Thomas v. Register

• Decision Date: 26 June 1918
• Docket Number: 10002.
• Citation: 96 S.E. 517,110 S.C. 173
• Parties: THOMAS v. REGISTER.
• Court: South Carolina Supreme Court

96 S.E. 517

110 S.C. 173

THOMAS v. REGISTER.

No. 10002.

Supreme Court of South Carolina

June 26, 1918

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by J. H. Thomas against W. R. Register. Judgment for plaintiff, and defendant appeals. Reversed, with direction to enter nonsuit.

Cole L Blease and Logan & Graydon, all of Columbia, for appellant.

E. J Best and John D. Lee, both of Columbia, for respondent.

GAGE J.

Action by a patient against a physician for a tort to the person; verdict for both actual and punitive damages; appeal by the physician.

There are 14 exceptions, but there were not so many vital issues. We shall only consider those which are necessary to decide the cause.

The alleged tort arose out of the treatment of the plaintiff by the defendant for piles. The charge is that the treatment was both negligent and willful. We have considered the testimony, and there is no room to infer from it that the defendant was either negligent or willful in what he did. The only negligent act suggested by the plaintiff's counsel at the bar was the persistent treatment of the patient, notwithstanding the pain which the treatment gave the patient. The defendant offered no testimony to prove that piles could be treated without pain. Negligence is not a reasonable inference from bare fact that pain accompanied the treatment.

There was no testimony tending to prove that the compound injected, or that the instrument used for the injection, were unfit. On the other hand, one of the plaintiff's expert witnesses testified that he "had heard of treatment by injection, and that some reputable physicians use the same now." Counsel for the appellant was unable to suggest at the bar any act or any utterance of the defendant which pointed to his willfulness, and the testimony shows none such. The court ought to have directed a nonsuit, and must yet do so.

The court furthermore excluded all testimony tending to show specific instances in which other persons had been benefited by the treatment which was administered to the plaintiff. The complaint alleged "that the defendant is commonly called and designated as a 'quack and an impostor,' and that he is unskilled and unlearned in his profession, and was and is wholly incapable of relieving or curing piles in and by the manner of treatment which he applied to the plaintiff, and that the defendant well knew such fact." The issue then which the plaintiff tendered by his pleading was that the remedy was specious, and the defendant knew the fact. If it be true that ...