Lane v. Boicourt
| Decision Date | 09 June 1891 |
| Docket Number | 15,079 |
| Citation | 27 N.E. 1111,128 Ind. 420 |
| Parties | Lane v. Boicourt |
| Court | Indiana Supreme Court |
From the Boone Circuit Court.
Judgment reversed.
T. J Terhune and B. S. Higgins, for appellant.
H. C Wills and O. P. Mahan, for appellee.
--The material facts stated in the appellee's complaint are these: The appellant was engaged in the practice of medicine and surgery for fifteen years prior to the 17th day of April, 1883, and represented himself to be skilled as a physician, surgeon and accoucheur. On the day named the appellant was employed by the appellee to give professional care and attention to his wife, for which compensation was to be paid. The appellee's wife was brought to bed in child-birth, and the appellant was employed to give her such professional care as she required to safely deliver the child, and also to bestow upon her such medical and surgical attention as might be needful until her restoration to health. The appellant failed to give his patient the proper support or attention during parturition, but through his efforts caused the period of labor to be shortened, resulting in a laceration and rupture of the muscles connected with the genital organs. The appellant's duty was to at once bring the ruptured parts together and to take measures to cause them to reunite, but this duty he failed to perform, and negligently suffered five days to elapse before attempting to bring the parts together. When he did make the attempt, he did his work so negligently and unskillfully as to cause his patient great injury.
The outline we have given is sufficient to indicate the general scope of the complaint, but in order to determine the question which the appellant's counsel present, it is necessary to refer specifically to some of the allegations of the pleading. The question which counsel present is whether the complaint is in contract or in tort, and this question must, of course, be determined from the allegations of the pleading. It is proper to preface our analysis of the complaint by saying that a plaintiff may elect to sue in tort or in contract. It is probably true that some of the expressions contained in the prevailing opinion in Boor v. Lowrey, 103 Ind. 468, 3 N.E. 151, indicate a different doctrine, but the limitation placed upon that decision when the case was in this court for the second time, authorizes the conclusion that it was not adjudged on the first appeal that a plaintiff may not elect to sue in contract, and thus waive the tort. Hess v. Lowrey, 122 Ind. 225, 23 N.E. 156. The later decisions, as well as the earlier, very clearly assert that the tort may be waived, and an action brought upon the contract. De Hart v. Haun, 126 Ind. 378, 26 N.E. 61; Goble v. Dillon, 86 Ind. 327 (44 Am. R. 408); Hoopingarner v. Levy, 77 Ind. 455; Burns v. Barenfield, 84 Ind. 43; Coon v. Vaughn, 64 Ind. 89; Staley v. Jameson, 46 Ind. 159. The decisions elsewhere fully recognize the rule that the action may be maintained upon the contract of the surgeon. Gladwell v. Steggall, 5 Bing. (N. C.) 733; Pippin v. Sheppard, 11 Price, 400. In Nelson v. Harrington, 1 Law. Rep. Ann. 719, it is conceded that an action will lie on the contract, but it was held that the allegations in the complaint before the court respecting the contract were mere matters of inducement.
Assuming that an action will lie upon a contract where facts are properly pleaded, we shall briefly give the result of our analysis of the appellee's complaint. It states that the appellee employed the appellant and promised him compensation, and this, according to the English rule, is a controlling element. It avers, although very loosely, that the appellant contracted with the appellee to render the required services. It also contains this statement, "and the plaintiff alleges, as a breach of said contract, that the defendant failed to give the plaintiff's wife the proper attention." In our opinion the complaint is in contract and not in tort, for the averments referred to show that the pleader relied upon the agreement. The complaint can be much improved by amendment, but, as the question comes to us, we hold it sufficient as a complaint upon a contract, although we think a motion to make more specific would compel ...
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