LAW REPORTS.

Dominion, Volume 2, Issue 440, 24 February 1909, Page 4

LAW REPORTS.

' SUPREiyiE COURT.

PATIENT VERSUS DENTIST,

VERDICT FOR THE DEFENDANT.

TOUCHING SCENE AT THE FINISH.

in-which the'plain-, tiif -iVas: ;Pa'isy j;6ook, spinster, ' Wellington,; and tho defendant was Henry Pearson Rawsciri, 'dentist] Wellington, was; continued be-■ foro -Mri Justice: Cooper, and a special jury,made up as follows Joseph Mandcll (foreFrederick H. Suckling, noward' D. Nelson', . Charlston Carroll, John' Erio; Turnbull,' Albert Ernest , Gaunaway, Ge'b'iio '' Clapcate, ' *Wm; Crabtree, John Georgo Forsyth Gilt, and Arthur Leigh Hunt. . . ;Mr;\Young appeared on behalf:of the plaintiff, and Mr. Skerrctt';;" k.C. (with him Mr. Bunny), for the'defendant. ■. ..." . Outline of- Claim and Defence. '.plaintiff : was defendant, was ' employed* in-; jifly "last. by plaintiff , for roward'-to :extraotiiet teeth. It was alleged ■ : that ; duririg.';the : operation so'negligently, audi unskilfully treated plaintiff that a tooth was allowed^to.fall into,lier lung. Defendant, it was 'also-asserted,-failed to .account for all tho teeth that he had extracted, and to inform ..plaintiff : that ono 'was'missing.; Plaintiff became .unwell; shortly after tho operaand' : afterwards coughed up a : -Wherefore plaintiff, who- had,; it Twasfstatedv'suff ere' 3 great pain and . been pUt to* expense for medical attendance and comforts. claimed-to recoverrfrom defendant' the :>um 6f £501'.fo'r;damagcs. * behalf of., the'.. defendant that/he. had- not been:in any.respect -'negligenflSoc unskilful.v No tooth',, was allowed ' luhg,:., Every ;,tooth was excepting . a bicuspid tooth; •%T4^'fle^-OoJi''of.''tbo. : forcepß and struck ; the 'glasses^df the anaesthetist, with .considerable'force.; ' What V- afterwards,, / became of, that was not knojvn.: It: was possible,'. biitVimprobable,; that 'the; toothjreentered plaintiff's mouth.: . ' ■ 7: , V/hen Tcoth Fly from the Forceps. Further evidence .was givcii on behalf of defendant-*as under:— •' '- : . -; ' Albert: Cccil-Glpndinning, D.D.S., Pennsylvania, deposed-'that ,he.'bad^' been in." practice in.vWeiUhgten fpr, six years': ' It "was not uri- : ; t<»ti'-'-to"\fly ; -frbm;'th6' forceps and travol some distance,;; .There iwas a but; a very' small ono, of the; tooth-in- question re-entering ..the; mouth., V-; Albert Harold. Griffiths,. who has 'been an assistantkini'-thexeinplpy ,;of: defendantfor : nine; or- ten yeairs, said 'that: he had;attended' several .thousand, cases.: of teeth extraction.; :TVhilst ;?plailitifr.. ;.was ' f being-'operated'upon tooth excepting one bicuspid tooth was either.;placed':on,the .towel' or fell .on .the.floor. : Tho bicuspid tooth ..flew ..out--'of: the . forceps, but; he,did;not::know. ; what;l)ecamo'of. it after it-'struck. Dr. Anson's glasses. ■ It.:was: : 'pos-. 'siblb"that,;the;tqpth 'whichihad.been cbugned ; : up'-'byiplaintiff was; not the, biouspid. tooth - in; question. •'/"To: Mr. ,Youngs-He presumed-that .tho bi-' ; faE«>n ;'o"f Aijhe rpatient.;'- No' ;^6pps\'wereVtakpn'to,' trace ,the' course .of. tho, woth. . : •

Grace Alay'.Mrirray,;',attendant in' tho employ iof 'also, gav'o evidence. ;

