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(Wis., 172 N. W. 785.)

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Physicianliability for ordering hot

It is further claimed that defendant was negligent in ordering Mrs. Lenga to place the hot iron in the bed. We have referred to the evidence on this point, and it falls short of ordering an iron hot enough to burn placed upon the feet of the patient. The most that can be said in favor of the plaintiff's theory of the evidence is that the defendant told the person in charge of the patient and her children to keep her warm by placing warm or hot stove lids in bed with her, and, construing this eviiron for patient. dence in the most favorable light for the appellant, it could not mean that the iron was to be placed so as to burn the patient. Clearly, the defendant could not anticipate that anything of the sort would be done; hence, one of the essential elements of proximate cause, namely, reasonable anticipation, was wanting in the proof. The defendant could not have anticipated that an ordinarily prudent and intelligent person would so place the iron as to cause the injury complained of; and, where there is no evidence to support the essential element of reasonable anticipation, proof is not sufficient to make a case. In order to charge the de

of injury.

fendant with damages in the instant case, it must appear from the evidence produced that the defendant ought to have anticipated that the persons in charge of the patient would place the iron in the bed at such a heat and temperature and in anticipation such a position against the body of the patient as to burn her. On this point, we are of opinion that there is no evidence sufficient to support the verdict; hence that defendant was not guilty of negligence. Hanson v. Superior Mfg. Co. 136 Wis. 617, 118 N. W. 180; Sorenson v. Menasha Paper & Pulp Co. 56 Wis. 338, 14 N. W. 446; Barton v. Pepin County Agri. Soc. 83 Wis. 19, 52 N. W. 1129; Wolosek v. Chicago & M. Electrical R. Co. 158 Wis. 475, 149 N. W. 201; Deisenrieter v. Kraus-Merkel Malting Co. 97 Wis. 279, 72 N. W. 735.

It is further contended that the court below was in error in allowing any costs in the circuit court in excess of $10. It does not appear from the record that any circuit court costs were allowed in excess of $10, motion fees on reversal of the judgment, and this sum was properly allowed. The other costs in excess of $10 were not circuit court costs, but civil court costs, and, so far as appears from the record, these costs were properly taxable in favor of the defendant in the Costs-reversal civil court; therefore on reversal of the judgment in the circuit court he was entitled to have them taxed there. Scheiderer v. A. G. Schulz Co. Wis. N. W. 660. Judgment affirmed.


on appeal.

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 pa

tient are ignorant or inexperienced it is conceived that the doctor should instruct them. On the other hand, if the surroundings are those of the modern hospital, with experienced nurses and attendants, the doctor ought to be entitled to take for granted that they will attend to their ordinary customary duties without instruction. But even in such surroundings it would clearly be his duty to give instructions, if there were unusual features in the case, or in its treatment.

In McQuay v. Eastwood (1886) 12 Ont. Rep. 402, the court, in reversing for want of evidence of negligence a judgment for the plaintiff in a malpractice case, said, referring to instructing the nurse in a confinement case: "Where, in the nature of the case, the doctor cannot perform the service himself, he is bound to give such instructions as will enable an ordinary person to follow his directions; and if he failed to do so, and injury resulted to the patient therefrom, he would be guilty of actionable negligence."

A surgeon who sets an arm and leaves it resting on a pillow, without anything to keep it in place, ought to give proper instructions to those having care of the patient, particularly when instructions are asked for, and the persons taking care of the patient are ignorant or inexperienced. Carpenter v. Blake (1878) 75 N. Y. 12. See also an appeal from earlier trial (1871) 60 Barb. 488, which was reversed on another ground in (1872) 50 N. Y. 696.

The duty of a physician and surgeon having charge of a case of an injured leg includes the giving of proper instructions to his patient, in relation to conduct, exercise, and the use of the injured limb. Harter V. Westcott (1898) 155 N. Y. 211, 49 N. E. 676.

It is the duty of a surgeon who has set a broken leg to give his patient proper instructions for the use and care of it after his discharge, where it has not fully recovered, and for failure to do so is liable, in case of a resulting injury. Beck v. German Klinik (1889) 78 Iowa, 696, 7 L.R.A. 566, 43 N. W. 617, where the patient was di

rected to use a leg which was not straight, and the use aggravated its bad condition so that the leg had to be amputated.

It will be seen that it is held in the reported case (MALKOWSKI v. GRAHAM, ante, 1524) that it was not negligence for the surgeon, after an operation, in telling a female servant of the plaintiff to put something into the bed to warm it, to omit to warn her not to burn the patient.

