Decatur v. Simpson
| Decision Date | 24 January 1902 |
| Citation | 88 N.W. 839,115 Iowa 348 |
| Parties | SAMUEL DECATUR, Appellee, v. W. L. SIMPSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--HON. A. R. DEWEY, Judge.
ACTION against defendant, who is a physician, for malpractice. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.
Reversed.
W. C Rayburn and S. R. Clute for appellant.
Haines & Lyman for appellee.
In July of the year 1898, plaintiff received an accidental injury to his left forearm, wrist, and hand. He called defendant, who is a physician and surgeon residing in the city of Grinnell to treat the injured member; and, pursuant to his request defendant did treat it for the space of about three months, when he was discharged by plaintiff. February 14, 1900, plaintiff commenced this action, wherein he claims that defendant was negligent in the treatment of the case, in that the splints were not of proper length, the padding was not sufficient, and was improperly applied, and that the bandages did not extend far enough up the forearm, and were too tightly wound, thereby stopping the circulation of the blood, causing it to settle in the palm of the hand, and to gather and coagulate under the splints; that, by reason of this negligence of defendant plaintiff lost the use of his shoulder, elbow, and hand; and that the condition is permanent. There is no allegation in the petition, of plaintiff's freedom from contributory negligence, and for this reason defendant filed a demurrer to the petition. This demurrer was overruled, and defendant thereupon answered; pleading, among other things, plaintiff's contributory negligence. By answering after the ruling on the demurrer, defendant waived the error, but the ruling did not constitute an adjudication. Code, section 3564; Frum v. Keeney, 109 Iowa 393, 80 N.W. 507. The defendant had the right to raise the same question by motion in arrest of judgment. Frum v. Keeney, supra. This he did in the case at bar, and the court overruled his motion. This ruling is assigned as error. We think it well settled that, in actions of this kind, plaintiff must negative contributory negligence. Baird v. Morford, 29 Iowa 531; Swanson v. French, 92 Iowa 695, 61 N.W. 407; Hibbard v. Thompson, 109 Mass. 286; Rabe v. Sommerbeck, 94 Iowa 656, 63 N.W. 458. There are many and respectable authorities to the contrary, but we seem irrevocably committed to the doctrine, and have generally applied it in all cases where a party seeks to recover for the negligent or unskillful acts of another. The only exception we have recognized seems to be in cases where the owner of stock in seeking to recover for the unskillful acts of a veterinary surgeon. That exception did not meet with the approval of the writer of this opinion, and he does not now wish to be bound by the rules announced in that case. As plaintiff failed to plead that he was not guilty of contributory negligence, his petition did not state a cause of action, and defendant's motion in arrest should have been sustained. Code, sections 3563, 3758. Plaintiff did not offer to cure the defect by amendment, as he might have done under section 3760. And as he did not do so, he cannot be relieved from the consequence of his neglect on appeal. Sloan v. Rebman, 66 Iowa 81, 23 N.W. 274. It is claimed, however, that this action does not sound in tort, but is for breach of contract. We hardly think counsel are serious in this contention. A bare reading of the petition shows that it is an action for negligence, in which the relation of the parties is material only as fixing the degree of care required. Further, it is argued that the ruling was without prejudice, for the reason that the court submitted the issue to the jury, and instructed that the burden was on plaintiff to show freedom from contributory negligence. Had the plaintiff taken advantage of section 3760, there would be no doubt of the correctness of this position. But as he did not, we are not prepared to hold that the statutes we have quoted may be annulled by reason of the fact that no prejudice resulted. Nor are we disposed to hold that no prejudice resulted in the instant case. Defendant was compelled to first introduce his evidence regarding contributory negligence, and, of necessity, was limited to such acts and conduct of the plaintiff as came to his knowledge. Under this order of procedure, all that plaintiff needed to do was to negative these particular facts. That done, his case was made out, without showing his freedom from negligence generally. The bill of exceptions recites that, under the issues, defendant was compelled to introduce his evidence of contributory negligence and that all that was required of plaintiff was to rebut this showing. Manifestly, this was to the...
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