Mr. Skcrrott fo the Jury. ' ■ Addressing;;the'.jury, Mr. Skerrett,: for the i.defendahtj;.denied;:that a. dentist,;was: under, :;aft : 'a attend,.'a: rpatient;who; aftor'-ari operation. It was due . to., the public and. the ; profession, that^^ i.vestigate'd? - There Iwas a ' camaraderie among. professional - men, ; just; as; thero was -; one -among-t-radespeople, • but he: denied '• that professional men. cpuld r.bfe' got to' make falso statements,in,.the witness-box to. help-one 'of j=tho-^yerdict"; r of";lihe. jury 'an;iinpbr&Ht principle -was tho public, and .in the,.interests of justice, the jury ought.not, 'tpr'abolish ;t-he necessity; for- proving ncgli;geniiff;ijr:a,::cas6l'6fL:^the;kiiid.;; E. an .operat-or, was; : to^/be^vheld^responsible : for'.every: mishap, which occurred, : despite his; care:- and ca.ution, his lot would, not be an enviablo ono.- : Ifc wa3'.in patients :th'atlpro'to undertake ..operations .which' involved risk,;and' i be .-protected;,by the. juries of their country,. •it iih.ey.'ijllad-^exerpised.e'yerjv-care^ Mr. Young In Reply. from '[negligence, ■ defendant ;was morally responsible for tho mishap. Whilst ! might;;., have, settled;:the^^matter.;, amicably. 'In several re^ : hbt.esefcisedleyery. care There-was..no.'evidence'to show ;thati.tbe.r.tobth,.av : luch'., found its -way into .plaintiff's~luhg 'was bicuspied VwKiohSflew" 'put of-. her mouth and :jstruck ,the ist's.eyeglass.; 1 any ;tooth;wa« allowed to go doiyn, plaintiff's throat,, it was through want/of-'care or pr'ecauticih ,'o'n the part of .defendaiiti':,;. Asldefendant h'ad: not;allegedly taken every care' and precaution, it vvas for. tho jury to decido whether tho girl should 'bear I ';.the.'' or I :whether, she, should be .'indemnified .by defendant. ■; .

.Amount of-Skill' and Care; Requisite.

Hjs Hoiour,, , ; in , summing up,, said that , ho ivould ' direct the jury that ;an,-V' operator,■; ' was .to bring '»"• fair ' reasonable- jana competent degree of skill to any operation. . All dontists .were" nMessarily'; competent, but as in;, other, professions - sonie.' practitioners were more' highly skilled : than" others.. ■ •It was not j'gree'i Of;;skill beSn -exercised by ; a dentist :tHaii; |(i.; mpreVlhighlyi.'/skilled;: dentist ,might. (baVe { applied. -.I Nor.';,was/an "operator responmerely ,beca'use'; : he exercised, a less; degreejrbf ' careV.thM: he might possibly:, have, exercised.;:'Thq" highest,, degree skilled, practitioner' and. :th6,highest;.degreb''of care was not; essential; on, the , part of an operator so long as ho :pierbjs^ j 7."a" ordinary ' and com-'petent'-degree' of'skill': and care.. In.order, to: had to establish that 'there had '; been Tw'aiit'V of;':.bbmpetent. and ordinarycare and,ski|l to such a degree jis to lead.to, tho rinjury coniplaitied of. .5. '.

~ Good Faith of tho Parties.

