Stemons v. Turner

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtSCHAFFER, J.
Citation117 A. 922
PartiesSTEMONS v. TURNER.
Decision Date24 April 1922
117 A. 922

STEMONS
v.
TURNER.

Supreme Court of Pennsylvania.

April 24, 1922.


Appeal from Court of Common Pleas, Philadelphia County; Norris S. Barratt, Judge.

Action by James S. Stemons against Dudley B. Turner. From a judgment for plaintiff, defendant appeals. Reversed with new venire.

Argued before FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

Hampton L. Carson, Joseph Carson, and William G. Wright, all of Philadelphia, for appellant.

James Gay Gordon, Jr., of Philadelphia, for appellee.

SCHAFFER, J. Defendant is an osteopathic physician; plaintiff was his patient in the endeavor to diagnose the latter's complaint, the former took a number of X-ray photographs of the affected region of plaintiff's body, at which point a burn thereafter developed, causing him much pain and suffering, requiring him to spend a considerable period of time in hospitals for treatment, and to undergo surgical operations. To recover damages therefor this action was brought, plaintiff alleging they were caused by the negligent application of the X-ray to his body. The trial of the issue brought a verdict for plaintiff, from the judgment on which we have this appeal by defendant.

In his statement of claim, plaintiff, after reciting that the defendant had subjected his body to the X-ray, thus stated the duty of care which the defendant was required to use in so doing:

"It became and was his [defendant's] duty to do so with the skill reasonably required in the same and [in the] proper use of such practice and treatment."

As will be demonstrated hereafter, the court, in its charge, instructed the jury that they could apply an entirely different and higher rule of duty and care to defendant than appellee thus invoked in stating his cause of action. It is noteworthy, also, in connection with the allegations in plaintiff's pleading, that he avers, as the only basis of recovery, that—

"contrary to his duty in the premises [as heretofore stated] the defendant, in exposing the plaintiff's person and hip to the X-ray, did so in such a negligent, careless, or reprehensibly ignorant manner that the plaintiff was severely injured and burned by said X-rays."

There is nothing in the statement which avers that the machine used was in any way different from those ordinarily in use, or that defendant, through lack of training or otherwise, was incompetent to handle it. The issue was therefore narrowed to the single question, whether the defendant negligently

117 A. 923

or ignorantly used the X-ray, on the occasion when he subjected plaintiff to it, measuring the skill and care required of him in its use as a "duty to do so with the skill reasonably required in the proper use of such practice and treatment." This is substantially the rule laid down by our cases, which hold that a physician or surgeon is only required to exercise such reasonable skill and diligence as is ordinarily exercised in his profession (McCandle.ss v. McWha, 22 Pa. 261; Williams v. Le Bar, 141 Pa. 149, 21 Atl. 525; English v. Free, 205 Pa. 624, 55 Atl. 777), and it is also the general rule. 21 Ruling Case Law, 381. Instead of following it, however, the trial judge announced an entirely different standard by instructing the jury (seventh and eighth assignments of error) that it was the duty of defendant to use a "high" degree of care, whereas he was only required to use the ordinary care exorcised under like circumstances, and a higher degree of care only when compared with that called for in less important matters.

The court, in its general charge, announced still another rule, inapplicable to cases of this character, by saying (fifth and sixth assignments of error):

"All of the physicians and the X-ray specialists agree that, by a proper and careful use of a certain accepted and well-recognized formula by the profession, which formula has been described and which you will recall, an X-ray burn could not occur. The defendant says that he used a formula of even less intensity than that. Obviously, therefore, if the defendant did use the formula which he says he did, then his application of the X-ray did not cause an X-ray burn of the plaintiff's groin. However, if you find as a fact that the plaintiff did sustain an X-ray burn of the groin, and that this defendant was the only person who ever X-rayed the plaintiff's groin, then you would be justified in concluding that, while the defendant told...

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33 practice notes
  • Christie v. Callahan, No. 7749.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 1941
    ...of the third-degree type. E.g., Runyan v. Goodrum, 1921, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403; Stemons v. Turner, 1922, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727. See notes, 1921, 13 A. L.R. 1414; 1923, 26 A.L.R. 732; 1928, 57 A.L.R. 269; 1929, 60 A.L.R. 28 National Biscuit Co v. Litzky,......
  • Whetstine v. Moravec, No. 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...could have no knowledge at all.” Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716, was a bone fracture case. Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727;Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403;Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455;Balla......
  • Whetstine v. Moravec, 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...could have no knowledge at all." Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716, was a bone fracture case. Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727; Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403; Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455; Ba......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...Civ. App.) 204 S. W. 450;Ewing v. Goode (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vaughan v. Memorial Hospital (W. Va.) 136 S. E. 837. While on the other hand, appellant strenuously argues that this rule of la......
  • Request a trial to view additional results
33 cases
  • Christie v. Callahan, No. 7749.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 1941
    ...of the third-degree type. E.g., Runyan v. Goodrum, 1921, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403; Stemons v. Turner, 1922, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727. See notes, 1921, 13 A. L.R. 1414; 1923, 26 A.L.R. 732; 1928, 57 A.L.R. 269; 1929, 60 A.L.R. 28 National Biscuit Co v. Litzky,......
  • Whetstine v. Moravec, No. 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...could have no knowledge at all.” Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716, was a bone fracture case. Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727;Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403;Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455;Balla......
  • Whetstine v. Moravec, 44945.
    • United States
    • United States State Supreme Court of Iowa
    • April 2, 1940
    ...could have no knowledge at all." Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716, was a bone fracture case. Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727; Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403; Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326, 215 N.W. 455; Ba......
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...Civ. App.) 204 S. W. 450;Ewing v. Goode (C. C. A.) 78 F. 442;Tady v. Warta, 111 Neb. 521, 196 N. W. 901;Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727;Vaughan v. Memorial Hospital (W. Va.) 136 S. E. 837. While on the other hand, appellant strenuously argues that this rule of la......
  • Request a trial to view additional results

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