Goodsell v. Seeley

• Decision Date: 12 October 1881
• Citation: 46 Mich. 623,10 N.W. 44
• Court: Michigan Supreme Court
• Parties: GOODSELL v. SEELEY.

10 N.W. 44

46 Mich. 623

GOODSELL v. SEELEY.

Supreme Court of Michigan

October 12, 1881

When exceptions are taken indiscriminately to every paragraph of the charge, they will be treated the same as if one general exception had been taken to the whole charge; and if any part of the charge is correct the exceptions will be overruled.

After the jury had retired they returned into court and informed the judge that they had not agreed, but "stood eleven to one, and divided on $200." He thereupon told them "if that is the only difference it would be better for the county and the parties on both sides that one or both sides yield so as to come together. It would be unfortunate for all to have a disagreement when the difference is so small." Held, to be error.

Error to Macomb.

Crocker & Hutchins, for plaintiff in error.

J.B Eldredge, for defendant in error.

COOLEY J.

The defendant in error, an infant, brought suit against Goodsell who is a physician, for malpractice in setting her arm. Goodsell had treated the injury as a fracture of the humerus but after two or three weeks it was discovered that there was a dislocation at the elbow, and another physician was called in, by whom the dislocation was properly treated. There was a fair question on the evidence whether Goodsell had been laboring under any mistake in his treatment; whether the fracture for which he treated the child had not existed in fact, and whether the child had not caused the dislocation by engaging in rough and violent sports while her arm was progressing favorably under the physician's treatment. The jury, however, found against him, and he brings error. The printed record contains upwards of 200 pages. Many exceptions are taken, some to the admission or rejection of evidence, but the majority to the instructions given or refused. I find no error in the rulings on evidence. The defendant offered in writing a number of requests for instructions, all of which were refused and the judge gave instructions which he evidently meant should cover the whole case. I think it proper to copy from the bill of exceptions the whole of these instructions, with the exceptions that were taken to them as there set forth:

"The said circuit judge then on his own motion instructed the jury as follows, to-wit: 'There is no question made, in fact it is conceded, that the defendant was a professed and practicing physician and surgeon and that he held himself out to his neighbors and the country round about as a physician and surgeon. As such he undertook to treat the plaintiff when called to attend her, early in October, 1877, for an accident which had befallen her resulting in an injury to her arm.' To which opinion and instruction the counsel for the defendant did then and there except.

"The said circuit judge further instructed the said jury: 'And the plaintiff claims in her declaration she was not treated in a careful, skilful and proper manner, but that the doctor's treatment of her was negligent, careless and unskilful, and she claims to have sustained injury by reason of such careless, unskilful and improper treatment, and she seeks to recover of the defendant damages for the injury she has thus sustained. The doctor denies that he has so treated her.' To which opinion and instruction the counsel for the defendant did then and there except.

"The said circuit judge further instructed the said jury: 'The plaintiff's case must be made out by a fair preponderance of proof, and all I can do to aid you in determining this matter is to give you such few general rules relative to the duties and obligations of the doctor as the law has prescribed and these being given you, the facts in the light of these legal rules are for you to determine.' To which opinion and instruction the counsel for the defendant did then and there except.

"The said circuit judge further instructed the said jury: '(1) Then there was an implied promise on the part of the doctor that he himself possessed that reasonable degree of learning, skill and experience which is ordinarily possessed by members of the medical profession, and which is ordinarily regarded by the community and by those conversant with the profession as necessary and sufficient to qualify him to engage in the business.' To which opinion and instruction the counsel for the defendant did then and there except.

"The said circuit judge further instructed the said jury: '(2) The doctor undertook and promised impliedly, at least, to use reasonable and ordinary care and diligence and his best judgment in the exertion of his skill and the application of his knowledge to accomplish the purpose for which he was employed. ...