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CROSS v. ALBEE.

SAME v. STIMPSON.

(145 N.E.)

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In an action against dentist, who extracted teeth, and physician, who administered ether, evidence held not to show negligence or lack of skill, causing subsequent sickness.

3. Evidence 586(2)—Negative testimony not equivalent of affirmative proof.

In action against dentist, extracting teeth, and physician, administering ether, negative statement of plaintiff that she did not see pack, to be used to prevent blood from going down throat, cannot be considered as equivalent of affirmative proof that pack was not used, burden of which rested on plaintiff.

tist and physician were in the office." She stepped into the chair, closed her eyes, and Dr. Albee, "who had no instruments and did absolutely nothing to her previously, gave her ether." "It took quite a while to give ether, about 10 minutes I should say."

Dr. Stimpson extracted 20 teeth, including the sore tooth located in the lower jaw. The plaintiff further testified:

* *

"After the operation I remember the dentist dragged me onto the couch and I relapsed, and went to sleep. I remained in the dentist's office until 5:45. Mrs. Swicker was with me. I think she took care of me until half past 5 or until quarter of 6." "Upon returning home I was very sick. The next week I was sick all the week, lying down most of the time. I was drooling, very foul drooling, and they wouldn't seem to heal. I couldn't eat, and my gums were very sore. I had the experience the first week of a slight pain in my right shoulder blade. * * I have never experienced anything like that before the dental op. eration."

The plaintiff applied for treatment to Dr. Stimpson, who gave her a mouth wash, but her condition did not improve. "The drooling 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.

Actions of tort by Mary Cross against George M. Albee and against Roy R. Stimpson, respectively, to recover for injury to plaintiff's health, claimed to have resulted by reason of alleged negligence of defendants. Verdicts were directed for defendants, and plaintiff brings exceptions. Exceptions overruled.

E. A. Ryan, of Worcester, for plaintiff. C. W. Blood, of Boston, for defendants. BRALEY, J. These are actions of tort to recover damages for personal injuries alleged to have been caused by the negligence of the defendant Albee, a practicing physician, and of the defendant Stimpson, engaged in the practice of dentistry. The cases were tried together and at the close of the plaintiff's evidence a verdict for each defendant was ordered, and the cases are before us on her exceptions. The plaintiff, a married woman, testified:

That she was in perfect health August 31, 1921, when, accompanied by her aunt, Mrs. Swicker, she went to Dr. Stimpson for dental treatment because of an "ailing tooth," and told him she had a toothache and "wanted it examined, and her teeth treated." The defendant examined her teeth, said the tooth was very sore, and "suggested extracting it and the rest of my decayed teeth," which "he counted and said that 20 would be taken out." "I said, 'All right;' and he said, 'You come back in 20 minutes; I will have a doctor here to give you ether.' I said, 'All right,' and we went out, walked in the street and came back. The den

odor was so strong." Physicians were consulted, the last of whom advised her to go to Rutland, where she remained from October to January 1, 1922. It is unnecessary to describe the treatment at the sanitorium, which she left because of pregnancy, and returned home. The pain under her right shoulder blade continued; she was weak, unable to work, and after giving birth to her child March 3d "her condition was very poor, with cough, raising foul sputum, so that she had not been able to work, or nurse or take care of her baby." It is the plaintiff's contention that these physical conditions and consequent suffering were caused by the negligence of the defendants. In reply to motions for specifications the plaintiff in the action against Dr. Albee states:

"1. That the defendant George M. Albee was specially engaged to treat the plaintiff with medicine and perform the duties of an anæsthetist in course of her dental operation. That anesthetizing a patient is a serious and dangerous operation, causing a violent action upon the brain proper and other portions of the central nervous system and a resultant effect upon the digestive organs of the patient. That to make the treatment reasonably safe and successful requires a careful diagnosis and chart of the patient's previous health, constitution and susceptibility and a reasonable preparation and regulation of the same before the ether application. The plaintiff alleges that in this respect the defendant George M. Albee did not use due and reasonable care, but treated the plaintiff in a negligent and unskillful manner.

