Lemon v. Kessel , 202 Iowa 273 ( 1926 )

On or about August 13, 1918, appellee, who was a farmer, was injured by the fall of a hay derrick, which resulted in an oblique fracture of the femur of his right leg, an alleged injury to his knee, and an alleged fracture of the neck of the femur. Dr. Jinderlee was immediately called, and took charge of the patient. He moved him to the hospital at Cresco. Dr. Kessel, one of the appellants, was the chief surgeon of that hospital. On the succeeding day, the appellants, Kessel and Jinderlee, reduced the fracture of the femur, applied splints thereto, and, by the use of weights attached to the foot, carried out what is designated in the record as the "method by extension and counter-extension." His limb was later put in a plaster cast. They took an X-ray picture of the femur, did not discover anything wrong with the hip, and for that reason did not X-ray it. Appellants are charged with negligence in this respect, as well as with negligence in failing to discover the condition of his knee. Generally, they are charged with negligence in the care and treatment of the patient with relation to his injury.

Appellee was released from the hospital in a little less than six weeks from the time he was admitted. Later, it developed that the injured leg was approximately three inches shorter than his left leg, and it was about two years thereafter before he could walk without the aid of a crutch or cane, and then only by the assistance of a shoe so constructed as to add an extension to the limb, to meet the length of the other.

This is a sufficient statement of facts, for the present, and any additional facts deemed necessary will be referred to as the opinion progresses.

Sixty-five errors are assigned, urged, and argued in this appeal, 49 of which refer to the admission or rejection of testimony. After laboriously checking up these assignments of error attacking the testimony, we find that 24 of them refer to instances where questions were asked and objections sustained, but the record further shows that the objection was withdrawn, or that the question had been previously or subsequently fully answered, if not in terms, in substance at least. We regret that we are called upon to review such assignments of error. While the ruling on the objection, when made, was probably erroneous, at the same time, when the matter sought to be proven has been previously or is subsequently admitted, the error originally committed is, of course, without prejudice.

Several other errors are based upon the sustaining of objections to questions in which the witness was asked whether or not the line of treatment used by appellants was the usual and 1. EVIDENCE: ordinary practice of the profession in Cresco opinion and similar communities, in 1918. This line of evidence: questioning was objected to on the ground that unallowable it called for a conclusion, and invaded the conclusion. province of the jury. We have made a pronouncement on this question, in which we held that this form of question was subject to the objection herein made. The rule in this state, as we understand it to be, is that the witness should testify as to what the usual and ordinary line of treatment is, in similar cases, at the place in controversy and like localities; next, show what line and character of treatment was used, but leave the conclusions or deductions to be made therefrom for the jury. In other words, after the witness has shown the line of treatment actually used, and also what the usual, ordinary, and customary line of treatment is in such cases, it is for the jury, and not for the witness, to draw the conclusion. We confess that this is rather narrow, but it is apparently a definite line, and we have so announced the rule inVan Sickle v. Doolittle, 184 Iowa 885, at 888. It is, therefore, obvious that the ruling of the court on these objections was correct.

Under objection, witnesses were not permitted to testify that the result of the line of treatment used by appellants was "satisfactory." In one instance, where the witness testified that the result was "satisfactory," that part of the 2. EVIDENCE: answer was stricken by the court. Both of these opinion rulings were correct, because the matter stated evidence: is wholly a conclusion, and, in fact, is not unallowable enlightening. The conception of what is conclusion. satisfactory rests wholly in the mind of the witness, and gives no light to the jury. The testimony that the result was good or bad is of the same character, and is subject to the same objection.

Testimony was offered by one of the appellants, tending to show that, in a case of oblique fracture, particles of flesh and muscle were likely to obtrude themselves between 3. PHYSICIANS the fractured ends of the bone, and thus cause a AND slipping. This evidence was rejected, when it SURGEONS: should have been admitted. The evidence shows negligence: that the bones did slip, and this proposed evidence to evidence may have thrown light on the question rebut. of why they slipped.

One of the appellants was asked to describe to the jury, in his own way, appellee's condition when he left the hospital, when the witness last saw him, and what happened to the fracture of the neck of the femur before that time, and 4. PHYSICIANS at the time the X-ray pictures were taken. AND Objection was made to this, and sustained. It SURGEONS: should have been overruled, as there can be no negligence: question as to the competency and materiality of evidence. this testimony.

Appellee's expert testified that one of the recognized methods of treating such condition as existed in this case is what is known as the "open method." To meet this, 5. PHYSICIANS appellants sought to prove that such "open AND method," was not the usual and ordinary method SURGEONS: of practice in Cresco at the time in negligence: controversy. Objection was sustained to this, usual and when it should have been overruled. Appellee ordinary injected the "open method" of treatment into the treatment: case, and appellants had the right to show that evidence. such treatment was not used in the ordinary practice at the place in controversy.

This action is brought against appellants jointly. The prayer of the petition and the verdict of the jury both run against them as joint defendants. As heretofore stated, appellant Kessel had nothing to do with the case until it reached the 6. PHYSICIANS hospital at Cresco, and, as the claim is against AND them jointly, any negligence on the part of SURGEONS: Jinderlee prior to that time would not be negligence: chargeable to them jointly. With this situation, joint appellee sought to show that there was some action: negligence in the care of his limb after the evidence. accident occurred, and before he reached the hospital. An objection to this line of testimony was rightfully sustained, as it was not a material issue in the case, and could not be a basis for a judgment against the appellants jointly.

