Kuhn v. *(Holt

• Decision Date: 03 December 1890
• Citation: 34 W.Va. 252
• Court: West Virginia Supreme Court
• Parties: Kuhn v. Brownfield.*(Holt, Judge, absent.)

34 W.Va. 252

Kuhn

v. Brownfield.*(Holt, Judge, absent.)

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1890.

Decided December 3, 1890.

1. Amendment.

In case of variance between allegation and evidence appearing on trial of an action at law, such amendments of pleadings should be allowed as tend to promote the fair trial of the matter in controversy, on which the action was originally really based, provided such amendments do not introduce a new substantive cause of action different from that declared upon, and different from that which the party intended to declare upon when he brought his suit. Amendments are not to be allowed which are inconsistent with the nature of the pleadings or change the cause of action. Allegations may be changed and others added, provided the identity of the cause of action is preserved.

2. Amendment Pleading Statute op Limitation.

When an amendment to a declaration is properly allowed, according to the rule above stated, so far as regards the statute of limitation, it will have the same effect as if it had been originally filed in the amended form at the commencement of the suit, and a cause not then barred will not be treated as barred at the time of the amendment by reason of such amendment. Lamb v. Cecil, 28 W. Va. 653.

3. Malpractice.

Where a physician or surgeon is employed to treat a patient without any express special contract defining the character and extent of his duty and undertaking, either an action of assumpsit or case may be maintained for the breach of the implied obligation arising from such employment caused by unskillful, negligent, and improper treatment of the patient.

4. Malpractice Statute oe Limitation.

In such action for such cause, whether assumpsit, or case, one year is the period which is applicable under the statute of limitation.

J. Basset and W. G. Linn for plaintiff in error cited:

10 X. II. 338; 48 Am. Dec. 482; 2 Cliitt. PI. (1859) 82;

4 Rob. Pr. 627; 6 T. R. 543; 34 Am. Dec, 155; 6 W. Va.

336; 24 W. Va. 206.

A. F. Haymond and U. N. Arrat for defendant in error cited:

Code (1860) c. 171, s. 14; Code (1868) c. 125, s. 12. Warth's Code c. 125, s. 53; Id. pp. 712, 713; 29 W. Va! 740, 742, 743; 32 Graft. 203-208; 23 W. Va. 14; 28 W. Va 583; 7 Ohio 462; Wright (Ohio) 466; 48 Am. Dec. 482, n.; 27 K H. 460; 6 Kan. 46; 17 Ohio St. 255; 21 Tex. Ill; 1 Mich. K", P. 109; 7 Ohio 462; 51 Me. 596; 59 Am. Dec. 388; Ewell Malprac, 20, 142, 143; 81 Am. Dec. 593; 24 W. Va. 206; 72 Wis. 591; 6 W. Va. 336; 25 Pa. St. 407; 44 Pa. St. 454; 3 Robt. 621; 22 N II. 339; 42 K II. 70; Burt v. Pom. 47 N". II.

Brannon, Judge:

This was an action of assumpsit in the Circuit Court of Marion county, by John Kuhn, resulting in a judgment of nil capiat for the defendant, J. II, Brownfield, to which plaintiff has taken this writ of error.

The appellant's first assignment of error is in the allowance of pleas one and four. We will examine this question. The declaration alleged that plaintiff had been wounded and hurt, and that his hip-joint bad been dislocated; and that the defendant represented and held himself out to be a surgeon, skillful, careful and competent to treat and cure dislocations; and that the plaintiff retained and employed the defendant in the way of his business as physician and surgeon to examine and treat his injury, bruise and dislocation, and to reduce such dislocation, and set the bones of his hip-joint, and to cure and relieve such bruise, injury, and dislocation; and that, in consideration thereof, and of certain reward to be paid by the plaintiff to the defendant, the defendant undertook and faithfully promised the plaintiff that he would examine and surgically treat said bruise, injury, and dislocation, and reduce the dislocation and set the bones of said joint in a skillful, careful, and proper manner, and cure the injury; and that the plaintiff submitted himself to the treatment of defendant; and that the defendant, not regarding his promise and undertaking, but contriving and intending to injure the plaintiff, did not treat the plaintiff in a skillful, careful or proper manner, and did not use, exercise, or apply surgical or medical skill in and about the treatment or cure of said injury and dislocation, and about the reduction of said dislocation or setting the bones of the hip-joint, and did not reduce the dislocation, nor set nor adjust the bones of the hip-joint, as in the exercise of proper skill and care he ought to have done, but wholly neglected so to do, and, on the contrary, so unskillfully, carelessly, negligently and improperly examined and treated said injury and dislocation, "that by and through the mere unskillfulness, carelessness and improper conduct of the said defendant" the said hip-joint remained still dislocated and out of joint, and must so continue during the life of the plaintiff, and that the plaintiff merely by reason of such carelessness, unskillfulness and negligence of the defendant remained hurt, lamed, and decrepit, and would so continue lame and infirm, and unable to use his leg and unable to perform his accustomed labor.

