Reed v. City of Detroit

• Decision Date: 28 January 1896
• Citation: 65 N.W. 967,108 Mich. 224
• Court: Michigan Supreme Court
• Parties: REED v. CITY OF DETROIT.

65 N.W. 967

108 Mich. 224

REED v. CITY OF DETROIT.

Supreme Court of Michigan

Jan 28, 1896

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Annie Reed against the city of Detroit. There was a judgment for plaintiff, and defendant brings error. Affirmed.

John J Speed, for appellant.

William S. Sheeran and James H. Pound, for appellee.

HOOKER J.

The plaintiff was injured by stepping into a defective culvert for which she recovered a judgment against the city. The record shows but two questions: (1) Whether a denial of a motion to continue by reason of the absence of a material witness was error; (2) whether certain testimony was admissible, court and counsel having treated the matter as an offer of testimony, which was excluded. The first question need not be discussed, for the reason that, if there was no error in excluding the offered testimony, the defendant suffered no injury from the denial of the motion. It was proposed to show "that Dr. H. O. Walker had been sworn on the former trial, and then testified that he had made a personal examination of the plaintiff, and that, if permitted to do so, defendant desired and intended to prove by him on this trial that the treatment plaintiff had received was insufficient and improper, and if she had been treated properly and the treatment continued, she would then be in a much better condition than she then was; that the proper medical treatment would probably have alleviated or prevented some of the difficulty under which she suffers that there was some adhesion in the joint, which would have been prevented by proper surgical treatment; that Dr. Walker was a surgeon, practicing in Detroit." It was competent to show that the injury was aggravated or increased by want of proper treatment, provided it was also shown that it was due to the willfulness or negligence of the plaintiff; but where a person sustains personal injury through the negligence of another, he is not to be deprived of his full damages because of the failure of his surgeon to administer the best remedies or treatment. There is no obligation to employ the best medical or surgical skill. Collins v City of Council Bluffs, 32 Iowa, 324. It is sufficient if one employs a physician believed to be competent, and reasonable care is used in the selection. City of Crete v. Childs, 11 Neb. 252, 9 N.W. 55. In Rice v. City of Des Moines, 40 Iowa, 644, it was held that, if reasonable care is used in the selection of the physician, and his employment is not unreasonably deferred, the damages will not be diminished because the most skillful is not employed. In Stover v. Inhabitants of Bluehill, 51 Me. 441, this subject is discussed at length. It was there said: "They employed a competent surgeon. This was all they, unprofessional persons, could do. The necessity to do this was imposed upon them, not by their own fault, but by the fault of the defendants. If they had neglected to procure the services of a competent surgeon, having the ability to do so, or employed an incompetent one, whereby the injury had been aggravated, it is clear that they could not recover damages for the injury thus increased. The law does not permit a party thus to take advantage of his own negligence or misconduct. Yet, upon the theory of the party...