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a surgeon who had heard the testi-
mony to be asked, " Having heard
the testimony in this case, and as-
suming it to be true, what, in your
opinion as a surgeon, was the neces-
sity of this arm remaining in the po-
sition described by the plaintiff for
the first twelve or thirteen days of
the treatment?"

In Mertz v. Detweiler, 8 Watts. &
S. (Pa.) 27(>' it was held that the
nature and properties of the powders
employed by the defendant in his
treatment of the plaintiff were sub-
jects of medical inquiry, and proper
for medical witnesses as experts.

In Wright v. Hardy, 22 Wis. 348,
an action for malpractice in having
wrongfully, negligently and unskill-
fully amputated a limb, it was held
proper to permit a medical witness
on behalf of the plaintiff to testify
that " the point of amputation was
too high, and that the danger of
death was somewhat increased by the
selection of that point." The court
said: "It is a matter, if not of com-
mon, certainly of professional experi-
ence, that in many cases of
amputation the care and skill of the
surgeon is involved as much in the
selection of the point of amputation
as in the manner of its performance
after the point has been selected.
This appears to have been such a
"case, and the selection of the point

Vol. IX



facts in evidence there was malpractice.^^ Nor can a third person
as a witness detail an opinion given by another physician as to the
plaintiff's incurable condition after treatment by the defendant ; the
physician should himself be introduced as a witness if his opinion
is desiredJ*

(b.) Scope of Inquiry as Affected by Schools of Medicine. — Upon the
question as to whether the correctness of the treatment in question
is to be tested by the doctrines of the school to which the defendant
belongs the cases seem to be at variance ; on the one hand there
are cases so expressly holdingJ^ There are cases, however,

may with propriety be said to have
been part of the performance itself.
When, therefore, it is charged that
the amputation was carelessly or un-
skillfully performed, any want of
proper care or skill in the selection
of the place seems necessarily to be

73. Hoener v. Koch, 84 Til. 408.
In Wright v. Hardy, 22 Wis. 348. a

malpractice case for having negli-
gently and unskillfully performed an
amputation, after having shown by a
medical expert that he had heard the
testimony of plaintiff's witness, he
was asked by the defendant : " Sup-
pose his statement relative to the
amputation and its subsequent treat-
ment to be truthful, was or was not
the amputation well performed?
Was the subsequent treatment of the
patient proper or improper? And, in
your opinion, was or was not the
death of the patient the result of any
neglect or want of skill in the sur-
geon?" To these questions objection
was taken on the part of the plain-
tifif, and the objection sustained by
the court ; but the counsel for the
defendant was allowed to and did
question the adept upon a hypothet-
ical case stated to him by the counsel,
formed on the counsel's understand-
ing of the testimony of the witness,
and such questions were answered.

74. Sims V. Moore, 61 Iowa 128,
16 N. W. 58.

75. Force v. Gregory, 63 Conn.
167, 27 Atl. 1116, 38. Am. St. Rep.
371, 22 L. R. A. 343, was a suit for
damages for malpractice in treating
plaintiff for ophthalmia. The de-
fendant was a homeopathic physician
and treated the plaintiff according to
the system of that school. There
was no question as to the diagnosis

Vol. IX

of the case. It was simply as to
the treatment. The defendant asked
the court to instruct the jury " that
treatment by a physician of one par-
ticular school is to be tested by the
general doctrines of his school, and
not by those of other schools."
Held, the instruction should have
been given.

Bowman v. Woods, i Greene
(Iowa) 441, was a suit for damages
for malpractice in a case of accouch-
ement, in that the defendant failed to
remove the placenta or relieve the
bladder for thirty-six hours after
parturition. The plaintiff showed
by the testimony of allopathic physi-
cians that such treatment was im-
proper, and liable to result in puer-
peral fever. The defendant then of-
fered to prove that he was a botan-
ical physician, and that according to
the botanic system of practice and
medicine it is considered improper
to remove the placenta, and that it
should be permitted to remain until
expelled by the efforts of nature.
The trial court excluded the testi-
mony so offered. The supreme
court held that no particular system
of medicine is established or favored
by the laws of Iowa, " and, as no
system is upheld, none is prohib-
ited ;" that " the regular, the botanic,
the homeopathic, the hydropathic,
and other modes of treating dis-
eases are alike unprohibited ;" and
that " a person professing to follow
one system of medical treatment can-
not be expected by his employer to
practice any other. . . . There-
fore, if in this case the defendant
below could show that he was em-
ployed as a botanic physician, and
that he performed the accouchement
with ordinary skill and care in ac-
cordance with the system he pro-



wherein medical witnesses belonging to other schools were per-
mitted to testify on this question.'*^ So, too, on the question as
to the correctness of the diagnosis medical men of other schools
have been permitted to give their opinions.'^

fessed to follow, we should regard
it as a legal defense."

