SUPREME COURT.

Daily Telegraph (Napier), Issue 3113, 20 June 1881, Page 3

SUPREME COURT.

MONDAY, JUNE 20

(Before His Honor Mr Justice Gillies.) SUTTON V. TODD. This was an action to recover the sum of £1000 for damage sustained by plaintiff through the negligence of defendant in his medical treatment of the plaintiff. The following special jury were drawn : —Messrs Fielder, Williams, Davidson, McKay, Hoadley, P. Dolbel. McKenzie, E. Sutton, Birch, Neal, Williams, and Brooking. Mr A. McKay was chosen foreman. Mr Lee opened the case for the plaintiff, and called. Spencer Sutton, who, sworn, said he was a butcher residing at Te Aute. On the 28th of May, 1880, he was thrown from a cart in returning from Waipawa. He was made insensible by the fall. A man named Grey helped him home. Reached home about 6 or 7 o'clock, and went to bed, He was very much shaken and

bruised. He could not lift bis right arm. Next morning he sent Charles Young for a doctor. Dr Todd came to him. He told Dr Todd he had had a spill. Told him he could not use bis arm. The defendant examined his arm. His wife and James Taylor were present. The defendant said he (witness) had had a narrow escape, but there was nothing broken or out of place ; he said it was a heavy bruise, and it would be a long time before he could use his arm. Defendant told him to send to his house for some lineament, and keep the arm wellrubbed. He sent for the lineament, and used it, Defendant called again in a week or a fortnight afterwards, and asked how his arm was, and if he was rubbing it. He said again it would be a long time before he recovered. Did not think he examined the arm again. He continued to rub the arm with the lineament. Did not recover the use of his arm in the least. On the 23rd of September he showed his arm to Dr Mirbach in Waipawa. In consequence of what Dr Mirbach said he came down to Dr Spencer, and he advised him to go to the hospital. He went there and saw Dr Menzies and Dr. Spencer. He was placed under chloroform. When he recovered his arm was bandaged. He had instructions from Dr. Spencer to return in a week. He returned in a week. Had not bad the use of his arm since. He had no power in the shoulder whatever. Could not raise his arm to take bis coat off. It bad been in that condition ever since the accident. He had had no blow or fall since the accident. He suffered continual naiu. Never left bis bed for six weeks. He could not use a knife in any way in his business of butcher. He used to do his own killing. He had to employ a man ever since the accident. It cost him about £2 5s per week.

Cross-examined by Mr Lascelles : He remembered where the accident took place. He had been drinking. The horses shied/and he fell out, the trap was not upset. There was no appearance of any bruises on his arm that he could see. His face was scarred. It was about noon that Dr. Todd came the day after. Dr. Todd lifted the arm and felt it. He did not hurry the examination at all. Thought he conducted it with ease. He did all that could have been expected. The examination did not pain him. The defendant did not put the arm in a sling, or in any particular position. He was very anxious for the doctor to come, but did not send for him. On his second visit defendant called in as he was passing to another patient. Witness did not ask him to call again. He told defendant that it was strange the arm was not getting better. He did not tell him the arm was getting all right. Defendant did not examine tbe arm on the second visit. No person was present. He did not go out ot his house for six weeks. He remembered McGrath fighting him at the Te Aute public houc? on the 7th of May, 1880. There were eeveral precent. No one prevented McGrath stiikinghim. He had summoned McGrath, and McGrath alluding to this struck him in the face. The landlord was present at the time. Had not been drinking on tbat day. He was not knocked down, and Lewis Cannon did not interfere. For four months after the accident he did not speak to any medical man about his arm. He met Dr. Todd several times during the four mouths, but did not speak to him about the arm. He sent for the lineament once to tbe doctor's, and once to the chemist's.

