Berryhill v. Nichols

Decision Date14 January 1935
Docket Number31490
Citation158 So. 470,171 Miss. 769
CourtMississippi Supreme Court
PartiesBERRYHILL et al. v. NICHOLS

Division B


To establish liability under wrongful death statute, negligence complained of must be proximate or at least directly contributing cause of death, and must be proved as a reasonable probability (Code 1930, section 510).


Evidence that doctor was negligent in treating deceased for gunshot wound held insufficient to establish liability of doctor for wrongful death of deceased from pulmonary embolism (Code 1930, section 510).


Recovery for pain and suffering of deceased probably caused by alleged negligence of doctor in treating deceased between time of gunshot wound and deceased's death could be had only in suit by personal representative and not by next of kin or heirs at law (Code 1930, section 1712).


Where deceased who died within eleven days of receiving gunshot wound could not have recovered and rendered any services within eleven-day period, although treatment of wound had been proper, doctor alleged to have treated wound negligently was not liable at common law for loss of services, since loss was referable to original gunshot wound to which doctor was not party.

HON WM. A. ALCORN, JR., Judge.

APPEAL from the circuit court of Bolivar county HON. WM. A. ALCORN, JR., Judge.

Action by E. L. Berryhill and others against Dr. J. L. Nichols. Judgment for defendant, and plaintiffs appeal. Affirmed.


John T. Smith, of Cleveland, for appellants.

We do not think that a physician can sit idly by and permit symptoms to develop that would put a physician on notice and take no active notice of such symptoms, and then come into court and say that he used his best judgment and be exonerated on these grounds when it is apparent that he did not so do. At all events this would be a question for the jury.

Yazoo & M. V. R. Co. v. Leflar, 150 So. 220; DuBois v. Decker, 130 N.Y. 325, 27 A. S. R. 529; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107.

It is only in cases where the proof for the plaintiff, when it tends to sustain the issue, is so unreasonable and contradictory within itself that it cannot be reasonably accepted as being true, that a peremptory instruction should be granted. This is rarely the case. Wherever reasonable men may differ about which party has testified to the truth, the judge must submit the cause to the jury.

Newton v. Homochitto Lbr. Co., 138 So. 564; Carraway v. Graham, 118 So. 807; Anderson v. Cumberland Telephone & Telegraph Co., 38 So. 786.

There was causal connection.

Prewett v. Philpot, 107 So. 880; Hester v. Ford, 130 So. 203; F. W. Woolworth, Inc. v. Volking, 100 So. 3.

The proof offered in this case is sufficient to show that the damages complained of proximately resulted from the negligence of appellee. To make a properly skillful and careful diagnosis of the trouble of a patient is one of the fundamental duties of a physician, and if he fails to bring to that diagnosis the proper degree of skill or care he must answer to the patient for the damages thus caused just as readily as he must answer for the application of improper treatment.

21 R. C. L., pp. 387-8; Manser v. Collins, 69 Kan. 290, 76 P. 851; Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760; Burton v. Neill, 140 Iowa 141, 118 N.W. 302; Bonnet v. Foote, 47 Colo. 282, 107 P. 252; Lewis v. Dwinell, 84 Me. 497, 24 A. 945; Rogers v. Kee, 171 Mich. 551, 137 N.W. 260; Hoffman v. Watkins, 89 Wash. 661, 155 P. 159; 93 Am. St. Rep. 659; Pepke v. Grace Hospital, 90 N.W. 278; Williams v. Poppleton, 3 Ore. 139; Barker v. Lane, 23 R. I. 224, 49 A. 963; DuBois v. Decker, 130 N.Y. 325, 27 Am. St. Rep. 529, 29 N.E. 313; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107; Johnson v. Winston, 94 N.W. 607.

Brewer & Montgomery, of Clarksdale, for appellee.

If a physician brings to his patient care, skill and knowledge, he is not liable to him for damages resulting from a bona fide error in judgment of which he may be guilty.

20 R. C. L. 391, sec. 35; Carpenter v. Walker, 54 So. 60-1; Barfield v. South Highlands Infirmary et al., 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Moore et al. v. Smith, 111 So. 918-920; Carraway v. Graham, 118 So. 807; Sellers v. Noah, 95 So. 167; Gray v. McDermott, 64 S.W.2d 94.


Griffith, J.

Appellants are the next of kin of a decedent who was accidentally shot and who died eleven days thereafter. Appellee is the physician to whom the wounded person was immediately brought. The wound extended from the wrist to a point near the elbow, and it then appeared to the physician to be a mere surface wound without penetration, and was treated as such. The physician visited the patient daily, and four days after the wound the physician came to the conclusion that some trouble existed not theretofore discovered by him, and the patient was taken to a hospital. There an operation was performed, and it was found that gun wadding and some of the shot had been imbedded in the wound. These were removed, but the patient died seven days later. This suit was thereafter instituted against the physician who first treated the patient; the allegations of the declaration being that the physician did not devote that skill and care required by law in such cases and that this negligence was the cause or a contributing cause of the death. The court upon the trial granted a peremptory instruction for the defendant therein.

It is admitted that the patient died of pulmonary embolism. Two physicians, and only two, were introduced and, as we read their testimony, and interpreting it as best we can, an embolus in cases of wounds is, in simple terms, a product...

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