In Perionowsky v. Freeman (1866) 4 Fost. & F. (Eng.) 977, it was held that physicians serving gratuitously, who order a hot bath for a patient at a charitable hospital, properly leave. it to the nurses to see the water is not too hot.

Surgeons performing an operation at a hospital were held not liable for permitting the patient to be attended, after the operation, by the hospital nurses, who put a hot water bottle in his bed, burning him, there being nothing to show that the nurses were incompetent or that the surgeons knew of it. Morrison v. Henke (1917) 165 Wis. 166, 160 N. W. 173.

It has been stated that it is the practice for nurses to keep the bed warm, where there has been an operation; that the surgeon would not ordinarily give any order about it. Lavere V. Smith's Falls Public Hospital (1915) · Ont., 26 D. L. R. 346. When immediate emergency requires all of the doctor's attention, it is clear that he must leave minor details to the nurse. Thus, a physician who, with his confrère, after an operation, is working over the patient to save him from heart failure, is not responsible for the negligence of a nurse who burns the patient with overheated bricks. Marchand v. Bertrand (1910) Rap. Jud. Quebec 39 S. C. 49.

In Armstrong v. Bruce (1904) 4 Ont. Week. Rep. 327, the judge, having dispensed with the jury, disbelieved the nurse's testimony that the defendant instructed her to fill the pad on which the patient lay during an operation. with boiling water, burning him.

Where the plaintiff claims that the defendant who performed operations upon her was negligent in giving in

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Husband and wife power of wife to submit to operation.

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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.]

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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
P. Evans, for appellant:

The first count in the declaration sets out all the essential elements in an action for deceit.

Browning v. National Capital Bank, 13 App. D. C. 1; Magruder v. Montgomery, 33 App. D. C. 133; Tyssowski v. F. H. Smith Co. 35 App. D. C. 403; Cooper v. Schlesinger, 111 U. S. 148, 155, 28 L. ed. 382, 385, 4 Sup. Ct. Rep. 360; Fenwick v. Grimes, 5 Cranch C. C. 603, Fed. Cas. No. 4,734; Stewart v. Wyoming Cattle Ranch Co. 128 U. S. 383, 32 L. ed. 439, 9 Sup. Ct. Rep. 101; Busterud v. Farrington, 36 Minn. 320, 31 N. W. 360.

Plaintiff is entitled to the lawful damages claimed for the injuries resulting, due to defendant's neglect and default.

Dermott v. Jones (Ingles v. Jones) 2 Wall 1, 17 L. ed. 762; Fererro v. Western U. Teleg. Co. 9 App. D. C. 455, 35 L.R.A. 548.

Messrs. Frank J. Hogan and William H. Donovan, for appellee:

It is the duty of a husband to permit an operation upon his wife which is necessary to save or prolong her life and to which she does not object.

State use of Janney v. Housekeeper, 70 Md. 162, 2 L.R.A. 587, 14 Am. St. Rep. 340, 16 Atl. 382.

So-called false statements, when made relative to a matter about which there can be no such thing as absolute certainty, even though relied on and resulting in injury, are not actionable.

Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; Spead v. Tomlinson, 73 N. H. 46, 68 L.R.A. 432, 59 Atl. 376; Robertson v. Parks, 76 Md. 118, 24 Atl. 411; Norfolk v. N. B. Hosiery Co. v. Arnold, 49 N. J. Eq. 390, 23 Atl. 514; Marsh v. Falker, 40 N. Y. 562; Alabama & V. R. Co. v. Turnbull, 71 Miss. 1029, 16 So. 346; Jackson & S. Co. v. Fay, 20 App. D. C. 105; Southern Development Co. v. Silva, 125 U. S. 247, 31 L. ed. 678, 8 Sup. Ct. Rep. 881, 15 Mor. Min. Rep. 435; 20 Cyc. 17.

There can be no recovery for the husband's mental anguish.

Adams v. Brosius, 69 Or. 513, 51 L.R.A. (N.S.) 36, 109 Pac. 729; 30 Cyc. 1582.

Robb, J., delivered the opinion of the court:

Appeal from a judgment in the supreme court of the District sustaining a demurrer to appellant's amended declaration.

