Coss v. Spaulding

• Decision Date: 30 August 1912
• Docket Number: 2370
• Citation: 41 Utah 447,126 P. 468
• Court: Utah Supreme Court
• Parties: COSS v. SPAULDING

126 P. 468

41 Utah 447

COSS v. SPAULDING

No. 2370

Supreme Court of Utah

August 30, 1912

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Leonard Coss, by Minnie Coss, his guardian ad litem against Dr. John M. Spaulding.

Judgment for defendant. Plaintiff appeals.

REVERSED WITH DIRECTIONS FOR NEW TRIAL.

C. S Patterson for appellant.

Bone & McGee for respondent.

McCARTY, J. FRICK, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

Plaintiff, a boy twelve years of age, brought this action by his guardian ad litem to recover damages from the defendant, a practicing physician, because of defendant's alleged failure to use ordinary care, skill, and diligence in treating an injury to plaintiff's leg, consisting of a fracture of the tibia bone. The allegations of the complaint charging negligence and lack of skill, so far as material here, are as follows:

"Defendant was called to attend said injury, and carelessly and negligently failed to discover that the bone in plaintiff's leg was broken, and carelessly and negligently reported to this plaintiff and to his mother, Minnie Coss, that the bone was not broken, but that the muscles of the leg were simply bruised, and carelessly and negligently failed and neglected to set said broken bone, or to give or prescribe any proper treatment for a broken bone; that about five weeks after the said injury . . . plaintiff learned for the first time that the bone of his leg was broken, that the said bone had partially knit without being properly joined, and that the same will have to be rebroken and properly set; that in the treatment of said fracture the said defendant failed to use ordinary care and skill, and that by the exercise of ordinary care and skill the fact that the said bone was broken would have been readily discovered by the said defendant."

The defendant, after denying the allegations of negligence upon which plaintiff relies for a recovery, as a separate defense alleged affirmatively:

"That on the 10th day of November, 1911, defendant was employed and paid by one Clarence Purdue to make an examination of plaintiff's leg; that on said 10th day of November, 1911, for the first and only time defendant did make an examination of said plaintiff's leg; that defendant found plaintiff's leg in such a swollen condition that it was impossible by the use of ordinary skill and diligence to discover the nature of plaintiff's injury, and defendant then and there so informed plaintiff and plaintiff's mother and said Purdue, and thereupon defendant's services in respect to plaintiff ceased; that at no time has defendant been in the employ of plaintiff."

The evidence introduced by plaintiff showed that at about 2:30 o'clock on the afternoon of November 9, 1911, he was run over by an automobile and the tibia bone of the right leg broken. The driver of the automobile took plaintiff home, and told his mother that he thought plaintiff's leg was broken, and offered to procure a physician. The mother replied that, on account of the nervous condition plaintiff was in, she did not want a physician called just at that time. The driver gave plaintiff's mother the telephone number of his employer, a Mr. Purdue, and requested her to call his employer whenever she wanted a physician, and that he would send her one.

Plaintiff's mother was called as a witness and testified in part as follows:

"That evening (referring to the evening of the accident) my husband called up Mr. Purdue, who said he would send his physician. The next morning he brought Dr. Spaulding down, and I stepped up, and he said, 'I am Mr. Purdue, and this is my physician, Dr. Spaulding.' Dr. Spaulding examined the leg, and felt it, and then I asked him if it was broken. He said, 'No.' I said, 'Are you sure?' He said, 'No; it is not broken.' I said, 'No bone trouble there at all?' He said, 'No.' I said, 'I can feel the bones move.' He said, 'No; you can't feel the bones move; if you could feel them, I could.' . . . Then he examined the leg again, and still insisted it was not broken. . . . He gave me a prescription for liniment, and told me to get antiphlogistine and put that on to get the soreness out. He said the leg would be all right in a few days. I got the prescription filled, and used the liniment as directed. He came again December 11th. . . . I said, 'The boy's leg is broken.' He said, 'Oh no; it isn't broken; the child's leg is all right.'"

On cross-examination she said:

"After the doctor said it was not broken, I thought he was a doctor, and knew what he was talking about, and I thought it was not broken. . . . I thought Dr. Spaulding had the case. I thought Mr. Purdue put him on the case, and, of course, he was the physician on the case, and I didn't consider it necessary for me to say anything about it."

The testimony of the plaintiff regarding what was said and done by the defendant on each occasion when he called to see plaintiff was substantially the same as that given by his (plaintiff's) mother.

Dr Beer, who is a practicing physician and surgeon, was called as a witness, and testified that he performed an operation on plaintiff about January 15, 1912; that "the operation was to unite a faulty union of the tibia of the right leg. In making this operation, separating the bones...