Whitmore v. Herrick, No. 38636.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtKINDIG
Citation205 Iowa 621,218 N.W. 334
Docket NumberNo. 38636.
Decision Date06 March 1928
PartiesWHITMORE v. HERRICK.

205 Iowa 621
218 N.W. 334

WHITMORE
v.
HERRICK.

No. 38636.

Supreme Court of Iowa.

March 6, 1928.


Appeal from District Court, Wapello County; 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.

[218 N.W. 335]

Jaques, Tisdale & Jaques, of Ottumwa, for appellant.

Chas. M. Dutcher, of Iowa City, Gilmore & Moon, and Smith & Work, all of Ottumwa, for appellee.


KINDIG, J.

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

[218 N.W. 336]

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 eleventh 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 callous, 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 callous, 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 ipso 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 (Wis.) 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 App. Div. 230, 188 N. Y. S. 777;Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, 13 A. L. R. 1403;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 (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vaughan v. Memorial Hospital (W. Va.) 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. 36;Vergeldt v. Hartzell et al. (Circuit Court of Appeals, 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 Electricity, § 597; San Juan Light & Trans. Co. v. Requena, 224 U. S. 89, 32 S. Ct. 399, 56 L. Ed. 680;Frisk v. Cannon, 110 Minn. 438, 126 N. W. 67; 2 Jones on Evidence, § 184, pp. 182 and 183; 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, 40 L. R. A. (N. S.) 485;George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338;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, Ann. Cas. 1918E, 256;Evans v. Clapp (Mo. App.) 231 S. W. 79; 20 Ruling Case Law, 187, § 156; 21 Ruling Case Law, 407; Sauers v. Smits, 49 Wash. 557, 95 P. 1097, 17 L. R. A. (N. S.) 1242;Delahunt v. United Telephone & Telegraph Co., 215 Pa. 241, 64 A. 515, 114 Am. St. Rep. 958;Hunter v. Burroughs, 123 Va. 113, 96 S. E. 360.

[1][2][3][4][5] 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;179 N. W. 851; 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

[218 N.W. 337]

“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 “that on August 21, 1923, plaintiff had a corn or callosity on her right foot, and went to defendant, as her physician, for treatment, and he subjected her to exposure of the X-ray; the machine was entirely under his control; the plaintiff had no knowledge as to its use and no means of controlling it; she was helpless in his hands, and relied upon him for protection, and was without contributory negligence on her part; that by such exposure he inflicted such a severe burn as to cripple her for life; and, with this condition apparent to him and he having knowledge thereof, he persisted in inflicting further exposures on September 5 and October 15, 1923, to the same area so wounded by him.”

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 therefor 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. Refining Co., 132 Iowa, 724, 109 N. W. 475, aptly states:

“* * * The law itself sometimes raises inferences from proved facts; that is, the proved facts make out a prima facie case, sufficient to justify a verdict, unless the defendant goes ahead with his side of the case,...

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21 practice notes
  • Whetstine v. Moravec, No. 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...whether the res ipsa loquitur rule applies to such cases. This court has not definitely passed upon it, but see Whitmore v. Herrick, 205 Iowa 621, 218 N.W. 334;Rulison v. X-Ray Corp., 207 Iowa 895, 223 N.W. 745;Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360. The cited case of Miller v. Tole......
  • 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
    ...assists the party having the burden of proof in establishing the negligence of the party sought to be charged. Whitmore v. Herrick, 1928, 205 Iowa 621, 218 N.W. 334, 337. A party in order to obtain such assistance must first present sufficient proof of the existence of the elements necessar......
  • Olson v. Truax, No. 49784
    • United States
    • United States State Supreme Court of Iowa
    • July 24, 1959
    ...to instructions actually given. Stewart v. Hilton, 247 Iowa 988, 995, 77 N.W.2d 637, 641, and citations; Page 907 Whitmore v. Herrick, 205 Iowa 621, 632-633, 218 N.W. 334. See [250 Iowa 1051] also Jurgens v. Davenport, R. I. & N. W. Ry. Co., 249 Iowa 711, 88 N.W.2d 797, 801-803; Ritter v. A......
  • State v. Mayhew, No. 53169
    • United States
    • United States State Supreme Court of Iowa
    • September 16, 1969
    ...any privilege was waived includes Woods v. Town of Lisbon, 150 Iowa 433, 435--436, 130 N.W. 372, 373 and citations; Whitmore v. Herrick, 205 Iowa 621, 630--1, 631, 218 N.W. 334; Barnard v. Cedar Rapids City Cab Co., 257 Iowa 734, 750, 133 N.W.2d 884, 895; Prof. Craig T. Sawyer 'The physicia......
  • Request a trial to view additional results
21 cases
  • Whetstine v. Moravec, No. 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...whether the res ipsa loquitur rule applies to such cases. This court has not definitely passed upon it, but see Whitmore v. Herrick, 205 Iowa 621, 218 N.W. 334;Rulison v. X-Ray Corp., 207 Iowa 895, 223 N.W. 745;Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360. The cited case of Miller v. Tole......
  • 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
    ...assists the party having the burden of proof in establishing the negligence of the party sought to be charged. Whitmore v. Herrick, 1928, 205 Iowa 621, 218 N.W. 334, 337. A party in order to obtain such assistance must first present sufficient proof of the existence of the elements necessar......
  • Olson v. Truax, No. 49784
    • United States
    • United States State Supreme Court of Iowa
    • July 24, 1959
    ...to instructions actually given. Stewart v. Hilton, 247 Iowa 988, 995, 77 N.W.2d 637, 641, and citations; Page 907 Whitmore v. Herrick, 205 Iowa 621, 632-633, 218 N.W. 334. See [250 Iowa 1051] also Jurgens v. Davenport, R. I. & N. W. Ry. Co., 249 Iowa 711, 88 N.W.2d 797, 801-803; Ritter v. A......
  • State v. Mayhew, No. 53169
    • United States
    • United States State Supreme Court of Iowa
    • September 16, 1969
    ...any privilege was waived includes Woods v. Town of Lisbon, 150 Iowa 433, 435--436, 130 N.W. 372, 373 and citations; Whitmore v. Herrick, 205 Iowa 621, 630--1, 631, 218 N.W. 334; Barnard v. Cedar Rapids City Cab Co., 257 Iowa 734, 750, 133 N.W.2d 884, 895; Prof. Craig T. Sawyer 'The physicia......
  • Request a trial to view additional results

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