(146 N.E.)

tist and physician were in the office." She stepCROSS V. ALBEE.

ped into the chair, closed her eyes, and Dr. Al

bee, “who had no instruments and did absoluteSAME V. STIMPSON.

ly nothing to her previously, gave her ether.” (Supreme Judicial Court of Massachusetts.

"It took quite a while to give ether, about 10

minutes I should say." Worcester. Oct. 18, 1924.) 1. Physicians and surgeons om 14(1)-Reason.

Dr. Stimpson extracted 20 teeth, including able degree of skill and care required.

the sore tooth located in the lower jaw. The It was duty of dentist and physician, in plaintiff further testified: practice of their respective professions, to possess reasonable degree of learning and skill, and

“After the operation. I remember the dentist to exercise ordinary care and diligence.

dragged me onto the couch and I relapsed, and

went to sleep. I remained in the dentist's of2. Physicians and surgeons om 18(8)-Evidence fice until 5:45. Mrs. Swicker was with me. held not to show negligence.

I think she took care of me until half past 5 In an action against dentist, who extracted or until quarter of 6.” “Upon returning home teeth, and physician, who administered ether, I was very sick.

The next week I evidence held not to show negligence or lack of was sick all the week, lying down most of the skill, causing subsequent sickness.

time. I was drooling, very foul drooling, and 3. Evidence 586(2)—Negative testimony not they wouldn't seem to heal.

my gums were very sore. I couldn't eat, and

I had the expeequivalent of affirmative proof.

rience the first week of a slight pain in my right In action against dentist, extracting teeth, shoulder blade.

I have never expeand physician, administering ether, negative rienced anything like that before the dental opstatement of plaintiff that she did not see pack, eration." to be used to prevent blood from going down throat, cannot be considered as equivalent of af The plaintiff applied for treatment to Dr. firmative proof that pack was not used, burden Stimpson, who gave her a mouth wash, but of which rested on plaintiff.

her condition did not improve. “The drool.

ing turned into foul sputum, so foul that she Exceptions from Superior Court, Worcester could not expectorate, but swallowed it, the County; P. J. O'Connell, Judge.

odor was so strong.” Physicians were conActions of tort by Mary Cross against sulted, the last of whom advised her to go George M. Albee and against Roy R. Stimp- to Rutland, where she remained from Ocson, respectively, to recover for injury to tober to January 1, 1922. It is unnecessary plaintiff's health, claimed to have resulted by to describe the treatment at the sanitorium, reason of alleged negligence of defendants. which she left because of pregnancy, and Verdicts were directed for defendants, and returned home. The pain under her right plaintiff brings exceptions. Exceptions over- shoulder blade continued ; she was weak, ruled.

unable to work, and after giving birth to

her child March 3d "her condition was very E. A. Ryan, of Worcester, for plaintiff. C. W. Blood, of Boston, for defendants.

poor, with cough, raising foul sputum, so

that she had not been able to work, or nurse BRALEY, J. These are actions of tort or take care of her baby.” It is the plainto recover damages for personal injuries al- tiff's contention that these physical condileged to have been caused by the negligence tions and consequent suffering were caused or the defendant Albee, a practicing physi- by the negligence of the defendants. In reply cian, and of the defendant Stimpson, en- to motions for specifications the plaintiff in gaged in the practice of dentistry. The cases

the action against Dr. Albee states: were tried together and at the close of the "1. That the defendant George M. Albee was plaintiff's evidence a verdict for each de- specially engaged to treat the plaintiff with fendant was ordered, and the cases are be- medicine and perform the duties of an anæsfore us on her exceptions. The plaintiff, a

thetist in course of her dental operation. That married woman, testified:

anæsthetizing a patient is a serious and danger

ous operation, causing a violent action upon the That she was in perfect health August 31, brain proper and other portions of the central 1921, when, accompanied by her aunt, Mrs. nervous system and a resultant effect upon the Swicker, she went to Dr. Stimpson for dental digestive organs of the patient. That to make treatment because of an "ailing tooth," and the treatment reasonably safe and successful told him she had a toothache and "wanted it requires a careful diagnosis and chart of the examined, and her teeth treated.” The defend- patient's previous health, constitution and susant examined her teeth, said the tooth was very ceptibility and a reasonable preparation and sore, and "suggested extracting it and the rest regulation of the same before the ether appliof my decayed teeth,” which "he counted and cation. The plaintiff alleges that in this resaid that 20 would be taken out.” “I said, 'All spect the defendant George M. Albee did not right;' and he said, 'You come back in 20 min- use due and reasonable care, but treated the utes; I will have a doctor here to give you plaintiff in a negligent and unskillful manner. ether. I said, 'All right,' and we went out, "2. That instant with the dental operation walked in the street and came back. The den- with the application of ether, the duty of the

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

defendant George M. Albee was to use reason-, Burk v. Foster, 114 Ky. 20, 69 S. W. 1096, 59 able care, which he failed to do.

