Barney v. Pinkham

• Decision Date: 29 April 1890
• Citation: 29 Neb. 350,45 N.W. 694
• Parties: BARNEY v. PINKHAM.
• Court: Nebraska Supreme Court

29 Neb. 350

45 N.W. 694

BARNEY

v.PINKHAM.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

1. A veterinary surgeon, in the absence of a special contract, engages to use such reasonable skill, diligence, and attention as may be ordinarily expected of persons in that profession. He does not undertake to use the highest degree of skill, nor an extraordinary amount of diligence. In other words, the care and diligence required are such as a careful and trustworthy man would be expected to exercise.

2. Held, that the petition fails to state a cause of action.

Error to district court, Kearney county; GASLIN, Judge.L. W. Hague and Stewart & Rose, for plaintiff in error.

St. Clair & McPheely, for defendant in error.

MAXWELL, J.

The defendant in error recovered a judgment against the plaintiff in error in the court below; and the only question presented is, does the petition state a cause of action? The petition is as follows: “Joseph Pinkham v. M. M. Barney. The plaintiff, for cause of action against the defendant herein, says that prior to and until the 27th day of April, 1888, he (the plaintiff) was the owner of a certain roan mare of the value of $200; that, on or about the 21st day of April, 1888, the said mare became and was sick with some disease then unknown to plaintiff in kind and character; that, at said date last aforesaid, and long prior thereto, the defendant claimed to be, and advertised and held himself out to the public to be, a veterinary surgeon, and asked to be employed as such in the treatment of sick and diseased horses; that the plaintiff, on or about the 22d day of April, 1888, employed the defendant to treat and cure the said mare aforesaid of said sickness aforesaid, for pay; that the defendant, under said employment, and in his professional capacity as veterinary, visited said mare a number of times, examined her, diagnosed her case, prescribed medicine, gave her medicines, and treated and caused her to be treated, under his sole directions and management, until on or about the 27th day of April, 1888, when said mare died. Plaintiff alleges that the defendant was and is incompetent to treat sick and diseased horses; that he prescribed and gave, and caused to be given, to said mare aforesaid, drugs and medicines wholly improper for the cure and treatment of the disease from which the said mare was suffering; that he prescribed and gave and caused to be given to said mare, in his said treatment of her aforesaid, medicines improper to be given internally for the cure of her said disease, and medicines of such a nature, and such large quantities, as to cause, and which did cause, the death of said mare, to the damage of this plaintiff in the sum of $200.”

A veterinary surgeon impliedly...