Palmer v. Humiston

Citations

• 87 Ohio St. (N.S.) 401

Syllabus

<p>Issues of case confined to the pleadings — Plaintiff pleaded contract of defendant — To perform surgical operation — Involving use and removal of sponges — Custom or usage in particular business — Must be specially pleaded — Evidence as to care of nurse inadmissible, when — -No issue of agency — Charge of trial court as to defendant’s liability — Not prejudicial error, when — Law of pleadings.</p> <p>1. The issues of a case are defined by and confined to the pleadings.</p> <p>2. Plaintiff pleaded that defendant contracted to perform a certain abdominal surgical operation, and as a part of such operation, the surgeon used certain sponges and that there was negligence in the use and failure to remove one of said sponges. The answer admits the contract to perform said surgical operation and admits that “in the performance of said operation it was necessary that certain sponges be used.”</p> <p>Held: That under the pleadings of this case the use, care and removal of such sponges are a part of the operation contracted for.</p> <p>3. A special custom or usage in any particular trade, business, or profession, to be available to either party, must be specially pleaded.</p> <p>4. In the absence of any averment in the answer specially pleading a professional usage or custom as to the care and accounting of sponges by a nurse or other attendant, evidence for the purpose of showing such professional usage or custom is incompetent and inadmissible.</p> <p>5. In this case there was no issue of agency. The charge of the trial court in that behalf tended to relieve the defendant of liis full liability under his contract, therefore he cannot thereafter complain of it as prejudicial error.</p>