Kendall v. Brown

• Decision Date: 30 September 1877
• Citation: 1877 WL 9739,86 Ill. 387
• Parties: EDWIN E. KENDALLv.SAMUEL A. BROWN.
• Court: Illinois Supreme Court

86 Ill. 387

1877 WL 9739 (Ill.)

EDWIN E. KENDALL

v.SAMUEL A. BROWN.

Supreme Court of Illinois.

September Term, 1877.

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

Messrs. MILLER & FROST, for the appellant.

Messrs. DOUGLASS & HARVEY, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This appeal brings before us the record in an action on the case, in the court below, by appellee against appellant, for malpractice.

Appellee, in November, 1872, having broken his leg, by accident, employed appellant, a physician and surgeon, to reduce the fracture and treat him on account thereof. Appellant attended upon and treated appellee, under this employment, from the 3d or 6th of November until the 1st of the following December, when he was discharged and another surgeon employed. Appellee suffered long and severely; the leg that was fractured is now shorter by considerable than his other leg, and he is permanently disabled in that limb to an extent that prevents his pursuing, with any degree of success, all avocations requiring much walking--all, as he claims, in consequence of the unskillful and negligent professional treatment of appellant.

The case was before us at the September term, 1874, on the appeal of the present appellant, and was reversed for error of the court below in refusing to give to the jury an instruction asked by him. The evidence on the last trial was, in general, but slightly different from that on the former trial, though we think something more favorable to appellee. But one instruction was given, at the instance of appellee, and that is as follows:

“If the jury believe, from all the evidence in this case, that the plaintiff, having broken his leg, employed the defendant as his physician and surgeon, to set and attend to the same, and that the defendant, holding himself out as a physician and surgeon, undertook and entered upon such employment, and for a considerable time had charge of the same, then the plaintiff was entitled to receive the care, attention and skill of an ordinarily skilled physician and surgeon. And if, from the evidence in this case, the jury believe that said plaintiff did not receive from the defendant such care, attention, and skill, and that in consequence of not receiving the same, and without fault on his part, suffered increased pain, suffering, and injury, then the jury are instructed that the defendant is liable, and the jury will render a verdict for the plaintiff, and assess his damages as found from all the evidence in the case, at some amount not exceeding the three thousand dollars claimed by the plaintiff in his declaration.”

Appellant makes no objection to this instruction as a general statement of the law, but insists that it was not properly limited, because the charge in the declaration relates only to “the improper setting and bandaging of the broken limb, and keeping the bones in place, and using proper splints and supports, etc., for this purpose; the application of improper splints; the neglect to make proper extension of the leg, and so carlessly, negligently and unskillifully treating and attending said leg that the plaintiff lost the use of his leg,” etc.; but that there was also introduced a considerable...