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Mebcub, J. This was an action on the case against the plaint-
iff in error, a physician and surgeon, for malpractice in treating the
defendant in error. When about eight years of age the latter was
run over by a coal car. The Avheel passed over his leg near the
ankle, thence up the outside of the leg, cutting the tendons, mus-
cles and ligaments at the knee. The evidence was conflicting as to
whether the joint was dislocated or the bone fractured.

When a physician or surgeon takes the charge of a patient, he
assumes an implied obligation to treat the case with reasonable dili-
gence, carefulness and skill. It is however the duty of the patient
to submit to the treatment prescribed, and to follow the directions
given, provided they be such as a physician of ordinary skill would
adopt or sanction. Having assumed the charge of the boy Warner,
the measure of professional skill which the plaintiff in error was
bound to exercise did not depend on whether or not he refused the
proffered assistance of other medical men. His refusal was no more
than an implied declaration of his ability to treat the case properly.
By assuming and continuing the charge of the patient, he was under
an obligation to exercise a degree of skill which was neither in-
creased nor diminished by such refusal. Hence the affirmance of
the fourth point submitted by the defendant in error was calculated

Digitized by


NOVEMBER TERM, 1879. 669

Potter V. Warner.

to mislead the jury, bj conveying the idea that the refusal of such
assistance imposed on the plaintiff the exercise of a higher degree
of skill than would otherwise be required of him.

The claim was to recover damages for unnecessary pain suffered,
protracted illness, and permanent injury to the leg

In addition to evidence of the exercise of proper attention and
skill on the part of the plaintiff in error, he also gave evidence
tending to prove that all the causes of complaint were produced by
a neglect and refusal of the defendant in error to follow the reason-
able directions given by the plaintiff in error. It was therefore
claimed that if the defendant in error was guilty of contributory
negligence in producing the injuries complained of he could not
recover. The court however said to the jury, " the doctrine of con-
tributory negligence, if it is properly applied to this case, does not
control it. The defendant is charged with unskillf ulness and negli-
gence in his professional treatment of the plaintiff. If ho was guilty
of unskillf ulness or negligence which directly caused any injury to
the plaintiff, he is responsible for such injury to the plaintiff ; but
of course he is not responsible for any injury resulting from any
other cause. For instance, the permanent deformity of the limb
may have resulted from the fault of the boy or his parents, for
which the defendant could not be responsible ; yet if the boy suf-
fered unnecessary pain or a protracted illness from the fault of the
defendant, he would be responsible for that"

The learned judge failed to give due legal effect to contributory
negligence of the defendant in error. It is true the plaintiff in
error was charged with negligence and unskillful ness. Although
guilty thereof, yet it did not necessarily follow that he was liable
in damages therefor. If the contributory negligence of the defend-
ant in error united in producing the injuries complained of he was
not so liable. This rule applies to the unnecessary pain and pro*
tracted illness as well as to the permanent deformity of the limb.
The evidence is amply sufficient to submit to the jury the question
of contributory negligence on the part of the defendant in error.
If they find the parents of the boy were in charge of and nursed
him during his sickness, and that they did not obey the directions
of the plaintiff in error in regard to the treatment and care of
their son dnring such time, but disregarded the same and thereby
contributed to the several injuries of which he complains, he
cannot recover therefor. If the injuries were the result of mutual

Digitized by



Potter ▼. Warner.

and concurring negligence of the parties, no action to recover
damages therefor will lie. A person cannot recover from another
for consequences attributable in part to his own wrong. Nor is
it necessary that the negligence of each party be eqaal, to defeat
a recovery. Cattawissa Railroad Co. v. Armstrong, 13 Wright,
186. It was well said in Railroad v. Norton, 12 Harris, 465,
'' the law has no scales to determine in such cases whose wrong-
doing weighed most in the compound that occasioned the mischief/'
It follows that in so far as the several assignments of error are in
conflict with this opinion they are sustained. Beyond that we
discover no error.
Judgment reversed, and a venire facias de novo awarded.

Judgment reversed.

