Walkenhorst v. Kesler

CourtSupreme Court of Utah
Citation67 P.2d 654,92 Utah 312
Decision Date03 May 1937
Docket Number5759

Rehearing Denied September 10, 1937.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Taylor Walkenhorst against A. B. Kesler. Judgment for plaintiff, and defendant appeals.


Dan B Shields and J. Tracy Wootton, both of Salt Lake City, and George B. Rinier, of Davenport, Ind., for appellant.

L. O. Thomas and O. H. Matthews, both of Salt Lake City, for respondent.

MOFFAT, Justice. HANSON and LARSON, JJ., concur. WOLFE, Justice, FOLLAND, Chief Justice, dissenting.


MOFFAT, Justice.

In this action it is alleged by Taylor Walkenhorst in his complaint that the defendant and appellant, A. B. Kesler, is a chiropractor in the state of Utah, licensed to treat human ailments without the use of drugs or medicine and without operative surgery. Relating to the injury for which plaintiff applied to defendant for treatment, it is alleged that while carrying a heavy timber in July, 1933, plaintiff accidentally fell and injured his hip, fractured it and suffered pain and illness because of the injury. Plaintiff claims that for a consideration the defendant undertook to diagnose and analyze plaintiff's injury and illness and to attend, treat, and care for plaintiff, who thereby became a patient of defendant; that under the circumstances it was the duty of defendant to skillfully and carefully diagnose and analyze plaintiff's injury and illness; that defendant negligently and carelessly failed to carefully, skillfully, and properly diagnose and analyze plaintiff's injury and illness or to prescribe proper treatment, but informed plaintiff that the pain he was suffering in his hip was merely rheumatism which was caused by portions of plaintiff's spinal column being out of alignment, and charges that defendant negligently and carelessly failed to recognize symptoms of infection in plaintiff's hip, but informed him that he had a mere boil on his hip and not to worry. That he would tell him when it was ripe, and that he could stick it with a pin, cut it with a razor blade, or it would break and would pass away on being opened; and, further, that defendant adjusted plaintiff's spine over a period of approximately eight months for rheumatism, an illness from which plaintiff was not suffering; that the negligence and carelessness of defendant in diagnosing and analyzing plaintiff's illness and attending and treating plaintiff proximately caused a condition necessitating plaintiff to undergo an operation for the purpose of having the bones of his hip scraped to eradicate infection therein, which necessitated plaintiff being placed in a cast. Pain, suffering, and anguish are alleged to have been endured because of defendant's negligent treatment of plaintiff.

The defendant demurred to the complaint. The demurrer was not argued to the trial court, nor is it argued to this court. The demurrer being general, although error is assigned because of the overruling of it, under the rules the assigned error is deemed abandoned. Whether abandoned or not, we think the complaint states a cause of action and no error was committed by the trial court in overruling the defendant's demurrer.

Defendant answered. Certain allegations of plaintiff's complaint were admitted, certain other allegations are denied, and in addition the answer contains allegations of traverse and affirmative defense. The answer admits that defendant was and is a licensed and practicing chiropractor in the state of Utah, and a resident thereof; admits the employment and performance of services. The other admissions are interspersed with modifying or qualifying phrases not found in the complaint so that it is difficult to determine just what defendant intends to admit. The answer then denies "each and every allegation of facts therein contained, except such allegations as have been herein expressly admitted." Further denials and defensive allegations are made.

The cause was tried to the court sitting with a jury. A verdict for plaintiff was found by the jury. Motion for a new trial was filed, argued, submitted, and by the court denied. Defendant appeals and assigns numerous errors.

Appellant condenses the assigned errors for argument. They are:

I. "Appellant was at all times herein involved a Chiropractor."

II. "Chiropractic in every particular is entirely separate and distinct from the school of practice of expert witnesses produced by the Respondent."

III. "The question of the negligence of the Practitioner of one school of healing in malpractice actions must be tested by the general principles and practice of that particular school."

IV. "All of the expert witnesses testifying for the Respondent as to the care and skill of the Appellant, were concededly members of a school of healing separate and distinct from Chiropractic."

