Adams v. Henry

Brooke, J. (after stating the facts). We are of opinion, if plaintiff had been permitted to produce, and had been able to produce, testimony tending to establish the statements contained in the offer, that it cannot be said, as a matter of law, that defendant was not negligent. If defendant was present and responded personally to each call that is said to have been made upon him between 11 and 12:30 o’clock, and upon each occasion agreed to at once attend the plaintiff and failed to keep his promise, we think he should be held liable, if his failure to attend resulted in injury to plaintiff. We note that plaintiff did not offer to prove that the laceration of the cervix and the rupture of the perineum resulted from defendant’s failure to attend as it is alleged he had agreed. The declaration contains the averment, however, and we are disposed to the view that plaintiff should have been permitted to offer such testimony as she possessed pertinent to the issue. Defendant contends that, inasmuch as by his plea he shows that he has obtained a judgment against plaintiff in justice’s court (now pending on appeal to the circuit court) for his services rendered at the time of plaintiff’s confinement, the judgment operates as a bar to the present action. That question was not passed upon by the court below, and has not been briefed by plaintiff in this court. Until an adjudication is had upon the question in the circuit court, we must decline to consider it. The judgment is reversed, and a new trial ordered. Hooker, Moore, McAlvay, and Blair, JJ., concurred.