Wemmett v. Mount

• Decision Date: 21 October 1930
• Citation: 292 P. 93,134 Or. 305
• Parties: WEMMETT v. MOUNT ET AL.[*] [a1]
• Court: Oregon Supreme Court

292 P. 93

134 Or. 305

WEMMETT v. MOUNT ET AL.^[*][a1]

Supreme Court of Oregon

October 21, 1930

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Nina Wemmett against Albert Mount and others. Judgment for plaintiff, and defendants appeal.

Reversed as to defendant named, and affirmed as to the other defendants.

This is an action for damages for malpractice of defendants as physicians. Judgment on verdict went for plaintiff, and defendants appeal.

The case may be stated as follows: Plaintiff went to the office of defendants for treatment February 4, 1928. She first consulted Dr. Frank Mount, and he took her to Dr. Albert Mount. On April 26, 1928, plaintiff, when at the office of defendants for treatment of a temporary disorder, at the direction of Dr. Albert Mount, went to a room in defendants' office, whereupon Nellie Lynch, an employee of said defendants, told plaintiff to take off her clothes put on a kimono, and lie down on the couch, which plaintiff did, and Nellie Lynch applied one of the electrodes attached by the cords to a diathermy machine to plaintiff's loins and another on plaintiff's abdomen, so that the same were in direct contact with the body of plaintiff. She then, by means of a switch, turned on the electric current into and through the said electrodes and the body of this plaintiff. Immediately after turning on the current, Nellie Lynch left the room and closed the door after her. After several minutes had elapsed, while the current was circulating through the electrodes and body of plaintiff, the heat generated therefrom became so intense that it began to burn plaintiff's body where the electrodes were applied so that plaintiff was unable, physically and mentally, to endure it longer, and she began to scream and call for help, but no one answered, until considerable time had elapsed when Nellie Lynch, after about thirty minutes, rushed into the room turned off the electric current and removed the two electrodes from contact with the body of plaintiff, and told plaintiff that she had forgotten all about her. Plaintiff complained to Dr. Albert Mount of what had happened. On her return home several blisters appeared on the surface of her abdomen and she suffered great pain and agony and it continued for some time and until about July 2, 1928. As directed by defendant Dr. Albert Mount, plaintiff called at the office the next day after the treatment complained of seeking a remedy for the burns. Defendants administered treatment therefor from day to day until about June 18, 1928. The result of the burning caused three running sores on plaintiff's abdomen and left two large scars and one small one.

Plaintiff charges defendants with negligence in the manner of giving the diathermic treatment. Defendants admit that plaintiff, at the direction of Dr. Albert Mount, was given a diathermic treatment by means of an electric apparatus with the assistance of Nellie Lynch, a skilled employee of defendants and plaintiff sustained a slight burn, and admit that they are regularly licensed physicians and practicing as physicians and surgeons at Oregon City in the state of Oregon and have their offices in Oregon City, and deny the other material allegations of the complaint. Defendants aver that plaintiff was guilty of contributory negligence and failed to obey their instructions.

Eugene K. Oppenheimer and Fletcher Rockwood, both of Portland (Wilbur, Beckett, Howell & Oppenheimer and Carey &amp Kerr, all of Portland, and Jos. E. Hedges, of Oregon City, on the brief), for appellants.

Louis E. Schmitt and Bradley A. Ewers, both of Portland, for respondent.

BEAN, J. (after stating the facts as above).

Defendant predicates error of the court in overruling objection of the defendants to the following question for the reason that it was not a part of the res gestæ: "Q. When she came into this room, Nellie Lynch came in, what did she do or say?" The objection being overruled, the witness answered: "A. She came in and said: 'My God, you look as though you are about to pass out, I forgot all about your being here.' " Defendants cite Sullivan v. O. R. & N. Co., 12 Or. 392, 7 P. 508, 53 Am. Rep. 364; Fredenthal v. Brown, 52 Or. 33, 95 P. 1114. It appears when Miss Lynch first entered the room where plaintiff was lying on the cot she spoke those words at the very moment that the injury was being infficted upon plaintiff, and afterwards she shut off the current and removed the electrodes from plaintiff's body. The language is a part of the res gestæ. Moreover, Miss Lynch was the servant or agent of defendants, performing the service for which the complaint is made by plaintiff. The case is entirely different from Sullivan v. O. R. & N. Co., supra, where the statements of plaintiff, after the occurrence of an event in regard thereto, were admitted in evidence and held to be not a part of the res gestæ. The case is not in point. The rule is well stated in the first syllabus to the case of Fredenthal v. Brown, supra:

