servant-who master of

(- Wis. — , 172 N. W. 785.) Mrs. Lenga, not the negligence of fendant with damages in the instant defendant.

case, it must appear from the eviBut it is insisted that Mrs. Lenga dence produced that the defendant

was the agent of de- ought to have anticipated that the Master and

fendant, and that persons in charge of the patient

the relation of mas- would place the iron in the bed at patient's

ter and servant exattendant.

such a heat and isted. The evidence temperature and in anticipation

of does not support this theory. Mrs. such a position Lenga was in the employ of plain against the body of the patient as tiff or his wife.

to burn her. On this point, we are It is further claimed that defend- of opinion that there is no evidence ant was negligent in ordering Mrs. sufficient to support the verdict; Lenga to place the hot iron in the hence that defendant was not guilty bed. We have referred to the evi- of negligence. Hanson v. Superior dence on this point, and it falls Mfg. Co. 136 Wis. 617, 118 N. W. short of ordering an iron hot

iron hot 180; Sorenson v. Menasha Paper & enough to burn placed upon the feet Pulp Co. 56 Wis. 338, 14 N. W. 446; of the patient. The most that can Barton v. Pepin County Agri. Soc. be said in favor of the plaintiff's 83 Wis. 19, 52 N. W. 1129; Wolosek theory of the evidence is that the v. Chicago & M. Electrical R. Co. defendant told the person in charge 158 Wis. 475, 149 N. W. 201; Deiof the patient and her children to senrieter v. Kraus-Merkel Malting keep her warm by placing warm or Co. 97 Wis. 279, 72 N. W. 735.

hot stove lids in It is further contended that the Physicianliability for

bed with her, and, court below was in error in allowing ordering hot

construing this evi- any costs in the circuit court in exiron for patient.

dence in the most cess of $10. It does not appear favorable light for the appellant, it from the record that any circuit could not mean that the iron was to court costs were allowed in excess be placed so as to burn the patient. of $10, motion fees on reversal of Clearly, the defendant could not an- the judgment, and this sum was ticipate that anything of the sort properly allowed. The other costs would be done; hence, one of the in excess of $10 were not circuit essential elements of proximate

of proximate court costs, but civil court costs, cause, namely, reasonable antici- and, so far as appears from the recpation, was wanting in the proof. ord, these costs were properly taxThe defendant could not have antic- able in favor of the ipated that an ordinarily prudent defendant in the Costs-reversal

on appeal. and intelligent person would so civil court; thereplace the iron as to cause the injury fore on reversal of the judgment in complained of; and, where there is the circuit court he was entitled to no evidence to support the essential have them taxed there. Scheiderer element of reasonable anticipation, V. A. G. Schulz Co. Wis. 171 proof is not sufficient to make a N. W. 660. case. In order to charge the de- Judgment affirmed.

ANNOTATION.

Duty of physician or surgeon to warn or instruct nurse or attendant.

This note is not intended to include cases where the liability rests on the doctrine of respondeat superior in cases of master and servant or employer and employee.

It is the duty of the attending physi

cian and surgeon to use reasonable care for the safety and well-being of his patient. There seems to be little in the books on the subject of warning or instructing nurses and attendants. If those taking care of the patient are ignorant or inexperienced rected to use leg which was not it is conceived that the doctor should straight, and the use aggravated its instruct them. On the other hand, if bad condition so that the leg had to be the surroundings are those of the mod- amputated. ern hospital, with experienced nurses It will be seen that it is held in the and attendants, the doctor ought to be reported case (MALKOWSKI V. GRAHAM, entitled to take for granted that they ante, 1524) that it was not negligence will attend to their ordinary custom- for the surgeon, after an operation, in ary duties without instruction. But telling a female servant of the plaineven in such surroundings it would tiff to put something into the bed to clearly be his duty to give instruc- warm it, to omit to warn her not to tions, if there were unusual features burn the patient. in the case, or in its treatment.

