Unger v. Grimsley

Cook, J., delivered the opinion of the court. This suit was instituted by B. S. Grimsley against J. W. Unger, a physician, seeking to recover damages for a burn alleged to have beén caused by the defendant’s negligence and unskillfulness in applying X-rays to plaintiff’s hip-, and, from a judgment for1 the plaintiff for the sum of two thousand dollars, this appeal was prosecuted. The record discloses that the appellee sustained an injury to his right hip on December 19, 1917, the injury *597 being caused by a falling tree, and that thereafter the pain localized at a particular place on the hip. He was under the continuous care and treatment of a physician until about March 31, 1918, when, at the suggestion of his attending physician, he went to Dr. J. W. Unger, a duly qualified and licensed physician, for the purpose of having’ an X-ray picture of his injured hip made. The appellant attempted to make the picture, but the testimony is in sharp conflict as to the number of exposures, and the length of these exposures, but none of thé exposures resulted In a satisfactory radiograph. We shall not set out this conflicting testimony as to the number and length of these exposures, and as to the method and manner of applying the X-ray, and as to the occurrences during, the various attempts to secure a satisfactory radiograph, as this testimony is not material to the disposition of the question which we consider decisive of this appeal. The record further discloses that, about ten days after this attempt to secure the radiograph, a severe burn or sore developed on appellee’s hip at or near the place where he had previously suffered the greatest pain, that being the spot where the X-ray had been applied. According to the testimony for the plaintiff, this sore was a very malignant one and was the result of an X-ray burn of great severity, and caused the appellee to suffer intense pain over a long period of time. During the cross-examination of the defendant, and over his objections, he was required to testify in regard to an alleged X-ray burn inflicted by him on another person two years after the alleged burn of appellee. It was shown that this second burn was inflicted under entirely different circumstances, and with a different machine, and we think this testimony was inadmissible and highly prejudicial. In the case of Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858, Ann. Case. 1918E, 310, it was held that evidence .of other accidents or injuries occurring from the same cause, under practically similar conditions, was admissible, for the purpose of showing notice or knowledge on the part of the defendant of a defective or dangerous condition or manner of operation, and to *598 show a dangerous or defective character or condition of an appliance or place, but upon neither ground would evidence of another injury, or similar instance of alleged negligence on the part of the defendant, occurring two years after the injury complained of, and resulting from the use of a wholly different appliance or machine, be admissible. 29 Cyc. 611 and 612; Shockley v. Tucker, 127 Iowa, 456, 103 N. W. 360. The appellant next assigns as error the action of the court in refusing; to admit the testimony of .Dir. T. H. Henry and Dr. T. W. Kimmerer, offered by the appellant on the hearing of a motion for a new trial, and in refusing to grant a new trial. The proffered testimony of Dr. T. H. Henry was excluded on the ground that it came within the protective rule of confidential communications between physician and patient as provided by section 369'5, Code of 1906 (section 6380, Hemingway’s Code), 'and the appellant now contends that the testimony failed to establish the relation of physician and patient. The stenographer’s notes of the testimony which was taken on the motion for a new trial are not in the record, and, in the absence of this testimony, the presumption in favor of the correctness of the ruling of the court thereon must prevail. As to the contention of the appellant that the testimony of Dr. T. W. Kimmerer, director of the state hygienic laboratory, as to the contents of certain records of his office showing the result of a certain blood test, was admissible as a public record under section 2487, Code of 1906 (section 4836, Hemingqvay’s Code), and section 4872, Hemingway’s Code, we express no opinion, since it was not shown that the proffered testimony pertained to a blood specimen of the appellee, and consequently it was for that reason inadmissible. Upon the testimony in the record we think the case was one for the determination of a jury, but for the error in admitting testimony of a subsequent burn of another person, the judgment of the court below will be reversed, and the cause remanded. Reversed and remanded.