Hanselman v. Carstens

• Decision Date: 17 February 1886
• Court: Michigan Supreme Court
• Parties: HANSELMAN v. CARSTENS.

27 N.W. 18

60 Mich. 187

HANSELMAN v. CARSTENS.

Supreme Court of Michigan

February 17, 1886

Error to superior court of Detroit.

January & Potts, for plaintiff and appellant.

John G. Hawley, for defendant.

SHERWOOD J.

The plaintiff in this case resides in Detroit, and is over 50 years of age. On the eighteenth day of September, 1880, she fell and broke one of her lower limbs midway between the foot and the knee, sustaining what is called a compound fracture of the limb. The defendant, who is a physician and surgeon then practicing in that city, was employed to reduce the fracture, and give her such treatment thereafter as her case required. The plaintiff alleges that the defendant negligently set the limb, and carelessly and unskillfully performed the services rendered, and she brings her suit to recover the damages she has sustained by reason of the defendant's malpractice in the premises. Her counsel states her case against the defendant in two counts. The declaration will be found in the margin. ^[1]

The defendant demurred specially to the declaration, specifying the following causes, viz.: "(1) That it does not set forth the facts or circumstances on which the negligence of the defendant is based and predicated; (2) that it does not allege any duty on the part of the defendant, or what the particular duty of the defendant, in treating the leg of said plaintiff, may have been; (3) that it does not, with sufficient particularity set forth in what regard this defendant was negligent in treating the leg of said plaintiff; (4) that it does not show with sufficient particularity in what the defendant did not show proper skill, and in what regard or manner the defendant failed to bestow due care and attention to the said plaintiff, in the treatment of the leg of said plaintiff; (5) that it does not positively allege any negligence, carelessness, and unskillfulness on the part of the defendant; (6) that it is ambiguous in that it does not allege, with sufficient plainness, whether the defendant used no medicaments, appliances, etc., at all, or whether he did use medicaments, appliances, etc., but such as were not sufficient and proper; and also that the said declaration is in other respects uncertain, informal, and insufficient," The demurrer was sustained by the judge of the superior court of Detroit, and final judgment entered for the defendant, with costs. The plaintiff brings error.

The defendant was a physician and surgeon. Good pleading required the plaintiff by a specific averment to state the duty he owed to the plaintiff.

The declaration states he was such physician and surgeon, and as such was employed by the plaintiff to set her broken limb, and give her the necessary care and medical treatment. The averment of such employment was a sufficient averment of his duty under such circumstances.

The remaining causes of demurrer specified may be considered together. The statement of the facts and circumstances material and necessary to show a cause of action are not very full or specific, but we think are sufficient to apprise the defendant upon what the plaintiff relies for recovery,--are traversable, and, if proved, will entitle her to maintain her action. The declaration avers her injury, its character, and her illness; the professional character and ability, and her employment, of the defendant in that character; his undertaking her treatment in his character as physician and surgeon, and his promise that he would within a reasonable time carefully and skillfully treat, set, cure, and heal her broken limb; would look after and care for her health and constitution during the time of the necessary treatment of her broken limb, and would not, without reasonable notice or just cause, quit such treatment or abandon her case. She further avers that the defendant carelessly, negligently, and unskillfully conducted himself in and about her case; that he did not properly set her broken limb; that he did not use proper care or skill in treating her, or in setting her limb; that he did not give proper attention, use proper medicaments, appliances, or skill in the setting and treating her broken limb; that he caused the bones of the leg to override and overlap, and the leg to become shortened and diseased, and her health to be ruined; that he did not, by the use of proper means, keep the bones of the leg in apposition, and did not place them in apposition, and by reason of such gross neglect and carelessness, inattention and mistreatment, she is greatly injured; and that he, without any notice or cause, deserted and abandoned her case, leaving her in an incurable condition, and without hope of recovery. Such is the substance of the averments contained in the declaration. The facts required to be stated in the declaration, like those found by a special verdict, are deduced from other facts, to be found from the testimony, and must be such as will enable the court to declare the law in the case; so that it will be seen that the facts upon which the rights of the plaintiff are made to depend are in a certain sense conclusions, but are nevertheless the kind of facts required in pleading in stating the plaintiff's cause of action, while the others are the testimony furnishing the evidence of those facts, and not proper to be given in the declaration. 2 Chit.Pl. 650; Bliss, Code Pl. � 211; Grinde v. Milwaukee & St. P.R. Co., 42 Iowa, 376; Oldfield v. New York & H.R. Co., 14 N.Y. 310; Clark v. Chicago, M. & St. P. Ry. Co., 28 Minn. 69; S.C. 9 N.W. 75; Nolton v. Western R. Corp., 15 N.Y. 444. This we understand to be the rule, and which is in harmony with the views heretofore expressed by this court, so far as it has said anything upon the question. Lucas v. Wattles, 49 Mich. 382; S.C. 13 N.W. 782.

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