Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Blaine B. Shimmell and Louis McClennen, both of Phoenix, for appellant.
Howard Gibbons, Herbert Watson and W. H. Chester, all of Phoenix, for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concur.
[68 Ariz. 28] John T. Acton, as plaintiff, sued to recover damages, both actual and punitive, for the alleged malpractice of Dr. Norman H. Morrison, the defendant herein. In accordance with the verdict of a jury, judgment for actual damages in the sum of one thousand dollars was entered in favor of the plaintiff, and after denial of the defendant's motion for a new trial this appeal was taken. The parties will be referred to as they were designated in the lower court.
The case was here before on appeal from an order granting defendant's motion to dismiss the action upon the ground that the two year statute of limitations had run, Acton v. Morrison, 62 Ariz. 139, 155 P.2d 782. The issues framed by the pleadings are therein carefully detailed and will not be repeated here except in so far as may be necessary. The former decision is the law of the case to the extent of determining that the complaint stated a good cause of [68 Ariz. 29] action and was not vulnerable to a motion to dismiss either for failing to state a claim upon which relief could be granted or because the action was barred by limitation.
On this appeal the defendant assigns as error the lower court's denial of his motion for an instructed verdict as well as its refusal to grant his motion for a new trial. The basis for each motion is that there was no evidence, or at least that the evidence was wholly insufficient, to sustain the judgment in that the plaintiff had not established either negligence or proximate cause, nor had fraud or concealment been proved so as to toll the statute of limitations. As this appeal challenges the sufficiency of the evidence to sustain the judgment, it is our duty in determining the matter to consider the evidence in the light most favorable to the plaintiff. This rule is succinctly stated in the case of Stewart v. Schnepf, 62 Ariz. 440, 158 P.2d 529, 531:
"* * * These applicable principles are that upon an appeal from a judgment and order denying a motion for a new trial, all reasonable inferences which may be drawn from the evidence supporting the judgment and order appealed from will be so drawn and applied; that all conflicts in the evidence will be resolved in favor of the appellees; and all evidence in the record, unless inherently impossible or improbable, supporting the judgment and order appealed from, is taken as true. (Citing cases) * * * 'Where evidence is of such a nature that either of two inferences may be drawn therefrom, we are bound by the one chosen by the trial court.' (Citing cases.)"
The policy embodied in this rule has been consistently followed in the more recent decisions of this court. See Seargeant v. Smith, 63 Ariz. 466, 163 P.2d 680; Gillespie Land & Irrigation Co. v. Jones, 63 Ariz. 535, 164 P.2d 456; In Re McDonnell's Estate, 65 Ariz. 248, 179 P.2d 238; City of Phoenix v. Anderson, 65 Ariz. 311, 180 P.2d 219
Construing the evidence in this light, we shall, at the outset, chronologically summarize that which tends generally to support plaintiff's cause of action before proceeding to point out the particular proof tending to sustain those allegations of the complaint which the defendant claims are without support.
The plaintiff during either the month of July or August of 1935 consulted the defendant, a regularly licensed and practicing dentist in the city of Phoenix, relative to the removal of plaintiff's two lower imbedded wisdom teeth. After x-rays were taken by Dr. Morrison, the lower left third molar (wisdom tooth) was first removed in an operation which lasted some two hours and thirty-five minutes, and which involved cutting this tooth in two twice with a drill to facilitate its removal. While the plaintiff was unaware of any untoward incident in ...