Wilkins v. Brook

• Decision Date: 27 July 1908
• Court: Vermont Supreme Court
• Parties: WILKINS v. BROOK et al.

70 A. 572

81 Vt. 332

WILKINS

v. BROOK et al.

Supreme Court of Vermont. Chittenden.

July 27, 1908.

Exceptions from Chittenden County Court; Alfred A. Hall, Judge.

Action by Lucia Wilkins, administrator, against William W. Brock and another. From a judgment for plaintiff, defendants bring exceptions. Reversed, petition dismissed, and cause remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

B. E. Bullard and V. A. Billiard, for plaintiff.

R. M. Harvey and E. C. Mower, for defendants.

ROWELL, C. J. This is an action for malpractice as physicians. The declaration contains a count in trespass for assault and battery, and two counts in case. At the close of all the testimony the count in trespass was ruled out, there being no evidence to support it, and the case submitted only on the other counts. The defendant Roselle let judgment go by default. The defendant Brock pleaded not guilty, and the issue was tried by jury and found for the plaintiff, and damages assessed against the defendants jointly, by direction of the court, the defendant Roselle not appearing. To this the defendant Brock excepted, and objects that Roselle was not a party on trial, and stood as though she had never been a party to the action, and that he was prejudiced by bringing thus prominently before the jury that she had admitted her guilt, as the jury would be likely to think that, as she was guilty, he was also, as they joined in the treatment complained of. But here was no error, for the judgment against Roselle was interlocutory, not final, and therefore she remained a party for the purpose of assessing damages; and, though she was defaulted and Brock found guilty, yet the final judgment was to be joint, for they were declared against jointly, and there could be but one assessment of damages, and that assessment had to be by the jury that tried the issue between the plaintiff and Brock. Mr. Tidd says that, in an action against several, if some let judgment go by default, and others plead to issue, the jury that tries the issue assesses damages against all. 2 Tidd's Tr. (3d Am. Ed.) 894. So in Heydon's Case. 11 Co. (5a), which was trespass for assault and battery against three, two pleaded to Issue and tried separately, and damages in different amounts were assessed. One let judgment go by default, and a writ of inquiry of damages was awarded on the roll, but not issued. Thereupon a great question was moved, and depended for divers terms how, and against whom, and for what amount judgment should be entered; and at last, on consideration had of the precedents and the books, judgment was entered against all for the sum first assessed and that judgment was affirmed on error. So in 1 Saund. 207a, note (2), it is said that where several are jointly charged in an action of trespass, and plead jointly, or sever in their pleas, or one lets judgment go by default, and the jury assesses several damages, the verdict is wrong, and the judgment erroneous; but that the plaintiff may cure the verdict by entering a nol. pros, as to all the defendants but one, and taking judgment against him only. So in Bohun v. Taylor, 6 Cow. (N. Y.) 313, it is said that where there is but one trespass, and all are found guilty of the whole, the damages must be entire, though the defendants sever, and one lets judgment go by default. And in Gerrish v. Cummings, 4 Cush. (Mass.) 391, it is said that in an action of trover there can be but one assessment of damages; that though one defendant is defaulted, and the other found guilty, yet there must be a joint judgment, and that the verdict, which is to fix the amount of damages, fixes it as well for the party defaulted as for the party that pleaded.

The plaintiff claimed, and the testimony on his part tended to show, that about the 1st of September, 1808, the intestate was in a condition of exhaustion of the nervous system, a functional disease called neurasthenia, which had been coming on for three months, and that the defendant treated her therefor about six weeks, ending the 12th of October following; that the last treatment was such that it caused "general myelitis from traumatic origin," an organic disease of the spinal cord or its membranes, which betrayed itself at once by pain in the back, inability to walk without assistance, and the like, and from which she thenceforth languished, and, languishing, died in March, 1900. The plaintiff introduced in his opening the testimony of a large number of witnesses, some of whom are named in the bill of exceptions and some not, but referred to as "many others," for the purpose of showing in a general way the good health of the intestate for 20 years or more prior to three months next before the defendant began to treat her, and her bad health ever after her last treatment. The exceptions say that "this testimony was admitted under the circumstances, and subject to the objections and exceptions appearing in the record," and a transcript of the testimony is referred to and made a part of the bill of exceptions, but the bill affords no other means of finding out what those circumstances, objections, and exceptions are. Nor do the defendant's counsel aid us in this respect, for they point out nothing to enable us to find what the transcript contains on the subject, but leave us to search it for ourselves. But this court does not search the transcript for exceptions referred to in this way. The bill of exceptions should show what the exceptions are, and would, if drawn according to the rule in such case made and provided; but if it does not, and the transcript is referred to for them, they will be noticed only so far as counsel point them out specifically in their brief.

To meet the testimony thus introduced, the defendant introduced testimony tending to show that from 1890 to September, 1898, when he began to treat her, the intestate was at times infirm in health, unable to walk, had symptoms of paralysis of the lower limbs, backache, and total disability at times, was injured in a carriage accident before 1890, and suffered in the same way from that; was injured by overwork in 1892-93, which rendered her unable to walk without assistance for" a time; that at times after that, up to September, 1898, she walked feebly, and with a shuffling gait, and complained of inability to walk, and of pain in her back and limbs; that in the last few months before September she was unable to walk at all without taking hold of things, shuffled and scuffed her feet, and was unable to work, which was her condition when the defendant began to treat her; and that she improved under his treatment to such an extent that she came to his office alone the last time she was treated, and went away alone, walking to the car. In giving this testimony the witnesses specified the particular times and occasions to which it related.

The plaintiff called in rebuttal several witnesses, who testified to times and occasions, from 1880 to 1898, when the intestate appeared to be well, and not afflicted as the defendant's witnesses said she was. But the attention of none of the plaintiff's witnesses was called to the specific times to which the defendant's witnesses testified; and, because it was not, it is objected that their testimony was not admissible as rebutting. This is the only objection. But that is not...