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due, and proper care or skill in his treat- cause it assumed facts that were not in eviment of this plaintiff, and in endeavoring dence. This objection is not well taken upto cure this plaintiff of the said malady, in on either ground. A hypothetical question this: that, this plaintiff being afflicted with is framed upon the assumption that the evi. phimosis, or an adherence of the prepuce or dence tends to prove certain facts, and, if foreskin of the penis to the head thereof, within the probable or possible range of the and a consequent swelling thereof, the said evidence, it is unobjectionable. Gottlieb v. defendant, instead of slitting up the prepuce Hartman, 3 Colo. 53; Cowley v. People, 83 or foreskin to the corona, etc., and thus N. Y. 464; Harnett v. Garvey, 66 N. Y. 611; freeing the glands of the penis and allowing Guiterman v. Steamship Co., 83 N. Y. 358. circulation, and using other appliances and In the hypothetical question propounded in remedies, as is the reasonable, usual, and this case, counsel for plaintiff assumed the ordinary method adopted by the profession facts in accordance with his theory of what in such cases as this to prevent gangrene the evidence tended to prove. It was not esand sloughing, etc., wrongfully, negligently, sential that such facts should be undisputed. and unskillfully applied and directed to be It was the province of the jury to determine applied and kept on the penis of this plain- whether they were actually proved. As was tiff a flaxseed-meal poultice, which applica- said by Folger, C. J., in the case of Cowley tion, under the circumstances and in the v. People, supra, in discussing this question: condition of plaintiff's malady, aggravated "The claim is that a hypothetical question said malady, and accelerated that condition may not be put to an expert, unless it states of gangrene and sloughing which followed, the facts as they exist. It is manifest, if and which might have been prevented by this is the rule, that in a trial where there is proper treatment; and that thus the said a dispute as to the facts, which can be setdefendant wrongfully, negligently, and un- tled only by the jury, there would be no skillfully treated this plaintiff, and wrong- room for a hypothetical question. The very fully, negligently, and unskillfully neglect- meaning of the word is that it supposes, ased to use the proper and ordinary means sunies, something for the time being. Each and care whereby this plaintiff's member side, in an issue of fact, has its theory of aforesaid might have been saved and cured what is the true state of the facts, and as. or relieved. Fourth. That by reason of the sumes that it can prove it to be so to the premises, the wrongful, negligent, careless, satisfaction of the jury, and, so assuining, and unskillful treatment of this plaintiff shapes hypothetical questions to experts acby the said defendant, and without any fault cordingly.” Without noticing in detail the on the part of the plaintiff, gangrene and

testimony relied on as tending to establish sloughing set in, and it became necessary to

the facts assumed in the question complainamputate, and the physicians attending this ed of, suffice it to say we find ample testiplaintiff did amputate, his penis wholly miony in the record tending to support euch from the body; that this plaintiff has been and every phase of the question, and suffiinjured in his health and constitution"; etc., cient to justify the submission of the same and prays judgment in the sum of $20,000. to the jury. Defendant, for answer, admits that he was The cause of action set forth in the coma practicing physician, and was called to at- plaint is that plaintiff was afflicted with tend upon and administer medicine to plain- phimosis; that the prepuce or foreskin adtiff, but denies generally each and every hered to the head of the penis, and caused other allegation contained in the complaint. a constriction or strangulation, that preventThe cause was tried to a jury; verdict and ed circulation, and produced a swelling there. judgment rendered in favor of plaintiff for of; that, by reason of negligence and unskillthe sum of $5,000. From this judgment ful and improper treatment by defendant, the defendant appealed to the court of ap- gangrene set in and destroyed the organ. peals, which court reversed the judgment of Upon this theory the case was tried by the the district court. From this judgment, | plaintiff, and, in support thereof, he offered plaintiff brings the case here on appeal. testimony to show the condition of the penis

at the time defendant had charge of the case. A. H. Wyckoff and C. H. Brierly, for ap

The defendant, by his answer, in effect depellant. Wolcott & Vaile and Henry F.

