Phifer v. Baker

Decision Date05 April 1926
Docket Number1191
Citation244 P. 637,34 Wyo. 415
PartiesPHIFER v. BAKER [*]
CourtWyoming Supreme Court

ERROR to District Court, Converse County; CYRUS O. BROWN, Judge.

Action by Myrtle Baker, by Harry J. Baker, her next friend, against Fred W. Phifer, to recover damages for alleged malpractice. There was judgment for plaintiff and defendant brings error.

Affirmed.

O. O Natwick, Joseph Garst, and Corthell, McCollough & Corthell for plaintiff in error.

The evidence was insufficient to sustain the verdict; the court erred in giving and refusing instructions and in the admission and rejection of evidence; defendant was entitled to a directed verdict; the only negligence alleged, or attempted to be proven, was defendant's refusal to loosen bandages alleged to be too tight; where a specific act is charged as negligence, proof of general negligence is not admissible; O'Grady v. Cadwallader, (Ia.) 166 N.W. 755; Ennis v. Banks, (Wash.) 152 P. 1037; Smith v. Mammen, 164 Ill.App. 176; Kirby's Admr. v. Berea College, (Ky.) 244 S.W. 775; the law requires physicians to possess a degree of skill equal to the average member of the profession and to apply ordinary and reasonable care; Wilson v. Blair, (Mont.) 211 P 289; he is not an insurer of a cure; Martin v. Courtney, (Minn.) 77 N.W. 813; proper skill and care are presumed; Angulo v. Hollar, (Md.) 112 A. 179; State v. Housekeeper, (Md.) 16 A. 382; Fincher v. Davis, (Ga.) 108 S.E. 905; this court is not concluded by mere formal assertions, but will look to the legal significance of evidence; Fieldhouse v. Leisburg, 15 Wyo. 207; Weidenhoft v. Primm, 16 Wyo. 340; Wolbol v. Steinhoff, 25 Wyo. 251; testimony of other physicians as to whether or not they would have removed the bandages is not proof of negligence on part of defendant; Browning v. Hoffman, 111 S.E. 492; Leighton v. Sargent, 27 N.H. 460; De Bruine v. Voskuil, (Wis.) 169 N.W. 288; Schumacher v. Hospital, (Mont.) 193 P. 397; Scherer v. Eidenmuller (Calif. App.) 187 P. 445; an honest mistake is not negligence; Browning v. Hoffman, Supra; malpractice cases call for expert testimony only; Norkett v. Martin, (Colo.) 165 P. 256; Miller v. Toles, (Mich.) 150 N.W. 118; 4 Wigmore Ev., 2090; DeLong v. Delaney, 206 Pa. St. 226; Ewing v. Goode, 78 F. 442; hypothetical questions must fairly present the essential facts otherwise it is of no probative value; Nichols v. R. R. Co., (Utah.) 70 P. 996; Wittenberg v. Onsgard, (Minn.) 81 N.W. 15; Taylor v. McClintock (Ark. ) 112 S.W. 405; Opp. v. Pryor, (Ill.) 138 N.E. 580; Barbers Estate, (Conn.) 27 A. 973; the hypothetical question propounded in this case was incomplete and contained phrases of uncertain meaning; the question imported a sequence of events following the operation, not brought out in the testimony, and was erroneous; Farrell v. Haze, (Mich.) 132 N.W. 197; defendant's evidence was corroborated and much of it uncontradicted; it