Zilke v. Johnson

• Decision Date: 09 September 1911
• Parties: ZILKE v. JOHNSON
• Court: North Dakota Supreme Court

132 N.W. 640

22 N.D. 75

ZILKE v. JOHNSON

Supreme Court of North Dakota

September 9, 1911

Appeal from District court, Bottineau county; A. G. Burr, J.

Action bye Amelia Zilke against J. A. Johnson. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Reversed and new trial ordered.

New trial ordered.

Noble Blood, & Adamson, for appellant.

Bowen & Adams, for respondent.

FISK J. MORGAN, Ch. J., not participating.

OPINION

FISK, J.

Plaintiff recovered judgment in the court below, and defendant appeals therefrom, and also from the orders denying his motions for judgment notwithstanding the verdict and for a new trial.

The defendant is a physician and surgeon, and on November 13, 1906, was employed to and did perform a serious surgical operation upon the person of plaintiff. The action is to recover damages for alleged malpractice on defendant's part in connection with such operation; it being alleged that he negligently failed and refused to procure necessary professional assistance in performing such operation, and that he unskillfully, negligently, and carelessly left and permitted to remain in the wound in plaintiff's abdomen a large amount of cloth and gauze, and that the same remained therein until on or about October 26, 1908, at which time plaintiff was obliged to employ other physicians and surgeons to remove such cloth and gauze, and, to accomplish such end, she was again compelled to submit to and suffer another painful and serious operation to her great damage, etc. Defendant, by his answer, put in issue the alleged acts of unskillfulness and negligence, and the issue thus framed is the sole issue tried in the district court.

Appellant's counsel have assigned a great number of alleged errors, which are argued in the brief, but they are grouped and treated under various heads. We will consider them in the order presented.

Assignments numbered 1 to 8, inclusive, relative to certain rulings on the admission of testimony. Counsel complain because the court permitted plaintiff to show pain suffered by her, before establishing the acts of negligence charged. There is no merit in these assignments. Such rulings merely go to the order of proof, and it is firmly settled that the order of proof is committed to the discretion of the trial court, and it is seldom, if ever, that reversible error can be predicated on the exercise of such discretion.

Assignments 9 and 30 to 34 are based on certain rulings in the admission of testimony relative to plaintiff's ability to do work of any kind after the 1906 operation and prior to the time such gauze was removed in 1908. We discover no error in such rulings. It is apparent from the record that such testimony was offered merely to show the extent and character of plaintiff's injuries, and not, as appellant's counsel assume, for the purpose of augmenting the damages on account of loss of services. That the testimony was admissible for the purpose for which it was offered is, we think, clear. See Stutz v. Chicago & N.W. R. Co. 73 Wis. 147, 9 Am. St. Rep. 769, 40 N.W. 653; Bliss v. Beck, 80 Neb. 290, 114 N.W. 162, 16 Ann. Cas. 366; Consolidated Kansas City Smelting & Ref. Co. v. Tinchert, 5 Kan.App. 130, 48 P. 889; Wade v. Leroy, 61 U.S. 34, 20 HOW 34, 15 L.Ed. 813; 7 Enc. Ev. 384, note 27; 13 Cyc. 188, and cases cited in note 2; Dahlberg v. Minneapolis Street R. Co. 32 Minn. 404, 50 Am. Rep. 585, 21 N.W. 545.

Assignments 35 to 41, inclusive, involve the admissibility of certain testimony as to the expense of the 1908 operation. No exception was saved to the ruling forming the basis of assignment 35. Hence such assignment must be overruled. The rulings on the questions asked by defendant's counsel on cross-examination, and on which assignments 36, 37, and 38 are predicated, were correct. Such questions were clearly immaterial, and the last one was also improper cross-examination.

The next three assignments are likewise devoid of merit. It was perfectly proper for plaintiff to show that she had unconditionally obligated herself to pay Dr. Halldorson for the 1908 operation. Indianapolis Traction & Terminal Co. v. Kidd, 167 Ind. 402, 7 L.R.A. (N.S.) 143, 79 N.E. 347, 10 Ann. Cas. 942; Wilson v. Southern P. Co. 13 Utah 352, 57 Am. St. Rep. 766, 44 P. 1040.

