Gaines v. Baldwin

Haselton, J. The case of Baldwin v. Gaines for malpractice was tried in the county court at the September Term, 1916, and the plaintiff had judgment. The case came to this Court on exceptions, and at our October Term, 1917, the judgment was reversed as to damages, and the cause was remanded for a new trial on that question only. Baldwin v. Gaines, 92 Vt. 61, 102 Atl. 338. We have here a petition for an unrestricted retrial. We are informed -by the brief of the petitioner that the remanded case has been continued in county court pending the determination of this petition for an enlargement of the reversal. Until about nine years ago it was the practice on reversal and remand for prejudical error to grant a new trial on all questions and issues. But during the time just mentioned it has been considered that where the error inheres in a single issue, the ends of justice are in general met by a new trial of that issue alone. Marshall v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128; Austin v. Langlois, 83 Vt. 104, 74 Atl. 489; Kennett v. Tudor, 85 Vt. 190, 81 Atl. 633; Griffin v. Boston & Maine Railroad, 87 Vt. 278, 89 Atl. 220; Green v. LaClair, 89 Vt. 346, 95 Atl. 499; Cross v. Passumpsic Fibre Leather Co., 90 Vt. 397, 98 Atl. 1010; Ryder v. Last Block Co., 91 Vt. 158, 99 Atl. 733; Adams v. Cook, 91 Vt. 281, 100 Atl. 42. The practice has become the general rule, but the rule is to [453] be applied with caution with a view to the furtherance of justice, and whether or not it shall be applied is always a matter within the sound discretion of the Court. Griffin v. Boston & Maine Railroad, 87 Vt. 278, 89 Atl. 220; Carpenter v. Central Vermont Ry. Co., 90 Vt. 35, 96 Atl. 373, 20 R. C. L. 222. At the time of a decision requiring a new trial on one issue, suggestions may be made by counsel to the effect that justice will be promoted by an unrestricted trial of all questions in the case. Griffin v. Boston & Maine Railroad, supra. It follows that where, as here, a petition is seasonably brought for the enlargement of a reversal, the rules governing petitions for new trials in general do not necessarily obtain. The rule here should be somewhat as flexible as the rule that where a case comes before us on findings of facts, if a reversal is had, judgment will here be rendered such as the trial court should have rendered on the facts found. Reynolds v. Bean, 91 Vt. 247, 99 Atl. 1013; Phillips v. Cutler, 89 Vt. 233, 95 Atl. 487; Davis v. Davis’ Estate, 48 Vt. 502; Smith v. Hill, 45 Vt. 90, 12 Am. Rep. 189. The defendant to this petition resided in Irasburg and was injured in an automobile accident at Newport. lie suffered a fracture of the right femur or thigh bone. The petitioner, Doctor Gaines, was one of the physicians who set the bone, and he attended Baldwin as his surgeon at Newport for about three weeks, when the patient was removed to his home in Irasburg. Doctor Templeton, of Irasburg, was the family physician of the Baldwins, and one of the issues in the ease was whether after the removal of Baldwin to Irasburg the latter was' under the care of Doctor Templeton or of Doctor Gaines as attending physician and surgeon. Upon this important question the affidavits of newly discovered evidence attached to the petition have a very considerable bearing. The affidavits also have some bearing upon the question of whether or not the deformity in Mr. Baldwin’s right leg (it is now about two and one-fourth inches shorter than the other) resulted from his own imprudence. If this were a petition to open litigation that has been ended we might not be able to say that the affidavits are sufficient for that purpose. And we might have difficulty in holding that the affidavits of diligence are specific enough. Gilfillan v. Gilfillan’s Estate, 90 Vt. 94, 96 Atl. 704; Usher v. Allen, 89 Vt. 545, 95 Atl. 809; Willard v. Nor454 cross, 86 Vt. 426, 85 Atl. 904; Ploof v. Putnam, 83 Vt. 494, 76 Atl. 145; Flint v. Holman, 82 Vt. 513, 74 Atl. 232; Hemmenway v. Lincoln, 82 Vt. 465, 73 Atl. 1073; Lucia v. State, 77 Vt. 279, 59 Atl. 1016; May v. State, 77 Vt. 330, 60 Atl. 1. But here the question is not whether there shall be a new trial, but relates to the scope of such trial. Much of the newly discovered evidence will necessarily be admissible on the question of damages, for the petitioner can be held liable only for injuries attributable to his fault. Mullin v. Flanders, 73 Vt. 95, 50 Atl. 813; Hathorn v. Richmond, 48 Vt. 557; Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338. We think it will subserve the ends of justice, and will consist with the rules governing new trials in general, to enlarge the reversal upon the showing made and order a new trial without restrictions. Having reached this conclusion, we purposely refrain from a detailed comment upon the affidavits, and from expressing an opinion as to the, probable result of an unrestricted new trial, as we ordinarily do when we have under consideration a petition for a new trial which looks to the renewal of litigation once ended. Petition granted. Miles, J., did not sit.