Taylor v. Milton , 353 Mich. 421 ( 1958 )

353 Mich. 421 (1958) 92 N.W.2d 57

TAYLOR
v.
MILTON.

Docket No. 44, Calendar No. 46,825.

Supreme Court of Michigan.

Decided September 9, 1958.

Walter M. Nelson, for plaintiff.

Edward M. Turner, for defendant.

VOELKER, J.

An action of trespass on the case was brought by plaintiff, Willie Taylor, a laborer, to recover damages against the defendant and appellant, Dr. Samuel B. Milton, a practicing physician, resulting from his alleged negligence arising out of an operation performed on March 25, 1952, and his alleged concealment of that negligence from the plaintiff.

Plaintiff being unable to pass his urine went to see the defendant doctor, who inserted a catheter, to which was attached a filiform, through plaintiff's urethra for the purpose of relieving a stricture and thus giving plaintiff relief. During the operation a portion of the filiform broke off from the catheter and ultimately passed into plaintiff's bladder.

The trial court ruled that defendant was not negligent in performing the operation, but submitted to the jury the question of whether defendant concealed from plaintiff his knowledge of the filiform in plaintiff's bladder, and the further question of whether he neglected and failed to continue proper treatment after the mishap. The jury returned a verdict in favor of the plaintiff in the sum of $2,500. The trial court denied defendant's motions for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict. The case is here on appeal from that judgment.

We observe that defendant in his appeal alleges 52 separate grounds of error, most of which are irksomely repetitious. While this scatter-gun approach may possess a certain primitive effectiveness when a man seeks to persuade another to marry his daughter, it scarcely persuades this Court. Such time-consuming and vexingly repetitious matter not only fails to persuade us but could very well have been a serious ground for dismissal of this appeal had we felt disposed or had the appellee made a timely motion to that end. (Court Rule No 70, § 5, as added October 30, 1956.^[*]) We will accordingly not burden this opinion by undertaking to discuss all of the allegations of error submitted by the appellant, but only those possible grounds of error which we have painstakingly been able to dredge from appellant's endlessly repetitious presentation.

Appellant's first allegation of error, as thus boiled down, is that he was not apprised of the crucial question of concealment before the trial. This allegation is unfounded, as the question is clearly set out in paragraphs 7 and 9 of the declaration and the pretrial statement also takes cognizance of the question by referring to "negligence and unprofessional conduct." Further evidence of the fact that defendant was fairly apprised of the question of concealment is found in the defendant's own answer to the declaration and his extensive proofs on the precise subject in the trial court.

Appellant also claims error by the trial court in not granting him a continuance to enable him to prepare special questions and directions to the jury on the claimed surprise issue of concealment. Having already decided that the defendant had adequate notice of the question of concealment, further discussion of the trial court's failure to grant a continuance would be irrelevant. There having been adequate notice, there were no grounds therefore on which to grant a continuance, and we find no abuse of discretion by the court.

Appellant's next claim of error concerns the admission in evidence of the filiform that had been removed from the plaintiff's bladder. Appellant claims this was error because the plaintiff had not preceded his offer with a proper foundation, supporting this claim by an extensive quotation from Wigmore's learned treatise on evidence concerning the necessity of laying a proper foundation for the admission of chattels into evidence. It was the ruling of the trial judge, with whom this Court agrees, that the sworn statement of the plaintiff that the offered filiform was the same one that his subsequent doctors at the University of Michigan hospital had shown him immediately after operating to remove it from his body, coupled with the fact that defendant had in his possession the other end of the broken filiform, with which we assume he could easily have refuted the authenticity of the offered one, was an adequate foundation for its admittance. In any case even if there had not been an adequate foundation laid for the admission of the broken filiform, its admission could scarcely have been prejudicial error because the defendant had already admitted leaving a filiform in plaintiff's bladder. The crucial question put to the jury was not whether he had left this or some other filiform in plaintiff's bladder but rather, having concededly done so, had he or had he not thereafter concealed from the plaintiff the fact that it was there. We think the jury was entitled to see what kind of object it was that had been left there, and under the circumstances we think any similar filiform would have been equally adequate and properly admissible.

Appellant further urges several grounds of error by the trial court in not requiring expert testimony on the subject of the type and degree of care that should have been administered to the plaintiff after the defendant learned of the filiform being in his bladder. These allegations of error can best be answered by quoting the relevant instructions to the jury:

"Now, in the majority of cases, as I told you, where malpractice is before a jury or a court, the professional standard of practice is necessarily involved and requires testimony of competent experts, and that would have been true insofar as that which happened on March 25th is concerned, but in this case I charge you that there is no question of skill or judgment, no question of practice beyond the knowledge of laymen, because you are only considering the one question: Did he or did he not conceal the presence of this filiform in the bladder of this plaintiff."

This statement finds square support in LeFaive v. Asselin, 262 Mich. 443. We are concerned here with a broken needle-like steel-capped object some 12 inches long admittedly left in a man's bladder. To borrow Mr. Justice WIEST'S much-quoted phrase in Ballance v. Dunnington, 241 Mich. 383, 387 (57 A.L.R. 262), even the "merest tyro" might know that a doctor's concealment of such a state of affairs from a patient was improper.

Having perused the 52 points of error as set out by the appellant we feel that the possibly meritorious subject matter therein has been fairly and adequately covered in the digested form presented in this opinion. Appellant's bombardment having ceased, we perceive through the lifting haze that none of the 52 pellets fired from his blunderbuss has hit the target. The judgment of the trial court must accordingly be affirmed, with costs to appellee.

SMITH, BLACK, EDWARDS, and KAVANAGH, JJ., concurred with VOELKER, J.

DETHMERS, C.J., and CARR and KELLY, JJ., concurred in the result.

NOTES

[*] 347 Mich. xxx. — REPORTER.