Carpenter v. Walker

MAYFIELD, J.- Appellee, an infant, by his next friend sued appellant, a physician, for malpractice in treating and setting a broken arm for the plaintiff, alleging that in consequence of appellant’s negligence in the matter the plaintiff lost his arm, and suffered much pain and anguish. The defendant filed a plea in abatement, setting up that the action was ex contractu, and that defendant was a resident of Madson county, and not of Marshall, in which suit was brought. A demurrer was interposed and sustained to his plea, and properly, because the action is in tort and not in contract. The defendant then demurred to the complaint and to each count thereof, assigning many grounds; but the only ones insisted upon involve the same question raised by the plea. — that the complaint or some count thereof is ex contractu, while other counts are ex delicto; and that there was therefore a misjoinder of counts, the trial being had before the new Code became operative. [663] This point is not well taken. All the counts are ex ■delicto, hence there was no misjoinder. All the allegations as to a contract are mere matters of inducement and to show the relation between the parties, and to show that there was a breach of a duty, owing by the defendant to the plaintiff, based upon or growing out of the contractual relations between the parties. The gravamen of the action, in each count, is clearly the breach of this duty owing by the defendant to the plaintiff, and not a mere breach of the contract itself.—White v. Levy, 91 Ala. 179, 8 South. 563. The action against a physician for malpractice need not be based upon a contract though it may be, and usually is. It is sufficient if based upon his legal obligation. The action for malpractice is essentially in tort, and hence' it is immaterial by whom the physician is employed.—Coldwell v. Stegall, 5 Bing. (N. C.) 733; Pippin v. Shepherd, 11 Price, 400; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900. While a physician or surgeon may, under the same state of facts, be liable both ex contractu and ex delicto, yet the plaintiff has the option to declare against him in either form; but prior to the present Code he could not declare in both in the same action. There was no attempt to declare ex contractu or in as-sumpsit in this case; all the counts are ex delicto and in case, based on negligence. As to the duty, care, and skill required of physicians and surgeons, the rule (as twice before announced) is as folloAvs: “ ‘The reasonable and ordinary care, skill, and dilligence which the law requires of physicians and (surgeons in such as physicians and surgeons in the same general neighborhood, in the same general line of practice, ordinarily have and exercise in a like case.’ This [664] statement was appropriated from 14 Am. & Eng. Law, pp. 76, 78. The like doctrine is announced in 30 Cyc. 1575 ’’— McDonald v. Harris, 131 Ala. 359, 368, 31 South. 548; Shelton v. Hacelip, 167 Ala. 217, 51 South. 937. There was no error in allowing the question to be propounded to Dr. Lusk, “Whether it was reasonable prudence on the part of a surgeon setting a broken limb to leave the patient for 10 days without any one trained in treating wounds, and with instructions to his parent that he need not be sent for unless the hand turned black.” The only objection assigned was that it substituted the “witness for the jury, and called for an opinion which he, as an expert, could not give; that is, the objection concedes that the witness was shown to be an expert. And if such he was, he was competent to give an expert opinion as to the question hypothesized. There was evidence justifying the hypothesis put ; and it. was not a substitution of the witness for the jury, but was to afford them the benefit of an expert’s opinion as to whether that kind of treatment was reasonable prudence.—L. & N. R. R. Co. v. Stewart, 128 Ala. 313, 29 South. 562; 1 Greenl. Ev. § 441k et seq.; Parish’s Case, 130 Ala. 92, 30 South. 474. Likewise, there was no error in allowing Dr. Johnson to testify as to how soon, after setting an arm, it would be reasonably prudent to return to see the patient, where the injury was such as it was shown to be in this case. While this question did not hypothesize the facts upon which the opinion was based, as was done in the question to Dr. Lusk, but was based upon an injury “such as wras shown in this case,” yet no injury could or did result from alloAving the question, because the character of the injury in that case was not disput [665] ed by the plaintiff not the defendant; it was a broken arm — a compound fracture of tbe forearm. So the character of the injury ivas not a disputed question, to be passed upon by the jury and not by the witness; it was conceded and not disputed. There was no error in giving charge A. It Avas correct, when applied to the evidence in the case. The amount of damages Avas a question for the jury, to be determined from the evidence; and it was not error for the court to limit it to the amount claimed in the complaint. The court did not intimate that the jury should find for the full amount claimed, and the jury did not so find. There was evidence to support the verdict as to the amount; and the charge was that the jury should be governed by the evidence — Avhich was of course proper. We find that there is nothing in appellee’s motion to dismiss the appeal or to strike the bill of exceptions. Appellee delayed too long in making his motion to dismiss the appeal for failure to file transcript. The motion was not made at the term or call at which the transcript was submitted, but at the next call of the Eighth Division, after an order had been made by this court for certiorari to perfect the record, and continuing the case. He should have made his motion at the term or call to which the transcript was returnable. The bill of exceptions was signed within the time fixed by la-AV and by the orders of the presiding judge. Finding no error, the judgment is'affirmed. Affirmed. Dowdell, C. J., and Simpson and McClellan, JJ., concur.