"2. That instant with the dental operation with the application of ether, the duty of the

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

defendant George M. Albee was to use reasonable care, which he failed to do.

"3. That subsequent to the dental operation, to assure the patient of a safe and full recovery requires reasonable attention, nursing and care; that defendant failed to exercise said due and reasonable care and attention and provide necessary nursing but disregarded the same, and discharged his duties in a careless and negligent manner.'

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And in the action against Dr. Stimpson, "1. He failed to properly examine the plaintiff, as to her physical condition, before the operation on her teeth.

"2. He failed to make proper preparations for the operation which he performed upon the plaintiff.

"3. He failed to use proper precautions in course of the operation of the plaintiff in the form of agencies which would prevent foreign matter to enter the lungs or contaminating the plaintiff's body.

Burk v. Foster, 114 Ky. 20, 69 S. W. 1096, 59 L. R. A. 277, 1 Ann. Cas. 304. The defendant Albee was specially called to administer ether to the plaintiff, whose uncontradicted statement is that she was then in perfect

health.

The plaintiff fully understood he was not employed as a general practitioner to prescribe for her ailment, and become her attendant physician, or to provide necessary nursing because of her alleged enfeebled state caused by and following the extraction. No evidence was offered on which the jury would be warranted in finding that etherizing a patient to produce insensibility to pain arising from the extraction of teeth "is a serious and dangerous operation," or that "to make the treatment reasonably safe and successful required a careful diagnosis and chart of the patient's previous health, constitution and susceptibility, and a reasonable preparation and regulation of the same before the ether application." The plaintiff called the defendants as witnesses, and their evidence in direct and cross examination forms the bulk of the record. If they were believed by the jury no lack by Dr. Albee of the use of adequate medical knowledge or of professional skill was shown. If they were disbelieved, the remaining evidence as matter of law is insufficient to warrant a finding of causal connection between any negligent act of this defendant and the physical ills from which the plaintiff contended she suffered after the operation. Small v. How7. That the defendant was careless in pullard, 128 Mass. 131, 35 Am. Rep. 363; Chesley ing the teeth.

"4. That he failed to use the proper tools, equipment and instrumentalities in his operation on the plaintiff, and failed to use his instruments properly.

"5. That the defendant was negligent, in that

he failed to treat the diseased teeth of the

plaintiff to eliminate all infection in the plaintiff's mouth before he proceeded with the etherization of the plaintiff.

"6. That the defendant failed to examine and study the physical condition of the plaintiff before the operation and failed to instruct her how to prepare herself for the operation that it might not produce dangerous results.

"8. That after said operation the defendant was negligent and violative of his duty to apprise the plaintiff of the nature of the physical illness which developed recent to and as a result of said operation, and of his failure to see that the plaintiff received proper and necessary treatment.

"9. That after said operation the defendant displayed a degree of ignorance or want of knowledge in his failure to recognize the sick condition of the plaintiff, from her symptoms displayed and described to him at his office within two weeks subsequent. The defendant was ignorant in that respect and degree where a reasonably capable dentist under like circumstances would be knowing and intelligent, and the defendant's ignorance amounts to negligence for which he is liable to the plaintiff in

damages.

"10. That the defendant was negligent subsequent to the operation in failing to keep himself advised of the condition of the plaintiff's mouth and teeth, and the failure to treat said teeth and gums so as to relieve the plaintiff of cause of injury."

