Whetstine v. Moravec, No. 44945.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtBLISS
PartiesWHETSTINE v. MORAVEC.
Docket NumberNo. 44945.
Decision Date02 April 1940

228 Iowa 352
291 N.W. 425

WHETSTINE
v.
MORAVEC.

No. 44945.

Supreme Court of Iowa.

April 2, 1940.


Appeal from District Court, Linn County; H. C. Ring, Judge.

Action at law for personal injury damages alleged to have been caused by the negligence of the defendant in permitting the root of a tooth to pass into plaintiff's right lung, while extracting teeth of plaintiff. From a judgment for defendant on a verdict directed by the court, the plaintiff has appealed.

Reversed.

[291 N.W. 426]

G. P. Linville and C. W. Meek, both of Cedar Rapids, for appellant.

Barnes, Chamberlain & Hanzlik, of Cedar Rapids, for appellee.


BLISS, Justice.

On October 22, 1937, the plaintiff, an automobile repairman, fifty years old, brought this action against the defendant, a dentist, of long experience in his specialty of extracting teeth-an exodontist,-by filing his petition alleging: “That on or about the 3d day of July, 1936, the plaintiff went to the office of the defendant for the purpose of having certain teeth extracted, and the defendant accepted plaintiff's employment of him to extract plaintiff's said teeth and undertook to perform same, and did

[291 N.W. 427]

then and there place the plaintiff under a general anesthetic and did extract said teeth but did so so carelessly, negligently, and unskillfully that the root of one of said teeth so extracted was permitted to pass down the windpipe and lodge in the right lung of plaintiff; that though the plaintiff suffered much pain and distress from his lungs he did not know the cause thereof for a period of nine months and three days, when, because of the cells of the tissue of said right lung being broken down at the location of said root of said tooth, the plaintiff in a fit of coughing from irritation in said lung coughed up the said root of said tooth. That the dental operation in the extraction of plaintiff's said teeth was wholly and completely under the management of the defendant, and that said accident to the plaintiff was such that in the ordinary course of dental practice would not have happened had the defendant and his servants exercised the usual and proper care in extracting plaintiff's said teeth.”

The petition contains no other, or specific, grounds of negligence, and the action, as pleaded, is based upon general allegations of negligence. Defendant's answer denied all allegations other than those respecting the extraction of the teeth as a dentist at the time alleged. These allegations he admitted.

At the close of plaintiff's testimony, the defendant moved for a directed verdict in his favor, which motion was granted. This motion in substance stated: (1), the plaintiff failed to establish any negligence charged which caused the injury; (2), the plaintiff failed to establish any malpractice or lack of care of defendant which was the proximate cause of the injury; (3), the plaintiff attempted to establish negligence by the rule of res ipsa loquitur, which has no application to a malpractice suit; (4), (5), the plaintiff relies upon circumstantial evidence, and has failed to eliminate other possible and reasonable causes of the injury; (6), (7), the plaintiff did not show that defendant failed to use that degree of skill in the extraction of the teeth ordinarily and generally used by practitioners in Cedar Rapids and vicinity, under like circumstances; (8), the court would be required to set aside a verdict against the defendant as contrary to the evidence.

Appellant has assigned errors for the sustaining of the motion upon the various grounds thereof.

This appeal presents to us for determination two questions or propositions. First: Did the record justify the submission to the jury of the issue that the defendant was negligent as charged? Second: If the defendant was negligent as charged, was that negligence, or its result, the proximate cause of plaintiff's injury.

We will discuss the second question first because it involves a statement of the facts, a knowledge of which is essential to a proper consideration of both questions.

