Baxter v. Campbell

• Decision Date: 02 December 1903
• Citation: 97 N.W. 386,17 S.D. 475
• Parties: RAYMOND B. BAXTER, Plaintiff and respondent, v. R. F. CAMPBELL, Defendant and appellant.
• Court: South Dakota Supreme Court

17 S.D. 475

97 N.W. 386

RAYMOND B. BAXTER, Plaintiff and respondent,

v.

R. F. CAMPBELL, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Codington County, SD Hon. Julian Bennett, Judge Reversed W. S. Glass, G. X. Seward Attorneys for appellant. A. Sherin Attorney for respondent. Opinion filed Dec. 2, 1903

FULLER, J.

The complaint in this action for damages states, in substance, that the defendant, a physician and surgeon, was employed by plaintiff to set and heal the bones of his left leg, broken between the knee and ankle on the 26th day of November, 1901; “that the defendant so carelessly, negligently and unskillfully” performed the service that it became necessary in the month of May, 1902, to employ a different physician and surgeon, at the expense of $200, and to his damage in that amount;

“that by reason of said careless, negligent, and unskillful manner of setting, treating, and caring for said leg, it has not healed, and this plaintiff has been unable to use it since it was first broken, and the plaintiff was made sick and kept from attending to his business since November, 1901 and is still disabled from attending to his business or from doing any bodily work, to the damage of this plaintiff in the sum of eight hundred dollars; that by reason of said careless, negligent, and unskillful manner of setting, treating and caring for said leg, this plaintIff has suffered extreme pain, both of body and mind, and was greatly injured in bodily health, to his damage in the sum of four thousand dollars. Wherefore plaintiff demands judgment against defendant in the sum of five thousand collars damages, as set forth in this complaint, for expenses, loss of time, and suffering, and that a body execution may issue in said case in case of default of defendant to pay any judgment that may be recovered against him, and for his costs, and for such other and further relief as to the court shall seem just.”

Answering the defendant admits the employment, but denies the averment of negligence, want of care and skill, and alleges that the injury complained of resulted wholly from the negligence of plaintiff. The jury returned a verdict for $3,800 in favor of plaintiff, and the defendant appeals from a judgment accordingly entered and from an order over-ruling a motion for a new trial.

While the complaint is limited to a claim of damages in the way of compensation for “expenses, loss of time, and suffering” arising from the alleged negligent and unskillful treatment of the case, and there is nothing in the testimony tending in the slightest degree to sustain an inference of malice, the court instructed the jury as follows:

“Should the defendant’s conduct show a willful and malicious want of care and skill, the jury may allow as damages not only the actual damage proved, but such exemplary damages or smart money as, in their judgment, may be just and proper as a punishment to the defendant, in view of all the facts and circumstances proved on the trial.”

According to the evidence introduced on the part of appellant, the patient was treated with the utmost care and according to the present practice of the best surgeons; but, if respondent’s testimony is true, the method employed was that of 21 years ago, and not approved at the present time. To the physician and surgeon who performed the second operation, and testified in respondent’s behalf the following hypothetical question was propounded:

“I will ask you, doctor, if in the case of a compound fracture of the lower limb, as in the case of Baxter, if both the bones were broken and protruding through the flesh and skin, if the bone is simply pressed back to its place by the physician or surgeon, and the leg tied up, without sterilizing or cleansing in any manner, and the leg left for two weeks without being cleansed in any manner, I will ask you if, under the present modern methods of surgery that would be the proper treatment of a fracture of that character?”

The above question was fairly within the testimony of respondent, and the witness being more familiar with the case than any other expert called in his behalf, we give the complete answer, as follows:

“If I were treating a case of that kind, if there was any chance for infection, I would sterilize the wound thoroughly before replacing the bone. Yes; I believe that would be the method of modern surgery. If a wound is thoroughly cleansed, and if every particle of foreign matter is out of it, and there are no broken bones, and it is replaced, the bone will unite and heal. It would depend somewhat on the fracture and the individual, but a fracture of this kind would be at least from six weeks to two...