[1-3] The general rule is well settled. It was the duty of the defendants in the practice of their respective professions to possess a reasonable degree of learning and skill and to exercise ordinary care and diligence. Harriott v. Plimpton, 166 Mass. 585, 588, 44 N. E. 992; Toy v. Mackintosh, 222 Mass. 430, 432, 110 N. E. 1034, Ann. Cas. 1918C, 1188;

V. Durant, 243 Mass. 180, 137 N. E. 301. The dental operations were under the sole direction and control of Dr. Stimpson. The general condition of her teeth was known by the plaintiff and when he said that they were decayed and should be extracted she assented. The evidence of Dr. Stimpson as to the dental conditions revealed by clinical examination which is not challenged, shows that the plaintiff was suffering from upper broken down abscessed teeth, with some abscessed condition around the gums, and fistula running from the ends of the roots, of the gums, and pus drooling into her mouth.

The plaintiff's first, second, fourth, sixth and seventh specifications in the action against Dr. Stimpson were not supported by any evidence. This scope of his employment was to extract her teeth. If the evidence of this defendant that all ordinary preliminary steps were taken in accordance with established practice is put aside, it does not appear that there was any reason why he should examine the plaintiff as to her general physical condition, or that proper precautions for the operation were not made, or that proper tools, equipment and instrumentalities were not used, or that he failed to use his instruments properly, or that the defendant was called upon to examine and study the physical condition of the plaintiff further than appeared from an examination of the

(145 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 after the operation to inform the plaintiff of

GAMWELL v. BIGLEY.

the nature of the physical illness which is (Supreme Judicial Court of Massachusetts. alleged to have resulted therefrom.

The furnishing on her application of a mouth wash to heal the gums and to stop the drooling is not shown to have been improper treatment. The defendant was under no implied obligation to treat the plaintiff for pain under her shoulder or general debility after she had returned home, or to keep himself advised of the condition of the plaintiff's mouth and teeth, and there is no evidence that he was expressly hired to prescribe remedies for ailments which were within the province of medicine and not of dentistry.

The plaintiff contended that because proper and ordinary precautions were not taken during the process of extraction, certain poisonous matter or particles from the teeth or

Berkshire. Oct. 18, 1924.)

1. Records 9(13)-Certificate on registration conclusive of existence of right of way.

Certificate on registration, under G. L. c. 185, reciting that certain right of way was appurtenant to dominant estate, is conclusive of existence of way as located and defined in deed, in view of sections 38, 46.

2 Appeal and error 1017-Finding of master conclusive on review of exceptions.

On review of exceptions to order for decree by justice of superior court, finding of master, well supported by preceding findings, is conclusive.

3. Easements 25-Alteration held removal and destruction, under deed giving grantor right of way on destruction or removal.

tially torn down, and second story practically Frame building, walls of which were pardemolished, and whole replaced with steel girders and brick, held removed or destroyed, within meaning of deed giving grantor right of way when building should be removed or destroyed.

4. Easements 61 (2)-Grantor entitled to enjoin construction of buildings on right of way.

Grantor, retaining right of way over land conveyed, is entitled to enjoin construction of buildings thereon.

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Bill in equity by Cecil C. Gamwell against Christopher I. Bigley to restrain defendant from constructing and maintaining buildings over right of way alleged to be owned by plaintiff. Order for decree was filed, and plaintiff brings exceptions. Exceptions sus

gums passed into and infected her right lung, causing an abscess which has very seriously affected and impaired her health. The third and fourth specifications raise this issue. It could be found on the testimony of the defendants that in operations of the character described in the record, the proper practice is, to insert a pack to keep the blood from going down the throat, and to prevent possible lung developments. The plaintiff while accepting and relying on this evidence, which was the only evidence relating to practice, rejects their further statements that a proper pack was prepared and used. If the jury made this distinction, even then the plaintiff had not made out a case. A pack said by the defendants to be similar to the pack used was introduced in evidence, and Dr. Simmons the plaintiff's medical expert went no farther than to say that she had never seen a pack like it used. But this is no evidence that a proper pack was not used. The plaintiff to meet the situation called Mrs. Swicker as a witness. The attention of the witness on her own evidence does not appear to have been focused on the details of the operation; she was merely waiting in a connecting room while it was performed. The negative statement, that under such conditions she did not see a pack, cannot be considered 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

tained.

