record wholly failed to establish negligence in any way and the jury under proper instructions so found and a court order was so entered and this should be final.

Argued orally by T. A. Clark, for appellant, and by W. C. Sweat and J. A. Cunningham, for appellee.

OPINION

Anderson, J.

Appellant brought this action against appellee in the circuit court of Prentiss county, to recover damages for the loss of both his legs, alleged to have been caused by the negligence of appellee in treating appellant with an X-ray machine for eczema, a skin disease. There was a verdict and judgment for appellee, and from that judgment appellant prosecutes this appeal.

Appellant was suffering with an eczema. Appellee was a practicing physician and surgeon at Booneville, and in the practice of his profession used an X-ray machine for certain ailments. Appellee diagnosed appellant's disease as eczema, and treated him for this disease for several months with the X-ray machine.

Appellant charged in his declaration that appellee had in his office Miss Satterfield, who assisted him in the use of the X-ray machine; that Miss Satterfield did not possess the necessary knowledge and skill to enable her to properly operate the machine; that in treating appellant with the machine, the rays overlapped, causing appellant to receive a double application of the rays, resulting in the burning of his legs; that appellee did not use the watchfulness and care which was necessary in the treatment of appellant with X-rays; that he negligently used more than a common dose of the rays; and that thereby appellant received an X-ray burn on both his legs, necessitating their...

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