was of a conclusive character. The evidence of the plaintiff is self-contradictory and inherently incredible on the material points on which the plaintiff's claim depends; the verdict is unjust and not supported by the evidence. Staloch v. Holm, (Minn.) 111 N.W. 264; Paulich v. Nipple, (Kan.) 180 P. 771; Richards v. Willard, 176 Pa. St. 181; 35 A. 114; Willard v. Norcross (Vt.) 85 A. 904; Bush v. Chilcott, (Mont.) 215 P. 1001; Farrell v. Haze, Supra; Booth v. Andrus, (Nebr.) 137 N.W. 884; Snearly v. McCarthy, (Ia.) 161 N.W. 108; instructions on issues not raised by the evidence, or opposed to the evidence, are erroneous; 38 Cyc 1618; issues should be stated in instructions; Wallace v. Skinner, 15 Wyo. 243; facts established by the evidence should be so considered in the charge; Kahn v. Insurance Co., 4 Wyo. 419; instructions numbered 1 and 2 are erroneous; Staloch v. Holm, Supra; instructions numbered 4, 5 and 6 are erroneous; Hibbard v. Thompson, 109 Mass. 286; instruction number 10 contradicts instruction number 9; Merrill v. Odiorne, (Me.) 94 A. 753; in malpractice cases, mutual negligence defeats recovery, as a general rule; Lower v. Franks, (Ind.) 17 N.E. 630; Whitesell v. Hill, (Ia.) 66 N.W. 894; Baker v. Janinski, 15 N.Y.S. 675; Young v. Mason, 35 N.E. 521; various phases of contributory negligence arose in the following cases: Potter v. Warner, 91 Pa. St. 362; Summers v. Tarpley (Mo.) 208 S.W. 266: McGrew v. Kerr, (Colo.) 128 P. 873; Browning v. Hoffman, Supra; Moss v. Richworth, (Tex.) 222 S.W. 225; the foregoing cases emphasize the objectionable character of instruction number 10; instructions numbered 12 and 13, dealing with the measure of damages, are erroneous; U. P. R. R. Co. v. Hause, 1 Wyo. 27; Yaunt v. Strickland, 17 Wyo. 526; Bush v. Chilcott, Supra; to entitle plaintiff to recover damages for apprehended consequences, there must be such a degree of probability of there occurring as amount to a reasonable certainty; Chicago R. R. v. Henry, 62 Ill. 142; Ohio R. R. Co. v. Cosby, (Ind.) 7 N.E. 373; annoyance caused by contemplation of disfigurement, is too remote to be considered an element of damage; Giffin v. Lewiston, (Ida.) 55 P. 545; R. R. Co. v. Caulfield, 63 F. 396; R. R. Co. v. Dickens, (Tex.) 118 S.W. 612; diminished chances of marriage were neither alleged nor proven; 3 Sedgwick, 1270; loss of time is another special form requiring pleading and proof; Staal v. R. R. Co. 13 N.E. 624; general damages are such as result from the wrong complained of, being natural but not the necessary result of such wrong; Henderson v. Co., 19 Wyo. 183; the court improperly refused instructions requested by defendant; errors in the admission or rejection of evidence, prejudicial to defendant, are presented by the record; they relate, among other things, to demands by defendant for payment, conduct of plaintiff's parents, hypothetical questions and the removal of plaintiff from defendant's hospital.