"The acts of an employee within the scope of his employment are the acts of the employer, and the statement of the employee characterizing such acts and constituting a part of them are competent evidence against the employer; but statements of a past transaction made by the employee, and not a part of an act done by him, are not within the scope of the employment, and cannot be admitted in evidence to affect the employer."

The evidence objected to comes within the first part of the rule thus stated. There was no error in admitting evidence of the declarations of Miss Lynch made during the performance of the act which was within the scope of her employment.

Defendants assign that the court on direct examination of defendants' expert witness, Dr. E. B. McDaniel, erred in sustaining the objection of plaintiff to the following question and in rejecting defendants' offer of proof:

"Q. Did you make a vaginal examination today? A. Yes, sir.

"Q. What condition did you find from the vaginal examination?" Defendants tendered testimony of the witness to the effect that he made the examination and that the nervous condition which plaintiff complained of was due to goiter and the conditions naturally flowing therefrom and not the result of the burns.

In 17 C.J. at page 1031, the rule is thus stated:

"So too defendant has a right to show by medical testimony that the diseased condition probably arose from another source and was not caused by the injury complained of."

We think the defendants were entitled to have Dr. McDaniel express his opinion to the jury as to what caused plaintiff's nervousness. Turning to the record, we find on his direct examination that Dr. McDaniel had already testified without objection that he examined plaintiff twice, first on July 13, 1928, and again on the day of the trial, and that the scars on plaintiff's abdomen shrank quite a lot during the time between the two examinations. Dr. McDaniel then testified in detail as to plaintiff's nervous conditions, as follows:

"Q. I will ask you to state from your examination if you found anything affecting her nervous system? A. Yes, the woman I think is slightly nervous.

"Q. Would you think these burns are responsible? A. No, sir; I laid it more to the goiter. She is under a nervous tension.

"Q. How does the goiter affect the nerve tension? A. It always does, through stimulation.

"Q. I will ask you to state whether or not in your opinion the burns could cause the nervousness. A. There is some nervousness as a result of a burn.

"Q. At this time? A. No.

"Q. You mean during the time the burns were active? A. Yes, sir.

"Q. I will ask you to state whether or not the plaintiff is suffering from any permanent injury or condition on account of the burns evidenced by the scars? A. The scars is the only thing I saw."

Dr. McDaniel certainly told the jury that he thought the burns were not responsible for plaintiff's nervous condition and that plaintiff was not suffering from any permanent injury on account of the burns, except as to the scars. On redirect examination the same ground was attempted to be covered. Defendants, having had the benefit of substantially the same evidence as that offered, were not injured by the exclusion of what was in effect a repetition thereof. We see no error in this respect. Moreover, from the amount of the verdict, $1,000, we doubt if the jury allowed plaintiff anything for a permanent injury.

Defendant urges error of the court in permitting Dr. R. C. Ellsworth, an expert witness for plaintiff, to testify out of the regular order and after the conclusion of defendants' case. It is, of course, the rule that the order of proof rests in the sound discretion of the trial court. It seems Dr. Ellsworth was engaged, as doctors usually are, when wanted as a witness. The defendants were aware, at the time the right to call Dr. Ellsworth out of regular order was granted, of the general nature of the claims of plaintiff. If Dr. Ellsworth testified to any particular fact that the defendants desired to contradict, the proper method was to ask the permission of the court to introduce further evidence on the point. We see no abuse in the exercise of the discretion of the trial court in the matter.

Defendants assign error of the court in permitting Dr. R. C. Ellsworth, a chiropractor, to testify over the objection of the defendants, as they were regular physicians and surgeons, and refusing to restrict such testimony. The doctor testified that he was a graduate of Jenner Medical College and the Northwestern College of Chiropractors and the Northwestern College of Physiotherapy of La Porte, Ind.; that he held a degree of doctor of medicine and practiced since 1891.

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