Mayo v. Wright

• Decision Date: 07 October 1886
• Citation: 29 N.W. 832,63 Mich. 32
• Court: Michigan Supreme Court
• Parties: MAYO v. WRIGHT.

29 N.W. 832

63 Mich. 32

MAYO v. WRIGHT.

Supreme Court of Michigan

October 7, 1886

Error to Kent.

Tatem & Jamison, for plaintiff, Winslow M. Mayo.

Smiley & Earle, for defendant, Philander B. Wright.

CHAMPLIN, J.

The defendant is a physician and surgeon practicing his profession at Corinth, in the county of Kent. In October 1882, the plaintiff was engaged in felling a tree, which, in falling, split at the butt, darted back, and caught plaintiff's right leg between the knee and the ankle, and fractured both bones at about the junction of the middle and lower third, so that both bones protruded through the skin. The soft tissues were torn, and the leg scraped both above and below the wound where the bones protruded.

The calf of the leg, a little above the point of fracture, was scraped, and the outside was off so that the blood was trickling through. Both sides of the ankles were bruised. The upper leather of the heel of the shoe which plaintiff wore was torn from the sole, and the rent extended around to the instep. The defendant was called to reduce the fracture, and care for plaintiff, and to render him such surgical aid as his injury required. He remained under defendant's treatment above three months, when it was found that a bony union had not formed. A provisional callus had formed, but it resulted only in a cartilaginous union. This action is brought to recover damages for what plaintiff claims was malpractice in defendant's treatment of the case.

Plaintiff avers in his declaration that defendant was a practicing physician and surgeon, and held himself out to the public as possessed of the requisite skill, knowledge, and qualifications to practice medicine and surgery, and, as such physician and surgeon, it was his duty and business, among other things, to set, adjust, heal, and cure broken limbs and bones; and that, while defendant was exercising his profession, he employed him, for reward, to treat, care for and cure his broken leg. "Yet the said defendant, being such physician and surgeon as aforesaid, not regarding his duty during that time, then and there so unskillfully negligently, and carelessly adjusted the bones of the said broken leg, and did so unskillfully, negligently, and carelessly care for, adjust, and treat the same, during the time aforesaid, that by and through his, said defendant's, want of care and skill the fractured or broken leg aforesaid has not since united or healed: that there has resulted, at the place of said fracture, a false joint or ligamentous union, and that said plaintiff has ever since, up to the time of the commencement of this suit, been disabled from work by reason of said negligent, careless, and unskillful treatment of the same thereafter."

At the opening of the case to the jury the plaintiff's counsel stated to the jury that the plaintiff claimed improper treatment of the plaintiff's leg in the following respects: (1) The limb was too tightly bandaged; (2) that it was improper to remove the splints daily, as it left the fracture liable to be moved; (3) that the foot was left unsupported, and allowed to settle down out of shape; (4) that it was improper not to include the joint above and the joint below the fracture in the bandage; (5) that the plaintiff was kept too long in bed, and should have been allowed to get up sooner. Upon the argument in this court the plaintiff says: "The plaintiff's claim is that this non-union is the result of negligent, careless, and unskillful treatment of the defendant, and this action is brought to recover damages resulting from such treatment." This, he says, was insisted upon throughout the trial in the court below, and that he introduced evidence to support that theory. He then states that the treatment was negligent, careless, and unskillful in the five particulars stated above. This brings us to consider, at this point, the eighteenth, nineteenth, and twentieth assignments of error.

Defendant's counsel contends that the plaintiff excluded himself by his declaration from the right to claim want of qualification and skill in the defendant to practice the profession of surgery and that the whole case was tried on the part of the plaintiff without any effort to show general incompetency. The record contains the statement that "there was no testimony offered upon said trial to show general incompetency as a physician and surgeon on the part of the defendant, or want of skill on his part, except such as is set out in this bill of exceptions." The record further discloses that the "counsel for plaintiff, in the course of his argument to the jury, after the testimony was closed, claimed and insisted that the defendant was generally incompetent, and did not possess the necessary qualifications and skill to entitle him to practice surgery, and further argued to the jury that the defendant was more of a farmer than a surgeon, and that he devoted too much of his time to farming to enable him to become a competent surgeon."

Two ways are open for counsel for the defendant when the plaintiff's counsel, in his closing argument to a jury, takes positions not warranted by the pleadings and evidence. One is to object to the statements of counsel, and obtain a ruling of the court upon them as to whether they are proper or improper to be made; the other is to request the court to instruct the jury upon the point, so that any false or erroneous positions may be corrected. The latter is the preferable method, as it conduces to a more orderly and seemly disposition of the matter in dispute; while a resort to the former interrupts argument, and is apt to foment contention and distract the mind of the jury. Defendant chose the latter method, and, in view of the argument made by counsel for the plaintiff, requested the court to charge the jury as follows:

"(1) The declaration in this cause does not allege that the defendant did not have the necessary skill and qualifications requisite to the performance of the duties of the profession followed by him, and, under the pleadings and the evidence in the cause, the jury must take as conceded that the defendant, at the time he undertook the treatment of the plaintiff's broken leg, was possessed of the learning and skill necessary to be employed in the suitable care and treatment of the case in question.

"(2) The plaintiff, under his declaration and the proofs in the case, is not at liberty to claim general incompetency on the part of the defendant to properly set his broken leg.

"(3) In this case, the plaintiff must, if he recover at all, do so on the ground that the defendant did not properly and sufficiently exercise the skill which he in fact possessed."

Each of these requests the circuit judge refused to give to the jury, and did not cover them in his instructions either in form or substance.

The defendant had been asked on his cross-examination, and had been permitted to testify, against defendant's objection to the relevancy of the testimony, that he had had the management of the farm that he owned, but had not personally been engaged largely in farming pursuits. This testimony certainly did not tend to show general incompetency to practice his profession of surgery, and was totally insufficient to found an argument of general incompetency upon. Under the declaration and claim of plaintiff, and under the evidence introduced, it was improper, at that stage of the proceedings, for the plaintiff's counsel to urge to the jury general incompetency as a ground of recovery. From all the medical testimony his treatment appears to have been that ordinarily practiced by the profession. The contention was whether he used...