Reid & More, J. E. Jacobson, and Maurer & Walker, for defendant in error.

The petition charges negligence resulting in deformity and other injurious consequences to plaintiff's arm and thus states a cause of action; 3 C. J. 725; 29 Cyc. 569; pleadings are liberally construed; 5686 C. S.; David v. Whitehead, (Wyo.) 79 P. 19; the evidence sustained the verdict; Dutro v. R. R. Co., (Mo.) 86 S.W. 915; 15 L. R. A. N. S. 416; medical experts may give their opinions as to probable results; Roark v. Greeno, (Kan.) 59 P. 655; proprietors of private hospitals, conducted for profit, are liable for negligent acts of employees; Fawcett v. Ryder, 135 N.W. 800; hypothetical questions, within the probable range of the evidence, are permissible; Lawson Ev. 152; Courvoisier v. Raymond, (Colo.) 47 P. 284; in re Barber's Estate, 27 A. 973; general objections to such questions are insufficient; Knight v. Co., 54 N.E. 890; defendant's evidence was not conclusive as contended in his brief; a jury so found and the finding is conclusive on appeal; Harden v. Card, 15 Wyo. 217; 17 Wyo. 526; Henderson v. Coleman, 19 Wyo. 183; the case was properly submitted to the jury; 27 Cyc. 627; Raush v. Smedley, (Pa.) 57 A. 359; 29 Cyc. 630-32; where an amendment might have cured a variance, judgment will not be disturbed; Kuhn v. McKay, 7 Wyo. 42; Rohrbaugh v. Mokler, 188 P. 448; a physician must inform himself sufficiently to permit the exercise of a reasonable judgment; 30 Cyc. 1578; a preponderance of evidence is sufficient in malpractice cases; Shockley v. Tucker, (Ia.) 103 N.W. 360; Hickerson v. Neely, (Ky.) 54 S.W. 842; Moratzky v. Wirth, (Minn.) 69 N.W. 480. Nichols v. R. R. Co., 70 P. 996; cited by plaintiff, is not in point on the facts; the same is true of Taylor v. McClintock, 112 S.W. 405, Opp v. Pryor, 138 N.E. 580, and People v. Vanderhoff, (Mich.) 39 N.W. 28; instructions must be considered together; Bunce v. McMahon, 6 Wyo. 24; an examination of the instructions given will show that they were proper and that the case was fairly submitted to the jury on the law; negligence on the part of defendant having once been established in a malpractice case, a recovery for damages will not be defeated by proof of supervening or subsequent negligence on the part of the patient, or those in charge of the patient, as that will merely operate in mitigation of damages; Schultz v. Tusch, (Wis.) 165 N.W. 62; Sauers v. Smitts, (Wash.) 95 P. 1097; Carpenter v. Blake, 75 N.Y. 12; Sanderson v. Holland, 39 Mo.App. 233; deformity, diminished chances of marriage and loss of earning power, are general damages; Henderson v. Coleman, Supra; 17 C. J. 870; Smith v. R. R. Co., 90 F. 783; Caldwell Co. v. Hollister, (Okla.) 224 P. 966.

POTTER, Chief Justice. BLUME AND KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

Myrtle Baker, by Harry J. Baker, her father, as next friend, brought this action against the defendant, Fred W. Phifer, to recover damages for alleged malpractice as a physician and surgeon. A jury trial resulted in a verdict for the plaintiff upon all of the issues and assessing the damages in the sum of $ 10,000. The case is here on error for a review of the judgment rendered upon that verdict.

The material averments of the petition are: That the defendant is a practicing physician and surgeon located at Wheatland. That on the early evening of July 2, 1921, the plaintiff sustained a fracture of her left arm between the wrist and elbow, a simple break, "the skin not being broken;" that she was immediately taken to the defendant, to "examine heal, properly set, adjust and treat said fracture," for a reasonable compensation; that the defendant on the same evening set the broken bone and applied splints to the arm. That in bandaging the arm defendant did not make sufficient allowance for the swelling invariably attendant upon fractured limbs, as a consequence of which, within about thirty minutes after...

To continue reading

Request your trial
10 cases
  • State v. Carroll
    • United States
    • Wyoming Supreme Court
    • June 8, 1937
    ...questions propounded to expert witnesses, has never been passed upon in this state. Reference is made to this subject in Phifer v. Parker, 34 Wyo. 415. even conceding that such a question should be founded on the evidence of the party propounding the question, the rule was not violated in t......
  • Smith v. Beard
    • United States
    • Wyoming Supreme Court
    • February 18, 1941
    ...that defendant Reeve was incompetent or failed to use his best judgment in the treatment of plaintiff. For that reason the case of Phifer v. Baker, 34 Wyo. 414 is clearly in point. BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur. OPINION BLUME, Justice. This is an appeal by the plain......
  • Jackson v. Hansard
    • United States
    • Wyoming Supreme Court
    • January 4, 1933
    ... ... the court should not direct a verdict or set aside a verdict ... rendered by the jury. 48 C. J. 1151-2; Phiffer v ... Baker, 34 Wyo. 415; McCoy v. Clegg, 36 Wyo ... 473; Samuels v. Willis, (Ky.) 118 S.W. 339. A motion ... for a judgment non obstante veredicto ... ...
  • McCoy v. Clegg
    • United States
    • Wyoming Supreme Court
    • June 21, 1927
    ... ... caused the condition complained of, unless relating to a ... matter of common knowledge." ... See ... also Phifer v. Baker, (Wyo.) 34 Wyo. 415, 244 P ... 637; Lehman v. Knott, 100 Ore. 59, 196 P. 476 ... [36 ... Wyo. 498] The witness was asked ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT