Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-09-11
SUPREME COURT


The supreme court has reversed
the district court of Bottineau In the
case of Amelie Zilke VS.. John A. John.
son. .s.-.p.
The plaintiff brought damage suit
against the defendant, who Is a sur.
geon, asking damages in the sum OF
$4,000, alleging malpractice. A jury
in the lower court assessed damages
in favor Of the plaintiff in the sum
of $1,000. A motion for new trial
by the defendant was Overruled by
the lower court and an appeal was
taken. Following is the finding OF
the supreme court, April term:
/. In an action against physician
and surgeon to recover damages for
alleged malpractice in the negligent
act alleged consists in the defendant
leaving some gauze in the PLAINTIFF g
abdomen at an operation performed
on November Is, 1906, plaintiff, be-
fore establishing the act of negligence
and over defendants objection, was
permitted to testify to the pain and
suffering endured by her.
Held, that such objection merely
goes to the order of proof and the
ruling complained Of was non-pre'
judicial.
2. 1t was not error TO permit plain
tin, q married woman to testify to
her inability, after such operation to
perform her household work, it ap-
pearing that such testimony was Of
fo~nH rnn,o1v n oh0w HI ovfnnf onH
character of plaintiffs injuries and not
for the purpose, of augmenting the
damages on account of loss of ser
wees.
3. 1t was proper to permit plaintiff
to show that she had Internationally
obligated herself to pay another ply
sician and surgeon for performing an
operation for the purpose of removing
such gauze.
4. The erroneous admission Of GER
tain immaterial testimony held not
prejudicial.
5. Certain other objections merely
going to the order of proof held not
prejudicial.
6. The evidence examined and held
sufficient to require its submission to
the jury.
Z. In charging the jury the trial
court made certain inaccurate state
ments regarding the allegations in the
pleadings, but being of a trivial nature
it is held that they were not pre-
judicial. The issue was clearly stated
and could not have been misunder-
stood by the jury.
8. The objection that the instruc-
ton as to the burden of proof was too
general is unavailing to appellant.
He made no request for more spe.
CITED instruction and furthermore, the
one given was more favorable to ap-
pellant than he had a right to ask.
9. The instruction defining the
negligently was given in the exact
language of the code. Held, sufficient,
especially in view of the fact that
no more specific instruction was
asked.
10. Among other things, the court,
in effect instructed the jury that the
defendant was guilty of negligence
if he left the gauze in the wound as
alleged. Held, correct, for the reason
that the case was apparently tried by
both parties Upon the theory that de-
PENDANT was liable If he left the guaze
in the wound as alleged. The sole is
sue tried being whether such fact oc-
Cured.
II. Certain other instructions rela-
tive to the rule to be followed In as
sessing damages and determining
whether defendant was negligent as
charged, considered, and held not pre-
judicial when read in connection
with the other instructions in the
case.
IL. The court charged the jury,
among other things, as follows: IF.
during the heat of The argument, any
of the counsel have made any state
ment to you what they consider to be
the testimony and evidence in this
case it should be elimated from your
minds and you should disregard such
statement of counsel, and you are tho
sole judges of the testimony your
selves. The counsel on both sides
have. been permitted to assist in pre-
senting the facts and circumstances
of the case to you but any statement
or opinion advanced by them should
be disregarded entirely and you are
to try this matter herein from the evf-
dence introduced and from the in
structions of the court"
HELD, following State VS.. Gutter
man, IN. d., 1928 N. w. 307, that the
giving of such instructions constitutes
reversible error, the effect of such in
struction being to advise the jury to
disregard all statements made by
counsel in argument.
(Syllabus ~ the court.)
Appeal from the district court, Bot
tineau county; Burr, ].
Action by Amelia Zilke against J
A. Johnson. From a judgment for
plaintiff and from an order denying
a new trial defendant appeals.
Reversed.
Noble, Blood and Adamson, for ep.
pellant.
Bowen & Adams, for respondent.
Opinion of the court by Fisk, J.