Mernin v. Cory

McFARLAND, J.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff by reason of the malpractice of the defendant as a dentist. The jury returned a verdict in favor of plaintiff for two thousand dollars, and judgment was rendered for that amount. Defendant appeals from the judgment and from an order denying his motion for a new trial.

We do not see any sufficient ground for maintaining appellant’s contention that the verdict was not supported by the evidence. There is no room for doubt that the extraction of one of plaintiff’s teeth by defendant resulted in serious and permanent injury to plaintiff’s jaw; and while the question whether or not this injury was caused by the careless and unskillful conduct of defendant when extracting the tooth is one about which there might well be different conclusions drawn from the evidence, still it cannot be truly said that there was no material evidence supporting the conclusion at which the jury arrived on that subject. If the jury believed the testimony of plaintiff, they could not well avoid finding-the malpractice averred.

The main contention of appellant is, that there should be a reversal on account of an instruction (No. 4) given the jury at the request of respondent. The facts out of which this litigation arose commenced with an attempt of appellant on or-about October 15, 1899, to extract a tooth from the lower jaw

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of respondent. Despondent testified, in substance, that while appellant claimed that he had extracted the whole of the tooth, he had in fact broken and mutilated the same and had left part of the root in the jaw; that she so informed appellant at the time, but that he insisted that he had taken it all out; that the jaw became much inflamed and very painful; that she visited appellant a number of times and complained to him that part of the root was still in the jaw, but that he declared that this was not so, and that the inflammation and pain would soon subside; that afterwards appellant admitted that part of the root did so remain, and on November 10th extracted the same, but in doing so he first carelessly and unskillfully took hold with his instrument of the jaw itself, instead of the root, and, as described by respondent in detail, inflicted grave and permanent injury to plaintiff’s jaw; that her jaw continued to get worse, so that at times it became fixed and she could not open her mouth; that she frequently visited appellant and asked him to treat it; that he said there was nothing serious the matter; that she repeatedly asked him if she should not have her jaw examined and treated by a physician or surgeon, and he repeatedly advised her not to do so, and that if she did so she would make herself a laughingstock ; that relying on such advice she postponed consulting a physician or surgeon for a long time, and that when after-wards she did consult a physician and was treated at a hospital it was too late for her to receive much benefit from such treatment. In view of this, and other evidence, the court gave the said instruction No. 4, which is as follows: “If you find from the evidence that defendant advised plaintiff not to consult a surgeon, or secure medical treatment, after her jaw was injured by defendant, if you find the same was carelessly and negligently injured by defendant, and that plaintiff relied thereon and did not consult a physician or surgeon for a number of weeks after such injury, and that by reason of such delay plaintiff’s injuries were aggravated and made worse, and that it was more difficult or impossible to treat or cure such injuries of plaintiff, and that thereby such injuries became and are permanent and cannot be cured, and the same has affected the general health of plaintiff, and she has become and is sick and disordered and unable to work or perform labor, or support herself by her own labor and work as