L. R. A. 277, 1 Ann. Cas. 304. The defendant “3. That subsequent to the dental operation, Albee was specially called to administer to assure the patient of a safe and full recov; ether to the plaintiff, whose uncontradicted ery requires reasonable attention, nursing and care; that defendant failed to exercise said due statement

is that she was then in perfect and reasonable care and attention and provide

health. The plaintiff fully understood he necessary nursing but disregarded the same, was not employed as a general practitioner to and discharged his duties in a careless and nego prescribe for her ailment, and become her ligent manner."

attendant physician, or to provide necessary

nursing because of her alleged enfeebled And in the action against Dr. Stimpson, state caused by and following the extraction. "1. He failed to properly examine the plain. No evidence was offered on which the jury tiff, as to her physical condition, before the op- would be warranted in finding that etherizeration on her teeth.

ing a patient to produce insensibility to pain “2. He failed to make proper preparations arising from the extraction of teeth “is a for the operation which he performed upon the serious and dangerous operation,” or that plaintiff.

“3. He failed to use proper precautions in "to make the treatment reasonably safe and course of the operation of the plaintiff in the successful required a careful diagnosis and form of agencies which would prevent foreign chart of the patient's previous health, conmatter to enter the lungs or contaminating the stitution and susceptibility, and a reasonable plaintiff's body.

preparation and regulation of the same be “4. That he failed to use the proper tools, fore the ether application." The plaintiff equipment and instrumentalities in his opera- called the defendants as witnesses, and their tion on the plaintiff, and failed to use his in- evidence in direct and cross examination struments properly.

forms the bulk of the record. If they were “5. That the defendant was negligent, in that believed by the jury no lack by Dr. Albee he failed to treat the diseased teeth of the plaintiff to eliminate all infection in the plain of the use of adequate medical knowledge tiff's mouth before he proceeded with the ether or of professional skill was shown. If they ization of the plaintiff.

were disbelieved, the remaining evidence as “6. That the defendant failed to examine and matter of law is insufficient to warrant a study the physical condition of the plaintiff be- finding of causal connection between any neg. fore the operation and failed to instruct her ligent act of this defendant and the physical how to prepare herself for the operation that it ills from which the plaintiff contended she might not produce dangerous results. 47. That the defendant was careless in pull-ard, 128 Mass. 131, 35 Am. Rep. 363; Chesley

suffered after the operation. Small v. Howing the teeth.

“8. That after said operation the defendant v. Durant, 243 Mass. 180, 137 N. E. 301. The was negligent and violative of his duty to ap- dental operations were under the sole direcprise the plaintiff of the nature of the physi- tion and control of Dr. Stimpson. The gencal illness which developed recent to and as a eral condition of her teeth was known by result of said operation, and of his failure to the plaintiff and when he said that they see that the plaintiff received proper and neces were decayed and should be extracted she sary treatment.

assented. The evidence of Dr. Stimpson as "9. That after said operation the defendant to the dental conditions revealed by clinical displayed a degree of ignorance or want of knowledge in his failure to recognize the sick examination which is not challenged, shows condition of the plaintiff, from her symptoms that the plaintiff was suffering from upper displayed and described to him at his office broken down abscessed teeth, with some abwithin two weeks subsequent. The defendant scessed condition around the gums, and fiswas ignorant in that respect and degree where a tula running from the ends of the roots, of reasonably capable dentist under like circum- the gums, and pus drooling into her mouth. stances would be knowing and intelligent, and The plaintiff's first, second, fourth, sixth the defendant's ignorance amounts to negli and seventh specifications in the action gence for which he is liable to the plaintiff in against Dr. Stimpson were not supported by damages.

