Stokes v. Long
| Decision Date | 03 July 1916 |
| Docket Number | 3862,3882. |
| Citation | 159 P. 28,52 Mont. 470 |
| Parties | STOKES v. LONG. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Ray E. Ayers, Judge.
Action by Frank H. Stokes against W. A. Long. From a judgment for plaintiff and order denying new trial, defendant appeals. Affirmed.
Burton R. Cole, of Lewistown, and Norris & Hurd, of Great Falls, for appellant.
John A Coleman, of Lewistown, and O. W. McConnell, of Helena, for respondent.
In this action plaintiff recovered a judgment against defendant, a physician and surgeon, for alleged malpractice in the reduction and treatment of a broken leg. The defendant has appealed from the judgment and an order denying his motion for a new trial. The appeals were taken separately, and appear upon the records of this court under different numbers, but they were argued and submitted, and will be determined as if taken at the same time.
The motion for a new trial was made upon the minutes of the court. After the defendant had filed his brief in this court counsel for plaintiff filed a motion, asking this court to strike from the files the record on appeal from the order denying the motion for a new trial, and to dismiss the appeal, alleging that the district court was without jurisdiction to settle the statement on appeal because it, together with amendments proposed by counsel for the plaintiff, had not been presented to the trial court within the time and in the manner prescribed by the provision of the statute. The motion included also a demand for a dismissal of the appeal on the ground that the record does not contain a copy of the judgment roll. The motion was denied, with leave to counsel to renew it at the hearing, which they did. The record discloses that during the proceedings leading up to the settlement of the statement, irregularities intervened. We shall not take the time to discuss them in detail. It is sufficient to say that counsel for the plaintiff, by pursuing the course they did, waived these irregularities, and cannot now insist that the court was in error in disregarding them. The record on the appeal from the order denying the new trial does not contain a copy of the judgment roll authenticated as such. It does contain, however, certified copies of all the papers which go to make it up. This sufficiently meets all requirements. Rev. Codes, § 6799; Doornbos v. Thomas, 50 Mont. 370, 147 P. 277. The motion to dismiss is therefore denied.
On the merits it is argued with much earnestness that the complaint does not state a cause of action, and hence does not support the judgment. It alleges that defendant was a physician and surgeon; that on November 25, 1913, plaintiff had the thigh bone of his left leg broken, and that he employed the defendant, in his professional capacity as such physician and surgeon, to reduce the fractured bone to its proper position and place and to attend to and cure the same. It is then alleged:
"That the defendant accepted and entered upon such employment on the said 25th day of November, 1913, but wholly failed to exercise ordinary care and skill in the performance of his duty, and wholly failed to use reasonable care and diligence in the exercise of his skill as such physician and surgeon, and did then and there treat the fracture of said leg in a grossly careless, negligent, unskillful, and improper manner, so that the bones of said leg were displaced and out of their natural state, position, and condition, thereby causing the plaintiff's leg to be shortened several inches, causing great bodily and mental pain and suffering, which said pain and suffering still continues, whereby the plaintiff has been, and is now, greatly and permanently injured, to his damage in the sum of $25,000."
The following paragraphs contain allegations charging that because of said negligent conduct of defendant, plaintiff's earning capacity has been entirely destroyed for a long time to come, to his damage in the sum of $5,000, and that he has suffered damage further in the sum of $1,500, which he will be compelled to pay for an operation and treatment by competent physicians and surgeons, in order to have the condition of his leg ameliorated and to gain relief from the pain now suffered by him.
