Whitmore v. Herrick
| Decision Date | 06 March 1928 |
| Docket Number | 38636 |
| Citation | 218 N.W. 334,205 Iowa 621 |
| Parties | CARRIE S. WHITMORE, Appellant, v. JOHN F. HERRICK, Appellee |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--D. M. ANDERSON, Judge.
Action at law, to recover damages for alleged malpractice committed by defendant while treating plaintiff as a patient, and injuring her foot by the use of X-rays. The cause was submitted to a jury, and it returned a verdict for defendant. Because of alleged errors in the introduction of evidence failure to submit issues, and refusal to give certain requested instructions, the appeal was taken.
Affirmed.
Jaques Tisdale & Jaques, for appellant.
Charles M. Dutcher, Gilmore & Moon, and Smith & Work, for appellee.
John F. Herrick, defendant and appellee, is a physician in the general practice at Ottumwa, and Carrie S. Whitmore, plaintiff and appellant, is a housewife, 57 years of age, living in the same city. She had a callosity on the ball of her right foot, and in 1923 called upon appellee for treatment therefor. Accordingly, the X-ray was used for administering to the ailment. Between February 2d and October 15th of that year, 13 applications of the electric remedy were made. After the 11th exposure, August 21st, an erythema developed, the area became red and inflamed, and the foot was swollen and painful. By September 5th, the portion of the part afflicted turned purple for three quarters of an inch around the callus, and the member was enlarged above the ankle. Two weeks later, the condition was so much worse that the patient could not sleep, and dark discoloration appeared. An abscess developed, causing suffering and agony, and amputation of the limb was threatened.
Contention is made by appellant that the cause of this unsuccessful result was a burn produced by the "X-ray;" while the explanation offered by appellee is that it was brought about through infection under the callus, regardless of the electric contacts. Causes of action relied upon were set forth in three counts of the petition and later amendments thereto. Of these, the first contained no allegation of negligence; while the second and third were based upon specific charges of carelessness and wrongful conduct on the doctor's part, which, it is alleged, were the proximate cause of the injury.
When submitting the issues to the jury, the district court allowed that body to consider only the specially named grounds which asserted lack of required care; however, on the theory that the first division of the petition was by reference made a part of the said second and third, the substance of the former was included in and submitted with the latter two, under the particularization of wrong acts therein contained. But, notwithstanding the foregoing, the court refused to allow any relief based upon the allegations "of the first count," in and of themselves separated from the others, because it did not give rise to the res ipsa loquitur doctrine, and, such being true, there was no other accusation of wrongdoing. That is to say, the first was not dealt with as an independent cause of action.
To correct alleged error in this regard, as well as certain rulings on evidence and failure to give requested instructions, this appeal was taken.
I. At the outset, it is earnestly urged by appellee that the principle of "res ipsa loquitur" has no place in this litigation, for the reason, he says, that this is a contest between a patient and her physician, due to claimed malpractice. For authority to sustain this position, reference is made to Kuehnemann v. Boyd, 193 Wis. 588 (214 N.W. 326); Wurdemann v. Barnes, 92 Wis. 206 (66 N.W. 111); Finke v. Hess, 170 Wis. 149 (174 N.W. 466); Sweeney v. Erving, 35 App. D.C. 57 (43 L. R. A. [N. S.] 734); Antowill v. Friedmann, 197 A.D. 230 (188 N.Y.S. 777); Runyan v. Goodrum, 147 Ark. 481 (228 S.W. 397); Vale v. Noe, 172 Wis. 421 (179 N.W. 572); Streett v. Hodgson, 139 Md. 137 (115 A. 27); Nixon v. Pfahler, 279 Pa. 377 (124 A. 130); Hamilton v. Harris (Tex. Civ. App.), 204 S.W. 450; Ewing v. Goode, 78 F. 442; Tady v. Warta, 111 Neb. 521 (196 N.W. 901); Stemons v. Turner, 274 Pa. 228 (117 A. 922); Vaughan v. Memorial Hospital, 103 W.Va. 156 (136 S.E. 837).