. No one -'could 'doubt but that defendant and the -anaesthetist honestly helioved' that: "ntfTtooth'Trent' into plaintiff's. lnng.' It was ?alib^'M^dpinidii^aliliW^att^pfc'''td : ''levy blaekma.il;.ha'd : : been; ..made.. by: the-.plaintiff/ /who honestly believed that she. had been uiir .'skillfully: treated.;: : The .weight- of evidence was ' against tho suggestion that plaintiff was -nobplacedoin the propar. position, during tie' •''aperaition/! He- (his Honour) .thought it was : uighly>'pr6b'able:;-that':':.tho- t-ooth which (was coughed; up.was one which.defendant had extrac.ted,'. anil tli'ero was ,very, little doubt that the. tooth"!!!: .question-was the: bicuspidwhichstrnclr t-h'o glasses of the anaesthetist; . ■ It would be for tho jury to consider whether the absence of ; a. cloth or sponge in the mouth during ; the: 'operation'...amounted>tp tho .absenco of ordinary bare " and' 'caution.;.. Tho question'was rAVhat was the course,to adopt to socuro a' : minimum of risk There ift'as, nothing unreasonable in the. course;sug-.: gested bv. defendant .that, before an ; opera-' \{iori, which.: iyas so. quickly, lie Examined the patient's mouth, made'a men-, 'tal record of the: teeth . to bo extracted, "and upon taking: them out: accounted for them, either -.by :placihg: them on a .'towel-'or dropping /tliem .on the flopr. .; It was no. doubt the; duty." of the .dentist to see that: all 5 the teeth which ho extracted were accounted for; Every '; tooth' drawn - from' plaintiff's' .mouth was I 'accounted'.for, excepting one bicuspid, which, in his opinion,: was tno tooth which eventually found'its way into plaintiff's lung. The'question was : Bid it do so bjr want' of ordinary, and reasonable care, and' skill on the :part, of,'defendant ?. Trom' the. evidence, tho jury must come to the conclusion that thoro was' no., manifestation of' coughing when" the tooth-, went;, doivn plaintiff's .throat.' If ,de-" fendant did not' know that the tooth had not gone' down plaintiff's throat he could not have told hen that puch j thing had happened,

Legal Obligations of a Dentist. Whatever a dentist might do in kindness of heart he was under no legal obligation to supply medical treatment if a patient upon her return home suffered from the effects of the.administration of an anaesthetic, It was the duty of a dentist merely to see that tho teeth were properly, extracted, and that the patient wis not sent home until sho had sufficiently recovered. The jury ought not to allow its judgment to be affected becauso defendant', who reasonably believed that plaintiff's illness was not caused by any misfeasance on his part; omitted to provide her with medical 1 : attendance; at his own cost.,;; The

onus of proof was on plaintiff, but that onus had to some extent been shifted by-the fact, that it had been shown—so he (his Honour) thought—that' the tooth had entered plaintiff's lung during the operation. If the jury found .in favour of plaintiff, the amount of damages which they should award should bo a reasonable sum, measured, by the amount of wages . which: had been lost, expenses which had been incurred; .and, in addition, a reasonable.sum' for the pain, and suffering which had resulted. . What the jury, had' to decide was, as ho had said before, whether there had:been an'absence of a'fair ordinary and reasonable, degree of skill'and care. •, Finding in Favour of Defendant. The jury, which retired at 12.45, was ,sont for by liis Honour at 3.50.' "-We aro not unanimous," observed the foreman .in reply to a question. • .' His Honour: ;You,ihave .now ;been over three ;hours in •' retirement. vlf ■ there,is' -,'no pj-o&ltect. of- unanimity of opinion, I. : can take, a three-quarter verdict. ''' Tho. foreman: of- us have come to tho same conclusion. '- --

His Honour: And what do you find? The foreman:. We find for the defendant,

, Mr. ; Skerrett, for the defendant: Lam innot- to ask. -for costs .in this matter/' My, client has fought .the case only, on the question Of principle.- ■ His Honour (to the foreman of the 'jury): I, take, it that you find that defendant exercised all possible skill and care;. The foreman :. Every possible. caro that ho ought to have taken. '. ' His Honour: And that you, don't impugn the honesty'of plaintiff. ' - 1 . - ; The.' foreman: Wo -believe she 'gave: her evidence honestly . ... ' - • i His ' Honour : ' I- think' that'; you ' should Express your, opinion, ''otherwise. it ; ' might '.'go forth to the 1 publid :'that , you'did not-Tjelieve her evidence. - -';-'": i : ■ : The foreman: We believed her. evidence. ' '