Assignments 11, 44, and 47 are based on rulings in sustaining objections to certain questions asked plaintiff on cross-examination, and in overruling objections to certain questions asked defendant on cross-examination. These assignments relate to testimony as to the reason the 1906 operation was performed at plaintiff's home, instead of elsewhere, and the doctor's knowledge that the surrounding conditions at that place were not the most favorable. This testimony was immaterial. It had no tendency to throw any light upon the issue of defendant's alleged negligence in leaving the gauze in plaintiff's abdomen, nor upon his alleged negligence in performing such operation without proper assistance. Even if erroneous, such rulings were non-prejudicial. Assignment 12 is not argued, and will therefore be deemed abandoned.

We perceive no merit in assignments 13, 14, 15, 26, and 27. If the testimony as to the conversation between plaintiff and defendant regarding the necessity of employing other medical assistance at the operation, and also the testimony of the witness, Dr. Halldorson, as to the custom in having such assistance at an operation of this character, was immaterial, as urged by appellant's counsel, we are unable to discover how it could have been prejudicial. While the complaint charges, as one of the acts of negligence, that defendant performed such operation without proper assistance, there is nothing to show that such alleged negligence in any manner directly contributed to the injury complained of. It might be proper, however, to show such fact as a circumstance of some evidentiary weight bearing upon the particular negligent act relied on. However this may be, we are agreed that the rulings do not in any event constitute prejudicial error.

Assignments 16, 17, and 18 require but brief notice. They relate to rulings in permitting plaintiff to testify to the fact that the nurse, M. P. Barnes, left, and why she left after four or five days. Such testimony was wholly immaterial, but its admission could not possibly have influenced the jury, and such rulings, were harmless to appellant. The same is true of assignments 19 and 20.

Assignments numbered 21, 22, 23, 24, 25, and 28 merely go to the order of proof; and hence, for reasons heretofore stated, the rulings on which such assignments are based do not constitute reversible error, and these assignments cannot avail appellant.

The remaining assignments call in question the correctness of the trial court's actions in overruling defendant's motion for a directed verdict, denying his motion for judgment non obstante veredicto, and in denying his motion for a new trial. These assignments require more extended consideration, as they involve the sufficiency of the evidence to sustain the recovery, and also numerous exceptions to the instructions. The question of the alleged insufficiency of the evidence will be first disposed of. As before stated, the precise act of negligence claimed is the leaving of the gauze in the wound at the 1906 operation. Is there any substantial testimony in the record to support a finding by the jury of such alleged neglect on defendant's part? Appellant contends that there is no direct testimony of such fact, and that if gauze was found in plaintiff's abdomen, as testified to by Drs. Halldorson and Durnin, that it must have been placed there at a prior operation, which was made, as the testimony disclosed, in 1905. Defendant positively swears that at the 1906 operation he did not make an incision entirely through the abdominal wall, but merely penetrated what is known in surgery as "the eponerosis of the recti muscles," and that the operation was outside of the peritoneal cavity. In this he appears to be corroborated, at least to some extent, by the nurse, M. P. Barnes. Defendant also swears that at neither the 1906 nor 1905 operations did he use any packing, but he did use a dressing and sponging. Respondent concedes that there is no direct testimony showing that appellant left gauze in her abdomen at the 1906 operation, but contends that the circumstantial evidence is well-nigh conclusive that such is a fact, and at least it was amply sufficient to require a submission of such question to the jury. She calls attention to the fact that in the nature of the case direct proof could not be furnished. She was under the influence of an anesthetic at the time of such operation, and the only other persons present were defendant, his wife, and the nurse. It is an undisputed fact in the case that on October 26, 1908, Drs. Halldorson, Durnin, and Jensen removed from plaintiff's abdomen the gauze (Exhibit 2), and the crucial question is, When was such gauze placed therein?

The undisputed evidence shows that three operations were performed on plaintiff's abdomen by this defendant,--the first in 1905, the second on November 13 1906, and the third on September 18, 1908. These were the only operations performed on plaintiff between the operation in 1905 and the date Drs. Halldorson, Durnin, and Jensen removed the gauze on October 26, 1908. The nurse positively testified that there were no sponges left in the abdomen of the plaintiff at the 1905 operation. She says: "I prepared the sponges; they were counted out, and after the operation they were counted again." She was also present as nurse at the 1906 operation, and testified that she counted the sponges before the operation, but did not count them...