Martin v. Courtney, 75 Minn. 255,
yj N. W. 813, was a suit for mal-
practice against an allopathic physi-
cian and surgeon in the amputation
and subsequent treatment of the
plaintiff's husband's toes, which had
been crushed by accident. A second
amputation was found necessary and
the sole point was whether it should
have been of an additional quarter
of an inch of the foot or of the
whole foot at the ankle. Another
allopathic physician testified that the
defendant had acted properly. But
the plaintiff called a homeopathic
physician, and asked his opinion as
to whether the treatment was proper.
Upon objection being made to this,
the witness testified that there is a
decided difference between the rules
and principles of the two schools as
respects " the practice of medicine,"
but not as respects surgery ; that
there was no difference between the
two schools as to the treatment of
sepsis connected with surgery, but
• there was a difference where the
sepsis has produced a diseased con-
dition, for then it became a question
of disease, and not of surgery, and
the treatment of the two schools
would be entirely different. The de-
fendant offered to prove that the
two schools are hostile to each other
in their rules of treatment of sep-
sis, even in cases connected with
surgery. The trial court excluded
the evidence offered by the defend-
ant, and permitted the homeopathic
physician to testify. The supreme
court held this to be error, and that
a physician must be judged by the
rules and principles of medicine of
the school to which he belongs, and
not by those of any other school,
and accordingly reversed a judgment
in favor of the plaintiff.

Granger v. Still. 187 Mo. 197. 85
S. W. 1 1 14. 70 L. R. A. 49, where it
was held that an allopathic physician
is not competent to give his opinion
as to the correctness of the treatment


given by the defendant as an osteo-
path in that case, the disease being
hip disease, and it not appearing
that both schools employed the same
treatment for that disease.

76. Thus in an action against a
clairvoyant for malpractice, allo-
pathic phj'sicians are competent to
give an opinion of the diagnosis and
the treatment. Nelson v. Harring-
ton, 72 Wis. 591. 40 N. W. 228, 7
Am. St. Rep. 900, i L. R. A. 719.
This case was substantially followed
by the case of Longan v. Weltmer,
180 Mo. z^^, 79 S. \V. 655. 103 Am.
St. Rep. 573. 64 L. R. A. 969. This
last case was an action against a
magnetic healer, the result of his
treatment being that the ligaments
connecting the back bone and hip
bone were ruptured and torn, and
the back and spine and pelvic organs
were permanently injured. The
court, in speaking of the competency
of physicians of other schools to tes-
tify as to the correctness of the di-
agnosis and treatment, said : " While
it is true that the physicians who
testified on the part of the plaintiff
did not claim or pretend to know
anything about the practice of mag-
netic healing, they were nevertheless
competent from education and ex-
perience to testify whether the treat-
ment which the plaintiff underwent
was proper in any case, and espe-
cially in her condition. Simply be-
cause a person claims or pretends to
possess certain powers of healing pe-
culiar to himself is no reason why
other persons who do not claim such
powers, but who have knowledge ac-
quired from education and practice,
are not competent to judge whether
the treatment administered was neg-
ligently or carelessly done."

77. Nelson v. Harrington, 72 Wis.
591. 40 N. W. 228. 7 Am. St. Rep.
900. I L. R. A. 719, was a suit for
malpractice. The defendant was a
clairvoyant, and claimed to diagnose
and treat diseases by going into a
trance, and while in that state to re-
ceive information as to the charac-

Vol. IX



(c.) Weight and Conclusiveness. — Although it has been recognized
as possible that there may be cases where the mode of treatment
having been shown, the practical common sense of the jury will
enable them to determine that the injury or failure of cure was
owing to unskillful or negligent treatment/^ it has also been held
that the jury should not be permitted to find malpractice without
testimony from persons who are qualified to give opinions on the
methods of treatment/'^ But it is not necessary that all the expert
witnesses called should consider the treatment pursued by defendant
as improper, nor will the fact that all such witnesses agree that
a portion of the treatment is proper under some circumstances, in
itself defeat a recovery.*" In an action for surgical malpractice, in
determining the relative value of the evidence of medical experts
the jury are to consider their professional knowledge and experi-
ence, freedom from bias, and the reasons they are able to give
for their conclusions.®^