Note by thb Kbporter.— In HUtbcurd v. ThnmpMn^ 109 Man. 288, it was held that a
patient cannot recover, either in contract or in tort for injuries consequent upon unskill-
ful or negligent treatment by his physician, if his own negligence directly contributed to
them to an extent which cannot be distinguished and separated. The court said, the.
instructions *^ seem to us to contain a careful and accurate discrimination between the
different aspects of the case as the jury might And the facts to be. They were first
instructed that * if it be impossible to separate the injury occasioned by the neglect of the
plaintiff from that occasioned by the neglect of the defendant the plaintiff cannot recover; '
but the judge added: *If however they can be separated, for such injury as the plaintiff
may show thus proceeded solely 'rom the want of ordinary skill or ordinary care of the
defendant he may recover.* The first part states the ordinary rule as to the negligence of
the plaintiff; the second states the proper limitation of the rule. It is an important limi^
tation, for a physician may be called to prescribe for cases whi<^ originated in the care-
lessness of the patient, and though such carelessness would remotely contribute to the
injury sued for, it would not relieve the physician from liability for his distinct negligence
and the separate injury occasioned thereby. The patient may also, while he is under
treatment, injure himself by his own carelessness; yet he may recover of the physician if
he carelessly or unskillfuUy treats him afterward, and thus does him a distinct injury.
In such cases the plaintiff's fault does not directly contribute to produce the injury
sued for."

In QdMibnan v. Seott, 25 Ohio St. 86, it was held that if the patient neglects to obey the
reasonable instructions of the surgeon, and thereby contributes to the injury complained
of, he cannot recover for such injury : but the information given by a surgeon to his
patient concerning the nature of his malady is a circumstance that should be considered
in determining whether the patient in disobeying the instructions of the surgeon was
guilty of contributory negligence or not.

In McCandle83 v. McWha, 22 Penn. St. 261, WooxywARD, J., said: "Nothing can be more
clear than that it is the duty of the patient to co-operate with his professional adviser, and
to conform to the necessary prescriptions; but if he will not, or under the pressure of pain
cannot, his neglect is his own wrong or misfortune, for which he has no right to hold his
surgeon responsible. No man can take advantage of his own wrong or charge his misfor-
tunes to the account of another."

If the patient is insane, and so incapable of co-operattng with the physician, oontrfbn*
toiy negligence is not imputable. People ▼. N. T. HotpUal, 8 Abb. N. 0. 229. And thfai
inability the physician is bound to take into account.

If the physician has injured the patient by his negUgenoe, the refusal of the patient or
his custodians to allow an experiment by another physician to repair the injury is not con
tributor>' negligence unless they had reasonable assurance of the success of the expen

Digitized by


NOVEMBER TERM, 1879. 67}

FoIPb Appeal.

ment. €hamberttn r. Moroan, 68 Fodii. St. 168. The court said: ** Lb ft the duty of a
penon who has been injured by the malpractice of a physician or sui^geon to make any
experiment wtiich may be suggested to him, however plausible it may appearf A man
who is not himself a physician and cannot be expected to know any thing upon the sub-
ject, cannot be himself a judge of such matters. It is very reasonable for the father of
Hattie Morgan to say when Dr. Richardson proposed to put her under the influence of au
anffisthetic and attempt to reduce the limb, * that so long as she was improving so fast as
she had done since he came home, he should not have it disturbed.* Had Dr. Ghamberlin
proposed this experiment there might be some reason to hold that he should havo the op-
portunity of redeeming his mistake, or even if he had called in Dr. Richardson to act on
his behalf. Mr. Morgan merely requested Dr. Richardson to examine his daughter's ami
and give his opinion about it. That did not oblige him to adopt his advice, or to incur the
hazard and expense of another operation. He owed no such duty to Dr. Ghamberlin. It was
offered to prove that the injury could then have been reduced. But how was Mr. Morgan or
Hattie to have known this? Had the experiment failed, it might well have been urged that
as she was improving she ought to have been let alone, and that Dr. ChamberUn was re-
lieved from all responsibility by the case having been taken out of bis hands.**

Foll's Appeal.

(91 Penn. St. 434.)

Bpecifie performance — contract against public policy.

Specific performance of a contract to sell shares of a National \mlL wi'«l ii^
be enforced where it appears that the shares were designed va» i^i^o oonoroi
of the bank. Whether the contract would be enforced ii iawfoi, qware,
(See note, p. 674.)


ILL for specifio performance. The opinion Btmvh% the case.
The plaintiff had jadgment below.