It is said that the allegations found in the paragraph quoted are mere bald conclusions of law, and hence that the pleading does not meet the requirements of section 6532 of the Revised Codes, in that it does not contain "a statement of the facts constituting the cause of action in ordinary and concise language." In other words, it does not aver the specific act or omission of defendant upon which plaintiff bases his right to recover. The pleading is not a model, but we think it states facts sufficient to save it from condemnation. The paragraph made the subject of defendant's attack does not state very fully or specifically the facts constituting the omission of duty by defendant. It does state, however, that defendant so treated plaintiff's injury "that the bones of said leg were displaced, * * * thereby causing plaintiff's leg to be shortened several inches." This, with the qualifying terms employed, we think sufficiently informed defendant upon what plaintiff would rely for a recovery. It means, if anything, that defendant's treatment was such that the fragments of the bone of plaintiff's leg were not retained in apposition, with the result that the leg became shortened, whereas the acceptance of the employment imposed upon defendant the duty to exercise reasonable care and skill to prevent such a result, which the defendant failed to do. It does not matter that the qualifying terms imputing negligence precede or follow the omission of duty charged, or that they are employed at all, if the direct averments of the complaint necessarily raise the presumption of negligence. It is sufficient to meet all requirements if the pleader sets out in traversable form the acts or omissions of the defendant upon which he seeks recovery, and shows that they occurred through the negligence of the defendant. This, we think, the complaint here does. 6 Thompson on Negligence, § 7447; Georgia P. R. Co. v. Davis, 92 Ala. 300, 9 So. 252, 25 Am. St. Rep. 47; Taylor v. Felsing, 164 Ill. 331, 45 N.E. 161; Geneva v. Burnett, 65 Neb. 464, 91 N.W. 275, 58 L. R. A. 287, 101 Am. St. Rep. 628; Consumers' El. L., etc., Co. v. Pryor, 44 Fla. 354, 32 So. 797; Hanselman v. Carstens, 60 Mich. 187, 27 N.W. 18. This statement is in full harmony with the rule announced by this court in County of Silver Bow v. Davies, 40 Mont. 418, 107 P. 81; Gauss v. Trump, 48 Mont. 92, 135 P. 910; Willoburn Branch Co. v. Yegen, 49 Mont. 101, 140 P. 231, and other cases--that, as against an attack for lack of substance, whatever is necessarily implied or reasonably to be inferred from an allegation in a pleading is to be taken as directly averred.
It is contended that there was no substantial evidence introduced by the plaintiff showing negligence by defendant or connecting him with the injury suffered by plaintiff, and hence the court should have sustained defendant's motion for nonsuit and for a directed verdict. Inasmuch as the defendant introduced evidence after the motion for nonsuit was denied, we shall consider only the question whether the evidence as a whole made a case which should have been submitted to the jury. Van Vranken v. Granite County, 35 Mont. 427, 90 P. 164; Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 102 P. 310, 18 Ann. Cas. 1201.
The evidence is quite voluminous and cannot be recapitulated in extenso. Nor do we deem it necessary to discuss in detail the portions of it in which the various expert witnesses expressed their personal views as to the merits or demerits of the particular mode of treatment or mechanical appliances which ought to be pursued in such cases. After a careful study of it, we have concluded that it presents a case calling for the judgment of the jury.
In the forenoon of November 25, 1913, the plaintiff was preparing to move a steam threshing machine. While backing the engine in order to couple it with the separator, he inadvertently permitted the former to back too far. In the resulting collision he was caught by the engine and suffered a transverse fracture of the upper third of the femur of his left leg. The skin and muscles of the leg on the inner side were also considerably lacerated. The plaintiff was put into a wagon and taken for treatment to Lewistown, about ten miles away, where defendant resided. Plaintiff's wife, at his direction, went forward to engage defendant's services. He had theretofore been employed by plaintiff. In case she could not find defendant, she was to employ Dr. Wallin. Finding the defendant in his office, she told him of the accident, and that plaintiff desired his services. He agreed to serve plaintiff. He instructed her to engage a room and nurse at a hospital. He also told her that he would need assistance, and suggested that he secure the services of Dr Wallin. To this she agreed. When plaintiff arrived at the hospital, at about 4 o'clock in the afternoon, defendant and Dr. Wallin were both present. The two proceeded at once to reduce the fracture and to apply such devices as they deemed necessary and proper to secure immobility of the leg and to maintain the parts of the bone in apposition, first cleansing and stitching up the superficial wound. The defendant administered the anesthetic. Dr. Wallin performed the operation and applied the mechanical devices which he deemed necessary. No one other than the two physicians witnessed the operation. When it had been completed, plaintiff was removed from the operating room and put in bed, where he remained for five weeks. ...
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