Vanhoover v. Berghoff

• Decision Date: 31 January 1887
• Citation: 3 S.W. 72,90 Mo. 487
• Parties: Vanhooser v. Berghoff, Appellant
• Court: Missouri Supreme Court

3 S.W. 72

90 Mo. 487

Vanhooser v. Berghoff, Appellant

Supreme Court of Missouri

January 31, 1887

Appeal from Buchanan Circuit Court. -- Hon. Joseph P. Grubb, Judge.

Reversed.

James Limbird for appellant.

(1) The contract as pleaded, is an entirety, and is an absolute contract to cure. The employment, as alleged, is "to reduce and set the bone; to attend, to cure, and heal the same;" that defendant undertook and entered upon said employment, and promised carefully and skillfully to perform the said services. This contract plaintiff failed to prove and the trial court erred in overruling defendant's demurrer to evidence for plaintiff, and in refusing instructions number two, five, and nine, asked by defendant. See 1 Greenl. on Evid., sec. 66; Philips on Evid., 637, 657; 2 Parsons on Cont. [6 Ed.] secs. 520, 521; 42 Mich. 100; Galligher v. Thompson, Wright's Ohio Rep. 466; Reynolds v. Graves, 3 Wis. 416; 77 Ind. 455. (2) The court erred in refusing instructions numbered five and nine asked by defendant. The verdict was against the law and evidence. (3) The court erred in receiving evidence as to the kind of house plaintiff lived in, and how it was furnished. (4) The court erred in excluding evidence offered by defendant, as to his standing and reputation for skillfulness as a surgeon. See Elwell on Malpractice [4 Ed.] 138, 143 McClellan on Malpractice, 244; Leighton v. Sargent, 7 Foster's Rep. [N. H.] 460; Baker v. Slater; Elwell on Malpractice [4 Ed.] 112; Carpenter v. Blake, 60 Barb. [N. Y.] 488; 50 N. Y. Ct. App. 696; 17 N. Y. Supreme Court, 358; 75 N.Y. 12; 31 N.H. 119. (5) There was no evidence to warrant the giving of any of plaintiff's instructions.

Woodson, Green & Burnes and Ramey & Brown for respondent.

OPINION

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 testified 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 14, Press Vanhooser, 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 forty dollars. 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 plead 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; 77 Ind. 455; Grundle v. Rush, 6 and 7 Ohio 463.

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 Vanhooser, who testified for plaintiff, and that of Dr. Davis and Dr. Berghoff, examined on the part of defendant. Press Vanhooser, who acted for plaintiff, says, as to this, "I came to St. Joseph 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 forty dollars. I told him I would give him 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 16 the second day after his said employment on November 14, 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 the bone by manipulation, but failed to set it by this means just as Dr. Gough had failed in his said endeavors so to do. He then employed pulleys and the Jarvis adjuster, which were the proper mechanical means, and after some three hours work succeeded, with the assistance of Dr. Davis, as both doctors testified, in reducing the dislocation. The bone, however, did not move back into place with a "snap," which, it seems, is one of the recognized signs of success in such operations, but this is accounted for by the physicians in attendance at the time by the fact that the dislocation was an old one of some thirty odd days standing at the time, and the cavity may have been filled or partially filled by plastic or some solid material at the time. But however this may have been, the plaintiff himself testifies that when he came from under the influence of the chloroform, the defendant, who claimed the leg was then all right, "moved it up and down, in and out, and sideways, which couldn't be done before." Press Vanhooser, upon this showing, paid the forty dollars as he had agreed to do. Defendant, at this time discovered, as he claimed, that plaintiff's right hip also was dislocated, but as plaintiff was then believed to be too much exhausted to permit the attempt at that time to put the right hip in place, arrangements were then made for defendant to come back at a subsequent day and reduce the dislocation of the right hip. Ten or twelve days thereafter defendant returned for this purpose, and was accompanied on this visit by Dr. Davis and also by Dr. Magar. At this second visit plaintiff testified that all three...