I. The plaintiff had followed his trade as barber for a number of years, but being of a mechanical turn of mind, he had given his attention somewhat to matters of that kind, and later took up the work of an automobile mechanic as his regular occupation. He had been so employed, steadily for more than seven years on July 3, 1936. On that day, about mid-afternoon he left his work to go to the defendant's office to have six teeth extracted-four above and two below from his right jaws. The defendant had extracted eight of the plaintiff's teeth in 1934, and, two or three years previous to that time, had pulled the roots of a tooth, which the chewing of barley as a boy, and decay, had destroyed. Other dentists, in earlier years, had extracted perhaps a half dozen teeth. The roots and sockets of his remaining teeth were affected with pyorrhea, and because of their general bad condition, the defendant advised him to have them all removed. The plaintiff declined to have his front teeth pulled, and pointed out the six which he wished to have extracted. At the time of the trial the plaintiff had but ten teeth, all in front. No person was in the defendant's office other than he and the plaintiff. The plaintiff seated himself in the dental chair and the defendant gave him a general anesthetic, and when the plaintiff recovered consciousness, the six teeth had been extracted. The defendant removed one or two pieces of teeth from the gums, and the plaintiff left for his home about 4 o'clock in the afternoon. He felt a heaviness in his right chest when he first came from under the anesthetic, which became more noticeable on reaching home, as though he were taking cold “or something”. This heaviness kept getting worse. It was more of an ache than a pain. He began coughing that night. The coughing and pain increased in intensity and has never left him. The teeth extraction had been on Friday, and he attempted to go

[291 N.W. 428]

back to work the following Monday. Before quitting time in the afternoon he returned to the defendant's office and had him remove two or three pieces of teeth from his gums. The dentist at this time told plaintiff that he had a hard set of teeth to pull and that he broke them up quite badly. On the Friday following the extraction, Dr. Hersch came to his home and treated him, but he received no relief. Coughing spells continued day and night. Dr. Crawford treated him for some time, and later Dr. Artis, but neither helped him. Dr. Rice, an osteopath, examined him. Dr. Erskine took x-ray pictures of his right lung in September, 1936. He continued at his work fairly steadily until the first week in December, 1936, when his condition rendered further work impossible. He began coughing blood in the latter part of December, 1936. Severe hemorrhages from the lungs followed. He went to the sanatorium at Oakdale in January or February, 1937. There, Dr. Webb took x-ray pictures of his lungs. Dr. Houser treated him on his return from the sanatorium and placed him in St. Luke's Hospital for ten days, and other x-ray pictures were taken in the latter part of March. He arranged to be taken to the University Hospital, at Iowa City, on April 6, 1937. He was a man of rather slight build, with a normal weight of around one hundred and forty five pounds. That was his weight at the time of the teeth extraction. His weight decreased to eighty-five pounds on April 6, 1937. About 7 o'clock in the morning of that day, while his mother was feeding him grapefruit as he was reclining in bed, he choked and strangled, and after a very violent spasm of coughing, he expectorated a quantity of sputum, mucus and blood from his lungs, into a can kept at the bedside for that purpose. He at once told his wife to examine the discharge as he felt as though he had coughed up something hard like a scab-that he felt it when it came loose. She immediately poured the contents on a paper and found there the root of a tooth. The plaintiff, his mother, wife, son and daughter were all present in the home, and they testified to this occurrence. His sister, who had planned to accompany him to Iowa City that morning, was at the house about 8 o'clock. His minister called at the home that morning, knowing that the plaintiff was being taken to Iowa City. The root of the tooth was shown to him. The plaintiff had been a regular attendant at church services on every Sunday morning, evening, and Wednesday night. He was an usher in the church, and attempted to perform these duties during the summer and fall of 1936, but his condition of health forced him to quit. The minister called at the home from time to time, and testified to his rapid physical decline after the teeth extraction, and to coughing spells that were almost paroxysms. He was taken to Iowa City in an ambulance that day. Dr. Evans, an ear, nose, throat and lung specialist gave him attention. X-ray pictures of the lungs were taken. Plaintiff was then coughing copious amounts of vile sputum. His breath was foul. There was tenderness and pain in the right chest. Examination and the pictures indicated an inflamed, abscessed, and consolidated condition in the right lung. He was kept in the hospital ten days. He had severe hemorrhages from the lungs. He came back to the hospital from time to time for a year to receive x-ray treatments to stop the bleeding in the lungs. The treatment was ineffective. The bleeding was from the right lower bronchus. That is where the abscess was. Later the plaintiff was removed to the surgical ward, where an operation was performed, October 15, 1938, to sever the phrenic nerve to the right diaphragm. This operation destroys the function of the diaphragm near the lower right lobe, and the surgical interference with that nerve is a permanent paralysis of the right half of the diaphragm and prohibits complete expansion or inspiration, and there is no muscular contraction to permit forcible coughing. It...