In Perionowsky v. Freeman (1866) 1 In McQuay v. Eastwood (1886) 12 4 Fost. & F. (Eng.) 977, it was held Ont. Rep. 402, the court, in reversing that physicians serving gratuitously, for want of evidence of negligence a who order a hot bath for a patient at judgment for the plaintiff in a mal- a charitable hospital, properly leave practice case, said, referring to in- it to the nurses to see the water is not structing the nurse in a confinement too hot. case: "Where, in the nature of the Surgeons performing an operation case, the doctor cannot perform the at a hospital were held not liable for service himself, he is bound to give permitting the patient to be attended, such instructions as will enable an after the operation, by the hospital ordinary person to follow his direc- nurses, who put a hot water bottle in tions; and if he failed to do so, and his bed, burning him, there being

, injury resulted to the patient there- nothing to show that the nurses were from, he would be guilty of actionable incompetent or that the surgeons knew negligence."

of it. Morrison v. Henke (1917) 165 1 A surgeon who sets an arm and Wis, 166, 160 N. W. 173. leaves it resting on a pillow, without It has been stated that it is the anything to keep it in place, ought to practice for nurses to keep the bed give proper instructions to those hav- warm, where there has been an operaing care of the patient, particularly tion; that the surgeon would not ordiwhen instructions are asked for, and narily give any order about it. Lavere the persons taking care of the patient V. Smith's Falls Public Hospital are ignorant or inexperienced. Car- (1915) Ont, —, 26 D. L. R. 346. penter v. Blake (1878) 75 N. Y. 12. When immediate

emergency reSee also an appeal from earlier trial quires all of the doctor's attention, it (1871) 60 Barb. 488, which was re- is clear that he must leave minor de. versed on another ground in (1872) 50 tails to the nurse. Thus, a physician N. Y. 696.

who, with his confrère, after an operaThe duty of a physician and surgeon tion, is working over the patient to having charge of a case of an injured save him from heart failure, is not re leg includes the giving of proper in- sponsible for the negligence of a nurse structions to his patient, in relation to who burns the patient with overheated conduct, exercise, and the use of the bricks. Marchand v. Bertrand (1910) injured limb. Harter V. Westcott Rap. Jud. Quebec 39 S. C. 49. (1898) 155 N. Y. 211, 49 N. E. 676. In Armstrong v. Bruce (1904) 4 Ont.

It is the duty of a surgeon who has Week. Rep. 327, the judge, having disset a broken leg to give his patient pensed with the jury, disbelieved the proper instructions for the use and nurse's testimony that the defendant care of it after his discharge, where instructed her to fill the pad on which it has not fully recovered, and for fail- the patient lay during an operation, ure to do so is liable, in case of a re- with boiling water, burning him. sulting injury. Beck v. German Klinik Where the plaintiff claims that the (1889) 78 Iowa, 696, 7 L.R.A. 566, 43 defendant who performed operations N. W. 617, where the patient was di- upon her was negligent in giving instructions to the hospital staff as to the care of her after the operations, it is error to refuse to permit him to testify what instructions he did give. Brown v. Goffe (1910) 140 App. Div. 353, 125 N. Y. Supp. 458.

In Graves v. Santway (1889) 6 N.

Y. Supp. 892, where a judgment for malpractice was affirmed, one of the charges by the plaintiff against the defendant was that she did not receive the necessary and suitable advice and treatment after an operation.

B. P. B.

JAMES E. BURROUGHS, Appt.,

V.

MACPHERSON CRICHTON, M. D.

District of Columbia Court of Appeals - March 31, 1919,

(48 App. D. C. 596.) Husband and wife — power of wife to submit to operation.

1. A married woman in full possession of her faculties has full power, without consent of her husband, to submit to a surgical operation upon herself.

[See note on this question beginning on page 1531.] Physician - liability for misrepre- - contract to furnish care liability

senting to husband nature of oper- for breach.
ation on wife.
2. A man has no right of action

3. A surgeon is liable in damages for

breach of his contract to furnish such against a surgeon for inducing him, by fraudulent representations as to the

care as a patient upon whom he percharacter of the malady, to assent to

forms an operation needs until recovan operation upon his wife, if she ap- ery, so that it becomes necessary to call preciates her condition and consents to in another physician to relieve sufferthe operation.

ing. [See 21 R. C. L. 392, 393.]

[See 21 R. C. L. 389, 390.)

APPEAL by plaintiff from a judgment of the Supreme Court in favor of defendant in an action brought to recover damages for alleged deceit of defendant and breach of contract to furnish proper care to plaintiff's wife. Affirmed in part.

