Dunbauld v. Thompson

GiveN, J. I. Appellant’s first contention is that the-evidence fails to« show negligence or want of care and skill on his part in treating the plaintiff. The evidence is in sharp conflict upon this issue, the issue was fairly submitted to the jury, and the verdict has such support as that, under the rules in such cases, it should not be set aside on this ground. [201] II. Appellant’s next complaint is that medical works, were introduced and read as evidence by the plaintiff, and be cites Railway v. Yates, 25 C. C. A. 104 (79 Fed. Rep. 584); 1 Bixby v. Bridge Co., 105 Iowa, 293. The record shows that such works were introduced and extensively read from as evidence by both parties-without objection. Therefore the complaint is not well founded. III. It is complained that in the ninth instruction-the court charged “that it may be immaterial whether any insect, or part thereof, was in fact in the ear of the plaintiff, or not, at the time it is charged he attempted- to remove same from the ear of the plaintiff.” No such language is-contained in that instruction. The complaint was probably intended to be directed to the sixth, but that instruction is in harmony with the allegations of the petition, and is not erroneous. IV. Appellant complains of the overruling of his.motion for a new trial on the third and ninth grounds-thereof. The third ground is that Juror McAnulty declined 2 to assent to the verdict when the jury was brought into court. It appears: That the jury retired on Friday, and that it was agreed that they might return a sealed verdict and separate, but no agreement that they might be polled on bringing in their verdict. That the jury agreed upon a verdict Saturday night, which was signed, sealed, and taken charge of by Mr. McAnulty, as foreman. As directed, the jury returned into court on Monday morning, and each responded to- the call, and, upon being asked if they had agreed upon a verdict, the foreman,Mr. McAnulty, answered, “W© have,” and passed the sealed verdict to the judge. The verdict was read, and, upon being- asked if that was their verdict, the jurors all responded in the affirmative, except Mr. McAnulty, who-did not respond. The defendant asked that the jury be polled, which, on objection of plaintiff, was refused. There [202] upon Hr. McAnulty said: “I did not- answer to t-bat call. I wish to make an explanation;” and this 'he was permitted to do. Defendant asked to be permitted to examine the-jury, which, on plaintiff’s objection, was refused. Mr. McAnulty makes affidavit that his health was such that he could not stand the confinement of the jury room; that on • Saturday he, through the bailiff, asked to' see the judge, that he might so inform him, and that he could not agree with his fellow jurors; that he refused to concur in the view off the other jurors' until about 10 o’clock Saturday nighjt, when he “consented to a compromise verdict,” believing that it would not stand, and in order that he might be relieved from further confinement. He says he does not believe the verdict is just, and does not concur in it. Two of the jurors testify that they did not see any evidence of ill health on the part of Mr. McAnulty. Section 3724 of the Code is as follows: “When by consent of the parties and the court the jury have been permitted to¡ seal their verdict and separate before it is rendered, such sealing is equivalent to a rendition and a recording thereof in open court, nor shall such jury be polled or permitted to disagree thereto, unless such course has been agreed upon between the parties in open court and entered on the record.” See, also, Bingham v. Foster, 37 Iowa, 339. There was no error in refusing to allow thei jury to be polled, nor in refusing to allow Mr. McAnulty to then disagree to the verdict; hence the third ground of the motion for a new trial was properly overruled. V. The ninth ground is because of newly-discovered evidence. The affidavits show that, after the verdict, defendant’s counsel, discovered that one Everett would testify to material conversations with the plaintiff as to her condition when she went to the defendant for treatment. It also appears that prior to the trial defendant was informed that Everett had had a conversation with the plaintiff about the [203] time she came for treatment, but was unable until after 3 the verdict to learn what the conversation was. That defendant caused a subpoena to issue for said Everett, but the officer failed to find him and the trial proceeded without him. This evidence, though important, is merely cumulative; and the defendant did not aslc any delay or continuance on account of the failure to get service on Everett, though knowing of his. having conversed with the-plaintiff. See notes to section 3755 of the Code, under “Newly Discovered Evidence.” The ninth ground of the motion was properly overruled. 1 VI. The fourth paragraph of the charge was excepted to, and is as follows: “(4) One who undertakes the treatment or care of disease or an injury is bound to use and exercise the learning, skill, and prudence which is ordinarily employed by members of the profession generally, taking into-'consideration the improved methods and advanced 4 state of learning which ordinarily characterize the practice of such profession at the time in question. Failure to- exercise such degree of learning or skill or care is negligence, and if, by reason of such negligence on the part- of a physician or surgeon, a patient is injured, or is caused to suffer increased or unnecessary bodily p-ain or anguish, or is put to unnecessary expense, then the physician is held liable in law to the patient for all damages so sustained.” This instruction is in harmony with the rule announced in Smothers v. Hanks, 34 Iowa, 287; but in the recent case of Whitesell v. Hill, 101 Iowa, 629, we held that statement of the rule to- be erroneous, and, after a careful review of the cases, announced the rule as follows: “But we are of the opinion that the correct rule is that a physician and surgeon, when employed in his professional capacities, is required to exercise that degree o-f knowledge, skill, and care which physicians and surgeons practicing in similar localities ordinarily possess.” It is further said: “We conclude, however, that the portions of the charge under [204] consideration, although not correct, considered abstractly,, could not have prejudiced the plaintiff.” The same is true in this case. — Affirmed. 'WatermaN, J., taking no part.