In the first of the two counts of the declaration it is averred that the defendant, appellee here, with intent to deceive the plaintiff and obtain from the plaintiff certain fees, informed plaintiff, "as a fact and not as an opinion," that plaintiff's wife "was affected with an ordinary That the debenign tumor. fendant well knew, as a skilled and experienced physician and surgeon, that the plaintiff's wife was afflicted with cancer, and that the operation therefor would be a major operation, putting in jeopardy the life of the plaintiff's wife;" that plaintiff, being in ignorance of the ailment of his wife and relying upon the good faith of the defendant, consented to the performance of an operation by the defendant upon plaintiff's wife; "that said operation was performed for cancer, and not for a benign tumor;" that the patient remained in the hospital for a month and a half, when she returned home in a dangerout condition resulting from the operation, and suffered pain until

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her death a few months thereafter; that "by reason of the aforemen tioned faults, deceitful and fraudu lent representations, and assurances of the defendant, the plaintiff was deceived and fraudulently induced, by the defendant, to submit his wife to a dangerous and fatal surgical operation, which he would not have done had defendant told plaintiff the truth," etc.

The theory underlying this count is that a husband has absolute control over the person of his wife; that it is for him, and him only, to determine whether an operation shall be performed upon her, and, if so, upon what conditions. In other words, the theory is that in this respect the husband exercises the same control over his wife as is exer

to husband

Husband and

to operation.

cised by the owner Physicianof a chattel. This liability for position is unten- misrepresenting able. In Bronson v. nature of operaBrady, 28 App. D. tion on wife. C. 250, 256, we said "that the tendency of the times is to emancipate married women from the harshness and disabilities of the common law, and place them upon an equal footing with men." A wife in the full possession of her faculties is as much entitled, both morally and legally, to determine whether she shall submit herself to an operation as is wife-power of the husband in re- wife to submit spect to an operation on himself. And where a wife, in such circumstances, consents to an operation which is skilfully performed, the surgeon is not liable to the husband in damages. Pratt v. Davis, 224 Ill. 300, 7 L.R.A. (N.S.) 609, 79 N. E. 562, 8 Ann. Cas. 197; State use of Janney v. Housekeeper, 70 Md. 162, 2 L.R.A. 587, 14 Am. St. Rep. 340, 16 Atl. 382, 21 R. C. L. 392, 393. The following from the opinion in the latter case is pertinent here: "Surely the law does not authorize the husband to say to his wife: You shall die of cancer; you cannot be cured; and a surgical operation affording an only temporary relief will result in useless expense. The

(48 App. D. C. 596.)

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husband had no power to withhold from his wife the medical assistance which her case might require. . The consent of the wife, not that of the husband, was necessary.' In the present case, it is alleged that the defendant was "a skilled and experienced physician and surgeon;" that plaintiff's wife was afflicted with cancer and that defendant performed an operation therefor. It is not averred that the operation was unnecessary or that it was unskilfully performed. Neither is it averred that plaintiff's wife did not appreciate her true condition and consent to the operation. Such averments being lacking, it must be assumed that the facts did not warrant them. The count, therefore, is fatally defective.

In the second count it is alleged that the defendant, for the sum of $200, agreed to perform an operation on plaintiff's wife "and thereafter to give his professional attendance, care, and treatment" to her during her stay at the hospital and upon her return home until her recovery; that plaintiff performed his part of the contract; that after the operation plaintiff's wife was brought home "in a dangerous condition, resulting from said operation;" that plaintiff called upon defendant to continue his professional attendance, care, and treatment of the plaintiff's wife in accordance with the agreement, but that defendant neglected, failed, and refused to do so; that "after several days, during which the plaintiff's wife was languishing in intense suffering, awaiting defendant's attendance, the plaintiff

was compelled to call in another physician at additional expense," and that by reason of the failure and refusal of the defendant to perform his contract, plaintiff suffered damage, etc.

Treating the averments of this count as true, as we must, a cause of action is stated. A contract and its Physicianclear breach is set out, and, if the plaintiff should sus

contract to

furnish careliability for breach.

tain these averments by proof, he would be entitled to recover. The defendant contends that there is no sufficient averment in this count "that the defendant's services as a physician and surgeon at the time (complained of) were required and necessary." It is in effect averred that when plaintiff unsuccessfully requested the defendant "to continue his professional attendance, care, and treatment of plaintiff's wife, in accordance with the agreement," she "was languishing in intense suffering, awaiting defendant's attendence," and that it was necessary to call another physician. While this averment is somewhat in

artificial, we think it sufficient. The inference is irresistible that the patient needed medical attenton, which the defendant, according to the pleader, neglected and refused to render.

It results that the judgment must be affirmed as to the first count and reversed, with costs, as to the second count.

Affirmed in part and reversed in part.


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

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