v Mr. Skerrett: Your Honour will remember that 'I . did not "impugn the ■ honesty of plaintiff. .'•;' ; '''' : ■ • His" Honour: Yes, .that - is- bo'.': Judgment will bo entered ■ for the defendant,- without costs. Y; Unusual and Handsome Act by the Jury. : "■ After the .case had concluded, tiie foreman of the-jury,;addressing; plaintiff; . said:;. "We a 11..; sympathise deeply, jvith. you. Upon the. evidence,•; however j' defendant • was' ;en titled. to the,.yerdict: : . AVe should J be- glad. if you: will accept: as- a., donation, towards your ex-penses-the fees which Imve been paid to us .for our services. : One and . all: of us would be pleased if you- could seoyour.way.to do sb. >. V ''Replying for : plaintiff,' who was- much af-. footed by the .'offer,'' Mr. Young (her counsel) said ■ that plaintiff - recognised that the; jury had returned a proper vfirdict under the circumstances. r The of their :hearts deeply touched her. It 1 was si most .hahdspmßi:act of. genejosity ; :on ,the..^art• of the 1 jury which had given /so much. time, to the "considerafcioh ,6t tli4.case.< "I\feel. Quito sure," he-.added,.'."that Miss. Cook, will accept the gift -in.'the spirit in which it is. given. On, my. own behalf lot mo say it is the. most, .handsome .action, ,on' the part of a jury that I have-ever heard 'of." , j : The. : ;,don'ation,' .which amounted,. to £18, :'was then handed to Miss ' C00k..;: -. r .

MAGISTRATE'S COURT.

(Before Mr. W. G. Ricldell, S.M.)

ATTEMPTED' SUICIDE,

"FINANCIAL AND DOMESTIC TROUBLES"

Walter; Alexander Milno,' a man about 30 . years of;; age,pleaded . guilty to a charge of; having,, on January; 9,/ at Wellington, attempted to commit suicido. . ' Station-Sergeant- •' Darby ;; informed the Couit' ;that'accused'.had ' been a /storekeeper, at : Jlanakau some years ; ago,; but; had got intbt toanoial ; ;dilEculties ' and; came toV- Wel-. lingtori, where, lie took. over a boarding-; bouse. ■ This business also turned out a failure,; and',defendant ,int'o:;lodgings and eommencd drinking..; His -.behaviour was/ such; that * his ; : wif© 'left i,him in December last, and .'returned to; her own people. .- On January 9 accused purchased a revolvei>.from/a -pawnbroker, 1 /and. the; same ,night his. landlord,, hearing-a : shot, ..went, into defendant's ; ; rbom,.! and; found'• him ; ,bleeding profusely from a gun-shot', wound in the 'head.: % When asked why "ho had shot- himself defendant replied'': :"i'inar,cial ..and do-; '-'Defendant;;was 'removed to the hbspital,';ahd had only : just been/dis-. charged from the institution. ' He ■ had not quite recovered yet, and tho doctor had ordered him to return io the hospital. 7 ; Expenses', amounting' I ,' to "£G2. 175;.. 3di.'. had. been incurred. ■ ./P ■: . His '..Worship, after' reading several . states ments put in by" defendant,., entered; victiori aiid. order;:tp'; cflme;;Aip -f6r. sentence /when/ called' oii.' The Court : would make no 'order as; to' the /repayment of .the expenses incurred, but the liability would stand as a civil debt.' > ,;'/"-';v. ; 7"/ ". INSOBRIETY. . ■ Two firit. offenders < for - drunkenness '■ failed to answer to their- bail, and .were each convicted'and fined' 10s., .with.'the alternative of; :24 .hours'-, imprisonment.-; Another -first offender, wlio pleaded' guilty I ,' was convicted and discharged. . .. - /

CIVIL BUSINESS.