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62 practice notes
  • Highland Golf Club v. Sinclair Refining Co., Civ. No. 101.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 3, 1945
    ...Cab Co. et al., 1938, 225 Iowa 809, 281 N.W. 737; Schroeder v. Kindschuh, 1940, 229 Iowa 590, 294 N.W. 784; Whetstine v. Moravec, 1940, 228 Iowa 352, 291 N.W. 425; Rodefer v. Turner, 1942, 232 Iowa 691, 6 N.W.2d 17; Welch v. Greenberg, Iowa 1943, 14 N. W.2d 266. In the case of Aita v. John ......
  • John Rooff & Sons, Inc. v. Winterbottom, No. 49203
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...Of course the matter may not be left to mere speculation or conjecture. Such is the effect of our opinion in Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425, one of our leading precedents on the subject of res ipsa loquitur. See, also, Turner v. Hansen, 247 Iowa 669, 677-678, 75 N.W.2d 341......
  • Perin v. Hayne, No. 55949
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1973
    ...a physician does not by undertaking treatment impliedly warrant a cure or guarantee the best possible result. See Whetstine v. Moravec, 228 Iowa 352, 369, 291 N.W. 425, 433 (1940), and citations. As a neurosurgeon, defendant impliedly warranted he possessed and would apply that degree of sk......
  • Eaves v. City of Ottumwa, No. 47264.
    • United States
    • United States State Supreme Court of Iowa
    • August 5, 1949
    ...that cause the injury. Pierce v. Gruben, 237 Iowa 329, 347, 21 N.W.2d 881, 889, 19 N.C.C.A.,N.S., 73; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425;Highland Golf Club v. Sinclair Refining Co., supra, 59 F.Supp. 911, 915. Further, we think it may not fairly be said that in the ordinary co......
  • Request a trial to view additional results
62 cases
  • Highland Golf Club v. Sinclair Refining Co., Civ. No. 101.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 3, 1945
    ...Cab Co. et al., 1938, 225 Iowa 809, 281 N.W. 737; Schroeder v. Kindschuh, 1940, 229 Iowa 590, 294 N.W. 784; Whetstine v. Moravec, 1940, 228 Iowa 352, 291 N.W. 425; Rodefer v. Turner, 1942, 232 Iowa 691, 6 N.W.2d 17; Welch v. Greenberg, Iowa 1943, 14 N. W.2d 266. In the case of Aita v. John ......
  • John Rooff & Sons, Inc. v. Winterbottom, No. 49203
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...Of course the matter may not be left to mere speculation or conjecture. Such is the effect of our opinion in Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425, one of our leading precedents on the subject of res ipsa loquitur. See, also, Turner v. Hansen, 247 Iowa 669, 677-678, 75 N.W.2d 341......
  • Perin v. Hayne, No. 55949
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1973
    ...a physician does not by undertaking treatment impliedly warrant a cure or guarantee the best possible result. See Whetstine v. Moravec, 228 Iowa 352, 369, 291 N.W. 425, 433 (1940), and citations. As a neurosurgeon, defendant impliedly warranted he possessed and would apply that degree of sk......
  • Eaves v. City of Ottumwa, No. 47264.
    • United States
    • United States State Supreme Court of Iowa
    • August 5, 1949
    ...that cause the injury. Pierce v. Gruben, 237 Iowa 329, 347, 21 N.W.2d 881, 889, 19 N.C.C.A.,N.S., 73; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425;Highland Golf Club v. Sinclair Refining Co., supra, 59 F.Supp. 911, 915. Further, we think it may not fairly be said that in the ordinary co......
  • Request a trial to view additional results

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