The facts are stated in the opinion of the court.

Messrs. Isaac R. Hitt and Richard Plaintiff is entitled to the lawful P. Evans, for appellant:

damages claimed for the injuries reThe first count in the declaration sulting, due to defendant's neglect and sets out all the essential elements in default. an action for deceit.

Dermott v. Jones (Ingles v. Jones) Browning v. National Capital Bank, 2 Wall 1, 17 L. ed. 762; Fererro v. 13 App. D. C. 1; Magruder v. Mont- Western U. Teleg. Co. 9 App. D. C. 455, gomery, 33 App. D. C. 133; Tyssowski 35 L.R.A. 548. v. F. H. Smith Co. 35 App. D. C. 403; Messrs. Frank J. Hogan and Wil. Cooper v. Schlesinger, 111 U. S. 148, liam H. Donovan, for appellee: 155, 28 L. ed. 382, 385, 4 Sup. Ct. Rep. It is the duty of a husband to permit 360; Fenwick v. Grimes, 5 Cranch C. an operation upon his wife which is C. 603, Fed. Cas. No. 4,734; Stewart v. necessary to save or prolong her life Wyoming Cattle Ranch Co. 128 U. and to which she does not object. S. 383, 32 L. ed. 439, 9 Sup. Ct. Rep. State use of Janney v. Housekeeper, 101; Busterud v. Farrington, 36 Minn. 70 Md. 162, 2 L.R.A. 587, 14 Am. St. 320, 31 N. W. 360.

Rep. 340, 16 Atl. 382.

a

tion on wife.

So-called false statements, when her death a few months thereafter; made relative to a matter about which that "by reason of the aforemen there can be no such thing as absolute

tioned faults, deceitful and frauducertainty, even though relied on and

lent representations, and assurances resulting in injury, are not actionable.

of the defendant, the plaintiff was Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437; Sheldon v. Davidson, 85

deceived and fraudulently induced, Wis. 138, 55 N. W. 161; Spead v. Tom

by the defendant, to submit his wife linson, 73 N. H. 46, 68 L.R.A. 432, 59 to a dangerous and fatal surgical Atl. 376; Robertson v. Parks, 76 Md. operation, which he would not have 118, 24 Atl. 411; Norfolk v. N. B. done had defendant told plaintiff the Hosiery Co. v. Arnold, 49 N. J. Eq. 390, truth," etc. 23 Atl. 514; Marsh v. Falker, 40 N. Y. The theory underlying this count 562; Alabama & V. R. Co. v. Turnbull,

is that a husband has absolute con71 Miss. 1029, 16 So. 346; Jackson &

trol over the person of his wife; that S. Co. v. Fay, 20 App. D. C. 105; Southern Development Co. v. Silva, 125 U.

it is for him, and him only, to deS. 247, 31 L, ed. 678, 8 Sup. Ct. Rep.

termine whether an operation shall 881, 15 Mor. Min. Rep. 435; 20 Cyc. be performed upon her, and, if so, 17.

upon what conditions.

In other There can be no recovery for the words, the theory is that in this rehusband's mental anguish.

spect the husband exercises the Adams v. Brosius, 69 Or. 513, 51

same control over his wife as is exerL.R.A.(N.S.) 36, 109 Pac. 729; 30 Cyc.

cised by the owner 1582.

Physician

of a chattel. This liability for Robb, J., delivered the opinion of position is unten- misrepresenting the court:

able. In Bronson v. nature of operaAppeal from a judgment in the Brady, 28 App. D. supreme court of the District sus- C. 250, 256, we said “that the tendtaining a demurrer to appellant's ency of the times is to emancipate amended declaration.

married women from the harshness In the first of the two counts of and disabilities of the common law, the declaration it is averred that the

and place them upon an equal footdefendant, appellee here, with intent ing with men.”. A wife in the full to deceive the plaintiff and obtain possession of her faculties is as from the plaintiff certain fees, in

much entitled, both morally and formed plaintiff, "as a fact and not legally, to determine whether she

shall submit herself as an opinion," that plaintiff's wife "was affected with an ordinary to an operation as is wife-power of

the husband in re- wife to submit benign tumor. . That the de

to operation. fendant well knew, as a skilled and

spect to an operaexperienced physician and surgeon,

tion on himself. And where a wife, that the plaintiff's wife was afflicted

in such circumstances, consents to with cancer, and that the operation

an operation which is skilfully pertherefor would be a major operation, formed, the surgeon is not liable to

the husband in damages. Pratt v. putting in jeopardy the life of the plaintiff's wife;" that plaintiff, being Davis, 224 Ill. 300, 7 L.R.A. (N.S.) in ignorance of the ailment of his 609, 79 N. E. 562, 8 Ann. Cas. 197; wife and relying upon the good faith