< : (Before Mr. W. G. Biddell, S.M.) UNDEFENDED .CASES. Judgment for plaintiff by default of defendant, was entered in the following cases: — ■ ••••••11. B. Davis and Co. v, Arthur James East, £7 125., .costs ■ £1 3s. Gd.; Joseph Herbert Knight. :v.; George/ Henry' Morgan, ,£5 7s. 6d.j costs £1 ss. '6d.; Helen 'Rutherford v. Alico Green, £48 18s., costs £3 75., against separate estate' of defendant; Clias. Wm. Martin v. Roland ICidson, £32 ss. 10d., oosts £2 165.; D. Benjamin and Co. v.. Win. :Henry 1 V ifrankpitjj,, £13 135., costs £1 35.; "Dairyman. :and Farmers' Union Journal!', Co., Ltd.,-/v: Loo' Lecftn'stre, £1. 14sT . Milcosts ssi'; -V-T;■ KennedyMacdon'ald Ltd:,Maggie: Johnstonj/£29 0.5..2 d.,' costs'£l 3s/: Edward Anderson and Co., Ltd., v. Jas. Pirikertori, £10 2s. lid., costs lss/j' Christina.. Morris: . v. • Nfellie. 7 '; O'Hal-' loran, costs only : 155.-; J. ;,B. MaoEwen and Co., Ltd., v. E. A., Moon, £1. 4s; 4di, costs' \6s.;-Jacob Domb v. S. Garchook, '£2 17s, Gd., -costs >55.; Forde and -Co. v. Henry Rigby, £10 ,55., costs £1 10s.. 6d.; Wylie Bros. v. Herman Albert Adolphus Stephens, £5, costs 55.; Smith and Smith Ltd. : v John Lusty and Son, £1 12s, 6d., costs 55.; same v. Jas. M. Crouchcr, £19s. 6d., costs ss. ; Jas. Smith and Son , v ; Archibald A. M Laren, £4 lis, 4d., costs Cs. • ; DEFENDED CASES. ■ A. F. Gibbs and Co., timber merchants, sued Jas. John 'Clark and Clias. Henry Coinpton ' ■ trading as . tho Evans . Bay Timber. Company, a .claim for £10 35.,/ for timbor supplied. The defendants. ; paid £7 :10s. lid. into Court, : the dispute as to the b'ajance being as to the price agreed to be paid for tho timber per 100 ft. His Worship gave/judgmont for plaintiff for,the amount claimed (loss the sum .paid into Court), and costs .'£3,l3s. Mr. IrOraih appeared for plaintiffs,' and Mr. Trips for defendants, Thomas Catrisk iimr. A ooreeater QSs,

Beoro) sued Harold James Edward Dutton, contractor (Mr. Dunn), -and Mrs.; Annie Breen, for £7 Bs., being one hundred and oight hours' wages earned by tho plaintiff as a carpenter in tho direction of tho building of a-dwelling-houso on land belonging to the' defendant, Mrs. Breen. Tho work was alleged to have'beon done for tho defendant Dutton between November 12 arid December 24, 1908. The plaintiff claimed a lien for tho sum over the lands of Mrs. Breen and over certain-, moneys of- hers held by Bell,; Gully, Bell, and Myers.. His Worship gavb. judgment for the plaintiff for £7 3s. 6d., with costs 175., arid ordered that moneys of Mrs. Breen in tho hands of Bell, Gully, Bell, and Myers bo attached to satisfy the judgment. ' Thomas, Carriole,sbnr., carpenter (Mr. Beero) sued' Harold. James Edwin Dutton, contractor' 1 (Mr.- Dunn), ; and A.nni6 Broori; for £24 55., 3d. The claim was for £20, balarico of tho sum of £24, labour done in making: window frames, etc.,. for. a. house erected on land-owned, by Mrs. Breen, together with £4 ss. 3d., for wages as a car-, penter for sixty-two hours .at Is. 4J-d. an hour. Ths plaintiff also claimed a lien over the lands of tho defendant, Mrs'. Breen, and over certain moneys of hers held by tho firni of Bell,. Gully, Bell and Myers. . After a partial' hearing the case- was adjourned until.February 25.

-. JUDGMENT :SUMMONSES. .! .;■.; In the. judgment summons case, Lyon's .Ltd. v. John Reginald Wclshy, a debt of £11 2s. 3d., debtor failed to appear, and -was ordered" to pay on or before March 4, in default 10 days imprisonment. , •In . the case ' Ellen Murphy v. Garnet M'Minn,, a, debt of £3 6s. 6d., • was ordered:'to ■ pay on or, before March 9, in default.'7.' days'' imprisonment. ': .John' Berry was ordered to pay Jilien .Miirphy. £7- 55.; ;ori dr.before March 9, in. default 7' days' -imprisonment. . : . 'No order was made in the case Stott.anrt Hoare v. H. B. • Macintosh, a, debt of £7 lis. 7d. ■