Vanhoover v. Berghoff

Decision Date31 January 1887
Citation90 Mo. 487,3 S.W. 72
PartiesVANHOOVER v. BERGHOFF.
CourtMissouri Supreme Court

Action to recover damages for malpractice. Verdict and judgment for plaintiff. Defendant appealed.

Woodson, Green & Burns and Rainy & Brown, for respondent. Jas. Limbird, for appellant.

RAY, J.

On Monday, the sixteenth day of October, 1881, plaintiff fell from a wagon loaded with barrels of apples, one of which rolled on him, and dislocated his left hip. He was at the time several miles from home, and was carried to a neighbor's house, and Dr. Davis called in to see him. Dr. Davis testifies that he then "reduced" or set the bone "by manipulation." Whether this is so or not, on the Wednesday following, plaintiff was placed upon a bed, and transferred by wagon, over rough and frozen roads, to his own house. Some time afterwards plaintiff called in Dr. Culver, a neighboring physician, who examined the left hip, and pronounced it dislocated and advised sending for Dr. Gough, of Atchison. After the accident, perhaps some three weeks, Dr. Gough, accompanied by Dr. Culver and Dr. Davis, called and examined plaintiff, and found the left hip dislocated; and Dr. Gough, after administering chloroform, attempted, "by manipulation," to put the dislocated hip in place, but failed. He then left, as he was not at that time prepared with the necessary mechanical appliances to set the bone, and, as the arrangements he demanded about his fee were not made, he did not return. Thereafter, and on November 14th, Press Vanhoover, the uncle of plaintiff, went with Dr. Davis to St. Joseph, and employed the defendant to come out, and put the bone in place, or to see if it could be done, for which service he was to receive the sum of $40. Plaintiff charges in his petition, objections to which will be hereafter noticed, and contended upon the trial, that, through the unskillfulness and negligence of defendant, the bone was never properly set; or that, if restored to place, the proper means and appliances were not used to keep the bone in place, and that the result was to make him a cripple for life. The special answer of defendant, so far as material, set up a special contract to reduce the dislocated left hip, and charges that said service was duly rendered. The evidence, or parts of it, the demurrer to the evidence, and instructions, will be adverted to in the course of this opinion. There was a verdict in plaintiff's favor, and judgment thereon, from which defendant appeals to this court.

The first exception urged upon us is the refusal of the court to give, at the close of the evidence in plaintiff's behalf, an instruction in the nature of a demurrer to the evidence, which was asked upon the ground that "the contract as pleaded is an entirety, and is an absolute contract to cure." If this is so, the undertaking is a special one, and more comprehensive than the law imposes on the surgeon. Under the law, his contract is not one of warranty that a cure will be effected, but only that he possesses, and will use, reasonable skill, judgment, and diligence, such as is ordinarily possessed and employed by members of the same profession. It is, however, competent for the surgeon to make a contract expressly binding himself to cure; and the petition in this case charges that defendant undertook to reduce and set the bone, and to attend, cure, and heal the same; but it also charges that he "promised carefully and skillfully to perform said service," and that he carelessly, negligently, and unskillfully failed to set, locate, and reduce the dislocation, and to bind up, dress, and secure the same. Taken altogether, we do not think the petition sets out an express promise to cure, but only such an undertaking as the law implies, which is to employ in this behalf reasonable skill and diligence. This view is, we think, supported by the authorities to which we have been referred. Reynolds v. Graves, 3 Wis. 416; Hoopingarner v. Levy, 77 Ind. 455; Grindle v. Rush, 7 Ohio, 409.

The instruction was again asked at the close of all the evidence, and the claim made that the evidence shows, without any conflict therein, a fulfillment on the part of defendant of the contract made and entered into with plaintiff. This exception we will now consider and dispose of in this connection. There is little, if any, variance, we may observe, in the circumstances and terms of the employment of defendant, as the same is given in the evidence of Press Vanhoover, who testified for plaintiff, and that of Dr. Davis and Dr. Berghoff, examined on the part of defendant. Press Vanhoover, who acted for plaintiff, says as to this: "I came to St. Joe with Dr. Davis, and went to Dr. Berghoff's office. I asked him what he would take to come out and put the bone in place. He said, as it was Dr. Davis' case, he would come out and set it for $40. I told him I would give that. * * * I only hired him to set the bone, — to put it in place. No; I didn't employ him to attend to, to care for, or treat him, — only just to set the bone." This, then, was, so far as expressed, the contract of professional service undertaken by defendant. Perhaps the law would imply or attach, if not embraced and covered by these terms, the further duty of properly bandaging the bone, or the use of reasonable skill and care in that behalf. Ordinarily it would also be proper and necessary that the surgeon should also give directions and warnings such as would be generally given to enable plaintiff or his nurse and attendant to act intelligently in the further management of the limb. There is evidence to show that defendant gave directions in this behalf, such as to keep plaintiff quiet at first, and subsequently to move the limb gently, as the patient could bear it, to prevent stiffness in the same. But in this case, even if there was no evidence of this sort, it will be perceived that Dr. Davis was first in charge of the case, and was expected to and did continue in attendance, as plaintiff's physician, for some time afterwards; and directions might properly be given to him, which both Dr. Davis and defendant say was done, and his judgment and skill could properly be, and was, perhaps, relied on as to directions and after-treatment of the case.

When defendant called on plaintiff, which he did on November 16th, the second day after his said employment, on November 14th, after learning from plaintiff the history of the accident, which had also been previously given him by Dr. Davis, he placed plaintiff on the floor, after administering chloroform, tried to set...

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  • McAlinden v. St. Maries Hospital Ass'n
    • United States
    • Idaho Supreme Court
    • March 11, 1916
    ... ... 794, 55 N.W. 252; ... Olmsted v. Gere, 100 Pa. 127; Harriott v ... Plimpton, 166 Mass. 585, 44 N.E. 992; Vanhooser v ... Berghoff, 90 Mo. 487, 3 S.W. 72; Carpenter v ... Blake, 60 Barb. (N. Y.) 488; Rowe v. Lent, 62 ... Hun, 621, 17 N.Y.S. 131, 42 N.Y.S. 483; Link v ... ...
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    • September 8, 1958
    ... ... McCleary, 313 Mo. 213, 281 S.W. 682; Seewald v. Gentry, 220 Mo.App. 367, 286 S.W. 445; McDonald v. Crider, Mo.App., 272 S.W. 980; Vanhoover v. Berghoff, 90 Mo. 487, 3 S.W. 72; Hales v. Raines, 146 Mo.App. 232, 130 S.W. 425; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580. In stating or ... ...
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    • United States
    • Wyoming Supreme Court
    • February 18, 1941
    ... ... experts on the subject. Carpenter v. Blake, 60 Barb ... 488, 523; Vanhooser v. Berghoff, 90 Mo. 487, 496, 3 ... S.W. 72; James v. Grigsby, 114 Kan. 627, 220 P. 267, ... 269. It may be noted that the case at bar presents a severe ... ...
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    • July 1, 1940
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