Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
NEWMAN v. CAMPBELL et al.
An appeal by defendant J. A. Campbell, a dentist, from a judgment entered against him in an action to recover for personal injuries alleged to have been caused by the negligent administration of an anaesthetic by his employee.
It was shown by the evidence, although conflicting and subject to different inferences, that the anaesthetic was injected into infected parts of plaintiff's gums and this with too great frequency. According to the medical testimony injections so made tended to spread the infection, and it supports the jury's implied finding of negligence and the damage alleged.
Appellant claims that the trial court erred by refusing an instruction on the question of proximate cause, and also by an instruction to the jury with regard to the expectancy of life of persons of plaintiff's age.
The court by its instruction correctly defined the terms “negligence,” “burden of proof,” “preponderance of the evidence” and “proximate cause”; but appellant complains that the refusal of his proposed instruction was prejudicially erroneous.
The material portion of the instruction refused reads as follows: “If you are unable to ascertain from a preponderance of the evidence in this case that the defendant or his employees were negligent––negligence measured as heretofore defined for you and proximately causing the condition complained of––then your verdict must be for the defendant.” Although the proposed instruction was not improper, nevertheless the other instructions sufficiently covered the issue in this particular. As stated, the court correctly defined “proximate cause,” and the jury was told in substance that, if there were two or more possible causes of the injury, for one or more of which defendant was responsible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause; and that, if they found that the injuries were due to a cause over which the defendant had no control, or were not caused by his act or omission, the plaintiff could not recover. These instructions were sufficient, and the refusal of that offered by plaintiff was not prejudicial. See Wirthman v. Isenstein, 182 Cal. 108, 187 P. 12; Weaver v. Carter, 28 Cal.App. 241, 152 P. 323.
As stated, the court instructed as to plaintiff's life expectancy, and that the jury might take this into consideration in determining her damage, if any. It is urged that she was not in normal health at the time of her injury, and that consequently the instruction was improper. On this question also the evidence was conflicting, and the jury might have found that the plaintiff was for a person of her age in ordinary health. The mortality table was admissible and, although not conclusive, was evidence of the probable duration of her life. Under the evidence she was entitled to an instruction based upon her theory of the case. Groat v. Walkup Drayage, etc., Co., 14 Cal.App.2d 350, 58 P.2d 200; Morrow v. Mendleson, 15 Cal.App.2d 15, 58 P.2d 1302. If the appellant desired an instruction explaining in more detail the weight to be given the elements fixing her life expectancy, as was the case in Groat v. Walkup Drayage, etc., Co., supra, such an instruction should have been offered. This was not done, and in the circumstances appellant has no ground for complaint. Murphy v. National Ice Cream Co., 114 Cal.App. 482, 300 P. 91.
In view of the injuries which plaintiff has suffered the award was not excessive.
The conclusions reached on the issues are fairly supported, and no error which would justify the reversal of the judgment has been shown.
The judgment is affirmed.
PER CURIAM.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Civ. 10372.
Decided: November 29, 1937
Court: District Court of Appeal, First District, Division 1, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)