Wilt v. McCallum

• Decision Date: 21 May 1923
• Docket Number: No. 14416.,14416.
• Parties: WILT v. McCALLUM et al.
• Court: Missouri Court of Appeals

253 S.W. 156

214 Mo. App. 321

WILT v. McCALLUM et al.

No. 14416.

Kansas City Court of Appeals. Missouri.

May 21, 1923.

Rehearing Denied June 11, 1923.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Action by Julia Wilt against Dr. F. M. McCallum and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Haff, Meservey, German & Michaels, of Kansas City, for appellants.

Watson, Gage & Ess, of Kansas City, for respondent.

ARNOLD, J.

The following opinion of BLAND, J., as originally written, is hereby adopted as the opinion of this court on rehearing, except as hereinafter stated. The original opinion inadvertently referred to the machine in question as a "Wampler," machine, when the correct name was "Wappier." This error, however, is not material, and in no way affects the conclusions reached. The opinion reads as follows:

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000, but voluntarily remitted the sum of $3,000 from the judgment, resulting in a final judgment in her favor in the sum of $3,000, and defendants have appealed. The suit grew out of an explosion of an the machine being used in connection with the anesthetizing of plaintiff. The explosion occurred while she was unconscious. The case was pleaded and submitted on the res ipsa loquitur theory. Defendants contend that their separate and joint demurrers to the evidence should have been sustained; that such theory has no place under the facts in this case.

The facts show that on April 14, 1920, plaintiff, a woman 47 years of age, consulted the defendant, Dr. McCallum, concerning a bladder complaint. The doctor examined her, and discovered a growth known as a caruncle in the urethra. He advised an operation, to which plaintiff consented. The doctor told her that the operation would be of a minor character, and that she would not be in the hospital more than three or four days. She left to him the matter of making the arrangement for an anaesthetist, and he selected the defendant Dr. Hallberg to act in that capacity. Plaintiff repaired to a hospital in Kansas City, where she was taken to the operating room and anæthetic consisting of nitrous oxide, commonly known as laughing gas, mixed with oxygen, was administered to her by Dr. Hallberg. A Heidbrink gas apparatus, belonging to Hallberg, was used.

Plaintiff testified that before Dr. Hallberg put the gas mask over her face some one said, `This should be warm,' and another replied, `It is cold,' and the first said, `It is getting warm.'" Shortly thereafter the face or gas mask was applied, and plaintiff began breathing deeply, and finally became unconscious. The next thing she knew was when she awoke with a "terribly distressed feeling." Persons around her seemed excited, "talking about burns and eyes." She was struggling for her breath, and was nauseated, and as soon as she got her breath, she asked what had happened. Some one said there had been an explosion. The explosion caused her face to be burned and an injury to her eyes.

Some time after the accident Dr. McCallum was explaining to a friend of plaintiff what had occurred, saying, "We bad a terrible accident out there, Faulkner; awful !" "The machine is blown all to hell." "He said the machine bad blown up, and had burned, and struck Mrs. Wilt in the face, and he drew his fist back, and says, `If I were to hit you with all the force I could, Faulkner, it would not be anything compared with the force of that machine hitting her.'" Faulkner asked the cause of the explosion, and Dr. McCallum answered: "I don't know; when we started the machine, it seemed to be cold, and I laid my hand on it, and says to the doctor that was giving the anæsthetic, It should be warm.'"

As before stated, the anæsthetic machine being used by Dr. Hallberg was known as a Heidbrink apparatus. This had two rubber tubes attached, each extending to a steel gas tank, one containing nitrous oxide and the other oxygen. The nitrous oxide passed through a chamber on the machine having attached underneath an electrical resistance coil connected by a cord to the general electric service of the city. The purpose of this electrical equipment was to heat the nitrous oxide. The purpose of heating this gas was to have it at such a temperature that it would not frost up in the tubes, which it would do if cold, to have an even flow and constant supply of the vapor, and also to warm the vapor so it would not irritate the patient's throat and lungs. After the nitrous oxide is heated it flows out of the chamber and there comes in contact with the oxygen, with which it is mixed in the proper proportions. The mixture then flows through a rubber tube one inch in diameter and three or four feet in length. This tube was reinforced by a small wire imbedded in the rubber to keep the tube from collapsing. The end of the tube was fastened to the nose piece of the face mask. This nose piece was composed of rubber, and is a nonconductor of electricity. The face mask was composed of celluloid, with a rubber cushion which fitted over the patient's face. The nose piece of the mask came within an eighth of an inch, of the patient's nose. Celluloid and rubber are nonconductors of electricity. Nitrous oxide and oxygen gas or vapor are nonexplosive, and will not explode even when brought in contact with a flame.