C. B. Curtis and John P. Vincent, for appellant.

Davenport <S Griffith and Benson £ Brainerd^ for i^ppellee.

Paxson, J. This case presents some extraordinary features. We
haTO nothing like it in this State since equity powers were conferred
upon the courts. It was a bill to compel specific performance of a
contract for the sale and delivery of fifteen shares of the stock of
The First National Bank of North East, under the following circum-
stances : The bank in question is situated at North East, Erie
county, Pennsylvania, and has a capital of $50,000, divided into
five hundred shares of $100 each. R M. Greer, complainant below,
and appellee, is a merchant in North East, and at the commence*

Digitized by



Foll'B Appeal.

ment of the year 1877 owned ten shares of the stock of the bank
in question. His mother owned sixty-five shares and his brother
owned forty. About that time, B. M. Oreer conceive \ the idea of
getting enough of the capital of the bank to control it, and to carry
out this plan, made an arrangement with his uncle, E. 0. Custard,
and E. E. Chambers, an operator in oil, to raise sufficient money to
buy a controlling interest They succeeded in buying a considerable
amount of the stock, mostly upon borrowed capital, but still lacked
the full shares necessary for control. John W. Foil, the appellant,
had the requisite number, and on March 7, 1877, Oreer and Foil
entered into the following contract: " I hereby agree to purchase
fifteen shares of The First National Bank of North East, from John
W. Foil. The price to be paid is to be 1^2,110.55, and interest from
July 20th, at ten per cent ; said stock to be delivered before the
second Tuesday of January, 1878.'' This contract was in writing
and signed by the parties. Before the time arrived for delivering
the stock. Foil informed Greer that he would not deliver it Foil
then made a tender of the money specified in the contract This
bill was then filed and referred to a master, who made his report
recommending a decree for specific performance. Exceptions
were filed to the report by Foil, which, after a hearing, were
dismissed by the court below, the master's report was confirmed,
and a decree entered commanding Foil to transfer to Oreer the
shares of stock referred to. From this decree Foil entered an
appeal to this court.

The avowed object of the purchase of the stock and the filing of
this bill was to get the control of the bank fot* Oreer and his
friends. This appears upon the face of the bill, and is the main
ground upon which equitable relief is asked. While the primary
object was to obtain the control of the bank, there were, at the
same time, secondary objects. As a part of the plan, the said
R. M. Oreer was to be made cashier, and Custard and Chambers,
before mentioned, were to be directors.

The general rule is, that equity will not enforce specific execu-
tion of a contract relating to personal chattels. 3 Pars, on Cont 364.
This is so even in England, where the equity jurisdiction is much
broader than in this State. The reason for the rule is, that for the
breach of a contract of sale ot personal chattels, there is an ade-
quate remedyat law. A jury can be in no doubt as to the proper
measure of damages. This is especially true of stocks and public

Digitized by


NOVEMBER TERM, 1879. 673

Foirs Appeal.

securities which have a known market valne. The disappointed
purchaser can go into the market and purchase a corresponding
number of shai*es of the same stock.

To this general rule however there are exceptions. An article
of personal property may have certain qualities not common to other
articles of like description, or may have an especial value by reason
of its antiquity, family association, or the like. A number of in-
stances are collected in McOowin v. Remington^ 2 Jones, 61. They
are title deeds of an estate and other muniments of property; an
antique silver altar-piece {Duke of Somerset v. Cookson, 3 P. Wms.
389); an ancient horn, the symbol of tenure by which an estate is
hold {Pusey v. Pusey, 1 Vern. 273); heir-looms (Macclesfield v. Davis,
3 Vcs. & B. 18); and even a finely-carved cherry stone. Pearne v.
Lisle, Ambler 77.

I know of no instance in this State in which a court of equity
has decreed specific performance of a sale of stock. McOowin v.
Remington, supra, which was cited on behalf of the appellee, is
not in point. The specific chattels in that case, whose return was
sought to bo enforced, consisted of a surveyor's maps, plans, and
papers of like character. They manifestly came within the excep-
tions noted, and besides it was a clear case of trust. But we need
not pursue this subject further, as the case in hand turns upon a
different principle.

