Opinion
8 Div. 682.
June 5, 1928. Rehearing Denied June 26, 1928.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
Action for malpractice by J. S. Henderson against Cicero F. Peck. Judgment for plaintiff, and defendant appeals. Affirmed.
Certiorari denied by Supreme Court in Peck v. Henderson, 118 So. 262.
The third count of the complaint is as follows:
The plaintiff claims of the defendant the sum of $50,000, as damages, for that on, to wit, October 26, 1925, the defendant was a practicing physician and surgeon in Somerville, Morgan county, Ala., and as such undertook to remove a cotton seed from the ear of plaintiff's minor son, Leldon M. Henderson, a child of eight years of age, and to treat and care for said ear after the removal of said cotton seed, and plaintiff alleges that the defendant, in attempting to remove said cotton seed, so negligently or unskillfully probed or gouged into said ear as to rupture or lacerate the same, and did negligently or unskillfully treat or omit to treat said ear after said rupture or laceration, that, as a proximate consequence of the defendant's said negligent or unskillful conduct in that regard, said minor child's ear rose and became so infected that the said minor child lost his life.
The following are grounds of demurrer addressed to said count:
11. Same is uncertain, and in the alternative, in that it is averred that the defendant either negligently treated the decedent, or omitted to treat the decedent after the rupture or laceration; the two alternatives not being the same in substance, or in legal effect.
12. Said count is duplicitous, in this: It charges that the defendant negligently and unskillfully probed or gouged into decedent's ear so as to cause injuries thereto, which constitutes a complete cause of action, and it further charges another complete cause of action in negligently or unskillfully treating, or omitting to treat said ear, after the wrongful injury.
13. It is averred that the defendant either negligently or unskillfully treated said ear, or omitted to treat the same, after the rupture or laceration, thereby constituting an alternative cause of action, without charging that the defendant negligently omitted to treat said ear.
14. Said count proceeds against the defendant for omitting to treat the ear of decedent, but fails to charge that said omission was negligent, and fails to charge any negligent action.
14-a. The count is no stronger than its weakest averment, and fails to state that defendant negligently or unskillfully, or wrongfully, or wantonly omitted to treat said ear.
14-b. It is not averred that death was caused by failure to treat the ear.
The following charge was given at plaintiff's request:
A. No matter how much skill Dr. Peck may have possessed, yet if he so negligently or unskillfully undertook to remove the cotton seed, or if he negligently or unskillfully treated or omitted to treat the ear, and such negligence or unskillfulness proximately contributed to the child's death, then Dr. Peck is liable.
Plaintiff's evidence tended to show that his eight year old son, complaining of having a cotton seed in his ear, was carried to the office of the defendant, Dr. Peck, soon after daybreak on a Monday morning; that defendant, when told of the trouble, said he had a pair of "alligator forceps" which he had bought for such purposes, and began searching for them, finally locating them in the bottom of a trunk containing "pieces of bridles, bridle bits, back bands, trace chains, and things like that, old discarded worn-out stuff, * * * found the forceps in there among all of that stuff"; that the forceps were "so rusty you could scrape it off with a knife"; that an old table was cleared and moved to the back porch of the office, an old coat laid over the table, and the child placed on the coat; that chloroform was administered by Mrs. Mary Peck, defendant's sister-in-law; that defendant, without wiping off the forceps or in any manner cleaning them, inserted them into the boy's ear; that when withdrawn they had blood on them; that they were inserted again and probed, and when withdrawn were covered with blood and had at the tip end a small piece of "meat"; that Mrs. Peck suggested that a young man standing by — one Grizzard — be allowed to take the seed out; that defendant handed him the forceps and walked away; that Grizzard swabbed away the blood until he could see the seed, and, after some attempts succeeded in removing the seed; that the boy remained on the table for some 30 minutes, and defendant did not attend him any more; that plaintiff requested some medicine to be used on the ear, but did not receive it until he had carried the boy home and returned to defendant's office; that he was given some cotton, glycerine, and listerine by Mrs. Peck and told how to use it; that the boy apparently got along all right for several days, and defendant did not see him; that on Tuesday night week the boy woke up crying; that plaintiff's wife applied the medicines given by defendant; that the following morning the ear burst and discharged, the boy seeming to do very well that day; that on the following day she went to see defendant, telling him the condition of the ear and that the boy was suffering; that defendant gave her no medicine, but told her the child was suffering from neuralgia and told her to use the cotton and stuff, which she did; that the child suffered all the time, and the mother sent for defendant the following Sunday morning; that defendant came, but made no examination nor took the boy's temperature, directing her to apply hot-water cloths to the boy's head to reduce the inflamed condition, and she followed his directions; that she sent for defendant again the following Tuesday; that he came, but did not go near the boy and did not tell her anything to do except to keep using the hot-water cloths; that defendant did not come back any more, although she sent and called for him several times and saw him at his home; that another doctor was called and came to see the boy and treated him several times; that the child died and was buried November 23d.
