The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-09-08
HELPED TO NEW TRIAL.
DR.. j. C. McClintock Testified In the
Supreme Court.

DR.. John c. McCIintockr the Topeka
surgeon, was in the hands or attorneys
at the supreme court this morning,
giving a deposition which will probably
result in the reversal of one of the
two cases in which the supreme court
has ever granted a new hearing on the
ground of newly discovered evidence.
Newly discovered evidence is COM
mon allegation in support of an ap-
plication for reversal, but the supreme
court has always held. except in the
two cases mentioned, that the alleged
new evidence is really cumulative
evidence. brought forward to support
other evidence already introduced.
DR.. McClintock, however, cut open
mans abdomen and found a ruptured
intestine after the case had been first
tried, and as the mans abdomen had
never been cut open before, the Su-
preme court held that the investigation
and its results constituted bona fide
case of new evidence.
The case is that of George W. Bous-
man against the city of Stafford. BouS-
man claimed that he fell on a defective
sidewalk, and hurt himself. He sued
for damages. To all outward appear
ances, Mr.. BouSnan was not hurt. The
doctors who examined him disagreed.
One said that he had symptoms of a
ruptured intestine; the others were
sure that he was not injured. The city
therefore made the defense that Bous-
mans injuries were purely imaginary,
or were being claimed for the purpose
| of compelling the city to pay damages.
/ This defense won, and Bousnan was
denied any damages. The trial ended
May 27. 1903. Bousman's attorneys
filed motion for new trial, on the
ground of newly discovered evidence.
/ On August II. 1903, before this mo-
| ton was argued, DR.. McClintock was
sent for. and Mr.. Bousman demon
strated that he really believed in his
own case by having an operation per-
formed.
Dr. McCrntock opened the mans
abdomen, and not only found rup-
tured intestine, but an abscess result
| ing therefrom.
dence, the lower court refused to
! grant new trial. The Judge said
that as DR.. McClintock made his dis
covery after the motion for a new
trial was filed, it didn't count Mr..
Bousman was naturally indignant at
having his injuries disregarded in this
fashion, and he appealed to the SUI
preme court to give him a new trial
In Mr.. Bousman's appeal the su-
preme court detected a real grievance,
ana all the judges united in the de-
cision, of which the syllabus was as
follows:
The testimony of a surgeon that in
| the progress of an operation involv-
patient he found intestine ruptured
| is not merely cumulative to that of
a physician that upon an external ex-
animation he concluded that such a
rupture probably existed
/ In its opinion in the case the court
said:
zone of the important questions of
fact tried was whether the plaintiff
had been actually hurt at all. AS
alleged by him his injuries were in
ternal, and of such a character that
| their existence and origin could at
the time of the trial only be shown
by his own statements and by the
opinions of medical experts A pTv-
sician who had made an examination
of the plaintiff testified that in his
judgment the symptoms observable
pointed to the probable existence OF
the conditions afterwards found by
fed that disregarding the statements
of the plaintiff himself they could find
nothing to indicate that he had suf-
fered any rupture of the intestines.
The physicians could only give
their opinions as experts upon a mat
/ ter necessarily involved in some
DOUBT; the surgeon told of a plain
physical fact about which there could
, be no mistake
Today the attorneys representing
| Bousman and the city of Stafford
both came to Topeka to get DR.. Nc
Clintock's important evidence in the
form of a deposition for use at the
second trial of the case. F. Z. Mar.
F tin represented Bousman, and C. M
: Williams appeared for the city. The
testimony was taken by E. r. Simon
! one of the court stenographers. DR.
J McClintock testified substantially al
; already related concerning his opera.
: ton upon Mr.. BouSrnan, and the
? proba bility is that at the next term
of the district court Bousman will ge
, a good sized verdict for damage:
J against the city of Stafford.