Yeager v. Dunnavan

• Decision Date: 29 November 1946
• Docket Number: 29991.
• Citation: 174 P.2d 755,26 Wn.2d 559
• Parties: YEAGER et ux. v. DUNNAVAN.
• Court: Washington Supreme Court

174 P.2d 755

26 Wn.2d 559

YEAGER et ux. v. DUNNAVAN.

No. 29991.

Supreme Court of Washington

November 29, 1946

Department 2

Action by Arthur Yeager and wife agains Floyd L. Dunnavan for death of plaintiffs' daughter while under an anaesthetic during an operation being performed upon her by defendant. From a judgment of involuntary nonsuit and dismissal, plaintiffs appeal.

Judgment affirmed.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

Olive Scott Johnson and Everal Carson, both of Vancouver, for appellants.

McMullen and Snider, of Vancouver, and Senn, Recken & Recken, of Portland, Or., for respondent.

MALLERY Justice.

This cause was tried to a jury. It comes to us on appeal from an order of involuntary nonsuit and dismissal, entered upon the defendant's challenge to the sufficiency of the evidence at the close of the plaintiff's case.

A challenge to the sufficiency of the evidence, or motion for nonsuit, admits the truth of plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant and in the light most favorable to the plaintiff. Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265.

So construed, the facts are these: appellants, as parents of Barbara Jean Yeager, aged nine, brought this action to recover damages for her death which occurred on June 7, 1945 while she was under an anesthetic during an eye operation then being performed upon her by respondent, who is a licensed physician specializing in eye, ear, nose and throat practice.

Respondent had prescribed a change of eye glasses and eye exercises for the child, which in a year's time had improved her sight but had failed to correct the deviated or crossed condition of her left eye. Respondent then advised appellants that the child's defect could be remedied only by a surgical operation. Mrs. Yeager, the child's mother, testified as follows:

'Q. Well, and did you ask him any questions about it? A. Yes, I asked him if it was a dangerous operation and he shrugged his shoulders and said none whatsoever.

'Q. And after that what did you do? A. I went home and talked it over with my husband.

'Q. And did your husband and you arrive at an agreement of what you were going to do? A. Well, we talked it over and we decided to have the operation. Dr. Dunnavan had promised that for $200.00 he would correct Barbara's eye without danger to her health or sight.

'Q. And did you agree to pay him the money if he would do that? A. Yes.

'Q. And after that were arrangements made for the operation? A. Yes.' (Italics ours.)

Appellants took the child to the Vancouver couver Memorial Hospital on June 6th. There she was given the usual pre-operative tests and was taken into the operating room at 10:30 the following morning. The anesthetic, ether, was administered by Miss Johnson, an anesthetist in the employ of the hospital. Respondent commenced the operation at 10:45 a. m. Nothing untoward occurred until approximately 12:10 p. m., when both the respondent and the nurse noticed that the child had become cyanotic, that is, had taken on a bluish discoloration indicating a stoppage of breathing. Respondent immediately stopped the operation procedure and passed to the other side of the drape to look at the child who was not breathing. This was the first and only sign that anything abnormal was occurring. Efforts were immediately begun to resuscitate her. Other doctors were called in to assist, but all efforts were in vain.

An autopsy revealed that the death was caused by an allergy to ether of the thymus gland of the child. According to the evidence there is no known test to ascertain such an allergy prior to the time that ether is administered.

The complaint alleged breach of the respondent's agreement to correct the child's eyesight without injury to her health or eyesight and without danger to her life, and further alleged negligence. Answer was general denial.

In their first assignment of error, appellants contend that the cause of action set forth in their complaint is one arising out of a breach of contract to correct Barbara Jean's eyesight. They therefore argue that the court below erred in holding that Mrs. Yeager's testimony did not make a prima facie case.

Whether or not the evidence adduced was sufficient to establish the contract contended for is not controlling, for we think that the gravamen of appellant's action is the alleged negligence of respondent in performing the operation rather than his breach of the alleged contract.

"Whether an action is in contract or in tort should be determined in the first place from the pleadings, and by an examination and consideration of the essential allegations of the complaint rather than the form adopted by the pleader, what the pleader calls it, the understanding of counsel or of the trial court, and the question must be determined by reference to the complaint as a whole, and not by particular words or allegations considered apart from the context. 1 C.J.S. 1100, Actions, § 46. We think a good test to be used in determining whether a pleading sets up a case in contract or in tort may be stated as follows. When an act complained of is a breach of specific terms of the contract, without any reference to the legal duties imposed by law upon the relationship created thereby, the action is in contract, but where there is a contract for services which places the parties in such a relation to each other that, in attempting to perform the promised service, a duty imposed by law as a result of the contractual relationship between the parties is violated through an act which incidentally prevents the performance of the contact, then the gravamen of the action is a breach of the legal duty, and not of the contract itself, and in such case allegations of the latter are considered mere inducement, showing the relationship which furnishes the right of action for the tort, but not the basis of recovery for it, and in such cases the remedy is an action ex delicto." Compton v. Evans, 200 Wash. 125, 93 P.2d 341, 344.

The Compton case was an action by a domestic servant against the estate of her employers for personal injuries incurred while traveling with them in their automobile from their summer home to their residence. Defendants were a marital community. The wife having died in the same accident in which plaintiff was injured, action was commenced against the husband. He died and his executors and administrator de bonis non with-will-annexed of the estate of his wife were substituted as parties defendant. The complaint set forth the contract of employment which provided inter alia that employers would furnish the plaintiff with board and room in whichever home they were then living and would provide her with safe transportation between residences. The complaint further alleged negligence in the employer's operation of their automobile which resulted in plaintiff's injury. Applying the rule set forth above, we held that plaintiff's action sounded in tort and that she could not recover against the estate since the tort action did not survive.

A basic illustration of the rule, and one most often employed in cases dealing with this question, is that of injury befalling a passenger aboard a vehicle operated by a common carrier. In such cases it is always held that the duty...