Plaintiff's evidence further tended to show that the boy was a normal healthy child prior to the time the seed was taken from his ear; that he had had earache as a little child, but not later than three years before the incident; that no effort was made to remove the seed before the child was taken to the defendant; and that only the treatment and medicines prescribed were used for the child.
Plaintiff's witness Dr. Russell, who attended the child prior to his death, testified that in his opinion the cause of the child's death was otitis media, an infection of the middle ear produced by the removal of the cotton seed.
The tendencies of defendant's evidence were that when defendant undertook to remove the seed he first carefully sterilized the forceps in alcohol, and that the forceps were not rusty, and were not taken from a trunk containing junk, but were bright and were taken from defendant's instrument case; that when he attempted to remove the seed a flashlight was held by Grizzard, and that defendant did not tear or rupture the ear; that when Grizzard used the forceps defendant held the flashlight; that proper medicines, glycothymolene and glycerine, and absorbent cotton were promptly furnished and their use directed; that there was only one occasion when defendant was called by plaintiff that he did not go.
Further, defendant's evidence tended to show that the child had a chronic head trouble from which he had suffered a long while, plaintiff and his wife having so stated to various persons; that plaintiff had himself attempted to remove the seed with a match before going to the defendant, and that the plaintiff's wife had stated that she had been unable to carry out the directions of the defendant in treating the boy.
Defendant's evidence tended further to show that the external communication of otitis media is highly improbable, if not impossible; that said condition is commonly, if not exclusively, communicated through the mouth, nose, or throat; that otitis media is not fatal; and that the child died from septic meningitis. There was evidence tending to show that defendant was a physician of wide and general practice and possessed of average skill, ability, and care, as measured by other physicians in the community.
The jury returned a verdict for $500 in favor of the plaintiff, and defendant has appealed.
C. L. Peck and Tennis Tidwell, both of Decatur, for appellant.
Separate and distinct causes of action may be joined in one complaint, but not in one count. The alternative averments of count 3 are inconsistent. Birmingham R. E. Co. v. Baylor, 101 Ala. 496, 13 So. 793; Highland Ave. B. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; McDougal v. Ala. Gt. So. R. Co., 210 Ala. 207, 97 So. 730; Sloss-S. S. I. Co. v. Smith, 166 Ala. 437, 52 So. 38; Sloss-S. S. I. Co. v. Pilgrim, 14 Ala. App. 346, 70 So. 301. Count 3 is ex delicto. Sellers v. Noah, 209 Ala. 103, 95 So. 167. Charge A was erroneously given for plaintiff, since it authorized a recovery upon proof of any one of the several alternative averments. It is applicable alone to count 3, but covers the whole complaint. Birmingham R. E. Co. v. Baylor, supra; Highland Ave. B. R. Co. v. Dusenberry, supra; Sloss-S. S. I. Co. v. Smith, supra; Parker v. Nash, 1 Ala. 452; Hoffman v. Knight, 127 Ala. 149, 28 So. 593; 38 C. J. 1627. The verdict of the jury should have been set aside, and a new trial granted on defendant's motion. Shelton v. Hacelip, 167 Ala. 217, 51 So. 937; Id., 199 Ala. 535, 74 So. 950; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.
