Zugaj, Admr. v. Chief Redpath , 45 Ohio App. 159 ( 1933 )

Error proceedings are prosecuted in this court from the judgment of the common pleas court, which, upon motion at the conclusion of the plaintiff's evidence, directed the jury to return a verdict for the defendant.

The petition alleges circumstances constituting wrongful death of the wife of plaintiff, Mike Zugaj, who is suing as administrator of her estate. Since the court directed a verdict in favor of defendant, Chief Redpath, upon motion of defendant, we are in law bound to consider the testimony offered in behalf of the plaintiff to support the allegations of the petition as true.

It appears from the record that during the last part of April, 1930, Anna Zugaj had been suffering from pains in her knees, and that she then visited the defendant, who goes under the name of "Chief Redpath," at his office at East 126th street and St. Clair avenue, Cleveland, Ohio. Mike Zugaj testified that his wife told Chief Redpath that she had pain in the knees; that he said he could cure her; that he told her all her trouble was coming from the stomach and to follow his instructions and he would cure her; that in a week she would be a different person. He further testified that Chief Redpath added, "I don't need any doctors. I beat any doctor with my herbs;" and that Chief Redpath then sold to Anna Zugaj 20 packages of herbs for tea, 20 packages of powder, and some flour for making bread. She paid $4 for the herbs and powders and 30 cents for the flour. He instructed her to take two packages a day until she felt better, and then to take one a day. Anna Zugaj followed his instructions, but not feeling any better returned to see defendant on the 23d or 24th of May. On that occasion he again repeated to her that he would cure her; that he was better than any doctor she could go to; and he then again sold her 20 packages of herbs and 20 packages of powders and instructed her to take the same. Anna Zugaj took the herbs and powders for three days, when she began to vomit. She vomited night and day at intervals of fifteen minutes to thirty minutes until June 3d, when she died.

Dr. Coryell attended her and signed the death certificate. He testified that she died from peritonitis after the rupture of a gastric ulcer following acute gastritis.

Mr. George Voarg, from the laboratories division of the department of health of the city of Cleveland, testified as to the composition of the herbs and powders which Anna Zugaj took. He stated that although the herbs and powders cannot normally be regarded as harmful, they have a strong cathartic effect in case of a normal person, but in the case of a sick person they are likely to be harmful. He added, "I know of the case of a person with stomach ulcers who died after taking stuff like this."

Dr. J.C. Blagden testified that he saw Anna Zugaj the last part of May, 1930; that she was in bed and in a highly toxic condition and was vomiting at frequent intervals; that her stomach was swollen, and very tender upon palpitation, and that she was in a state of great weakness; that the herbs and powders which she took contained a mixture of magnesium carbonate powder, senna leaves, rhubarb, cinnamon, charcoal and cubeb fruit; that if taken daily for a month the mixture would upset anybody's stomach; that it would make anybody sick; it would interfere with the normal function of the gastric juices and result in heartburn, bilious attack and general disruption of the stomach. He further testified that these drugs have a very strong stimulating effect on the stomach, and that taking such doses of these drugs would aggravate the condition of the gastric ulcer by producing constant irritation and by bringing about constant peristaltic action of the stomach. Constant peristaltic action would cause the rupture of the ulcers. Peritonitis would follow the rupture of the ulcer.

It may be taken from the record as an admitted fact that Anna Zugaj died from peritonitis resulting from a ruptured ulcer. The question presented in this case is whether the herbs and powders which the defendant administered to Anna Zugaj in any way contributed to the rupture of the gastric ulcer which caused her death.

There can be no dispute that defendant in undertaking to administer a cure to Anna Zugaj was, under the law of Ohio, guilty of practicing medicine without a license. Did this unlawful act of the defendant proximately cause or contribute to the cause of the death of Anna Zugaj? The trial court apparently took the view that the evidence does not tend to establish that those herbs and drugs which the defendant sold to Anna Zugaj caused a rupture of the gastric ulcer, which, in turn, caused her death. We will concede for the sake of argument that it is not beyond the range of possibility that the rupture of the gastric ulcer would have taken place even though Anna Zugaj had not taken these herbs and powders prescribed for her by the defendant. We are, however, concerned with but one question, namely, is there any evidence such as to constitute a scintilla under the law of Ohio, tending to show that the unlawful act of the defendant in administering those herbs and powders to the deceased, Anna Zugaj, either caused or proximately contributed to the cause of her death?