While, on the other hand, appellant strenuously argues that this rule of law (res ipsa loquitur) does apply to such status, and that it was her privilege and right to assert it in the instant case involving an "X-ray" burn. In substantiation of this declaration, our attention is called to Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360; Vergeldt v. Hartzell (8th Circuit), 1 F.2d 633; Evans v. Roberts, 172 Iowa 653, 154 N.W. 923; Welsch v. Frusch L. & P. Co., 197 Iowa 1012, 193 N.W. 427; Royal Elec. Co. v. Heve, 11 Quebec, K. B. 436; Curtis on The Law of Electricity, Section 597; San Juan L. & T. Co. v. Requena, 224 U.S. 89, 56 L.Ed. 680, 32 S.Ct. 399; Frisk v. Cannon, 110 Minn. 438 (126 N.W. 67); 2 Jones Commentaries on Evidence (1913) 182, 183, Section 184; Johnson v. Marshall, 241 Ill.App. 80; Loveland v. Nelson, 235 Mich. 623 (209 N.W. 835); Holcomb v. Magee, 217 Ill.App. 272; Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217 (136 N.W. 741); George v. Shannon, 92 Kan. 801 (142 P. 967); Ryan v. St. Paul Union Depot Co., 168 Minn. 287 (210 N.W. 32); Holt v. Ten Broeck, 134 Minn. 458 (159 N.W. 1073); Evans v. Clapp (Mo. App.), 231 S.W. 79; 20 Ruling Case Law 187, Section 156; 21 Ruling Case Law 407; Sauers v. Smits, 49 Wash. 557 (95 P. 1097); Delahunt v. United Tel. & Tel. Co., 215 Pa. 241 (64 A. 515); Hunter v. Burroughs, 123 Va. 113 (96 S.E. 360).
There appears, however, in the case at bar a barrier to our consideration of these conflicting views. It relates to a matter of pleading. Forsooth, "res ipsa loquitur" cannot avail a litigant unless the statement of facts constituting the foundation of the suit are sufficient to warrant its utilization. Fundamentally, this action sounds in tort, and relates entirely to "negligence." Liability, therefore, must be predicated on proximate "negligence," both "pleaded" and proved. Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215; Burris v. Titzell, 189 Iowa 1322, 177 N.W. 557. On the other hand, "res ipsa loquitur" is not a rule of "pleading," but rather an inference, aiding in the "proof." With those essentials in mind, attention will now be given to the "allegations" concerned.
No assertion is made in the particular "count" under discussion that there was "negligence," either general or special. This, appellant says, was not necessary, in view of the actual contents of the "count," which, as summarized by her, designates:
Assuming, without deciding, that the language there employed gave rise to the operation of "res ipsa loquitur," were the charge of "negligence" properly made, yet, as before stated, that goes to the "proof," rather than the "pleadings." (Notation is to be made that, under the "counts" submitted, the question of the subsequent applications after that of August 21st was given to the "jury.") "Treatment" here applied may have been proper, for all that appears under the circumstances. Appellant suggests that she did not directly allege "negligence" because, having done so, it would be incumbent to prove the same. She undoubtedly had in mind the rule applicable to specific "allegations," as distinguished from general. If "specific negligence" is set forth in a given "count," there is no place therein for general assertions. Kelly v. Muscatine, B. & S. R. Co., 195 Iowa 17, 191 N.W. 525. And, as hereafter seen, it is the latter only that make applicable "res ipsa loquitur." Mistaken conception must have been made by the pleader with reference to the very nature of the action. "Negligence" on appellee's part is the only possible reason for permitting appellant to succeed. Without such, there is no chance of recovery. Therefore, proof of this dereliction is imperative; and this is true, forgetting for the moment the question of "pleading." Furthermore, it is evident from the authorities referred to that proof is secondary, and essential allegations furnishing the foundation therefore are primary. Returning again to the language used by the "pleader," it is apparent that neither general nor special "negligence" was asserted, and it is only after the necessary averment in that regard that "res ipsa loquitur" becomes important; for, even after that essential preliminary has been accomplished, the duty nevertheless remains upon the plaintiff to "prove" the "negligence." Assistance in so doing, however, may be through "res ipsa loquitur," which does not relieve the "pleader" from the burden of "allegation," but helps such litigant on the "proof" through inference that, because of the facts giving rise to the theory, "negligence" must have occurred. Huggard v. Glucose Sugar Ref. Co., 132 Iowa 724, 109 N.W. 475, aptly states:
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