3. Damages. — A. Burden of Proof. — a. In General. ■ — As in
other actions to recover damages for a personal injury, the plaintifif
must show an injury resulting from the malpractice ; otherwise he
will be entitled to nominal damages only.*^ And to entitle him

ter and proper mode of treating the
disease. The court held that allo-
pathic physicians were competent, in
such case, to give an opinion as to
the correctness of the diagnosis and
treatment. The decision also holds
that to constitute a school of med-
icine it must have rules and princi-
ples of practice for the guidance
of all its members as respects prin-
ciples, diagnosis and remedies, which
each member is supposed to observe.
In Granger v. Still, 187 Mo. 197,
85 S. W. 1 1 14, 70 L. R. A. 49, an
action for malpractice for negligent
and unskillful osteopathic treat-
ment, it was held that a physician of
the old school was competent to
testify to the correctness of the diag-
nosis of the disease by the defendant,
it appearing that the diagnosis of
the disease in question was the same
in the allopathic school and in the
osteopathic school.

78. See Getchell v. Hill, 21 Minn.
464, recognizing that this might be
true, but holding that that case was
not such a case.

79. In Spaulding v. Bliss, 83
Mich. 311, 47 N. W. 210, the court
had charged the jury as follows :
" You are necessarily bound, inde-
pendent of every other consideration,
to adopt the testimony of the physi-

Vol. IX

cians and surgeons, when you come
to determine whether, on the facts
in this case, these defendants have
treated the case in a proper form,
and by the use of proper appliances."
In holding this charge to be cor-
rect, the court said : " The court
said, in connection with it, that^
' no other witness in this case, aside
from the surgeons — the physicians
— who have testified in the case,
have undertaken to tell you what is
proper practice, or what, under the
present methods of surgery, would
be proper practice, in this given
case.' It was for the others to give
the facts as to the treatment and
acts of the defendants, and it was
for physicians and surgeons to say
whether or not the same were

80. Hewitt V. Eisenbart, 36 Neb.
794, 55 N. W. 252.

81. Bennison v. Walbank, 38
Minn. 313, 37 N. W. 447.

82. The implied liability of a sur-
geon, retained to treat a case pro-
fessionally, extends no further, in
the absence of a special agreement,
than that he will indemnify his pa-
tient against any injurious conse-
quences resulting from his want of
the proper degree of skill, care or
diligence in the execution of his em-



to recover for the permanent injury which it is proven he has
sustained, it is necessary to prove that this permanent injury would
not have been present had not the defendant been guilty of
negligence or want of skill in his treatment.®^ To entitle the
plaintiff to recover present damages for apprehended future con-
sequences, the evidence must show such a degree of probability
of their occurring as to amount to a reasonable certainty that they
will result from the original injury.^*

b. Expenses. — Where the plaintiff in a malpractice action al-
leges as part of his damages certain expenses resulting from the
alleged malpractice, it is incumbent upon him to establish those
expenses,^^ and that the expense so incurred was reasonably

B, Evidence To Establish Damages. — Upon the question of
damages in a malpractice action it is proper to receive competent
evidence showing pecuniary loss, both direct and indirect, if ref-
erable to and resulting from the treatment complained of; also
of suffering produced in consequence of the acts in question ; loss
of time and actual expenses in consequence thereof; the character
of the resulting injury as to its permanency and the situation and
condition of the patient.*^

ployment. And in an action against
the surgeon for malpractice, the
plaintiff, if he shows no injury re-
sulting from negligence or want of
due skill in the defendant, will not
be entitled to recover nominal dam-
ages. Craig V. Chambers, 17 Ohio St.
253. The court said : " It is true
that every injury imports at least
nominal damage. But an injury is
not presumed, and must be proved.
It is also true that where an injury
is shown prima facie to be referable
to the want of the proper degree of
skill or care, if due skill and care
would have been ineffectual, the de-
fendant must show it."

83. Smith v. Dumond. 53 Hun
637. 6 N. Y. Supp. 242.

84. Smith v. Dumond, 53 Hun
637. 6 N. Y. Supp. 242.

85. Hyatt v. Adams, 16 Mich. 180.

86. Hewitt v. Eisenbart. 36 Neb.
794, 55 N. W. 252.

87. Tefft V. Wilcox, 6 Kan. 46.
Chamberlain v. Porter. 9 Minn.

244. was an action for injury from
improper treatment of a broken Hmb
by a surgeon. There was testimony
that the limb had been treated by
other surgeons, and also of negli-
gence on the part of plaintiff. As to
the damages, the court charged :

" The jury must take into consid-
eration all the pain and suffering
that the plaintiff has sustained and
been subjected to. which has resulted
from the injury, over and above what
he would have necessarily suffered
and sustained had the limb been
treated with ordinary surgical skill ;
also such further damages as the
plaintiff may sustain by reason of his
future disability to use said limb;
and that in estimating the damages
they are to take into consideration
the present and future condition of
the plaintiff compared with what it
would have been if the limb had
been treated with ordinary skill."
The charge was held correct.

In proving the actual damages re-
sulting from negligence and unskill-
ful treatment of a patient by a phy-
sician, it is proper to show all the
facts occurring and growing out of
the injury, even up to the time of
the verdict itself. Coady r. Reins,
I Mont. 424.

Evidence as to the Physical Con-
dition of a plaintiff in a malpractice
case just before the trial and two
or more years after undergoing the
treatment complained of is competent
where such condition is shown to be
the result of the injury in question

Vol. IX



C. Mitigation of Damages. — Contributory Negligence.
Evidence of contributory negligence on the part of the patient may
be received in a malpractice action, not to defeat the right to recover
for the malpractice, but merely in mitigation of the damages

Injury Unavoidable. — In an action for malpractice, the defendant
may show that the injury was unavoidable, even if the act charged
was negligent."*

and is of a permanent nature.
Hewitt V. Eisenbart, 36 Neb. 794,
55 N. W. 252.

88. Sanderson v. Holland, 39 Mo.
App. 233. See also Wilmot v. How-
ard, 39 Vt. 447, 94 Am. Dec. 338.

Evidence of a failure on the part
of tile plaintiff in a malpractice case
to obey the defendant's instructions,
thereby contributing to an aggrava-
tion of the injury, is admissible only
in mitigation of damages. DuBois
V. Decker, 130 N. Y. 325, 29 N. E.
313. 27 Am. St. Rep. 529. 14 L. R.
A. 429.

The information which a physician
and surgeon may give to a patient
concerning the nature of his malady
is a circumstance proper to be con-
sidered by the jury in determining
the question whether the patient, in
disobeying the instructions of his
physician, was guilty of contributory
negligence or not. Geiselman v.
Scott, 25 Ohio St. 86. This case also
holds that if a patient neglects to
obey the reasonable instructions of
the physician and thereby contributes
to the injuries complained of, he can-
not recover for the injury.

In an action for injury from a sur-

geon's negligence it is proper for
the defense to show that it resulted
from plaintiff's imprudence in throw-
ing off his splints and going on
crutches, but that fact cannot be
shown by the statements of one who
had no personal knowledge of it.
Hitchcock V. Burgett, 38 Mich. 501.

89. A physician sued for malprac-
tice resulting in the death of his
patient may show in his defense that
even if the act charged as the cause
of the death was a negligent one,
still the nature of the patient's dis-
ease was of such a character that he
would have died soon at all events.
Chase ZK Nelson, 39 111. App. 53,
where the court said that although
such showing might not constitute a
complete bar to the action it was
still important in mitigation of dam-

Injury Notwithstanding Diligence.
In an action for malpractice in op-
tical surgery resulting in permanent
loss of sight it is competent to show
that operations in such cases, even
though skillfully conducted, do not
generally result in restoring the sight.
Peck V. Hutchinson, 88 Iowa 320, 55
N. W. 5n.

PICKETING.— See Conspiracy

PLACER MINES.— See Mines and Minerals.

PLATS.— See Diagrams; Maps.

PLEADINGS. — See Admissions; Answers ; Records.

Vol. IX


By a. p. Ritten house.


1. Essential Elements — Contract and Delivery, 854

2. Negligence and Loss, 854


1. Delivery by Debtor to Creditor, 856

2. Presumption as to Consideration, 856

3. Presumption as to Value, 856

4. Presumption of Conversion, 856

5. Delay in Redemption, 857


1. General Rule, 857

2. Constructive Delivery, 858

3. Possession of Warehouseman, 859

4. Possessioji in Third Party, 859

5. Pledgee in Possession, 860

6. C hoses in Action, 860


1. To Explain Written Transfers, 861

2. Contradiction of Written Contract, 861

3. Local Customs, 862


1. Defense Against Conversion, 862

2. Goorf Faith, 863

3. Espcnditures, 863

4. Defense to Action on Collateral Xote, 863

5. Tender to Purchaser, 863

Bailments ;

Fraudulent Conveyances ;

