#### HENRY F. SCHOENING, Appellant, v. L. G. SMITH, and O. M. De Moully, Respondents.

(231 N. W. 278.)

*593Opinion filed March 17, 1930.

Rehearing denied June 30, 1930.

*L. J. Wehe,*for appellant.

*594Sullivan, *Hanley &*Sullivan, for respondents.

*595Buree, Ch. J.

In this action the plaintiff claims, that the defendants performed a mastoid operation in a careless, negligent and unskillful manner, and did bruise, injure, cut and destroy the main trunk of the seventh or facial nerve, thereby causing paralysis of the right side of the face, including the muscles of the forehead, right eye, the right nostril and the right side of his mouth. The defendants answered, admitting the performance of the operation, and denying negligence.

At the close of plaintiff’s testimony the defendants moved to dismiss the action for the reason that the testimony offered by the plaintiff was not sufficient to sustain a cause of action, that there was an entire and total failure of evidence of any negligence on the part of either of the defendants. There was an objection to the granting of the mo*596tion on tbe part of tbe plaintiff, but tbe court granted tbe motion and tbe action was dismissed, and from tbe order dismissing tbe action and tbe judgment entered thereon tbe plaintiff duly appeals.

It appears from tbe record, that about tbe' fourth day of October 1925, tbe plaintiff, Henry F. Schoening, went to tbe office of Dr. De Moully at Flasher, N. D., for treatment. He bad been suffering for some ten days or two weeks with a very severe pain behind tbe right ear. Dr. De Moully told him, that be could not perform tbe operation himself, it would have to be done by a specialist. Tbe next day Dr. De Moully took tbe plaintiff to tbe office of tbe defendant, Dr. Smith, who is a specialist in ear, eye and nose diseases. Dr. Smith with tbe assistance of Dr. De Moully performed tbe operation. Dr. Smith testified on cross-examination under tbe statute, that be bad during tbe practice of bis profession performed one hundred mastoid oj>erations; that this particular case was a plain example of what was called a simple mastoid operation for tbe purpose of draining tbe diseased mastoid cells; that in performing tbe operation be did not probe into tbe middle ear, did not do anything with tbe tympanic cavity; that be cut into tbe mastoid bone and cleaned some of tbe mastoid cells; that be did not scrape tbe bone structure between that and tbe tympanum; that be did not cut down into tbe dura; did not probe or explore in tbe antrum cavity towards tbe middle ear; that on tbe third morning after tbe operation be discovered that tbe right side of tbe face v’as paralyzed. Tbe plaintiff testified that be discovered it as soon as be recovered from tbe anaesthetic. There is no evidence that tbe operation as performed was not skillful and according to tbe most modern methods of performing an operation of that kind.

There was no error in sustaining objections to tbe hypothetical questions asked, as there was no proof that tbe operation was not performed with that degree of care, skill and knowledge which is ordinarily possessed by physicians or surgeons in tbe same neighborhood who devote special attention and study to disease of which tbe defendant has held himself out as a specialist.

Appellant relies upon tbe theory, that since there was no paralysis of tbe right side of tbe face before tbe operation, that tbe paralysis was necessarily the result of tbe operation. This is' tbe doctrine of res ipsa loquitur and it is well settled that this doctrine does not apply *597in a malpractice case, and that an unfortunate or bad result does not show proof of neglect. Gallagher v. Kermott, 56 N. D. 176, 216 N. W. 569; Dolan v. O’Rourke, 56 N. D. 416, 217 N. W. 666; Loudon v. Scott, 58 Mont. 645, 194 Pac. 488, 12 A.L.R. 1487 and notes pages 1493 and 1495; Runyon v. Goodrum, 147 Ark. 481, 13 A.L.R. 1403, 228 S. W. 397, 20 N. C. C. A. 373; Sweeney v. Erving, 35 App. D. C. 57, 43 L.R.A.(N.S.) 734; Wood v. Barker, 49 Mich. 295, 13 N. W. 597; Piles v. Hughes, 10 Iowa, 579.

In the case of Ewing v. Goode (C. C.) 78 Fed. 442, Judge Taft, then on the Circuit Court of Appeals said: “Before the plaintiff can recover, she must show by affirmative evidence — first, that defendant was unskillful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, ■she has presented no case for the consideration of the jury. The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, establish neither the neglect and uriskillfulness of the treatment, nor the causal connection between it and the unfortunate event. A physician is not a warrantor of cures. If the maxim, ‘Res ipsa loquitur/ were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence ■on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ‘ills that flesh is heir to.’ ”

There is no error in the court refusing to grant a continuance of the •case, for the reason, that there was no showing made for the granting ■of a continuance.

At the close of plaintiff’s testimony Mr. Wehe said, “If it pleases the court I would like to have the court take a continuance in this case until tomorrow. I won’t take very long.” The court, “How long?” Mr. Wehe, “I don’t think it will take over an hour.” The court, “We have half an hour now, so you had better go ahead.” Mr. Wehe, “I want to see another witness that I have not got here at the present time.” The court, “Where is he?” Mr. Wehe, “I want to consult with another doctor.” It appears from the record, that there was no showing at all made for a continuance; that the attorney for the plain*598tiff did not have any witness in mind, did not know that be could get a witness, or wbat testimony be could procure. Tbe matter was entirely witbin tbe discretion of tbe trial judge and there was no abuse of discretion in refusing a continuance on tbe showing made.

There is merit, however, in appellant’s contention that tbe action should not have been dismissed as a final determination of tbe action on tbe merits. In making tbe motion counsel for tbe defendant was careful to state that tbe motion was not for a directed verdict, but for a dismissal of tbe action, and tbe action was dismissed by tbe court without any direction to tbe jury. This motion as made and granted comes squarely under subdivision 3 of § 7597, Comp. Laws 1913, which reads as follows:

> Section 7597. “A civil action may be dismissed, without a final determination of its merits, in tbe following cases

Subdivision 3. “By tbe court, when upon tbe trial and before tbe final submission of tbe case, tbe plaintiff abandons it, or fails to substantiate or establish bis claim, or cause of action, or right to recover.”

In Central Transp. Co. v. Pullman’s Palace Car Co. 139 U. S. 24, 39, 35 L. ed. 55, 61, 11 S. Ct. 478, tbe court said: “Tbe difference between a motion to order a nonsuit of tbe plaintiff and a motion to direct a verdict for tbe defendant is, as observed by Hr. Justice Field, delivering a recent opinion of this court, ‘rather a matter of form than of substance, except (that) in tbe case of a nonsuit a new action may be brought, whereas in tbe case of a verdict tbe action is ended, unless a new trial be granted, either upon motion or upon appeal.’ Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 264, 26 L. ed. 539, 541.”

Under said § 7597, tbe court has authority to dismiss an action when tbe plaintiff has failed to substantiate, or establish bis claim, or cause of action, or right to recover but has no authority to dismiss tbe action as a final determination of its merits. Tbe plaintiff having-failed to substantiate or to establish bis claim, or cause of action, or right to recover, it is ordered that tbe said case be and is hereby dismissed, but such dismissal is in no wise a determination of the action on its merits. It is so ordered. Costs to tbe appellant.

BiRdzeix, Nuessle, BubR and CheistiaNSON, JJ., concur.