Opinion
13778
February 14, 1934.
Before FEATHERSTONE, J., Charleston, February, 1932. Reversed and remanded.
Action by E. Allison Smith against Archibald E. Baker, Jr., and another. From an order of nonsuit, plaintiff appeals.
Messrs. Warning Brockinton, for appellant, cite: Non-suit: 115 S.C. 258; 105 S.E., 410. As to duty of surgeon: 136 S.C. 56; 134 S.E., 226.
Messrs. Nathans Sinkler, Hagood, Rivers Young and Mitchell Horlbeck, for respondent, cite: Liability of doctor for operation: 295 P., 950; 139 P., 857; 14 L.Ed., 111; 104 N.W., 12; 1 L.R.A. (N.S.), 439; 111 A.S. R., 462; 5 Ann. Cas., 303; 50 L.R.A. (N.S.), 880; 253 P., 363; 53 A.L.R., 1052; 115 S.C. 258; 105 S.E., 410; 155 N.Y., 201; 49 N.E., 760; 78 F., 442; 22 S.W.2d 115; 159 S.E., 5; 174 N.W., 466; 48 C.J., 1124. Medical expert evidence is necessary from medical experience: 77 S.C. 404; 58 S.E., 10; 177 N.W., 333; 136 N.W., 1106; 128 P., 870; 43 L.R.A. (N.S.), 734; 228 U.S. 233; 33 S.Ct., 416; 57 L.Ed., 817; Ann. Cas., 1914-D, 905; 30 Cyc., 1584; 21 R.C.L., 406; 1 Ann. Cas., 304; 96 S.E., 360; 11 F.2d 486, Surgeon presumed to be competent: 158 P., 776; 112 A., 179; 250 S.W. 49; 253 S.W. 156; 127 A., 776; 201 N.C. 128; 159 S.E., 5.
February 14, 1934. The opinion of the Court was delivered by
On February 3, 1932, this action was commenced. By it the plaintiff charged negligence, carelessness, and recklessness of the defendants in the treatment received by him during and after an operation performed upon him by the defendant Dr. Archibald E. Baker, Jr., at the Baker Sanatorium, the other defendant. The plaintiff charged his now paralytic and totally disabled condition to the conduct of the defendants. The defendants denied these allegations.
At the conclusion of the evidence offered by the plaintiff, the defendants made a motion for a nonsuit upon the general ground that the allegations of the complaint were not proven by the evidence and that there was no evidence of probative value to be submitted to the jury. The motion was granted, and from the order of nonsuit this appeal is taken.
A careful study of this case convinces us that the nonsuit was improperly granted.
It is the better custom of this Court not to set forth in full those extracts from the testimony which induce the reversal of an order of nonsuit. To do so might cause undue emphasis to be placed thereon to the detriment or prejudice of one or more defendants. Consequently, we prefer to say that in our opinion there was competent testimony introduced which had such material bearing upon the allegations of the complaint as would justify submission to a jury.
The judgment of this Court is that the order of nonsuit be, and the same is hereby, reversed, and the cause is remanded to the Circuit Court for trial.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.