While the legal right of the complainant to buy up sufficient of
the stock of this bank to control it in the interest of himself and
friends may be conceded, it is by no means clear that a court of
equity will lend its aid to help him. A national bank is a quasi
public institution. While it is the property of its stockholders and
its profits inure to their benefit, it was nevertheless intended by the
law creating it that it should be for the public accommodation. It
furnishes a place, supposed to be safe, in which the general public
may deposit their moneys, and where they can obtain temporary
loans upon giving the proper security. There are three classes of
persons to be protected, the depositors, the noteholders and the stock-
holders. We have no intimation that the bank, as at present or-
ganized, is not prudently and carefully managed. The stock, as
now held, is scattered among a variety of people and held in greater
or lesser amounts. It is difficult to see how the small stockholders,
who have their modest earnings invested m it, the depositors who
use it for the safe-keeping of their moneys, or the business public
Vol. XXXVI— 85

Digitized by



Foirs Appeal.

who look to it for accommodation in the way of loans, are to be
benefited by the concentration of a majority of its stock in the
hands of one man, or in such way that one man and his friends
shall control it. Especially is this so when attempt is made to con-
trol it by the use of borrowed capital. The temptations to^ise it for
personal ends in such case are very strong. It is a fact to which
we cannot close our eyes, that the financial wrecks of such institu-
tions, with which the pathway of the last few years is so thickly
strewn, are the result, in a great measure, of personal management.
This purchase has not even the merit of being an investment on the
part of the plaintiff. When a man buys and pays for stock with
his own money, it may be regarded as an investment. When he
buys it upon credit, or pays for it with borrowed money, it is a mere

Were we to affirm this decree, I see no reason why wo may not
be called upon to use the extraordinary powers of a court of equity
to assist in miscellaneous stock-jobbing operations. A party who
is attempting to make a ** corner'' in stock or in any article of
merchandise, who had made his contracts with that end in view,
might, with equal propriety, call upon us to degree specific perform-
since thereof. But the decree of a chancellor is the exercise of a
sound discretion; it is of grace, not of right, and will never be
made where the equity and justice of a case is not clear.

We are in no doubt as to our duty in the premises. Wo are of
opinion that the end sought to be attained by this bill is against
public policy, and for that reason we refuse our aid.

The decree is reversed and the bill dismissed at the cost of the


Decree reversed.

NoTB BT TBM REPORTER. — ** A contmct for the sale of stock which can be obtained in the
market wiU not in general be specifically enforced ; the buyer or seller having a suflBcient
remedy at law in the market price of such stock. Lord Macclesfield refused to decree
the specific performance of an a^^reement for the transfer of South Sea stock for the fol-
lowing reasons: First, the nature of the subject-matter of the contract; second, the cir-
cumstance that the defendant was not possessed of the stock at the time of the contract;
third, the liability to sudden rise and fall in the stock. Cud v. RuUcr^ 1 P. Wms. 670. In
a subsequent case, however, Lord Hardwickb granted specific performance of such an
agreement, and the rule has been departed from in other cases, yulbrovm y. Thornton,
10 Ves. 101. The same principles govern in contracts for the sale of stock as in the sale of
other property, that is, if a breach can be fully compensated in damages, equity will noi
interfere; whOe it will do so, when notwithstanding the payment of the money value of the
stock, the plaintiff will still lose a substantial benefit, and thereby remain uncompensated/*
Waterman on Spec. Perf., filO. As where the value is uncertain. TFMtev. Sdteiyler, 1
Abb. Pr. (U. S.) 300. Or where it cannot be had in market. Duncufl v. Mbreeht, 19 Sim.

Digitized by


NOVEMBER TERM, 1879. 675

Duff ▼. Allegheny Railroad Company.

189; Pairui ▼. HutcMnsoth !•■ R-« 3 Ch. 888. Or the contract is for stock and real estate.
New Brunswick Land Co. y. Muogeridge, 4 Drew. 686.

This sul^ect is fully discussed io Cuaiiman v. Thayer Manuf, Co,, 76 N. Y. 866 ; a. c., 91
Am, Rep. 315» a case not dted by Mr. Waterman. Nor is the principal case cited tqr him.

DuvF T. Allegheny Railroad Cohpaky.

(91 Penn. St. 458.)

Garrier — negligence — trespasser,

A railway company is not liable for the accidental death of a boy permitted
by the conductor, agidnst its rules, to ride gratuitously on the train to eell

ACTION of damages for negligence producing death. The
opinion states the point. The defendant had judgment

Isaac Ash and James D. Hancock^ for plaintiffs in error.