W. W. Callahan, of Decatur, for appellee.
The complaint properly charges the negligent or unskillful omission to treat. Donaldson v. Foreman, 213 Ala. 232, 104 So. 406. The complaint is sufficient as against the demurrer. J. P. Morgan Pav. Co. v. Shoemaker, 213 Ala. 625, 105 So. 884; Moore v. Smith, 215 Ala. 592, 111 So. 918; Woodlawn Inf. v. Byers, 216 Ala. 210, 112 So. 831; Highland Ave. etc., v. Sampson, 112 Ala. 425, 20 So. 566; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. 805; American Ry. Ex. Co. v. Summers, 208 Ala. 531, 94 So. 737; Galloway v. Perkins, 198 Ala. 658, 73 So. 956; Birmingham R. L. P. Co. v. Nichols, 181 Ala. 491, 61 So. 361; Ala. Gt. So. R. Co. v. Sanders, 145 Ala. 449, 40 So. 402; Montgomery S. R. Co. v. Smith, 146 Ala. 316, 39 So. 757; Louisville N. R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714; Henry v. Carlton, 113 Ala. 636, 21 So. 225. Charge A was properly given. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Hamrick v. Shipp, 169 Ala. 171, 52 So. 932. In the absence of the oral charge, it will be presumed that given charges, if explanation be necessary, were fully explained by the oral charge. The motion for new trial was overruled without error. Montgomery Tr. Co. v. Knabe, 158 Ala. 465, 48 So. 501; Home Tel. Co. v. Robertson, 167 Ala. 179, 52 So. 655.
Appellant, in seeking here a reversal of the judgment rendered against him in the lower court, argues but three points to that end: (1) He complains that there was prejudicial error in overruling his demurrers to count 3 of the complaint; (2) that the judgment should be reversed for the giving of a single written charge, which we have lettered "A," at plaintiff's (appellee's) request; and (3) that this court should hold as error the refusal of the trial court to grant his motion to set aside the verdict of the jury, and the judgment rendered thereon, and grant to him a new trial, on the ground that the said verdict was against the overwhelming weight of the evidence. We will treat the points as he has presented them.
1. It is well settled that —
"A civil action for malpractice against a physician and surgeon may be sustained on proof of a failure to exercise reasonable and ordinary care, diligence and skill in respect to the duty so assumed and undertaken as physician and surgeon — such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily employ and exercise in a like case." Moore et al. v. Smith, 215 Ala. 592, 111 So. 918, and numerous cases there cited.
Count 3 of appellee's complaint, we think, is concise and clear. After stating the amount sued for, it simply states that the defendant was a practicing physician and surgeon at a certain time and place, and that, as such, he "undertook to remove a cotton seed from the ear of plaintiff's minor son, Leldon M. Henderson, a child of eight years of age, and to treat and care for said ear after the removal of the cotton seed." This much of the count shows that the defendant (appellant) assumed and entered upon a certain duty to this plaintiff (appellee).
The count then, in simple, plain style, undertakes to show a breach of this duty, by alleging that in attempting to perform the duty appellant negligently or unskillfully probed or gouged into the ear, and ruptured or lacerated the same, and did negligently attempt to treat said ear after such laceration, and that, as a proximate consequence of said negligent or unskillful conduct in that regard, the child's ear rose and became infected, and the child died. The expression in the count "said negligent or unskillful conduct in that regard" manifestly refers to the conduct of the defendant (appellant) in probing into the ear and treating the same or failing to treat the same. Omitting to treat the ear, it is obvious, may be negligent or unskillful conduct, as much and as well as negligent or unskillful treatment of it. The natural meaning of the phrase "did negligently or unskillfully treat or omit to treat said ear after such rupture or laceration," in connection with the context, is that appellant is not only charged with "negligently or unskillfully" "treating" said ear, but also with "negligently or unskillfully" "omitting to treat said ear." Donaldson v. Foreman, 213 Ala. 232, 104 So. 406. As we read the count, it alleges that defendant (appellant) undertook the duty not only of removing the cotton seed from the ear of the child, but that he also, and conjointly, undertook to treat and care for the ear after the removal of the same, and the count simply charges that he negligently or unskillfully performed both duties. It will be observed that the negligent or unskillful probing of the ear is joined with the statement that defendant (appellant) did negligently or unskillfully treat the ear (which as we have mentioned would include "omitting to treat" the ear), all the conduct being alleged to lead to one result. We think the sufficiency of the count as against the demurrers interposed is fully sustained by the following authorities: Moore v. Smith, supra; Woodlawn Infirmary v. Byers, 216 Ala. 210, 112 So. 831; Highland Ave., etc., v. Sampson, 112 Ala. 425, 20 So. 566; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. 805; American Railway Exp. Co. v. Summers, 208 Ala. 531, 94 So. 737; Galloway v. Perkins, 198 Ala. 658, 73 So. 956; B. R., L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; and other cases that might be cited. As was said by Mr. Justice Somerville of our own Supreme Court in the case of J. P. Morgan Paving Co. v. Shoemaker, 213 Ala. 625, 105 So. 884:
"We think the point of the demurrer is too finely drawn and too technical for the practical purpose of justice."
