Zima v. Sloan

OPINION

PER CURIAM:

This was an action against Dr. Harry S. Sloan, brought by Helene Zima, to recover damages for alleged malpractice in performing an operation upon her. Negligence in diagnosis and fraudulent conduct were claimed, and also complaint was made that, without permission so to do and against Mrs. Zima’s wishes, and as an incident to the main operation, he removed her appendix when there was no condition that warranted such removal.

The trial judge withdrew from the jury all claims for damages except that relating to the unauthorized removal of the appendix, and a reading of the record leads us to the conclusion that the trial judge was right in so doing.

On the subject of the unauthorized removal of the appendix, the court determined that as a' matter of law the doctor invaded the rights of Mrs. Zima and was liable to respond in damages for so doing: that she was entitled to a judgment for at least nominal damages.

A verdict was returned in favor of the doctor, if we judge from the certificate of journal entries, but in favor of Mrs. Zima, finding no damage, if we consider what is apparently the original verdict in the files, and which is not set forth in the journal entry. The case is here as an appeal on questions of law.

A consideration of the record leads us to the conclusion that, as to the matter of the wrongful removal of the appendix, there was no proof of actual damage, either by inference or otherwise.

The court overruled a motion for a new' trial and entered a judgment as follows: “It is therefore considered that said defendant go hence without day and recover of said plaintiff his costs of this suit. Judgment is rendered against the plaintiff for the costs herein.’’

We hold that the judge committed no error in directing the jury to return a verdict for Mrs. Zima on the cause of action in reference to the wrongful removal of the appendix for at least nominal damages, and as there was no evidence of actual damage, the judgment of the trial court should have been for plaintiff for nominal damages, together with the costs of the action; and in that particular the court erred. As the record was at the time of the entry of said judgment, the trial judge should have entered the judgment above indicated, and the judgment that was entered is reversed; and proceeding, under authority of §11601, GC, to enter the judgment which the trial court should have entered, it is considered that the plaintiff (Helene Zima) recover of the defendant (Dr. Harry S. Sloan) nominal damages in the sum of $1, and the costs of this suit.

Judgment reversed and Anal judgment for plaintiff.

A like entry may he made in the companion case of Andrew Zima v Dr. Harry G. Sloan (§16388).

STEVENS, PJ, WASHBURN, J, and DOYLE, J, concur.