Kendall v. Brown

• Citation: 74 Ill. 232,1874 WL 9114
• Parties: EDWIN E. KENDALLv.SAMUEL A. BROWN.
• Decision Date: 30 September 1874
• Court: Supreme Court of Illinois

74 Ill. 232

1874 WL 9114 (Ill.)

EDWIN E. KENDALL

v.SAMUEL A. BROWN.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action on the case, brought by Samuel A. Brown against Edwin E. Kendall, to recover damages sustained by the unskilltul treatment of a fractured leg of the plaintiff by the defendant, as a surgeon. A trial was had in the court below, resulting in a verdict and judgment of $1,375.17 1/2, from which judgment the defendant appealed.

Messrs. MILLER & FROST, for the appellant.

Messrs. DOUGLASS & HARVEY, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Appellant is a physician and surgeon, and as such was employed to treat appellee. There is no controversy as to his employment, and that he treated appellee for a period of twenty-nine or thirty days, visiting him every day with the exception of one or two days. The declaration counts upon such employment, that he so unskillfully and carelessly treated appellee's injury that his leg became shortened one and one-half inches, and thereby he suffered great pain. The gravamen of the action is, that through the unskillful treatment of the surgeon in charge, appellee's leg became so much shortened he lost the comparative use of it. The pain alleged to have ensued is set forth by way of aggravation of damages.

On this, the principal question, there is a marked conflict in the evidence, so much so, as to render it doubtful which party ought to succeed. There is no decided preponderance in favor of either party. Commonly, in such cases, we should regard the finding of the jury as settling the controverted facts. And without expressing any opinion as to which way is the weight of the evidence, we should, perhaps, be inclined to do so now, had the jury been accurately instructed as to the law of the case.

Appellee, either through inevitable accident or the unskillfulness of the attending surgeons, or one of them, has sustained a severe, permanent injury. On the other hand, appellant's professional character is involved in the result. These considerations have induced a most careful and painstaking investigation of the case. We forbear, at this time, to remark upon the evidence, the sufficiency of which to sustain the verdict has been questioned by one assignment of error, for the reason the decision at this time will be placed on other grounds.

That the third instruction asked by appellant and refused by the court, states a correct principle of law, can hardly be doubted. It is, in substance, that if appellee's leg became shortened in consequence of the fracture or during the course of treatment subsequent to the fracture, then appellant is not liable in damages therefor, unless the shortening was due to the want of reasonable care and skill on his part, and if the extension of the limb could not well and safely be effected, nor the means and appliances for that purpose be safely used, before what is called the bony union commenced, and that bony union, under proper treatment, would not and did not commence before appellant was discharged and appellee placed under charge of another surgeon; and if the shortening could be prevented at all it could only be done by the use of proper extension applied when the bony union did commence, and continued until ossification had sufficiently progressed to hold the leg at its proper length, then appellant would not be chargeable.

The principle of this instruction was all important to the defense. No other given, contained so full and accurate a statement of the law on this branch of the case. Its materiality will be more readily appreciated by a reference to some of the principal facts.

Whatever defects there may have been in appellant's statement prior to his discharge, there is some evidence that tends to show the shortening of appellee's limb was not necessarily the result, and this instruction was better calculated than any other given, to direct the attention of the jury to that theory of the case.

The medical testimony all shows that in the earlier stages of the treatment there are a great many difficulties to be encountered in keeping the fractured limb in proper position, and great difficulties...