E. iS. Oolden, for defendant in error.

Per Curiam. This was an action by a parent to recover damages
for the death of her son on account of the alleged negligence of
the defendants. It is clear, from the evidence, that the boy was
on the train from day to day, not as a passenger or employee of the
company, but by the connivance of the conductor, in order to sell
newspapers. It is not like a person allowed by the conductor, to
ride in a car as a passenger without paying fare. In that case there
is a legal liability to the company for the fare. This is the case of
a mere trespasser, and the company owed him no duty. We are of
opinion that the rulings of the learned judge below were right.

Judgment affirmed.

NoTK BY THB R gpoB fr KH . — In Flemiiig v. Brooklyn CityR. Co., 1 Abb. N. OL 488, the
same doctrine was held under the like circumstances, by the Brooklyn city court. Hie
court said : * * He was not expected to pay fare, neither did he go onboard for the poipose
of being transported from one place to another. He simply had a license to ]
off she car for the puipoae of selling papers to the paaBeogenk**

Digitized by



Armenia iDsuranoe Company v. Paul.

Armenia Iksubakce Ooxpaky y. Paitl.

<01 Ftam. St. 8M>.)

Inmranee^warrarUif — omitHan to anmoer queMm in mppiimiim.

The entire omiaaion to answer a qaestion in a written application for
does not avoid the policy.

ACTION on fire insarance policy. The opinion ftatoB the faots.
The plaintiff had judgment below.

TTiamas M. MarskaUy for plaintiff in error
MiUer dt McBride^ for defendant in error.

PAXSOKy J. The ground upon which the defendant below seeks
to prevent a recovery is, that the plaintiffs were guilty of a sup-
pression of facts material to the risk in their application for the
policy. The application signed by Mary Ann Paul, the insured,
includes a survey of the premises, which survey contains a large
number of printed questions with blanks left for the applicant to
sign. Many of these questions were answered, and some of them
were not Among the question left unanswered was the eleventh
interrogatory, in these words: •* External exposure: What is the
distance, occupation and materials of all buildings within one hun-
dred and fifty feet ? North, east, south, west ? " The omission to
answer as to this matter is the cause of complaint It was al-
leged, on behalf of the company, that instead of being free from
exposure within one hundred and fifty feet, various inflammable
buildings were situated within that distance, and a travelled railway
track, in constant hourly use by a railroad company, was located
within nine feet of the saloon insured; that the smoke-stacks of
locomotives passing along the track emitted sparks of fire within
twelve feet of the roof of the saloon.

The fire originated upon the insured premises. It was not oaoaed
by reason of its proximity to other buildings. It may have been
occasioned by the passing locomotives. But of that the oompany
had no cause to oomplain. The application discloses the fact thi^
the property was situated on 'Hheline of the Ghartiers Valley Bail-
road and the P. 0. and St Louis Railroad, at the junction and near

Digitized by


JANUAKY TERM, 1880. 677

Armenia Insarance Company v. PaaL

the depof The company were thus warned that the location was
one of danger.

Was the omission to answer the eleventh interrogatory snch a
concealment as avoids the policy ? I am not aware that this ques-
tion has been decided in this State. It has been decided elsewhere
however^ and the authorities are against the company. Without
elaboration, the rule appears to be, that the issuing of a policy,
where a portion of the questions in the application remains un-
answered, is a waiver of answer to such questions. May on Ins.,
§ 166, citing Wilson t. Hampden Fire Insurance Co,, 4 R. I. 159 ;
Campbell v. Insurance Co., 37 N. H. 35 ; Liberty Hall Association
v. Housatonic Insurance Co., 7 Gray 261. In the case of Hall v.
Insurance Co., 6 Gray 185, it was said by Shaw, C. J.: " The fact
that one question was unanswered is immateral ; in fact, many ques-
tions were not answered. The company by consenting to make the
policy upon the application as it was waived all claim to further
answers." As this rule seems reasonable, we adopt it. When the
company came to issue this policy they saw that the eleventh inter-
rogatory was unanswered. It was in their power then to decline
the risk or seek further information. Having issued it they must
be presumed to have been satisfied with the risk.

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