Browning v. Hoffman

• Decision Date: 11 May 1920
• Docket Number: 3998.
• Citation: 103 S.E. 484,86 W.Va. 468
• Parties: BROWNING v. HOFFMAN ET AL.
• Court: West Virginia Supreme Court

103 S.E. 484

86 W.Va. 468

BROWNING v. HOFFMAN ET AL.

No. 3998.

Supreme Court of Appeals of West Virginia.

May 11, 1920

Submitted April 27, 1920.

Rehearing Denied July 9, 1920.

Syllabus by the Court.

Although the requirement of payment of the costs of a trial, before the first day of the next regular term of a court, imposed as a condition subsequent, on the granting of a new trial, has not been complied with, the court is not bound to set aside the order granting the new trial. It has discretion to let the order stand and award an execution for the costs, and, if payment is tendered in resistance of a motion to set it aside, may let it stand, without issuance of an execution.

If a verdict is erroneous and has been set aside for excessiveness and an additional reason, and the latter ground is tenable the appellate court will not enter upon an inquiry as to whether an effort to cure the first named defect, by a remittitur, is sufficient or was made in time.

A trial court may, ex mero motu, or on the motion of a party to the action, award a new trial on the ground of error in the giving of an instruction unobjected to and as to the giving of which no exception was taken, or upon any other valid ground.

If a surgeon adopts, in the treatment of a case, a method established and approved by physicians and surgeons generally, in the community in which he performs the operation or gives the treatment, at the time thereof, and is not negligent or careless in its application, he is not liable for injuries caused by such treatment.

If there are two or more approved methods of treatment of an injury of the kind committed to his care, he may adopt the one which, in his honest opinion, will be the more efficacious and appropriate under all of the circumstances, and, in such case, he is not liable for an injury resulting from an error in his judgment, if there be one. He is not bound at his peril to adopt the best method.

In an action for malpractice by a physician or surgeon, it is error to admit evidence of a method of treatment, antedating the treatment involved by a long period of time, and differing materially from the method adopted in the treatment and generally approved and used at the time thereof.

The propriety of the use of a plaster of paris cast in the treatment of a compound comminuted fracture of the leg having been established by uncontradicted evidence, in a case in which a surgeon is charged with malpractice in the treatment of the wound, it is error to give an instruction based upon the hypothesis of negligence in the mere adoption and use of that method, even though an injury has followed, which might have resulted from use thereof in an improper manner.

If, in the trial of such a case, incompetency of the nurses is relied upon, and no evidence has been adduced for the purpose of proving it, except lack of graduation of the day and night nurses, the head nurse being a graduate, and there is no evidence of any omission of, or departure from, the instructions given them, nor of any action or conduct on their part resulting in or causing the alleged injury, it is error to give an instruction founded upon the assumption of evidence of their incompetency and negligence, or either of them.

On a writ of error to a judgment awarding a new trial, the appellate court, after having ascertained that the verdict for the plaintiff was properly set aside for an error in the trial, other than refusal to direct a verdict for the defendant, if any, will not ordinarily enter upon an inquiry as to the sufficiency of the evidence to sustain the verdict returned and set aside.

Appeal from Circuit Court, Mineral County.

Action for malpractice by George F. Browning, an infant, etc against C. S. Hoffman and others, partners, etc. From an order setting aside a verdict for plaintiff and granting a new trial and a reinstatement of the verdict and judgment thereon after a remittitur filed by plaintiff, plaintiff brings error. Affirmed.

R. A Welch and Taylor Morrison, both of Keyser, and Albert A. Doub, of Cumberland, Md., for plaintiff in error.

C. O. Strieby, of Elkins, A. Jay Valentine, of Parsons, and Chas. N. Finnell, of Keyser, for defendants in error.

POFFENBARGER J.

This writ of error seeks reversal of an order setting aside a verdict for $5,500 and granting a new trial, reinstatement of the verdict, and judgment thereon for $5,000; a remittitur of $500 having been filed by the plaintiff.

