Whitesell v. Hill

• Decision Date: 11 April 1896
• Citation: 66 N.W. 894
• Parties: WHITESELL v. HILL.
• Court: Iowa Supreme Court

66 N.W. 894

WHITESELL

v.HILL.

Supreme Court of Iowa.

April 11, 1896.

Appeal from district court, Hardin county; B. P. Birdsall, Judge.

This suit was brought against the defendant, who is a physician, to recover damages for malpractice in reducing a fracture of plaintiff's arm. There was a trial to a jury, resulting in a verdict and judgment for defendant. Plaintiff appeals. Affirmed.J. H. Scales, for appellant.

F. M. Williams and C. E. Albrook, for appellee.

DEEMER, J.

The plaintiff, while engaged in pulling stumps, with a machine known as a “stump puller,” received an injury which resulted in a simple oblique fracture of the humerus bone of the left arm. He employed the defendant to reduce the fracture, and claims that, by reason of the negligent and unskillful treatment he received, his arm is useless, and he is permanently disabled. The defendant admitted that he was called upon to set the plaintiff's arm, but denied any negligence or unskillfulness in so doing; and he claimed that, after he had discharged the case, and ceased to treat plaintiff, he (plaintiff) while carrying some heavy article, slipped and fell, and injured his arm, and that he neglected to notify defendant thereof, or to call any other physician to treat the same, and that, by reason thereof, his arm is bent and injured, and that the present condition of plaintiff's arm is due to his own negligence and the accident aforesaid. Defendant further pleaded a counterclaim for services rendered the plaintiff in reducing the fracture. The jury returned a verdict for plaintiff in the sum of one dollar, upon which judgment was rendered, and this appeal followed.

1. There are 32 assignments of error; but we find, on turning to the argument, that but few of them are discussed by counsel in their brief and argument, and these may be classed under two heads. First, it is insisted that the verdict is intrinsically discrepant and inconsistent. It will be noticed that the jury canceled the defendant's claim for services, and allowed the plaintiff one dollar in addition thereto. While it may be that the verdict is the result of a compromise, yet it is not so discordant with the evidence as to justify us in interfering. The jury may well have found that the condition of plaintiff's arm, as it appeared at the time of the trial, was in a large measure contributed to by an injury he received after defendant had ceased his treatment.

2. It is urged that instructions 4 and 5, given by the court, are conflicting and misleading. The fourth instruction gives a general statement of the law as to the degree of learning and skill which must be possessed and exercised by one holding himself out as competent to treat diseases or injuries, and the fifth makes an application of the rule to the facts as plaintiff claimed them to be. In each instruction it was said that defendant must possess and exercise the average skill, learning, and proficiency of the medical profession generally in the locality where the defendant practiced. It is true that, in the fifth instruction, the court said that defendant must have and exercise the average proficiency, skill, and care of the medical profession in the vicinity of the defendant's residence; but, as applied to the facts of the case, the instructions meant practically the same thing, for it was shown that the defendant practiced in the vicinity of the defendant's residence. It is also insisted that that part of the fifth instruction which we have referred to is erroneous. The instruction seems to call for the exercise of the average degree of skill, learning, and ability possessed by members of the medical profession in the locality where the defendant practiced. This is all that is required. Smothers v. Hanks, 34 Iowa, 289;Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511. The word “average,” as used in the instruction, means the same as “reasonable” and “ordinary.” Carpenter v. Blake, 60 Barb. 488. And it seems to be well settled that regard must be had to the locality in which the physician practices. See Smothers v. Hanks, supra; Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674;Tefft v. Wilcox, 6 Kan. 46;Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228;Small v. Howard, 128 Mass. 131.

3. In instruction 6 1/2 the court told the jury, in substance, that they might consider the condition of the plaintiff's arm as it appeared upon the trial, but that they were not justified, from this alone, in finding for him; that they must also find such result was due to defendant's negligence in the treatment of the injury. This instruction is complained of. It was clearly correct, and the evidence in the case manifestly called for such an instruction.

4. The sixth instruction is complained of. It...