Dr. McCallum was using a Wampler high frequency electrical converter in connection with the operation. He had removed the caruncle, and was using this machine to cauterize the wound. As soon as the electrode of this machine was applied to plaintiff there was an explosion in the gas mask and rubber tubes attached thereto, a hole being blown in the tube four or five inches from the face mask. Dr. Hallberg testified that the face mask was blown out of his hand, but was not damaged, nor was any of the rest of the machine damaged in any particular except as to the hole blown in the tube. However, Dr. McCallum stated to Faulkner that "the machine is blown all to hell." Whether this raises a conflict in the testimony as to the extent of the damage to the machine we need not say, for the reason that we do not think the extent of the conflict to be material. It is not now disputed that the entire machine was not wrecked.

The evidence shows that the explosion occurred about 10 minutes after the gas began to flow into the gas mask, and about 3 to 5 minutes after plaintiff became unconscious, requiring around 6 minutes after the gas started to flow into the gas mask for plaintiff to become unconscious. It requires three or four minutes to heat the nitrous oxide after the current is turned on. Plaintiff remained unconscious 2 or 3 minutes after the explosion, during which time Dr. McCallum finished cauterizing.

The evidence shows that the kind of current manufactured by the Wampler transformer is the same as used in wireless, having an extremely high voltage of 100,000 volts, the amperage being low. This current has a very peculiar effect upon the human body, not quite understood by electrical experts; it may flow over or through a person without injury or with very little sensation, but sufficiently to light a lamp or cause enough heat to render a small wire red hot; when applied to the body in sufficient quantity it will cause sparks to radiate therefrom. The evidence shows that the Wampler transformer is a well-recognized machine of standard make, and commonly used by reputable surgeons in operations of this kind, and that there was nothing, so far as experience in the working of the machine was concerned, to indicate that it' was not in good order. This Wampler apparatus had been used many times since without repair or any change being made in it. Unless the mere fact that the explosion occurred shows that it was not in good order, the evidence is uncontradicted that it was. The same may be said of the Heidbrink apparatus being used by Dr. Hallberg. The electricity being used in connection with the Wampler apparatus was obtained through the ordinary city service. There was no wire or metallic connection between the Wampler and the Heidbrink machines.

The purpose of transforming the electricity into a high frequency current was to get a current of many interruptions. These interruptions would run into millions in a second, and would cause innumerable hot sparks, making an ideal cauterizing agency. Of course, plaintiff was unconscious and did not know what happened to her. She did not call to the witness stand any person who was present at the time of the explosion, although there was at least one other there, aside from the two doctors. assisting in the operation. The evidence as to what happened was brought out on the part of the defendants. Dr. Hallberg testified that plaintiff was brought into the operating room; that Dr. McCallum announced that he was ready to operate, and the witness prepared to put plaintiff asleep. Some one, he did not know who, touched the Heidbrink apparatus between the two gas tanks, and asked if "the thing was warm." Witness then touched it himself, and said, "Not yet," and he waited a few minutes and it warmed up, and then he put the gas mask over plaintiff's face and started to give her the gas. When she was asleep he told Dr. McCallum that she was ready, and Dr. McCallum began the operation. After 5 or 6 minutes there was an explosion. Dr. McCallum testified that when plaintiff was under the effects of the anesthetic he cut off the caruncle and started to apply the cauterizer, but as soon as the electrode was applied to plaintiff's body an explosion occurred.

Plaintiff, in chief, placed upon the stand Dr. Cross, a chemist, who, together with his assistants, made the tests for the Kansas City Oxygen Company, which manufactured the gas being used at the time of the explosion. He testified: That a combination of nitrous oxide and oxygen is not explosive unless...