Reynolds v. Graves

By the Court, Sanra, <L

The declaration in this-, case contains two counts. The first count, after stat- *420 iiicr the o retainer and employment of tlie defendant’ as physician and surgeon, (he the said defendant holding himself out and claiming to be such physician and surgeon,) “to set, dress, take care of, manage and cure a certain broken bone of the thigh of the said plaintiff” alleges, “ and thereupon it then and there became the duty of the said defendant, to set, dress, take care of, and manage the said broken bone as such physician and surgeon, with due and proper care, skill and diligence, and the said defendant in consideration thereof, and of certain large sums of money then and there agreed to be paid to him by the said plaintiff as a compensation for his services as such physician and surgeon, then and there undertook and promised to set, dress, take care of, and manage as such physician and surgeon, said broken bone in a proper, prudent and skilful manner,” <fec.

The second count, s°ts out the undertaking of the plaintiff, as being “ to set, dress, manage, attend upon, and cure a certain broken bone in a proper and skill" ful manner” &c.

After evidence had been submitted on the part of the plaintiff, the counsel for the defendant moved the court to nonsuit the plaintiff, on the ground :

1st. Because the several counts in the declaration set out a special agreement on the part of the defendant to cure the plaintiff’s limb, and no such agreement was proved ;

2nd. Because there was no evidence that the defendant was a physician and surgeon ;

3d. Because the contract recited in each count is a special contract, and not such an one as the law implies or creates, and the contract must be proved as recited or alleged and

*421 4th. The allegation that the defendant held him- ‘ self out as a physician and surgeon <fcc., is a material allegation, and is not proved as recited and alleged.

The circuit judge held, that "both counts in the declaration, alleged a special agreement on the part of the defendant to “ cnrcP the plaintiff’s broken bone? and as no such special contract was proved, nonsuited the p1" intiff.

We are of the opinion that the first count in the declaration does not set out a special contract to cure the plaintiff’s broken bone. It alleges that the defendant held himself out as a physician and surgeon, and as such he was employed and retained, to set, dress, take care of, manage and cure, &c., and in consideration of the premises and certain large sums of money &c., as such physician and surgeon, undertook and promised, “ to set, dress, take care of and manage, as such physician and surgeon, said broken bone in a proper, prudent and skillful manner.” The gist of the undertaking here is, not to cure the plaintiff, but to use reasonable professional skill and attention to that end. This count certainly does not set out any special agreement to cure. It is true that by way of inducement it is stated, that he was em-. ployed and retained for that purpose, as most likely he or any other professional surgeon would have been. That was the end in view. But when the undertaking and promise of the surgeon is stated, the word cure is left out, and the extent of his obligation as averred is to “ set, dress, take care of, and manage as such physician and surgeon, said broken bone in a proper, prudent and skillful manner.” To this ex. tent the law would hold him liable in consequence of his holding himself out as a physician and surgeon. *422 We do not think therefore that this count does set t out a special contract to cure the plaintiff, but only a such as the law implies, to use due and reasonab)}e skill and diligence to that end.

The proof offered and adduced under this count, that the defendant did hold himself out as such physician and surgeon was sufficient to go to the jury/ He was called as such in the first instance. lie attended and consulted with Dr. Vilas. ITe was called doctor during his attendance. He attended as surgeon seven weeks, assuming the whole direction and treatment of the inj ured limb, and went into consultation thereupon with other physicians and surgeons. These facts, though not perhaps direct proof of his holding himself out as a physician and surgeon, are sufficient to go to the jury as circumstantial evidence, and the court below erred ini withholding them from the jury.

The second count is more analogous to the case cited from 7 Ohio Rep. 468 , and did that count stand alone we might be inclined to hold as did the court in that instance. There the declaration stated an absolute wideriaking and promise on the part of the defendant to owe the plaintiff. Such certainly is not the undertaking which the law implies in such cases ; but only that reasonable skill, judgment and diligence shall be bestowed, for the accomplishment of the end in view. Whenever the contract is laid more comprehensive than that which the law implies, it then becomes special and must be proved as laid. But the undertaking of the defendant as alleged in the first count is no more nor less than the law implies in similar cases. The jury might or not have found, from the circumstances proved, that the defendant *423 did hold himself out as a physician and surgeon, and as such undertook and promised as alleged in the declaration. But the proof tended that way, and was proper to go to the jury. Bor these reasons we think the court below erred in non-suiting the plaintiff, and the case must go back for a new trial.

Judgment reversed and new trial awarded.