Marx v. Schultz

Kuhn, J.

(after stating the facts). Fourteen assignments of error are relied upon by the plaintiff and the principal reason urged for reversal in this court is that the court erred in directing a verdict in favor of the defendants and in not submitting to the jury the question as to the cause of the death of plaintiff’s wife.

Preliminary to a discussion as to whether or not there was evidence in the record to warrant the submission of the case to the jury, it is necessary to consider a claim urged now by counsel for the defendants. It is urged that the general assignment of error that “the court erred in directing a verdict in favor of the defendants” is not specific enough, and that under Supreme Court Rule No. 11 judgment should not be reversed for that reason, relying upon the case of Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433. We are of the opinion, however, that the present situation falls within the rule announced in Conely v. Dudley, 111 Mich. 122, which is referred to in the Bridge & Iron Co. Case, supra, as an exceptional case. Here, as in that case, no testimony was offered by the defendants and there can have been no possible uncertainty as to what was meant by the assignment as made. It was. equivalent to saying that there were facts in the case upon which a jury might find plaintiff entitled to recover. No one could possibly have been misled. See, also, Wolfe v. Stack, 153 Mich. 445.

Was there any testimony in the case to warrant the submission of the controversy to the jury? The following hypothetical question was submitted to Dr. Swartz, a physician of 25 years’ practice and a graduate of the University of Michigan, who stated that he had made a study of the effect of arsenic on the human body:

“Q. The evidence in this case shows that on the morning of November 30, 1915, Dr. Francis W. McNamara, the physician in attendance, wrote out a prescription for Fowler’s solution of arsenic as a remedy for a skin rash, from which Lydia Marx was, complaining; that the prescription directed three drops of that solution after each meal as a dose, but by mistake the directions on the label of the bottle, when it came from defendants’ drug store, where the prescription was filled, read {One teaspoonful after meals.’ _ That one teaspoonful was given Lydia Marx, according to those directions, and immediately thereafter she appeared to be in great pain, suffered inward convulsions, threw herself from one side to the other of the bed, and continually tried to vomit. That her whole body became greatly swollen. Her mouth and tongue so increased in size that she could hardly talk. That after November 30, 1915, large ulcers came in her mouth and nose; her eyes were swollen and liquid appeared therein. Her appetite was poor and she complained at times of pains about her heart and an irritable condition of her bowels. That the movement of her bowels was frequent and the substance passed therefrom was bloody and yellow in color. That she was delirious off and on from the time she received the overdose of the solution of arsenic, and her general conditions heretofore named continued down to the time of her death, February 7, 1916. In your opinion, would such conditions be caused by the overdose of Fowler’s solution of arsenic which Lydia Marx received, and would the said overdose be the proximate cause of her death? * * *

“A. Those symptoms are caused by an excessive dose of arsenic and probably would result in her death.”

We are of the opinion that this testimony was sufficient to warrant the drawing of an inference favorable to the plaintiff sufficient to present the disputed question of fact — which should have been presented to the jury — as to the cause of the death of the plaintiff’s wife. As to whether the testimony of the defendants’ witnesses outweighed that of the plaintiff’s is a question for the jury to determine in the first instance.

Some question is also made by plaintiff’s counsel of the undue limitation by the trial court' of the examination of Dr. McNamara, whom plaintiff was required to call. An attempt was made to show certain incidents that occurred between the doctor and the plaintiff, in order to make it appear that Dr. McNamara had become adverse and unfriendly to the plaintiff’s cause. We are of the opinion that the judge should have been more liberal in allowing a showing of this character to be made, in view of the fact that Dr. McNamara, being the attending physician, it was almost obligatory upon the plaintiff’s counsel to put him on the stand in order to make his case.

Other questions are discussed by counsel for the defendants which might be properly before the court if judgment had been obtained against them, but as upon this record the only assignments of error are upon the part of the plaintiff, we do not consider that these questions become material in the discussion of the case at this time.

Upon the record as here presented, we are of the opinion that the trial court erred in directing a verdict for the defendants, and the cause musttherefore be reversed and a new trial ordered, with costs to the appellant.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.