Miller v. Frey

• Decision Date: 21 October 1896
• Citation: 49 Neb. 472,68 N.W. 630
• Parties: MILLER v. FREY.
• Court: Nebraska Supreme Court

49 Neb. 472

68 N.W. 630

MILLER

v.FREY.

Supreme Court of Nebraska.

Oct. 21, 1896.

Syllabus by the Court.

1. Under our statute requiring a notice to take depositions to “specify the names of witnesses to be examined,” the deposition of “G. A. Hollem” cannot be taken under a notice specifying the name of “Gus Hahn” or “Gus Halin,” such names not being idem sonans.

2. In an action against a surgeon for malpractice in setting and treating a broken arm, the measure of damages is the damage accruing to the plaintiff in excess of that which would have accrued naturally from the breaking of his arm had he been treated with that degree of skill ordinarily possessed by surgeons. It is not the damage resulting from the breaking of the arm.

Error to district court, Butler county; Wheeler, Judge.

Action by Samuel Frey against Joseph H. Miller. Judgment for plaintiff. Defendant brings error. Reversed.W. W. Stowell and Steele Bros., for plaintiff in error.

Evans & Hale and Matt Miller, for defendant in error.

IRVINE, C.

Frey sued Miller, a practicing physician, for damages alleged to have been caused by malpractice in setting and treating a broken arm of the plaintiff. He recovered a judgment, and Miller prosecuted these proceedings in error. Of the numerous errors assigned, we shall consider only two. The plaintiff, prior to the trial, took the deposition of G. A. Hollem. Before the trial the defendant moved to suppress this deposition, on the ground that the name of the witness was not stated in the notice. This motion was overruled, and the defendant excepted. When the deposition was offered in evidence, he again objected, on the same ground. The objection was overruled, and he again excepted. Section 378 of the Code of Civil Procedure provides, among other things, that a notice to take depositions shall “specify the names of the witnesses to be examined.” The notice in this case was that on a day named, and at a place specified, the plaintiff would take the depositions of “D. M. Frey and Gus Hahn,” or “Gus Halin.” From the transcript before us it is somewhat difficult to decipher the name, but it is plainly not “G. A. Hollem,” whose deposition was taken, or anything which could be considered idem sonans with that name. We do not hold that in the notice to take a deposition the name of the witness must be stated with orthographical accuracy, but the rule of idem sonans applied in other departments of the law should prevail; and there was certainly nothing in the notice served to apprise the defendant that it was the intention to take the deposition of G. A. Hollem, either by a correct writing of that name, or by the use of letters indicating a name having the same or similar pronunciation. The motion to suppress the deposition should have been sustained.

On the measure of damages, the court gave the following instruction: “If the plaintiff has shown himself entitled to recover in this case, under the evidence and instructions of the court, he can recover only the actual damages that he has sustained by reason of the injury complained of; that is, such damages as will...