Drakes v. Tulloch

Crosby, J. This is an action of tort to recover damages for the alleged negligence of the defendant. The plaintiff went to the defendant’s office in January and February, 1910, and there had some dental work done by the assistants of the defendant. The evidence tended to show that the plaintiff’s last visit to the defendant’s office was on the morning of February 7, 1910, on which date a gold crown was fitted for her by Dr. Webber, an employee of the defendant; that in fitting the crown an instrument was used which cut her gum so that it bled, and about three weeks afterward sores appeared in her mouth, one of them being at the point where the gum was cut. There was evidence from which it could have been found that she then was suffering from syphilis, a contagious disease, and that this disease can be communicated in various ways, including infection by the use of dental instruments, if there is syphilitic virus on the instruments and it comes in contact with any cut in the mouth or other part of the body. The undisputed evidence showed that it was the practice among dentists to sterilize their instruments by boiling, or by other ways, before they are used. The jury, in answer to special questions submitted to them, found that Dr. Webber was in the defendant’s employ in February, 1910, and that the plaintiff was not infected with syphilis through negligence of Dr. Webber, and that she was infected with syphilis through the negligence of some person employed by the defendant, whose duty it was to clean and sterilize Dr. Webber’s dental instruments during the night. There was evidence that the plaintiff had been free from this disease before her visits to the defendant’s office, and that she became infected by reason of the operation on her teeth. While the defendant offered evidence that it was his practice to have the instruments used in his office sterilized by boiling and in other ways, it does not appear what, if anything, had been done [259] to sterilize the instruments immediately before the morning of February 7, 1910. We are of opinion that a verdict could not have been directed for the defendant, but that the questions whether the plaintiff contracted the disease in the defendant’s office, and if so, whether it was due to the negligence of the defendant in failing to use clean and. suitable instruments, were upon the evidence questions properly submitted to the jury. The case at bar is very similar to that of Bates v. Dr. King Co. 191 Mass. 585, and is governed by it. The second count of the declaration was broad enough to cover a finding that the plaintiff was infected by reason of the negligence of some person in the employ of the defendant, whose duty it was to clean and sterilize the instruments used; there was no variance between the declaration and the proof. As the only exception argued is to the refusal of the court to rule that upon all the evidence and pleadings the plaintiff is not entitled to recover, the other exceptions may be treated as waived. Exceptions overruled.