Wood v. Vroman

• Decision Date: 10 April 1924
• Docket Number: No. 51.,51.
• Citation: 198 N.W. 228,226 Mich. 625
• Parties: WOOD v. VROMAN.
• Court: Michigan Supreme Court

226 Mich. 625

198 N.W. 228

WOOD

v.VROMAN.

No. 51.

Supreme Court of Michigan.

April 10, 1924.

Error to Circuit Court, St. Clair County; Harvey Tappan, Judge.

Action by Peter M. Wood against Mason E. Vroman. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Lodge & Brown, of Detroit, and Lincoln Avery, of Port Huron, for appellant.

John B. McIlwain, of Port Huron (David Fitzgibbon, of Port Huron, of counsel), for appellee.

FELLOWS, J.

This case is here for the second time. The opinion when the case was here before (215 Mich. 449, 184 N. W. 520) fully states the facts which need not be here repeated. Nor will it be necessary to take time and space to demonstrate that the rules of law applicable to this case were there correctly stated. The opinion there filed made the law of the case. American Insurance Co. v. Martinek, 216 Mich. 421, 185 N. W. 683. We held when the case was here before that plaintiff made a case for the jury, and reversed the case for the refusal to give certain requests.

It is now insisted, as it was when the case was here before, that the action taken by plaintiff before the (then) Industrial Accident Board and the acceptance of compensation from Beard Campbell & Co. estops plaintiff from maintaining this suit, and it is insisted that the present record presents that question as a new one. It is true that the present record contains more of detail of the proceedings before the Board than the former record. But there was sufficient upon the former record to present the question for decision; it was decided and the decision constitutes the law of the case. The addition of cumulative testimony does not permit a reexamination of the question. We there held that the proceedings might be considered as affecting the credit to be given plaintiff's present claim but that they did not bar recovery.

Upon the present trial the defendant and other physicians called by both parties testified that proper practice required the opening of a pustule or sty if one existed on the lid of plaintiff's eye at the time the foreign substance was removed from the cornea of the eye; that its opening and drainage would tend to prevent infection which might result if left to open by natural process when no one was present to attend to it. It is insisted what this presents a different record than when the case was here before, and counsel strenuously urge that, if the sty was opened by defendant, it was a part of the treatment necessarily incidental to the removal of the foreign substance from the eye, a part of the one operation, and that the original injury at Beard Campbell & Co.'s was the proximate cause of the result for which defendant was not liable. If this testimony was undisputed, a different question would be before us than we had upon the former record. But it is not undisputed. Much of defendant's testimony given on the former trial was introduced in evidence by both parties. On the former trial he testified:

‘Q. If you were called upon to remove a foreign particle from a man's eye, and that man at that time had a pustule on his eye, would you consider it good practice to open that pustule on his eye? Would you consider it good practice to open that pustule after removing that foreign body? A. No, sir.

‘Q. And in your practice would you do it? A. No, sir.

‘Q. And that is one of the first things you learn in your line of work, is it not? A. To avoid infection, yes. * * *

‘Q. You wouldn't have opened it had it been there? A. I wouldn't open it; no, sir.

‘Q. Why would you not have opened it? A. It might possibly become infected, even a low infection might give you some little trouble.

‘Q. And you couldn't remove it by taking care so that it would not have become infected; couldn't you remove the pus that is in the pustule and flush in out? A. Without taking any chances?

‘Q. With taking less chances than by leaving it there? A. No, sir.'

Upon the present trial defendant explained this testimony by saying that he referred to the eye proper, the eyeball, but it further appears that he also testified on the former trial as follows:

‘Now, you say that you did not remove any pustule from his eyelid? A. Opening any?

‘Q. Opening any? A. No, sir.

‘Q. And you testify to that as a matter of memory, do you, and not as a matter of reasoning? A. As a matter of reasoning and...