“10. That the defendant was negligent subse- any evidence. This scope of his employment quent to the operation in failing to keep himself

was to extract her teeth. If the evidence advised of the condition of the plaintiff's mouth of this defendant that all ordinary prelimi. and teeth, and the failure to treat said teeth nary steps were taken in accordance with and gums so as to relieve the plaintiff of cause established practice is put aside, it does not of injury.”

appear that there was any reason why he

should examine the plaintiff as to her general [1-3] The general rule is well settled. It physical condition, or that proper precautions was the duty of the defendants in the prac- for the operation were not made, or that tice of their respective professions to possess proper tools, equipment and instrumentalities a reasonable degree of learning and skill and were not used, or that he failed to use his to exercise ordinary care and diligence. Har- instruments properly, or that the defendant riott v. Plimpton, 166 Mass. 585, 588, 44 N. was called upon to examine and study the E. 992; Toy v. Mackintosh, 222 Mass. 430, physical condition of the plaintiff further 432, 110 N. E. 1034, Ann. Cas. 1918C, 1188; than appeared from an examination of the

(146 N.E.) plaintiff's mouth and teeth, or that any in- , way, 214 Mass. 283, 284, 101 N. E. 374. The structions could have been given before the verdicts were ordered rightly and in each operation the observance of which would case the entry must be, have prevented her subsequent illness of the Exceptions overruled. character described in her evidence. The defendant is not a physician, nor was he consulted and employed by the plaintiff as a physician. It was no part of his duty aft

GAMWELL V. BIGLEY. er the operation to inform the plaintiff of the nature of the physical illness which is (Supreme Judicial Court of Massachusetts.

Berkshire. Oct. 18, 1924.) alleged to have resulted therefrom. The furnishing on her application of a mouth wash | 1. Records Cm9(13)–Certificate on registra. to heal the gums and to stop the drooling

tion conclusive of existence of right of way, is not shown to have been improper treat Certificate on registration, under G. L. c. ment. The defendant was under no implied 185, reciting that certain right of way was obligation to treat the plaintiff for pain un appurtenant to dominant estate, is conclusive der her shoulder or general debility after of existence of way as located and defined in

deed, in view of sections 38, 46. she had returned home, or to keep himself advised of the condition of the plaintiff's 2 Appeal and error Omw 1017—Finding of mas. mouth and teeth, and there is no evidence

ter conclusive on review of exceptions. that he was expressly bired to prescribe rem

On review of exceptions to order for deedies for ailments which were within the cree by justice of superior court, finding of

master, well supported by preceding findings, province of medicine and not of dentistry.

is conclusive. The plaintiff contended that because proper and ordinary precautions were not taken 3. Easements 25–Alteration held remov. during the process of extraction, certain poi

al and destruction, under deed giving grantor

right of way of destruction or removal. sonous matter or particles from the teeth or gums passed into and infected her right lung, tially torn down, and second story practically

Frame building, walls of which were par. causing an abscess which has very seriously demolished, and whole replaced with steel giraffected and impaired her health. The third ders and brick, held removed or destroyed, and fourth specifications raise this issue. It within meaning of deed giving grantor right could be found on the testimony of the de- of way when building should be removed or defendants that in operations of the character

stroyed. described in the record, the proper practice | 4. Easements Om61(2)-Grantor entitled to is, to insert a pack to keep the blood from enjoin construction of buildings on right of going down the throat, and to prevent pos

way. sible lung developments. The plaintiff while Grantor, retaining right of way over land accepting and relying on this evidence, which conveyed, is entitled to enjoin construction of

buildings thereon. was the only evidence relating to practice, rejects their further statements that a prop Exceptions from Superior Court, Berk. er pack was prepared and used. If the jury shire County; W. A. Burns, Judge. made this distinction, even then the plaintiff had not made out a case. A pack said by Christopher I. Bigley to restrain defendant

Bill in equity by Cecil C. Gamwell against the defendants to be similar to the pack used from constructing and maintaining buildings was introduced in evidence, and Dr. Sim

over right of way alleged to be owned by mons the plaintiff's medical expert went no

plaintiff. Order for decree was filed, and farther than to say that she had never seen plaintiff brings exceptions. Exceptions susa pack like it used. But this is no evidence

tained. that a proper pack was not used. The plaintiff to meet the situation called Mrs. Swick

F. M. Myers, of Pittsfield, for plaintiff. er as a witness. The attention of the wit

M. B. Warner and N. A. Foot, both of ness on her own evidence does not appear

Pittsfield, for defendant. to have been focused on the details of the operation; she was merely waiting in a

BRALEY, J. [1] The parties derive title connecting room while it was performed. from a common grantor. The deed to the

defendant, wbich is the first in time, conThe negative statement, that under such conditions she did not see a pack, cannot be con

tains the following reservation: sidered as the equivalent of affirmative proof, "Reserving herein to the grantor, his heirs the burden of which rested on the plaintiff, and assigns, a right of way ten feet wide over that the defendant did not use a pack. Men a portion of the easterly side of said land hereard v. Boston & Maine Railroad, 150 Mass. in conveyed, a portion of the buildings on the 386, 387, 23 N. E. 214; Slattery v. New York, the right of way.