nied that phimosis was the malady from May, for appellee.

which plaintiff suffered; and, by his evidence,

sought to show that the predisposing cause GODDARD, J. (after stating the facts). of the swollen condition of the organ was The numerous errors assigned are directed to an ulceration of the urinal canal; and that the admission of improper testimony, and to for such a case be used the proper treatment. the giving and refusing of instructions. Therefore, it became the important, if not Those assigned upon the admission of testi- the controlling, question in the case, which mony are principally based upon the court's of these respective theories was correct, since permitting the expert witnesses on the part the propriety of defendant's treatment of of plaintiff to answer the hypothetical ques. | plaintiff depends upon which was the cortion propounded-First, because it was not rect diagnosis, and whether defendant exer: limited to undisputed facts; and, second, be- cised ordinary care and skill in examining the case, as well as in applying remedies. To enlightened judgment where good judgments determine this, resort must be had to the may differ;

they will be charged opinion of experts, based upon the ultimate with error, or should be, only where such erfacts as the jury may find them established rors could not have arisen except from want by the weight of the evidence. Perceiving of reasonable skill and diligence" (Elw. Med. no error, therefore, in the admission of testi- Jur. pp. 29, 30),-yet, as is said by Ewing, J., mony, and it being the exclusive province of in discussing a like instruction in the case the jury to determine its probative force and of West v. Martin, 31 Mo. 375: "Whether er: the facts established thereby, we are preclud- rors of judgment will or will not make a ed, on this review, from discussing the cred- ; surgeon liable in a given case depends not ibility of the witnesses or the weight of their | merely upon the fact that he may be orditestimony; nor are we at liberty to substi- narily skillful as such, but whether he has tute our opinion for that of medical experts treated the case skillfully, or has exercised as to the proper mode of treatment, but must in its treatment such reasonable skill and diliaccept the verdict as conclusive of the cor- gence as is ordinarily exercised in his prorectness of plaintiff's theory that the malady | fession." If it be conceded, as counsel for from which he suffered was phimosis, and defendant contends, that by the pleadings it that the mode of treatment adopted by de

is admitted that defendant possesses the fendant was improper and injurious.

requisite skill and judgment, the gravamen It only remains for us to determine whether of this case being that he neglected to exthe testimony was submitted to the jury un- ercise ordinary care and diligence in his exder instructions which correctly define the amination, and in using such skill and judg. law applicable to the case. We think that ment in the diagnosis of the case, as well the instructions, taken as a whole, correctly as in applying remedies, the instruction is define the nature and extent of the obligation objectionable, in that it exempts defendant that a physician or surgeon assumes when he from responsibility if he used his best judgaccepts employment in his professional ca- ment, notwithstanding he may have been inpacity. They certainly embody the law on attentive or careless in his examination of the the subject as uniformly laid down by text case, or whether the case was such that the writers and announced in the adjudicated proper mode of treatment was involved in cases. They state, in substance, that, by doubt. After a most thorough and careful holding himself out to the world as a phy. examination of the record, and especially of sician and surgeon, he impliedly contracts the instructions passed upon by the court of that he possesses the reasonable degree of appeals, we are unable to concur in the conskill, learning, and experience which good clusion reached by that court; and, while of physicians and surgeons of ordinary ability the opinion that some of them are subject to and skill, practicing in similar localities, ordi- criticism, we think, nevertheless, that, when narily possess; that, in judging of the proper read in connection with the general charge, degree of skill in any given case, regard is they cannot be held to constitute reversible to be had to the advanced state of the pro- error. fession at the time; that he will use his The first one in order and importance is skill with ordinary care and diligence ac- No. 5, and reads as follows:

