Delbert G. Lawson v. Crane & Hall
| Decision Date | 07 December 1909 |
| Citation | 74 A. 641,83 Vt. 115 |
| Parties | DELBERT G. LAWSON v. CRANE & HALL |
| Court | Vermont Supreme Court |
October Term, 1909.
CASE for malpractice. Plea, the general issue. Trial by jury at the September Term, 1907, Washington County, Waterman, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment reversed, petition dismissed with costs, and cause remanded.
W A. Lord and W. A. Dutton for the defendants.
Senter & Senter for the plaintiff.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
This purports to be an action on the case against the defendants as surgeons for not properly setting and caring for the plaintiff's broken leg. The declaration contains but one count, which alleges with time and place that the plaintiff employed the defendants to reduce said fracture and set the bone, and take care of the leg till the fracture should become sound and well, and then and there promised to pay the defendants a reasonable compensation for their services and skill in that behalf; that the defendants then and there in consideration thereof, "undertook to reduce said fracture and set the broken bone of the plaintiff's said leg in a proper and skillful manner, and undertook the care and charge of said leg and the cure thereof;" yet that the defendants, not regarding their duty in that behalf, did not reduce said fracture and set said broken bone in a skillful and proper manner, and did not take proper care nor use proper skill in the cure thereof, but on the contrary conducted themselves so carelessly and unskillfully in that behalf that the broken bone was not set and kept in its proper place, but remained out of place so that the ends thereof lapped by each other for the space of two inches, and was permitted so to remain for a long pace of time, etc., so that the bone could not be properly set, and that by reason of the negligence and want of care and skill on the part of the defendants, said leg became sore and painful and shorter than it should be, whereby the plaintiff has suffered great pain and sustained great and permanent injury.
The case was tried by jury and the plaintiff had a verdict. Question is made as to the form of the action. The defendants say it is assumpsit, the plaintiff says it is case. The court called it case, and tried it accordingly, to which the defendants excepted. The defendants also excepted to the overruling of their motion in arrest, for that the verdict was defective, being "guilty" and not "assumpsit." They call the action assumpsit because the word "undertook," as used in the declaration, imports a promise on their part, so that there is alleged a consideration, a promise, and a breach of that promise, assigned negatively in its very words, which makes the action assumpsit and not case. It is true, as the defendants claim, and as is shown by the cases to which they refer, that the word undertook may, and often does, import a promise as used in the concrete case. But whether it does or not depends upon the construction of the pleading, and if its meaning is ambiguous, then, after verdict, it must be taken in a sense that will sustain the verdict, for a verdict cures ambiguity. 1 Chit. Pl., 13th Am. Ed., 268; Huntingtower v. Gardiner, 1 B. & C. 297; Avery v. Hoole, Cowp. 825.
Now although the word "undertook," as used in the first part of the allegation in question, being followed, as it is, by an infinitive phrase, is capable of being construed to import a binding contract on the part of the defendants to do the things mentioned in that part, namely, to reduce the fracture and set the bone in a proper and skillful manner; yet it is also capable of being construed to mean, especially when taken with the rest of the allegation, no more than that they accepted the retainer, and undertook, in the sense of taking in hand, and entering upon, the performance of the duties thereof. This view is strengthened by the way the word "undertook" is used in the last part of the allegation, where it is not followed by an infinitive phrase, but the language is, "and undertook the care and charge of said leg and the cure thereof," which is hardly capable of being construed into a binding obligation. This sustains the verdict, as it makes the action case.
It appeared that at the plaintiff's house, some time after the injury, Dr. Warren, assisted by Dr. Burbank, broke over and set the plaintiff's leg, Dr. Crane administering the anesthetic, but taking no other part in the operation.
The plaintiff, in his opening, called Dr. Crane as a witness, and asked him if he did not consider Dr. Warren's...
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