Keller v. Lewis

• Decision Date: 05 November 1898
• Citation: 47 S.W. 755
• Parties: KELLER v. LEWIS.
• Court: Arkansas Supreme Court

Page 755

47 S.W. 755

KELLER v. LEWIS.

Supreme Court of Arkansas.

November 5, 1898.

Appeal from circuit court, Hot Spring county; Alexander M. Duffie, Judge.

Action by Lawrence B. Lewis against James M. Keller for malpractice in setting the bones of plaintiff's elbow. From a judgment for plaintiff, defendant appeals. Reversed.

Cockrill & Cockrill, for appellant. Wood & Henderson, for appellee.

BUNN, C. J.

The defendant asked the following instruction, which was refused by the court: "(9) A physician is responsible for want of ordinary care and skill; and this, too, whether his services are given gratuitously or not. But in this case, if plaintiff knew defendant was going away, and the services of the defendant were given gratuitously, he could only be held responsible for such treatment as he administered personally, and cannot be held for any negligence or want of skill in Dr. Minor." The sentence we have italicized is the only one demanding our consideration. The employment of Dr. Minor constituted an independent contract, and Dr. Keller is not responsible for his negligence or want of skill. Myers v. Holborn (N. J. Err. & App.) 33 Atl. 389; Hitchcock v. Burgett, 38 Mich. 501. The error is a material one, for we cannot say how far it may have influenced the jury in arriving at the verdict on the whole case. There are other minor errors in instructions, but they are not prejudicial. Furthermore, without intending to express any opinion as to whether there is evidence to justify a verdict for some amount or not, the verdict is manifestly excessive in amount, evincing passion or prejudice in the jury, or else that they did not understand the court's instructions as to the damages they were to inquire into. For the errors named, the judgment is reversed, and the cause remanded.