Baxter v. Campbell
Decision Date | 02 December 1903 |
Citation | 97 N.W. 386,17 S.D. 475 |
Parties | BAXTER v. CAMPBELL. |
Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County; Julian Bennett, Judge.
Action by Raymond B. Baxter against R. F. Campbell. From a judgment for plaintiff, defendant appeals. Reversed.
W. S Glass and C. X. Seward, for appellant. A. Sherin, for respondent.
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 an expense of $200, and to his damage in that amount; 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 overruling 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 25 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: ...
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