V. "Testimony of expert witnesses for the Respondent, all of whom disclaimed any knowledge of Chiropractic and who acknowledged specifically that the school of practice represented by themselves was entirely separate and distinct from Chiropractic, was not admissible upon the question of care and skill exercised by the Appellant Chiropractor."

VI. "The rule in malpractice actions which confined the injury as to skill and care of Practitioner to the school of healing of the Practitioner, applies as well to diagnosis as to treatment."

VII. "A mistake in diagnosis (and the Chiropractic counterpart, palpation or analysis) is not of itself sufficient to establish negligence."

VIII. "If the Respondent was entitled to any damages, the damages awarded by the Jury were clearly excessive."

IX. "A Chiropractor, or any Practitioner of a healing art, in a malpractice action, is liable, if at all, only for such damages as are sustained solely through the alleged negligence of the Practitioner, and the Practitioner cannot be held answerable for any inconvenience, pain, suffering and other damage which resulted proximately from the initial injury."

X. "The negligence of the Defendant in a malpractice case must be shown affirmatively. It is not sufficient that there be a possibility of negligence."

XI. "The mere failure to effect a cure does not raise a presumption of a want of proper care, skill and negligence" (apparently means diligence).

XII. "Where, under the testimony, the cause of an injury is conjectural merely, the case should not go to the jury."

XIII. 'The verdict of the Jury was the result of passion and prejudice against Appellant and not sustained by the evidence."

XIV. "Damages to be recoverable at law, must be certain and not speculative in character."

XV. "The Trial Court erred in giving to the Jury over the objection of Appellant instructions numbered 5, 6, 7, 8, 10 and 11."

XVI. "The Court committed error in refusing to give Defendant's instructions numbered 1, 2, 5, 7, and 9."

XVII. "The demurrer of Appellant to the complaint of Respondent should have been sustained."

XVIII. "The Motion of Appellant for a Nonsuit should have been sustained."

XIX. "The Motion of Appellant for Directed Verdict should have been sustained."

XX. "The Motion of Appellant for a New Trial should have been sustained."

Defendant concedes some of these propositions and controverts others. We shall discuss the controverted questions. statements numbered I, IV, IX, X, XI, and XIV are agreed to by respondent. Propositions VIII and XIII claim the damages awarded were excessive. There is nothing in the record from which this court can conclude there was any bias, passion, or prejudice existing on the part of the court or the jury. The amount itself is not sufficient to show such matter. Looking at the record as a whole, we cannot say the verdict was excessive. Miller v. Southern Pacific Co., 82 Utah 46, 21 P.2d 865. Nothing more need be said as to the errors claimed relating to damages.

Propositions XVII, XVIII, XIX, and XX relate, respectively, to the overruling of defendant's demurrer, denial of the motion for nonsuit, denial of the motion for a directed verdict, and the denial of the motion for a new trial. None of these assignments are argued. They are without merit. The complaint states a cause of action; the evidence is in conflict; the cause was properly submitted to the jury.

Proposition II is:

"Chiropractic in every particular is entirely separate and distinct from the school of practice of expert witnesses produced by the Respondent."

Propositions III, IV, V, and VI are sufficiently on common ground to be discussed with Proposition II. Proposition I, in so far as it relates to what is meant by "Chiropractor" or "Chiropractic," is also sufficiently on common ground to be included. A "school" of medicine science, chiropractic, or naturopathy, in the sense of an institution in which one obtains a training by pursuing a given curriculum, is one proposition. "School" is used in many senses; (a) An institution of learning; (b) the doctrine, tenets, philosophy or theories taught or principles for which the school stands; (c) the standards, doctrines, or principles relating to a profession or occupation in a given locality. For other and extended definitions see Webster's New Int. Dict. (2d Ed.) p. 2336. The standards or theories relating to the pathology, etiology or treatment of human ailments, is another. Accumulation of data from symptoms, examinations, history of ailments, and analyzing or diagnosing or determining the nature of the ailment, is another. Prescribing for, adjusting, or treating a patient for an ailment diagnosed to be the one from which the patient is thought to be suffering, in the judgment of the person consulted based upon the analysis or diagnosis, is still...

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