The evidence shows that appellee's injured limb was more than 7. PHYSICIANS three inches shorter than the uninjured one. AND Appellants sought, by questions, to show that a SURGEONS: shortening of one or two inches would be the negligence: ordinary result, under such circumstances, but, undue over objection, were refused this line of shortening testimony. The questions asked did not measure of limb: up to the facts in the case, and therefore there evidence. was no error in sustaining the objection.

Some of appellee's witnesses testify that, at various times 8. PHYSICIANS after being taken to the hospital, appellee made AND certain complaints of pain and discomfort. SURGEONS: Appellants offered testimony to negative this, negligence: but were not permitted to introduce it. This was pain and error. suffering: rebuttal. Appellant Jinderlee was asked:

"What was the usual and ordinary practice among physicians and 9. PHYSICIANS surgeons in Cresco and similar communities, in AND the treatment of a knee such as you found in the SURGEONS: plaintiff at that time?" negligence: usual and This was objected to, and the objection ordinary sustained, when it should have been overruled. treatment: The question follows the usual and ordinary line competency of questions in matters of this kind. of witness.

Appellants asked the following instruction:

"You are instructed that, if you find from the evidence that, at the time the plaintiff left the hospital, and at the time the defendant Jinderlee removed the lower part of 10. PHYSICIANS the splint from the plaintiff's leg, that the AND plaintiff's legs were substantially the same SURGEONS: length, and there was no substantial deformity negligence: therein, and that thereafter the said leg new presented an altogether different appearance, condition and was in an altogether different condition, it subsequent is the law that, even though no instructions to were given to the patient with respect to discharge. decalling upon the defendants or notifying them of the conditions, the plaintiff was required to exercise such ordinary prudence in reference to reporting to the doctors as would be expected of a person in his condition, and the failure on his part to exercise such ordinary prudence and care would prevent him from recovering for any damages thereafter caused to him by reason of the failure to treat the plaintiff."

We do not know whether we exactly comprehend the meaning of this instruction, but think that if, after appellee left the hospital, new conditions arose which were not the natural result of the previous existing conditions, in order to hold the doctors for damages for the result of such new conditions due care on the part of appellee required that he notify the physicians of such new conditions, and that, if he failed to do so, then they would not be liable for the damages caused by such new conditions. As thus construed, the equivalent of this instruction should have been given.

Appellants also asked an instruction stating in substance that, if allowance were to be made for pain and suffering, it was only to apply to the pain and suffering caused by the negligence or unskillfulness of appellants in their treatment, 11. PHYSICIANS and that no allowance could be made for pain and AND suffering incident to the condition of the SURGEONS: injuries or incident to the treatment exercised negligence: with a reasonable degree of care and skill. This damages: was refused, and the only instruction given was pain one excluding the pain and suffering sustained incident to by appellee prior to the time appellants treated injury. him. The vice of this given instruction is emphasized by another instruction, in which the jury was told that, in measuring the damages, it might take into consideration pain and suffering. It is a well known fact that an injury such as the appellee suffered is bound to be accompanied by pain and suffering. For such pain and suffering as are incident to the injury, of course no recovery can be had. Therefore, the instructions should have limited the consideration of the question of pain and suffering to that caused by the negligence and unskillfulness of the physicians in charge. Having failed to do so, the instructions given are erroneous.

Other instructions were asked by appellants, but we feel that they were fairly covered by the instructions given by the court. In the instructions given by the court, Instructions 6 and 7 state that "it is alleged and admitted" that certain conditions existed. Both of these instructions are wrong in this respect, because none of these matters are admitted, but all are specifically denied by appellants.

In Instruction 16 given by the court, the question of the weight of hypothetical questions is considered. 12. TRIAL: This instruction is identical in wording with instruc- the instruction set out in Ingwersen v. Carr tions: Brannon, 180 Iowa 988, at page 1005. We need not hypothetical copy the same here. The same attack is made on questions: the instruction in the case at bar as was made jury on the instruction in that case, to wit: that it determining left to the jury the determination of the materiality material facts involved. We have repeatedly and of fact. consistently condemned this type of instruction, and we have no disposition to recede from our rule in that respect. See Hall v. Rankin, 87 Iowa 261;Kirsher v. Kirsher, 120 Iowa 337; Stutsman v. Sharpless, 125 Iowa 335; Ball v. Skinner, 134 Iowa 298; Madden v. Saylor Coal Co.,133 Iowa 699; and Stanley v. Taylor, 160 Iowa 427. The argument of the dissentient in the Ingwersen case does not appeal any more strongly to us now than it did to the court at that time. To say that certain facts must be substantially proven or established does not, to our minds, convey the same meaning as to say that the jury may determine what facts are material. In other words, materiality and substantiality are not synonymous.

Some other errors are assigned and discussed, but we do not deem them of materiality, and we think that they are not likely to arise on a retrial of the case; hence they are given no further attention.

The court erred on the matters hereinbefore set out, as in this opinion explained, and the case is — Reversed.

De GRAFF, C.J., and EVANS and MORLING, JJ., concur.