land herein conveyed stands upon a portion of

The right of said grantor New Haven & Hartford Railroad, 203 Mass. and his heirs and assigns to use said way so 453, 457, 89 N. E. 622, 133 Am. St. Rep. 311; covered by said buildings shall not begin until Killam v. Wellesley & Boston Street Rail- 'the present buildings situated upon the land

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

conveyed are removed or destroyed. Said, building, was one of fact. The master finds right of way is more particularly described as that they constituted distinct buildings, one follows. Beginning at the southeast corner of the brick store, and the other "the frame land herein conveyed, then running northerly structure used for tenement and bake shop along the easterly line of said land seven rods purposes." This finding being well supportto the northwesterly corner of said land, thence westerly along the northerly line of said ed by his preceding findings is conclusive. land ten feet to a point, thence southerly in Shepperson v. Pearse, 170 Mass. 206, 210, a line parallel with the east line of said land 48 N. E. 1072. seven rods to the southerly line of said land, We discover no error of law in the overthence easterly ten feet to the place of begin- ruling of the plaintiff's exceptions to the ning."

master's report in so far as argued.

[3] The court however ruled that, on the The defendant having applied for regis- facts found by the master, the buildings have tration under G. L. c. 185, the certificate re- not been removed or destroyed. The ruling, cites that so much of the land as is included if confined to the store, was right. But as within the limits of the right of way is ap to the frame building it was wrong. The purtenant to the dominant estate which has master explicitly states that the defendant been conveyed to the plaintiff, and “that has annexed to the north or rear of the the buildings which were erected on the frame building a brick section two stories in above-described land Oct. 11, 1904, encroach- height which does not encroach on the way; ing thereon may remain until they are re- but in making this addition he removed the moved or destroyed.” The certificate is con rear wall of the frame building. It was takclusive of the existence of the way as lo en down because the defendant intended cated, and defined in the deed. First Na- to strengthen the building for use in his tional Bank of Woburn v. Woburn, 192 Mass. business. The defendant having decided to 220, 78 N. E. 307; G. L. c. 185, § 38. See put in heavier machinery and to store more section 46.

goods, also planned to change substantially It is found by the master that, on the the frame walls by the substitution of brick, date of the defendant's purchase, there was to put a stronger flooring for the second standing within the way a one-story brick floor, and to replace the wooden girders by structure used for the sale of baker's prod-steel beams. Pursuant to this plan, the de. ucts, and referred to in the report as a fendant at the date of filing the bill had tak"store," which has not been removed or de en down the lower portion of the easterly stroyed. A two-story frame structure just wall up to the second story, where it exnortherly of the store was directly joined tended into the way, replacing it with a wall thereto. It was divided in the center of the of brick. The westerly portion of the first floor by a partition, to the west of which shingled roof also had been taken down. was the defendant's bake shop. The part The floor of the second story had been so on the east with two upper rooms was used wrecked as to be of no further use, and as tenements. The frame building, with the steel girders with concrete piers had been exception of twelve or fifteen feet which were installed inside the old foundations replacof brick, was built of wood with a shingle ing the original construction which was of roof. A piazza on the easterly side extended timber. It further appears, that the remodabout six feet into the way, and a covered eling and reconstruction of the building afstairway within the limits of the way ran | fected the entire structure except “the first to the second floor. The entrance to the floor, the foundations, the upper portion of bake shop was through a door in the rear the east wall, and such portions as existed of the store. The entrance to the lower between the store and the frame structure, tenement was through the piazza, while the the rear wall having already been broken second story was reached by means of the down when the new brick structure was covered stairway.

built. The defendant doubtless had the right [2] While the parties are not in controver- if decay or dilapidation appeared to make sy over the store, the plaintiff alleges that needed repairs to the building with like mathe defendant has destroyed the original terial so that it should be in as sound conframe building by substituting an entirely dition as it was in at the date of purchase. different structure. If, however, on the date The work, however, which he has undertaken of purchase the store and frame building and is pushing to completion, is entirely difconstituted but one structure, then, notwith-ferent. By the radical changes shown and standing the changes in the frame building, explained by the record the defendant under to which we shall subsequently refer, the the guise of reconstruction has substantialbuilding viewed as a unit has not been de- ly entered upon the erection of a new buildstroyed or removed. But the reservation re-ing, largely of steel, concrete and brick and fers to the structure then existing as "build- of greater durability than the old building, ings," and the parties are bound by their own and designed for a use to which it was not description. The question, whether the store adapted because of structural weakness. and main building were a unit, or physical. The defendant having voluntarily "removed ly separated into a brick store, and a frame and destroyed" substantial and material por


