The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1918-12-06
ORDER OF HIGH COURT
OPINION IN CASE AGAINST
PARK, DAVIS & co.
Lower Tribunal Upheld; Lengthy
Syllabus Is Given BY
F. . =,
Justice Holt

In an opinion handed down today the
state supreme court has affirmed the &C.
ton Of the Blue Earth county district
court in the action of Fred ]. Moeh e.
brock versus Parke, Davis & Co. This
was suit brought by Moehlenbrocl
against Parke Davis & Co. and against
DIR. j. p. Rosenwald and DR.. r. N. An
drews because of alleged negligence in
an operation on Albert Moehlenbrcck fol-
the removal of his tonsils the operation
having taken place on March 26, 1914. DR.
Rosenwald was killed in France where he
was serving as surgeon in the army.
The jury in the Blue Earth county
court returned a verdict for $1,000 for
the plaintiff against each Of the defen-
dents, taking the stand that the ether
prepared by Parke, Davis & Co. was not
good and that the physicians were Veg-
lgent. The case was appealed to the
state supreme court by Parke, Davis &
Co. but the ruling of the lower court was
affirmed.
Clerk of Court George Krost stated this
morning that the case could be carried
Co. claims to be a foreign corporation
end could carry the case to the United
States supreme court.
Judge Holt wrote the opinion. The
following is the syllabus:
One. The assignments of error and APP
pellants brief should refer to the place in
the printed record where the challenged
ruling may be found.
Two. Appellant and the other defen-
dants, two doctors. occupied antagonistic
positions, to a certain extent in that plain
tiff charged that the separate and dis
tinct acts of negligence of the appellant
in furnishing unfit anaesthetic ether and
of the doctors in administering the same.
in operating plaintiffs intestate, caused
and contributed to cause his death. And
because of such antagonistic positions
appellant was accorded a wide range in
crosS-examining the doctors, even though
oI.s~-
and no just complaint can be made that
appellant was unduly restricted in this
respect.
Three. The doctors offered no evidence.
resting when plaintiff rested. The court
ruled correctly, that after they had so
done appellant could not call them for
cross examination. If it desired their
testimony they should have been called as
appellants witnesses.
Four. A doctor who has examined a
person or has noted his appearance at
the time such person goes upon the op-
Grating table, who has performed the OPP
Grafton or has been present thereat, who
has observed the effects of the anaes-
thetic administered. and who has been
present at intervals until death ensues, Is
competent to express an opinion as to
the cause Of death. This is so, even if
the doctor admits that the opinion ex-
pressed has been corroborated by the in
formation he has obtained from others as
to a subsequent analysis of the ether.
Five. The identification of the ether
analysed as that administered to plain
tiff's intestate and to patient of Dr.
Liedloff the next day was sufficient.
Six. The evidence furnished proper
foundation for the introduction of the
testimony concerning the analysis Of can
of ether by Professor Hortvet and the
opinion of experts based thereon.
Seven. It was error to admit, over OBJ
lection, pages from a standard textbook.
the general rule being that scientific
works are inadmissable as substantive
evidence, either on direct or cross exam
ination. But the error must be held
harmless for 1t is not pointed out nor is
it apparent, that the pages So received
were at variance with other standard au-
thors read to the jury, by consent, or
with the expert testimony of appellant.
Eight. The admission of experiments
and demonstrations is within the discre-
tion of the trial court.
Nine. The negligence of the surgeons
operating cannot be imputed to the pa
tient. so az to relieve third party whose
TENTS injury. Nor is the patient as to
such third party engaged in a joint en-
terprise with the surgeons.
Ten. The concurring negligence Of one
not a party to this suit is not defense.
Eleven. There is not fatal variance
between the complaint and the nroof in
respect to appellants responsibility fol-
the ether used.
Twelve. The jury found concurrirg
negligence; but, even if the evidence did
not Justify verdict against the doctors
the allegations of the complaint are such
that. when supported by proof of appel
lant's negligence, a recovery against 1T
alone can be had.
Thirteen. No reversible error is four |
in the charge
Fourteen. The verdict cannot be sold
to rest upon differences. there is direct
and circumstantial evidence to prove the
facts involved in the verdict.
Fifteen. That the verdict is. excessive
was not raised in the court below. in the
ma nner prescribed bv subd. of section
1928. G. S. 1913, and is not presented by
a proper assignment of error in this court.
Affirmed.