Upon a trial before a jury the defendant moved the court to exclude the plaintiff's evidence because it did not sustain the allegations of the declaration, but was variant therefrom, and then the court allowed the plaintiff to amend his declaration by striking out the words " reduce and cure," and the words " and cure," and the words " and to reduce the said dislocation and adjust and set the hones, and to cure and relieve the said bruise, injury, and dislocation," and the words " and cure the said injury," and the words " and to have the said dislocation reduced and made well and said injury cured." The jury was discharged without rendering a verdict, on motion of defendant. Afterwards the defendant filed pleas one and four as follows:

"No. 1. The defendant says that the plaintiff his said action against him ought not to have and maintain, because the defendant says that the supposed cause of action mentioned and set forth in the plaintiff's declaration in the cause as amended in court, by leave of the court, to wit, on the 19th day of March, 1888, did not accrue to the said plaintiff" within one year next before the day the plaintiff amended his said declaration in this cause in court, by leave of the court, towit, the said 19th day of March, 1888; and this the said defendant is ready to verify."

"No. 4. The defendant says that the plaintiff his said action against him ought not to have and maintain, because the defendant says that the said plaintiff did not commence his said action against the said defendant for the supposed cause of action mentioned and set forth in the plaintiff's declaration in this case within one year next before the said supposed cause of action accrued to the said plaintiff*. And this the defendant is ready to verify."

The plaintiff demurred to said pleas, and, his demurrer being overruled, and the court having offered leave to the plaintiff to file replications to said pleas, and the plaintiff declaring that he did not desire to file any replication to them, and declining to make up any issue on them, the court gave judgment for defendant.

The defendant contends that the amendment introduced a new cause of action, and that as to that cause of action declared upon in the declaration as amended the statute of limitations did not stop at the commencement of the action, but ran on until the date of the order of amendment (19th of March, 1888) and that therefore his plea that action did not accrue within one year before that date is good; while the plaintiff contends that such amendment did not introduce a new cause of action, and that the statute notwith- standing such amendment must be held to stop at the date of the summons commencing the action 15th of April, 1887. '

The theory of the defendant to sustain his claim, that the amendment introduces a new cause of action, is that the declaration, as it was before the amendment, averred that his undertaking was to cure the injury of the plaintiff, which must necessarily be based in law on an express and special contract to cure, not simply one to treat the ailment; that the mere engagement of a surgeon to treat a patient carries with it no implied undertaking to cure, and that the language of the declaration in alleging an undertaking to cure must necessarily be taken as based on an express, special contract to cure the plaintiff's hurt whereas the amendment striking out allegations as to cure leaves it based on a mere engagement to treat the patient, which carries with it only an implied obligation to treat to the best of his skill and judgment.

It is true, that a physician or surgeon without a special contract for the purpose never stipulates for the successful conclusion of his service, nor is he ever a warrantor or insurer, and his implied contract with his employer is, that he possesses that reasonable degree of learning, skill and experience, wdiich is ordinarily possessed by professors of the same art or science; that he will use reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge; that he will use his best judgment as to the treatment of the case intrusted to him. Leighton v. Sargent, 27 N. II. 460 (59 Amer. Dec. 388) and cases cited in note, Patten v. Wiggin, 51 Me. 594 (81 Amer. Dec. 593) and note.

But though we be compelled to view the declaration, as it was before amendment, as one founded on an express contract to cure, I do not think that it by any means follows, that an amendment so changing it that it came to be founded on the simple retention of the defendant for service in treating his patient, carrying with it the implied contract or undertaking to possess and exercise reasonable skill, and alleging negligent treatment, would introduce a new, distinct and substantive cause of action. Whether the contract for such service he express or...