(145 N. E.) tions of the old building, the way no longer ,tion was recommitted, and the defendant, can be lawfully occupied for the mainte- who did not appeal, now contends that, the Dance of the new or reconstructed building. order having been based on inquiries not

[4] It follows that the plaintiff is entitled within the allegations of the bill, was irto injunctive relief, the details of which are regular and the master had no authority to to be settled in the trial court. Downey v. act. The order was discretionary, and it Hood, 203 Mass. 4, 89 N. E. 24; Siegel v. cannot be reviewed on the present record. Starzyk, 238 Mass. 291, 297, 298, 130 N. E. Daniels v. Daniels, 240 Mass. 380, 385, 134 N. 499.

E. 235. It follows, that the defendant's exExceptions sustained.

ceptions to the master's supplemental report, that the questions raised by the order of recommital were incompetent, irrelevant and

immaterial to any issue in the case, and that GADREAULT V. SHERMAN.

the master erred in admitting any evidence (Supreme Judicial Court of Massachusetts. to support them, are not well taken, and the Franklin. Oct. 18, 1924.)

interlocutory decree overruling the excep

tions and confirming the report is affirmed. 1. Equity w412-Order recommitting report Kennedy v. Welch, 196 Mass. 592, 594, 83 N, of master, discretionary.

E. 11. Order recommitting report of master held

The interest on the mortgage had been discretionary, though, · as claimed, based inquiries not within allegations of bill.

promptly paid to the mortgagee, but the prin

cipal of one hundred and fifty dollars hav2. Mortgages 360_Assignee of mortgage ing become overdue, a foreclosure followed, bound to act in good faith in exercising pow- of which the plaintiff had no actual notice aler of sale.

Assignee of mortgage was bound to act in though notice by publication had been given good faith in exercise of power of sale, using

in conformity with the power. The defendreasonable diligence to protect interests of ant, who foreclosed, held the mortgage by owner of equity of redemption.

assignment from the mortgagee, and at the

time and place of sale he and one other per3. Appeal and error 694(1)-Findings not son besides the auctioneer were present. But set aside where evidence not reported.

two bids were made, and the defendant, the Findings should not be set aside on appeal highest bidder, obtained the property, valued in equity action where evidence is not reported. by the master at twelve hundred dollars, for 4. Mortgages 369(3) That assignee of two hundred and fifty dollars. mortgage on foreclosing intended to make as

[2] The general principle has been repeatmuch money as possible not sufficient to re

edly stated. The defendant was bound to open foreclosure.

act in good faith in the exercise of the power, Where power permitted assignee of mort

using reasonable diligence to protect the ingage to buy, fact that he bought at auction sale for as little as he could to make as much terests of the plaintiff, the owner of the money as possible was insufficient to reopen equity of redemption. Bon v. Graves, 216 foreclosure in absence of bad faith in exercise Mass. 440, 446, 103 N. E. 1023. of power.

(3-5] The trial judge found, that on all 5. Mortgages ww369(3)—Inadequacy of con

the facts reported by the master and the fair sideration not sufficient to set sale aside.

and reasonable inferences to be drawn thereInadequacy of consideration is not of it from, “they disclosed a failure on the part of self sufficient to set aside sale of mortgaged the defendant to use that good faith which property under power.

the law required in executing a power, even

though on the face of the record there was a Appeal from Superior Court, Franklin technical compliance with its terms.” It County; J. H. Sisk, Judge.

may be assumed that, if demanded, or if she Suit in equity by_Eva Gádrea ult against had received actual notice of the foreclosure Homer Sherman. From interlocutory and proceedings the plaintiff would have paid final decrees for plaintiff, defendant appeals. the principal and saved her property. But,

even if the defendant knew the title was in Interlocutory decree affirmed, final decree reversed, and decree entered dismissing bill. the plaintiff, the power did not require a

demand, and although he proceeded to foreA. P. Carpenter, of North Adams, for ap-close within two days after obtaining the pellant.

assignment, the master finds that his purH, P. Ware, of Greenfield, for appellee.

pose was not to secure the property for the

benefit of a client who had obtained a judg. BRA Y, J. [1] The master's original ment, and sold the property on execution in report, to which all objections were waived, an action against the plaintiff's brother, a states that the power of sale was fully exe- former owner, from whom she acquired title, cuted and the mortgage regularly foreclosed. but to satisfy his mortgage. The evidence The report, however, on the plaintiff's mo- not being reported, the findings should not be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
145 N.E.-4

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