State use of Janney v. Housekeeper, of the defendant, consented to the

70 Md. 162, 2 L.R.A. 587, 14 Am. St. performance of an operation by the

Rep. 340, 16 Atl. 382, 21 R. C. L. 392, defendant upon plaintiff's wife; 393. The following from the opinion “that said operation was performed in the latter case is pertinent here: for cancer, and not for a benign tu- "Surely the law does not authorize mor;" that the patient remained in the husband to say to his wife: the hospital for a month and a half, You shall die of cancer; you cannot when she returned home in a dan- be cured; and a surgical operation gerout condition resulting from the affording an only temporary relief operation, and suffered pain until will result in useless expense. The

Husband and

contract to

liability for breach.

(48 App. D. C. 596.) husband had no power to withhold was compelled to call in another from his wife the medical assistance physician at additional expense,' which her case might require.

and that by reason of the failure The consent of the wife, not that of and refusal of the defendant to perthe husband, was necessary.” In form his contract, plaintiff suffered the present case, it is alleged that damage, etc. the defendant was "a skilled and ex- Treating the averments of this perienced physician and surgeon;": count as true, as we must, a cause of that plaintiff's wife was afflicted action is stated. A with cancer and that defendant per- contract and its Physicianformed an operation therefor. It is clear breach is set furnish carenot averred that the operation was out, and, if the unnecessary or that it was unskil- plaintiff should susfully performed. Neither is it tain these averments by proof, he averred that plaintiff's wife did not would be entitled to recover. The appreciate her true condition and defendant contends that there is no consent to the operation. Such sufficient averment in this count averments being lacking, it must be "that the defendant's services as a assumed that the facts did not war- physician and surgeon at the time rant them. The count, therefore, is (complained of) were required and fatally defective.

necessary.” It is in effect averred In the second count it is alleged that when plaintiff unsuccessfully that the defendant, for the sum of requested the defendant "to con$200, agreed to perform an operation tinue his professional attendance, on plaintiff's wife "and thereafter to

care, and treatment of plaintiff's give his professional attendance, wife, in accordance with the agreecare, and treatment” to her during ment," she "was languishing in inher stay at the hospital and upon

tense suffering, awaiting defendher return home until her recovery;

ant's attendence," and that it was that plaintiff performed his part of

necessary to call another physician. the contract; that after the opera

While this averment is somewhat intion plaintiff's wife was brought artificial, we think it sufficient. The home “in a dangerous condition, resulting from said operation;" that inference is irresistible that the pa

tient needed medical attenton, which plaintiff called upon defendant to continue his professional attendance,

the defendant, according to the care, and treatment of the plaintiff's pleader, neglected and refused to wife in accordance with the agree

render. ment, but that defendant neglected,

It results that the judgment must failed, and refused to do so; that

be affirmed as to the first count and "after several days, during which reversed, with costs, as to the second the plaintiff's wife was languishing count. in intense suffering, awaiting de- Affirmed in part and reversed in fendant's attendance, the plaintiff part.

ANNOTATION.

Necessity of obtaining the husband's consent to operation on wife.

The few cases that have considered the question as to the necessity of obtaining the husband's consent to an operation on his wife are in harmony upon the point that if the wife's consent is obtained, the consent of the husband is unnecessary.

BURROUGHS v. CRICHTON (reported herewith) ante,

1529; State use of Janney v. Housekeeper (1888) 70 Md. 162, 2 L.R.A. 587, 14 Am. St. Rep. 340, 16 Atl. 382; M'Clallen v. Adams (1837) 19 Pick. (Mass.) 333, 31 Am. Dec. 140.

Where, however, the wife is mentally incompetent, it would seem necessary to obtain her husband's consent