Mitchell v. Hindman

Decision Date19 June 1894
Citation37 N.E. 916,150 Ill. 538
PartiesMITCHELL et al. v. HINDMAN.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, fourth district.

Action on the case by Flora Hindman against H. C. Mitchell and John T. McAnally. Plaintiff obtained judgment, which was affirmed by the appellate court. 47 Ill. App. 431. Defendants appeal. Affirmed.

F. M. Youngblood and Norman H. Moss, for appellants.

William A. Schwartz, for appellee.

PHILLIPS, J.

Appellants, physicians and surgeons, were partners engaged in practice, and were called to attend professionally the appellee, who had sustained an injury to the left forearm, designated a ‘colles fracture of the radius,’ about 1 1/2 inches above the wrist joint. Appellee brought an action against appellants, alleging they so unskillfully and negligently performed their duty that the arm so injured was permanently disabled, and a judgment for $1,250 was entered in her favor, which was affirmed by the appellate court. This appeal is prosecuted, and the errors of law assigned are that there was error in sustaining an objection to the admission of certain evidence offered by appellants, in refusing to give the sixth instruction asked by appellants, and in giving instructions asked in behalf of appellee.

The error assigned to the ruling of the court in sustaining an objection to a question to Dr. McAnally, one of the defendants, is not tenable. The witness was asked if he had used his best skill and judgment in treatment of the injury. An objection was sustained to the question because in the form asked it was leading, yet later, during the examination of the same witness, he was asked a question in substantially the same form, which was not objected to, and was answered by the witness, and the identical same fact asked for in the question to which the objection was sustained was by the later question brought before the jury.

The sixth instruction asked by the appellants was refused. It was that the plaintiff was ‘bound to prove to the satisfaction of the jury by a clear preponderance,’ etc. This instruction was clearly erroneous. The law only requires that a preponderance of evidence shall be in favor of the plaintiff. Crabtree v. Reed, 50 Ill. 207;McDeed v. McDeed, 67 Ill. 546;Peak v. People, 76 Ill. 289;Bitter v. Saathoff, 98 Ill. 266.

It is urged that the instructions given for the plaintiff failed to state to the jury that the plaintiff must prove the defendants caused the injury by reason of want of ordinary skill, or from failure to exercise proper diligence and caution, by a preponderance of the evidence. It is not necessary that each instruction should state where the burden of proof rests. It is sufficient if from all the instructions given...

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18 cases
  • Durlacher v. Frazer
    • United States
    • Wyoming Supreme Court
    • 17 Diciembre 1898
    ...55 Ill.App. 295; 56 id., 558; Fordice v. Chancey (Tex.), 21 S.W. 181; 16 S.E. 845; 19 N.W. 295; 113 Cal. 467; 30 S.W. 512; 26 id., 885; 37 N.E. 916.) the deed to the real estate contained a covenant warranting against all claims, the grantor was not estopped from showing by parol evidence t......
  • Stephenson, In re
    • United States
    • Illinois Supreme Court
    • 20 Septiembre 1977
    ...994, 95 S.Ct. 2001, 44 L.Ed.2d 484.) The preponderance of the evidence standard also applies in paternity actions (Mitchell v. Hindman (1894), 150 Ill. 538, 540, 37 N.E. 916); and New York has upheld the compulsory commitment of narcotics addicts for treatment based on a preponderance of th......
  • Phifer v. Baker
    • United States
    • Wyoming Supreme Court
    • 5 Abril 1926
    ... ... We ... have above cited Priestly v. Stafford, as a case closely in ... point. Another is Mitchell v. Hindman, 47 Ill.App ... 431. s. c. on appeal, 150 Ill. 538. There was a conflict in ... that case as to whether the bandage had been removed ... ...
  • Sherman v. Indianapolis Traction And Terminal Company
    • United States
    • Indiana Appellate Court
    • 17 Noviembre 1911
    ... ... not to be commended, and has been expressly condemned by the ... supreme court of Illinois, in the case of Mitchell ... v. Hindman (1894), 150 Ill. 538, 37 N.E. 916. In ... that case it appears that an instruction, that stated that ... plaintiff was "bound to ... ...
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