F. M. Myers, of Pittsfield, for plaintiff.
M. B. Warner and N. A. Foot, both of
Pittsfield, for defendant.

BRALEY, J. [1] The parties derive title from a common grantor. The deed to the defendant, which is the first in time, contains the following reservation:

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

conveyed are removed or destroyed. Said right of way is more particularly described as follows. Beginning at the southeast corner of land herein conveyed, then running northerly along the easterly line of said land seven rods to the northwesterly corner of said land, thence westerly along the northerly line of said land ten feet to a point, thence southerly in a line parallel with the east line of said land seven rods to the southerly line of said land, thence easterly ten feet to the place of beginning."

building, was one of fact. The master finds that they constituted distinct buildings, one the brick store, and the other "the frame structure used for tenement and bake shop purposes." This finding being well supported by his preceding findings is conclusive. Shepperson v. Pearse, 170 Mass. 206, 210, 48 N. E. 1072.

We discover no error of law in the overruling of the plaintiff's exceptions to the master's report in so far as argued.

[3] The court however ruled that, on the facts found by the master, the buildings have not been removed or destroyed. The ruling, if confined to the store, was right. But as to the frame building it was wrong. The master explicitly states that the defendant has annexed to the north or rear of the frame building a brick section two stories in

The defendant having applied for registration under G. L. c. 185, the certificate recites that so much of the land as is included within the limits of the right of way is ap purtenant to the dominant estate which has been conveyed to the plaintiff, and "that the buildings which were erected on the above-described land Oct. 11, 1904, encroach-height which does not encroach on the way; ing thereon may remain until they are removed or destroyed." The certificate is conclusive of the existence of the way as located, and defined in the deed. First National Bank of Woburn v. Woburn, 192 Mass. 220, 78 N. E. 307; G. L. c. 185, § 38. See section 46..

It is found by the master that, on the date of the defendant's purchase, there was standing within the way a one-story brick structure used for the sale of baker's products, and referred to in the report as a "store," which has not been removed or destroyed. A two-story frame structure just northerly of the store was directly joined thereto. It was divided in the center of the first floor by a partition, to the west of which was the defendant's bake shop. The part on the east with two upper rooms was used as tenements. The frame building, with the exception of twelve or fifteen feet which were of brick, was built of wood with a shingle roof. A piazza on the easterly side extended about six feet into the way, and a covered stairway within the limits of the way ran to the second floor. The entrance to the bake shop was through a door in the rear of the store. The entrance to the lower tenement was through the piazza, while the second story was reached by means of the covered stairway.

[2] While the parties are not in controversy over the store, the plaintiff alleges that the defendant has destroyed the original frame building by substituting an entirely different structure. If, however, on the date of purchase the store and frame building constituted but one structure, then, notwithstanding the changes in the frame building, to which we shall subsequently refer, the building viewed as a unit has not been destroyed or removed. But the reservation refers to the structure then existing as "buildings," and the parties are bound by their own description. The question, whether the store and main building were a unit, or physically separated into a brick store, and a frame