In that case the court was addressing itself to demurrers addressed to the complaint —
"For that more than one separate and distinct cause of action is stated in one and the same count, to wit: One alleged to arise from the alleged maintenance of said asphalt mixer; one alleged to arise from the alleged maintenance of said boiler; and one alleged to arise from the alleged maintenance of a large number of mules."
Further commenting on these demurrers, the court, through Mr. Justice Somerville, said:
"There is nothing in the complaint, however, to indicate an intendment of separate and distinct nuisances with respect to the mixer and the mules; and we think the reasonable meaning of the whole complaint is that the two things operated conjointly to make defendant's place a single nuisance, notwithstanding the several stated factors contributing to that result."
It is our opinion, and we so hold, that the trial court properly overruled the demurrers interposed by appellant to count 3 of appellee's complaint. We have examined the cases cited by appellant on this proposition, and while space forbids a discussion of their analysis, we will say that, in our opinion, none of them militates in any way against our holding just hereinabove announced.
2. The single written charge given at appellee's request, which, as hereinabove stated, we have lettered "A," is not in our opinion incorrect. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23. And then, anyhow, the oral charge of the trial court is not included in the record filed on this appeal, as provided by section 9508 of the Code of 1923, in which circumstance it has been uniformly held by this court, in conformity with holdings by the Supreme Court, that the appellant is not entitled to a review by this court of the giving or refusal of written charges at the request of the parties below.
3. We come now to what is perhaps the strongest insistence made by appellant for a reversal: That the trial court erred in overruling his motion to set aside the verdict of the jury, and the judgment rendered thereon, and grant him a new trial — on the ground that the verdict was against the overwhelming weight of the evidence.
The rule by which we are governed is a strict one, and needs no restatement here. Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738. We have carefully read the entire evidence. And we have kept in mind the obvious fairness of the rule, both of reason and of law, that —
"A physician or surgeon, unless by express undertaking [and no such undertaking was shown in this case], does not warrant a cure or a successful result, and is not liable for an honest mistake or error of judgment in making a diagnosis, or prescribing a mode of treatment, where the proper course is subject to reasonable doubt." Moore et al. v. Smith, supra.
But in this case the appellant, against whom grave charges were made, did not see fit to take the stand as a witness in his own behalf. The testimony of the plaintiff, it is true, as argued by appellant's able counsel, seems unbelievable. But the statements made by plaintiff and his witnesses were of such a character that no one quite so well as appellant was in position to deny and refute them, and his failing to do so, directly, and in person, was a circumstance which the jury could well have taken to indicate that his own testimony would not have been favorable to his defense. Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548 (on rehearing).
We are far from being able to say that the verdict of the jury, "after allowing all reasonable presumptions of its correctness, is so against the preponderance of the evidence as to clearly convince the court that it is wrong and unjust," Accordingly, we must hold that the trial court properly overruled appellant's motion for a new trial.
Finding no prejudicial error in any of the assignments argued upon this appeal, the judgment will be, and is, affirmed.
Affirmed.