The jury does not deal with certainty. It deals with probability only, and if there be evidence in this case from which the jury could infer that in all probability there was a causal connection between the unlawful act of the defendant and the death of Anna Zugaj, the question must be submitted to the jury for its determination, and the court would not in such event be justified in withdrawing the case from the jury and in directing a verdict. A verdict should not be directed if under all the facts and circumstances there is room for sensible men to differ in their conclusions, and whenever facts that would sustain the contentions of a party are put in evidence, together with other facts from which an inference unfavorable thereto may be drawn, the question should be left for the determination of the jury. It is not sufficient that a court would be obliged to set aside a contrary verdict as against the weight of the evidence, and if there is any issue of fact in the case, with evidence tending to support it, no matter how slight, a verdict cannot be directed.

In order that the case be submitted to the jury it is not necessary that the plaintiff introduce evidence which would eliminate every other possible cause of injury or death. It is sufficient for this purpose if the evidence introduced is such that the reasonable and natural sequences of events give rise to a reasonable inference as to the cause. In many cases the result is so immediate that the evidence does not admit of any other conclusion than that the wrongful act complained of caused the injury or death.

The majority of this court are of the opinion that the reasonable and natural sequence of events related in the evidence presented a complete chain beginning with her first visit to defendant's office and ending with her death. The medical evidence offered seems to us to present more than a scintilla upon the question of causation. Anna Zugaj came to the defendant's office for treatment during the latter part of April, 1930. At that time she complained of pain in her knees. The defendant undertook to cure her, prescribed for and sold to her certain herbs and powders, and directed her how to use the same. She again visited him on the 23d or 24th of May of the same year, complaining that she was not feeling any better. He again undertook to cure her, and assured her that he was better than any doctor, and again he sold to her more herbs and more powders, and instructed her how to use the same. After the second visit, she took for three days the herbs and powders which defendant prescribed for her. Constant violent vomiting followed. She vomited day and night at intervals of from fifteen to thirty minutes until June 3d, when she died. Her attending physician testified as to the cause of her death that she died from peritonitis resulting from ruptured ulcer. A competent chemist testified as to the composition of these herbs and powders which the defendant administered to her. Dr. Blagden gave testimony as to her condition when he visited her, and he also stated in positive terms that the component elements of these herbs and powders were such as to cause a disruption of the stomach; that taking these drugs, such as were administered to her, would aggravate the condition of the gastric ulcer by producing constant irritation and by bringing about constant peristaltic action of the stomach; that constant peristaltic action would cause the rupture of the ulcer; and that peritonitis would follow the rupture of the ulcer.

Upon this statement of fact the jury would have been justified in concluding that the unlawful act of defendant either caused, or at least materially contributed to the cause of the death of Anna Zugaj.

In the case of Bishop v. St. Paul City Railway Co., 48 Minn. 26, 50 N.W. 927, the plaintiff, while a passenger on a street car, by reason of the negligent handling of the car, was caused to be thrown loose from the strap which he was holding and against the floor of the car. He was rendered unconscious for a few minutes, but aside from several scratches and a small contusion over his ear did not appear to be otherwise injured. These marks disappeared in a few days and he went about his business. Eight months later paralysis intervened. In a suit against the railway company to recover damages for his totally impaired health and vision, the only question before the court was one of causal connection. Did the paralysis result from the fall? The court held that the issue was simple in its nature as it rested solely upon scientific inquiry into the facts. It was decided as any other fact issue.

There is no doubt that in the last cited case, because of the lapse of eight months between the date of the fall and the date when paralysis set in, many other causes might have intervened, and, independent of the fall, might have caused the condition of the plaintiff. The question, however, was left to the jury for its determination as a question of fact.

In the case at bar, while it is possible that the rupture of the gastric ulcer, from which Anna Zugaj died, might have taken place even in the absence of the unlawful act of defendant, yet the sequence of events related in the evidence, plus the positive testimony of the doctors as to what effect, in all probability, the injection of these herbs and powders into the system of a person suffering from gastric ulcer would have upon such person, constitute in our opinion more than the necessary scintilla of evidence on the question of proximate cause.

We hold that the common pleas court committed error in directing a verdict as it did. Judgment reversed and cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

McGILL, J., concurs.

LIEGHLEY, P.J., dissents.