but in making this addition he removed the rear wall of the frame building. It was taken down because the defendant intended to strengthen the building for use in his business. The defendant having decided to put in heavier machinery and to store more goods, also planned to change substantially the frame walls by the substitution of brick, to put a stronger flooring for the second floor, and to replace the wooden girders by steel beams. Pursuant to this plan, the defendant at the date of filing the bill had taken down the lower portion of the easterly wall up to the second story, where it extended into the way, replacing it with a wall of brick. The westerly portion of the shingled roof also had been taken down. The floor of the second story had been so wrecked as to be of no further use, and steel girders with concrete piers had been installed inside the old foundations replacing the original construction which was of timber. It further appears, that the remodeling and reconstruction of the building affected the entire structure except "the first floor, the foundations, the upper portion of the east wall, and such portions as existed between the store and the frame structure, the rear wall having already been broken down when the new brick structure was built. The defendant doubtless had the right if decay or dilapidation appeared to make needed repairs to the building with like material so that it should be in as sound condition as it was in at the date of purchase. The work, however, which he has undertaken and is pushing to completion, is entirely different. By the radical changes shown and explained by the record the defendant under the guise of reconstruction has substantially entered upon the erection of a new building, largely of steel, concrete and brick and of greater durability than the old building, and designed for a use to which it was not adapted because of structural weakness. The defendant having voluntarily "removed 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 nance 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 exceptions 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 the master erred in admitting any evidence to support them, are not well taken, and the interlocutory decree overruling the excep tions and confirming the report is affirmed. Kennedy v. Welch, 196 Mass. 592, 594, 83 N,

Exceptions sustained.

GADREAULT v. SHERMAN. (Supreme Judicial Court of Massachusetts. Franklin. Oct. 18, 1924.)

1. Equity 412-Order recommitting report of master, discretionary.

Order recommitting report of master held discretionary, though, . as claimed, based on inquiries not within allegations of bill.

2. Mortgages 360-Assignee of mortgage bound to act in good faith In exercising power of sale.

Assignee of mortgage was bound to act in good faith in exercise of power of sale, using reasonable diligence to protect interests of owner of equity of redemption.

3. Appeal and error 694 (1)-Findings not set aside where evidence not reported. Findings should not be set aside on appeal in equity action where evidence is not reported.

E. 11.

The interest on the mortgage had been promptly paid to the mortgagee, but the principal of one hundred and fifty dollars having become overdue, a foreclosure followed, of which the plaintiff had no actual notice although notice by publication had been given in conformity with the power. The defendant, who foreclosed, held the mortgage by assignment from the mortgagee, and at the time and place of sale he and one other person besides the auctioneer were present. But two bids were made, and the defendant, the

highest bidder, obtained the property, valued 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,

Where power permitted assignee of mortgage to buy, fact that he bought at auction sale for as little as he could to make as much money as possible was insufficient to reopen foreclosure in absence of bad faith in exercise of power.

5. Mortgages 369 (3)-Inadequacy of consideration not sufficient to set sale aside. Inadequacy of consideration is not of itself sufficient to set aside sale of mortgaged property under power.

act in good faith in the exercise of the power, using reasonable diligence to protect the interests of the plaintiff, the owner of the equity of redemption. Bon v. Graves, 216 Mass. 440, 446, 103 N. E. 1023.

[3-5] The trial judge found, that on all the facts reported by the master and the fair and reasonable inferences to be drawn therefrom, "they disclosed a failure on the part of the defendant to use that good faith which 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." County; J. H. Sisk, Judge.

Suit in equity by Eva Gadreault against Homer Sherman. From interlocutory and final decrees for plaintiff, defendant appeals. Interlocutory decree affirmed, final decree reversed, and decree entered dismissing bill,

A. P. Carpenter, of North Adams, for ap pellant.

H. P. Ware, of Greenfield, for appellee.

It

may be assumed that, if demanded, or if she had received actual notice of the foreclosure proceedings the plaintiff would have paid the principal and saved her property. But, even if the defendant knew the title was in the plaintiff, the power did not require a

demand, and although he proceeded to foreclose within two days after obtaining the assignment, the master finds that his purpose was not to secure the property for the benefit of a client who had obtained a judgment, and sold the property on execution in an action against the plaintiff's brother, a former owner, from whom she acquired title, but to satisfy his mortgage. The evidence not being reported, the findings should not be

BRALEY, J. [1] The master's original report, to which all objections were waived, states that the power of sale was fully executed and the mortgage regularly foreclosed. The report, however, on the plaintiff's moFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-4

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