Bush v. Chilcott.

• Decision Date: 10 October 1922
• Docket Number: 4858. [a1]
• Citation: 210 P. 907
• Parties: BUSH v. CHILCOTT.
• Court: Montana Supreme Court

210 P. 907

BUSH v. CHILCOTT.

No. 4858. ^[a1]

Supreme Court of Montana

October 10, 1922

Commissioners' Opinion.

Appeal from District Court, Carbon County; Charles A. Taylor, Judge.

Action by William E. Bush against W. L. Chilcott. From a judgment for plaintiff and an order overruling motion for new trial defendant appeals. Reversed and remanded.

Johnston Coleman & Johnston, of Billings, for appellant.

R. G Wiggenhorn, of Billings, for respondent.

LEIPER C.

This is an action for damages for alleged malpractice. On November 20, 1918, the plaintiff, while driving a team of horses hitched to a cart, was thrown therefrom, and one of the wheels of the cart passed over the plaintiff's left leg breaking both bones of the leg at a point about three inches above the ankle. The accident occurred about seven miles from the Clark ranch in Wyoming, which was the nearest habitation. The team ran away and the plaintiff walked and crawled to the Clark ranch, and from there was taken by automobile to Belfry, Mont., where he placed himself under the defendant's care, for the purpose of having the injured limb treated. The defendant was a physician and surgeon practicing at Belfry, Mont. The accident occurred at about 3:30 o'clock p. m., and plaintiff arrived at defendant's home about midnight of the same day, where plaintiff remained until November 22d, when he was removed to Mrs. Moore's, and he remained at Mrs. Moore's until the evening of December 4th following, when he was taken to the hospital of Dr. Adams at Red Lodge. On the morning of December 5th Dr. Adams, assisted by Dr. Holmgren, amputated plaintiff's left leg about midway between the knee and the hip.

The complaint sets forth two causes of action. At the conclusion of the plaintiff's case, the defendant moved the court to withdraw from the consideration of the jury the first cause of action. This motion was granted. A like motion was made as to the second cause of action, which motion was denied. Thereupon defendant offered testimony covering the second cause of action. Both parties having rested, defendant moved the court for a directed verdict, which motion was overruled. The jury returned a verdict for plaintiff in the sum of $3,500, and judgment was rendered upon such verdict. Thereafter defendant moved for a new trial. This motion was overruled. These appeals are from the judgment and an order overruling the motion for a new trial.

The second cause of action of the amended complaint alleges that the defendant is a physician and surgeon duly licensed to practice as such within the state of Montana; that the plaintiff suffered a simple fracture of the left leg and employed the defendant to reduce the fracture and set the broken bones, which employment was accepted by the defendant; that thereafter the injured leg became affected with gangrene; and continuing, it is alleged:

"That, however, the defendant negligently, unskillfully, willfully, and wantonly, after learning of the gangrenous condition of plaintiff's said leg, permitted the infection to spread throughout, contaminate, and affect the plaintiff's entire left leg, and did nothing whatsoever to check the said infection, and negligently and unskillfully failed to amputate the plaintiff's said leg promptly upon discovering the infection, when by amputating his leg immediately above the break the infection would have been checked and the remainder of plaintiff's said leg saved for him, and negligently, unskillfully, willfully, and wantonly failed to call other and better skilled physicians and surgeons that were then available and near by into a consultation, or to permit such other physicians and surgeons to amputate said leg at such point promptly upon discovering such infection, and negligently, unskillfully, willfully, and wantonly failed to disclose to the plaintiff the critical condition that his said leg was in and the fatal results that would inevitably follow from such gangrene, and that unless checked such gangrene would inevitably spread throughout the plaintiff's entire system and would finally and shortly result in death.

That by reason of the defendant's said negligent, unskillful, willful, and wanton conduct and treatment, the plaintiff's entire left leg became infected with gangrene and mortified, and the infection commenced to spread throughout his entire system, and the plaintiff was compelled to and did on the 5th day of December, 1918, consult and call upon other physicians and surgeons, and it became necessary to, and such other physicians and surgeons did, in order to save his life, at once amputate and remove his said left leg at a point about five inches above the knee.

That, but for the negligent and unskillful conduct of the defendant above mentioned, the plaintiff would have lost only the lower portion of his leg from a few inches above the ankle, and would have been enabled to procure an artificial foot, whereby he would have been very little crippled and would have been able to follow his usual occupation as a laborer and farmer, with practically the same efficiency as before the injury, but that, by reason of the defendant's said negligent, unskillful, willful, and wanton conduct, he has been rendered permanently crippled and unable to perform any work and labor, or to follow his said usual occupation, and by reason thereof he has been damaged in the sum of $20,000."

The answer admits the employment, but denies the other material allegations of the complaint.

Certain testimony was admitted over the objection of the defendant tending to prove the earning capacity of the plaintiff. It is argued that the admission of this testimony prejudiced the defendant. Whether or not it was error to admit this testimony, all consideration thereof was withdrawn from the jury by instruction No. 7, which reads as follows:

"In this case evidence has been introduced concerning plaintiff's earning capacity before the injury and since and his future earning capacity, and generally the impairment of his earning capacity. You are instructed that, if you find for the plaintiff, in view of the fact that no special damages of this kind have been pleaded, plaintiff is not entitled to recover for such impairment of earning capacity or for loss of earnings since the injury complained of, and you should disregard such evidence as to earning capacity, as well as evidence of what it would cost to purchase annuities."

No error is predicated upon the giving of this instruction. It withdraws from the consideration of the jury all of the testimony to which objection was made. Therefore defendant could not have been prejudiced by the admission of the testimony. Montague v. Hanson, 38 Mont. 376, 99 P. 1063.

We have examined the other assignments, relating to the admission of testimony, and find no merit in them.

It is earnestly contended by counsel for the appellant that the evidence is insufficient to support the verdict and judgment. The testimony is quite voluminous, and a recapitulation thereof herein would serve...