The verdict was set aside October 2, 1919, on condition that the defendant pay the costs of the trial on or before the first day of the next regular term of the court, which was October 21, 1919. On that day, a motion was made to set aside the order granting a new trial, for failure to pay the costs; but was resisted on the ground of mistake, the check for payment thereof having been inadvertently mailed to Baltimore, Md., instead of Keyser, W.Va. Before this motion was passed upon, October 29, the remittitur was filed and another motion to set aside the order of October 2d made and founded upon the remittitur. Both motions were overruled, October 29th.

The discretion of the trial court amply justified its action in overruling the first motion. It could have set aside the order for nonpayment of costs, or let it stand and awarded an execution for the costs. Code, ch. 138, § 5 (sec. 5080). As payment of the costs was tendered in resistance of the motion, there was no occasion for such an award.

If the verdict is right, except as to the amount thereof, the remittitur and motion to reinstate the verdict founded thereon may have been filed and made in time. As to this, we express no opinion, however, for there was cause other than excessiveness of damages justifying the award of a new trial. The weight of authority is that such an order may be set aside at the term at which it was entered, on other than statutory grounds. Rhea v. Gibson, 10 Grat. (Va.) 215; Luke v. Coleman, 38 Utah 383, 113 P. 1023, Ann.Cas. 1913B, 483, note 486; 20 R.C.L. p. 312. The contrary has been held in some states, and the general rule is that the order cannot be set aside at a subsequent term, unless a motion to set aside is made at the term of entry and continued. See the note above referred to and 20 R.C.L. 313.

The verdict was set aside on the ground of an error in an instruction given for the plaintiff, without objection or exception. Right and power in the trial court to set it aside on such ground is denied in argument, but it is explicitly affirmed by authority. Roane Lumber Co. v. Lovett, 72 W.Va. 328, 78 S.E. 102; Stevenson v. Wallace (Va.) 27 Grat. 77. To make such an error available in the appellate court, an exception is necessary, of course; but the right of any court to correct its own errors in due time stands upon a footing somewhat different from that of the right of a litigant to invoke the jurisdiction of another court to make the correction. This distinction is so obvious and so thoroughly established that citation of authority for it is unnecessary. However, see 20 R.C.L. p. 300.

The cause of action was alleged negligence in the treatment of a severe and complicated wound, in a private hospital owned and conducted by the defendants as partners in business, one of whom personally treated it. The plaintiff, a boy, was only about nine years old, when injured. He suffered a compound comminuted fracture of the right leg, two or three inches from the ankle. While he was riding in a fruit wagon, the horse became frightened, ran away, and upset the wagon, and his leg was crushed by it some way. At the suggestion of the family physician, Dr. Bell, he was taken to the hospital the same evening, Monday, November 11, 1918, where Dr. Hoffman one of the defendants, dressed the wound, with the assistance of Dr. Bell. A piece of bone protruded and the flesh was considerably torn and lacerated. There may have been some infection, since the stocking, as well as particles of earth, was in contact with the wound. On his preliminary examination, Dr. Hoffman thought the case was really one for amputation, but he desisted from resorting to it, for lack of direction or consent of the parents; none of them being present at the time. Having had considerable experience with that class of cases and having saved limbs in as bad condition, he finally decided to attempt to save the boy's leg. The wound was thoroughly cleansed and disinfected in an appropriate manner, an incision made for replacement of the protruding bone, a loose sliver of bone taken out, the bones set and wired, the incision closed by stitches, and the leg put in a plaster cast, with cotton and gauze, and an opening or window left over the wound for drainage, inspection, and treatment. Throughout that night and the next day the boy did well, but the next night he was delirious and had a high temperature and a weak pulse, and at about 7 o'clock of the second day, Wednesday, November 13th, a change in the condition of the foot was discovered. There was no swelling, but it was slightly cold and had turned slightly white. When this change developed, Dr. Hoffman was not at the hospital nor within reach. He had left at about 9 o'clock Tuesday evening for Huntington, W.Va., in response to a call by the chairman of the Executive Committee of National Defense. Riding at night, he was at Huntington on Wednesday and got back to the hospital at about 2 o'clock a. m., Thursday. It is admitted that he saw the boy Tuesday morning. He swears he saw him again and examined his leg at about 7 o'clock that evening and found his condition entirely satisfactory. The boy says he saw him only once on Tuesday. In the hospital there were several nurses, and the boy was provided with a day nurse and a night...