Vol. IX




1. Essential Elements. — Contract and Delivery. — To establish
a pledge, the evidence must show that there was a contract, made
in good faith by tlie parties, whereby certain personal property
was to be held as security for a debt, and that the property was
actually or constructively delivered to the pledgee, or to a third
person for his benefit.^

2. Negligence and Loss. — The burden of proving negligence or
other misconduct on the part of the pledgee, and consequent loss,
is generally upon the pledgor.^ But where the pledgee of notes

1. Dunn V. Train, 125 Fed. 221 ;
Casey v. Cavaroc, 96 U. S. 467, 486;
Huntington v. Sherman, 60 Conn.
463, 22 Atl. 769; Textor v. Orr, 86
Md. 392, 397, 38 Atl. 939; Ciiitwood
V. Lanyon Zinc Co., 93 Mo. App.
225 ; First Nat. Bank v. Caperton,
74 Miss. 857, 22 So. 60, 60 Am. St.
Rep. 540; Sharmer v. Mcintosh, 43
Neb. 509, 516, 61 N. W. 727.

It must appear that the agreement
to pledge an article was executed.
Proof of an agreement not executed,
but to be carried out in the future,
is not sufficient to establish a pledge.
Harrison v. Clark, 74 Conn. 18, 22,
49 Atl. 186.

Written Agreement "Unnecessary.
Mitchell V. McLeod (Iowa), 104 N.
W. 349, was an action to recover two
windmills levied upon and sold as
the property of one S o m m e .
Plaintiff claimed the property as
pledgee of said Somme. The evi-
dence showed that Somme had a
contract whereby he could purchase
windmills and other property for re-
sale in Ida county, Iowa. Somme
induced the plaintiff to furnish the
money for such purchase, and
agreed that the windmills should be
taken possession of and held by the
plaintiff until he (Somme) should
repay the amount of the advance-
ment so made. The mills were
shipped in Somme's name, but were
delivered to the plaintiff upon ar-
rival in Ida county, and he had pos-
session thereof when they were lev-
ied upon by the defendant sheriff.
Held, that the evidence showed that
plaintiff was a pledgee in possession,
and that there was no necessity for
a written instrument evidencing the

Parol Evidence is not admissible

Vol. IX

to prove a pledge where it is re-
quired by law to be made in writ-
ing. De Blois Syndic v. Reiss, 32
La. Ann. 586.

In Meguiar v. Thomas, 19 Ky. L-
Rep. 1003, 4-2 S. W. 846, the evidence
showed that Thomas had kept and
trained a number of horses for one
J. W. White, and had a bill of ac-
count against him therefor; that
White had delivered the possession
of these horses to Thomas, and ex-
pressly pledged them for the pay-
ment of the bill ; that Thomas had
surrendered to White all the horses
except one mare. Thomas testified
that he asked White to pay his bill,
and that White responded that he
had no money, but that he (Thomas)
had the mare in his possession, and
that he could hold her until every
dollar due him was paid. The
court said: "Now does this lan-
guage, if true , constitute a valid
pledge? About this, we think, there
can be no doubt. The delivery of
personal property by a debtor to a
creditor upon an oral agreement
that the creditor shall hold the prop-
erty until the payment of the debt
is a pledge."

2. Arkansas. — Barnes v. Brad-
ley, 56 Ark. IDS, 19 S. W. 319.

Georgia. — Fisher v. Jones, 108
Ga. 490, 494, 34 S. E: 172.

Idaho. — Murphy v. Bartsch, 2
Idaho 603, 23 Pac. 82.

Indiana. — Kiser v. Ruddick, 8
Blackf. 382; Reeves v. Plough, 41
Ind. 204.

Mississippi. — Steger v. Bush,
Smed. & M. Ch. 172.

Missouri. — Fourth Nat. Bank v.
Blackwelder, 81 Mo. App. 428.

New Hampshire. — Goodall v.
Richardson, 14 N. H. 567.


or other collateral paper permits them to become barred by the
statute of limitations the burden is upon him to show that his
apparent negligence has not injured the debtor.^ Where it appears
that collaterals in the hands of the pledgee have become uncol-
lectible on account of the insolvency of the makers thereof the
burden is on the pledgee to show that he used ordinary diligence
to collect the same.*

New York. — Vose v. Yulee, 4
Hun 628.

Wisconsin. — Plant's Mfg. Co. v.

Online LibraryEdgar W. (Edgar Whittlesey) CampThe Encyclopædia of evidence (Volume 9) → online text (page 121 of 140)