Hills v. Shaw

• Decision Date: 30 December 1913
• Parties: HILLS v. SHAW.
• Court: Oregon Supreme Court

137 P. 229

69 Or. 460

HILLS v. SHAW.

Supreme Court of Oregon

December 30, 1913

Department 1.

Appeal from Circuit Court, Josephine County; F. M. Calkins, Judge.

Action by Thomas Curtis Hills against H. M. Shaw. From a judgment for plaintiff for $6,,000, defendant appeals. Reversed and remanded, with directions to enter a judgment of nonsuit.

H. D. Norton, of Grants Pass, for appellant. C. L Reames, of Portland (R. G. Smith, of Grants Pass, on the brief), for respondent.

BURNETT J.

It appears in the record that the plaintiff's leg was broken on June 4, 1910; that the defendant was called to treat the same and undertook to reduce the fracture. It is admitted that at all the times mentioned in the pleadings he was a physician and surgeon practicing his profession in Ashland Or. The complaint specifies the negligence imputed to the defendant in these words: "That the negligence unskillfulness, and carelessness of the defendant of which the plaintiff complains herein consisted of the defendant's not bringing and keeping said broken parts of said bone into apposition together; in placing said bone and said leg, while said broken parts were not in apposition together, and while said broken parts of said bone overlapped each other in a wire splint or mesh and afterwards in a plaster cast, and in permitting and suffering said leg and said bones to remain in that position and condition for 16 weeks, thus rendering it impossible for said broken bones to either unite, heal, or to grow together." The court overruled a motion made by the defendant to require the plaintiff to make the complaint more definite and certain so as to show with greater particularity what act or duty the defendant failed to perform in attempting to bring the parts of the fractured bone into apposition. The answer admitted the breaking of the bone, and that the defendant attended the plaintiff for the purpose of treating him on that account. It alleges that the defendant reduced the fracture by the application of treatment and methods generally used and applied in such cases, and by an approved and recognized system of surgery that he attended the plaintiff up to July 23, 1910, when the defendant removed to Coos county, Or., and thereupon terminated his attendance upon the plaintiff with the latter's consent, and that thereafter he never treated the plaintiff in any manner. It is admitted in the reply that on July 23, 1910, the defendant was about to remove from Ashland to Coos county, and left the plaintiff in care of another physician of Ashland, who continued to treat the plaintiff for about a period of one month afterwards; but the reply further alleges that the second physician was acting solely for the defendant. At the close of plaintiff's case the defendant moved for judgment of nonsuit on the ground that the plaintiff had failed to prove a cause sufficient to be submitted to the jury. This motion was overruled, and at the close of the whole case on the testimony the defendant moved the court to direct a verdict in his favor on the ground that the plaintiff had proved no cause of action against the defendant. The court also refused the motion of the defendant to set aside the verdict against him. The rulings of the court upon these several motions constitute the assignments of error relied upon by the defendant on this appeal.

We will consider only the ruling of the court upon the motion to make the complaint more definite and certain, and the decision on the motion for nonsuit. It is safer and better pleading, in cases like the one in hand, for the plaintiff to set out with particularity the acts or omissions counted upon to establish the negligence imputed to the defendant. We are not prepared to say, however, that the court was in error in refusing the motion to make the complaint more definite.

In Cederson v. Navigation Co., 38 Or. 343, 62 P. 637, 63 P. 763, one of the defendant's trains left the rails on which it was running, and killed plaintiff's decedent, who was walking near the track. Negligence was imputed to the defendant in general terms in connection with the death of the decedent. The court declared in that case that "it cannot be supposed that strangers should be intimately cognizant of the immediate condition of the appliances and the exact manner of the management and operation of a railroad and its engines and cars. These are matters peculiarly within the specific knowledge of the persons or company having the road in charge. * * * Under such conditions, it was not error to deny the motion: Chicago City Ry. Co. v. Jennings, 157 Ill. 274, 41 N.E. 629; Young v. Lynch, 66 Wis. 514, 29 N.W. 224; Atchison, etc., R. R. Co. v. O'Neill, 49 Kan. 367, 30 P. 470; San Antonio, A. & P. Ry. Co. v. Adams, 6 Tex. Civ. App. 102, 24 S.W. 839; Fitts v. Waldeck, 51 Wis. 567, 8 N.W. 363." In approving this case, Mr. Justice Slater, in Kennedy v. Hawkins, 54 Or. 164, 168, 102 P. 733, 734 (25 L. R. A. [N. S.] 606), said: "It is always necessary in pleading negligence to allege that some act was negligently done, or that something that ought to have been done was omitted, but it is not necessary to set forth the particular facts that show the act or omission to have been negligent. * * * This, however, does not relieve the plaintiff from proving a particular act of negligence upon which she bases her right to recover. * * *"

The court was not wrong in denying the motion to make the complaint more definite.

The testimony for the plaintiff shows this state of facts: The defendant was called to treat the broken leg on June 4, 1910, assisted by Dr. Brower, who administered the anæsthetic. After adjusting the broken parts of the bone, the defendant first applied wire splints, surrounding the thigh, and attached a weight hung over a pulley so as to keep the leg in extension and prevent lapping of the bones, with consequent shortening of the limb. A few days later, when the swelling had subsided somewhat, the dressing was changed, and a plaster cast was put around the limb with the extension weights still applied. The cast was changed from time to time as the swelling decreased further, and on July 23d of that year the defendant notified the plaintiff of his intention to remove to Coos county, Or., and left the case in charge of Dr. Brower. To all appearances, so far as the testimony discloses, the leg was treated by the usual methods known and approved by reputable surgeons. About a week after the defendant had gone, Dr. Brower removed the cast, installed another one, and removed the extension weights. About this time the plaintiff began to sit up in bed, and later got up, moved about the hospital on crutches, and sat up almost daily on the porch. Some time during the month of August, Dr. Brower took the plaintiff in his automobile into the town of Ashland, assisted him out upon the street, and left him to himself for possibly an hour. The plaintiff testifies that during the time he was moving about the town he began to suffer excruciating pain in his leg, and was compelled to go into a store and sit down with the leg propped up. Dr. Brower took him back to the hospital, and, as he testifies, began to suspect soon afterwards that a union of the bone had not been achieved. He then called other surgeons, who confirmed his suspicion that the bone had not united, and on September 19th they operated upon the leg by cutting into it at the point of fracture. It was then discovered for certain that the bone had not united, that the ends had slipped past each other about two inches, and that in so doing the lower fragment had turned halfway round upon its axis, so that the two ends of the oblique fracture were, as one witness puts it, "back to back." In the operation which ensued it became necessary to remove part of the bone, so that when the fracture finally healed the plaintiff's right leg was about three inches shorter than the other. The question to be determined is whether there is proof of negligence on the part of the defendant sufficient to be submitted to the jury.

It is not urged that the defendant was not possessed of the requisite skill and ability to practice...