James Taylor, sworn, said he was a storekeeper at Kaikora. He was in plaintiff's house about the end of May. He went m and saw him. He was alone. He saw Dr. Todd with him the same day. Plaintiff was in bed. Dr. Todd examined the arm, washed it, and rubbed it with something. The doctor said he was glad to see there was nothiog broken or dislocated. He said it was a bruise that would get right in time. Sutton was a strong man before the accident. Since that he had not been in good health. Cross-examined by Mr Lcscelles: Plaintiff complained of pain in the shoulder to Dr. Todd. He helped the doctor to wash plaintiff, and could see the arm. The shoulder was black. Sutton complained of-great pain. Dr. Todd worked the arm backwards and forwards. He thought the doctor conducted his cace carefully. Charles Young, sworn, said he was in tbe employ of Sutton. He went for Dr. Todd in consequence of what had hapto Sutton. Dr. Todd asked him if Sutton was hurt very much. When the doctor came witness heard him say that Sutton was heavily bruised, and it would be some time before he was well. Sutton has not been able to use his arm since that time. Charles Leach, on his oath, said he knew Sutton. He remembered his having his arm hurt. Knew that he had not had the use of his arm since. Dr Yon Mirbach, sworn, said he knew the plaintiff. Saw him professionally in September, 1880. He examined him and found the shoulder was dislocated. It must have been dislocated for a considerable time, because he found a false socket in the shoulder. In his opinion the injury was permanent. Plaintiff at that time would not believe it was dislocated, but said he would go to Napier and consult other doctors. Cross-examined by Mr Lascelles: He was not on friendly terms with Dr Todd. He was on more friendly terms with him when he firßt went to Waipawa. He did not suggest to plaintiff to proceed against Dr Todd for damages. By the Court : There are two distinct dislocations. This was a dislocation that could be discovered easily. It would not j require any special skill to discover that I this was a case of dislocation. Dr W. I. Spencer, sworn, stated he remembered being consulted on the 25th September last by the plaintiff. He examined his shoulder, and came to tbe conclusion that it was dislocated. He was of opinion that it had been out of joint for some time, but he could not say how lo_g. The absence of swelling and bruise led him to that conclusion. It was a dislocation downwards; the head of the bone was thrown down into the armpit. That is one ot the commonest forms. If it was examined a short time after the injary it might be impossible to detect it, but after the swelling had gone down it would be easy. He told plaintiff to go to the hospital, and they would try to reduce it. Dr Menzies and he put him under chloroform, and tried to reduce the dislocation, but they failed from the length of time it had been dislocated. If taken in time it could have been reduced properly. The plaintiff came again in a week. He was in the same condition. He removed the bandages; the arm was still out of joint. He thought the injuries would be permanent. He might be able to raise it to an extent. Cross-examined by Mr Lascelles: If the arm was considerably bruised, and the patient was suffering from drink, it would increase the difficulty of ascertaining dislocation very much. There are injuries besides dislocation which would render the arm powerless. The swelling might prevent the discovery of the injury, but it would not prevent the

setting. It was unusual not to have pain after a dislocation.

Re-esamined by Mr Carlile: In a case where there is much swelling it would be a proper course to reduce the swelling and then make fresh examination.

Edward Menzies, sworn, said he remembered the plaintiff being brought to the hospital. He and Dr. Spencer examined the arm. There was not much loss of shape, and there was a certain amount motion. His impression was that the joint had been out eight or nine weeks. They put on a good deal of power, but had no success. Did not think the plaintiff would ever again be able to raise bis arm above his shoulder.

Cross-examined by Mr Lascelles: After the delay of a day the swelling might be so great that it would be difficult to detect dislocation, but he should consider he bad not done his duty as a surgeon if he did not detect a dislocation if it existed. Tbe only way he could account for the plaintiff feeling no pain was that he was under the influence of drink. He would have expected to find the arm have a little more motion if he had known it had been dislocated four months.

Elizabet" utton, on oath, said she was the wife of ' c plaintiff. Remembered him coming aome hurt. They sent for Dr Todd the next day. She was in the room when Dr Todd examined her husband. He said it was a good job there was nothing broken, or out of joiut. Her husband's shoulder was not much swollen. Since the acr ~ent he could not lift his arm. She was compelled to cut his food, and help to clothe him. Cross-examined by Mr Lascelles : She could not distinguish any bruise on the shoulder. His hand and face were scaried. He was not in a muddled heavy state when the doctor came.