Miller v. Dumon

• Decision Date: 20 April 1901
• Citation: 64 P. 804,24 Wash. 648
• Parties: MILLER v. DUMON.
• Court: Washington Supreme Court

64 P. 804

24 Wash. 648

MILLER v. DUMON.

Supreme Court of Washington

April 20, 1901

Appeal from superior court, Lewis county; H. S. Elliott, Judge.

Action by Allen Miller against J. H. Dumon. From a judgment for plaintiff, defendant appeals. Affirmed.

A. E. Rice, Geo. Dysart, and M. A. Langhorne, for appellant.

J. B Landrum and Reynolds & Stewart, for respondent.

FULLERTON J.

The respondent brought this action against the appellant, who is a physician and surgeon, to recover for injuries alleged to have been caused him by the appellant's negligent treatment of an injury from which he was suffering. The undisputed evidence shows that the respondent met with an accident early in July, 1896, which a Dr. Francis, who was employed by respondent to attend him, pronounced a fracture of the tibia of the left leg; that Dr. Francis treated the injured limb as for a fracture until some 10 or 12 days later, when the appellant was called in to examine the injury; that the appellant responded to the call, made an examination of the injury, and told the respondent that there was no fracture of the bones of the leg, but that he was suffering from a severe sprain. As to what further occurred during this visit there is a square contradiction in the evidence. The respondent's testimony is to the effect that the appellant undertook to treat the injury, stating that the treatment prescribed by Dr. Francis was improper and liable to result in a permanent stiffening of the knee joint that he unwound the bandages from around the limb which had been put on by Dr. Francis, removed the splint in which it was incased, and directed the respondent to get up and put on his clothes, assisting him in so doing; that he directed him further to get a pair of crutches, and come over to his office, when he would put a rubber bandage on the knee. The appellant denies that he undertook to treat the injury. While he admits that he examined the leg at the respondent's request, and expressed the opinion that no bones were fractured, he testifies that there were no bandages on the leg when he examined it; that he said nothing concerning the treatment prescribed by Dr. Francis, gave no advice as to its proper treatment, but told the respondent to continue under the treatment of Dr. Francis; telling him also that he would not undertake the case, and giving at the same time his reasons for refusing. It is undisputed, however, that as a result of this visit the respondent sent a note to Dr Francis telling him he did not require his services longer; that he did get out of bed, and put on his clothes, did procure a pair of crutches, and undertake to use the injured limb, and that while so doing the leg gave way in some manner, causing the appellant much pain and suffering, and compelling him to retake to his bed. The appellant also testifies that on retaking to his bed he sent for the appellant, who, for some reason, did not answer the call; that he then sent for Dr. Francis, who treated the case until treatment was no longer beneficial. The final result of the whole matter was a permanent injury to respondent's leg. Other matters of evidence material to be considered will be stated further on. The trial resulted in a verdict and judgment for the respondent.

The court charged the jury that under the issues as made by the pleadings there could be no recovery on the part of the respondent unless the jury should find from the evidence that the respondent's leg was in fact broken. The appellant urges that this instruction, whether right or wrong, became the law of the case, which the jury were bound to obey, and that the overwhelming weight of the evidence was to the effect that the leg had not been broken. We are asked to reverse the case and grant a new trial on this ground. On this question it may be that the weight of the professional testimony was to the effect that there had been no fracture of the bones of the injured limb, but the evidence was contradictory. There was substantial testimony the other way, sufficient of itself to support the verdict of the jury. In such a case, as we have repeatedly held, it is not within the province of this court to overrule the verdict, but it must stand, even though we may believe that the weight of the testimony is against it. Pronger v. Bank, 20 Wash. 618, 56 P. 391, and cases there cited.

In the progress of the trial one Dr. Kibbe was examined as a witness, and was permitted, over the appellant's objection, to exhibit to the jury an X-ray negative taken by himself of the respondent's injured limb, and to testify that, in his opinion, based upon his examination made in this manner, the tibia of the leg had been fractured at a place a little below the knee joint. The negative was also permitted to go to the jury. The appellant assigns error on the ruling of the court permitting the witness to testify as to his opinion, and permitting the negative to be introduced in evidence. It is argued that the witness, instead of being permitted to express the opinion that the bone of the leg had been fractured, should have been confined to explaining what appearances upon the negative indicated a fracture, and leave it for the jury to determine from the negative whether these appearances were there or not. But counsel, it would seem, have overlooked the fact that the witness qualified as a physician and surgeon, not only familiar with fractures, but with the X-ray process of determining whether a fracture had ever existed. As an expert he was as much qualified to express his opinion from an examination made in this way as were the experts called by the appellant, who made their examinations by means more commonly used by the medical profession. The method of examination did not affect the competency of his testimony. How much it affected its weight was entirely a question for the jury. Nor do we think the introduction of the negative itself was objectionable. The process by which it was obtained was fully explained to the court. It was shown to be taken by an approved process and an approved apparatus, and the witness testified that it was a correct representation of the condition of the bones of the leg. Photographs taken by the common processes are generally held admissible as...