"If you cording to the circumstances of the case, and find from the evidence that this defendant, is liable only for ordinary neglect; that he in the treatment of the plaintiff, omitted the does not undertake to warrant a cure, but ordinary or established mode of treatment, only to exercise a reasonable amount of and pursued one that has proved injurious, knowledge, skill, and care in diagnosing the it is of no consequence how much skill he case and in applying the remedies; and the may have; he has demonstrated a want of jury are expressly told that, if they should it in the treatment of the particular case, • find that defendant brought to the treatment and is liable in damages.” As a general of plaintiff such ordinary degree of knowl. abstract proposition of law, this instruction edge and such skill and judgment, the plain- may be subject to criticism. It is not altiff could not recover. We do not understand ways true that a physician, by famung to that counsel for defendant seriously contro- use the "ordinary or established mode of verts the correctness of the foregoing rules, treatment," demonstrates a want of skill; but relies for a reversal of the judgment rath- but in a case involving doubt, or when there er upon the refusal of the court to give cer- are reasonable grounds for a difference of tain specific instructions requested by him, opinion as to the nature of the disease and and the giving of particular instructions ask- the proper mode of treatment, if a physician ed by plaintiff, notably the refusal to give or surgeon possessing the requisite qualifithe following: “If you believe that the de- cations applies his best skill and judgment, fendant exercised his best judgment in diag with ordinary care and diligence, to the exnosing the plaintiff's case, and in applying amination and treatment of a case, he is not remedies thereto, the plaintiff cannot recover, responsible for an honest mistake or error although you may believe that the defendant of judgment as to the character of the dis. was mistaken as to the true character of the ease or the best mode of treatment. Patten disease." While it is true that physicians' v. Wiggin, 51 Me. 594. But when read in “are not responsible for the error's of an view of the issue presented by the pleadings in this case, and in the light of the testi- a treatment laid down by some writers or mony introduced, we do not think the in. practiced by some surgeons should control, struction could have misled the jury to the but that it clearly conveys the idea that the prejudice of defendant. As above stated, mode of treatment meant is one which writ. the complaint alleges that plaintiff was ers and the profession universally commend. suffering from phimosis, and that the ordi. With this construction the rule announced nary method adopted by the profession in is correct. There must be some criterion by the treatment of such cases was to slit up which to test the proper mode of treatment the prepuce or foreskin; that defendant in a given case; and, when a particular wrongfully neglected to adopt this method, mode of treatment is upheld by a consensus and applied a different remedy, which ag. of opinion among the members of the progravated the malady and accelerated gan- fession, it should be followed by the ordigrene, which caused a destruction of the

nary practitioner; and, if a physician sees member. These allegations were denied by fit to experiment with some other mode, he defendant, and upon this issue the jury should do so at his peril. In other words, were called to pass. We find abundant evi- he must be able, in the case of deleterious dence in the record to the effect that the results, to satisfy the jury that he had reaplaintiff was afflicted with phimosis, and son for the faith that was in him, and justhat the ordinary and established practice tify his experiment by some reasonable of the profession was to treat that ailment theory. As was said in the case of Carpenin the manner alleged in the complaint; ter v. Blake, 60 Barb. 488: "Some standand, in fact, the defendant himself testified ard by which to determine the propriety of that such was the proper treatment of that treatment must be adopted; otherwise exmalady. It therefore became a pertinent periment will take the place of skill, and the inquiry to be submitted to the jury whether reckless experimentalist the place of the the evidence showed an established mode educated, experienced practitioner. If the of treatment in such a case, and, if so, case is a new one, the patient must trust to whether defendant adopted some other the skill and experience of the surgeon he mode, that proved injurious; and, if he did, calls; so must he if the injury or the disit was immaterial how much skill he pos- ease is attended with injury to other parts, sessed, since his failure to use it constituted or other diseases have developed themselves, such negligence as would render him liable. for which there is no established mode of As was said in the case of Patten v. Wiggin, treatment. But, when the case is one as supra: "If the case is such that no physi- to which a system of treatment has been cian of ordinary knowledge or skill would followed for a long time, there should be doubt or hesitate, and but one course of no departure from it, unless the surgeon treatment would by such professional men who does it is prepared to take the risk of be suggested, then any other course oi treat- establishing, by his success, the propriety ment might be evidence of a want of ordi. and safety of his experiment. The rule pronary knowledge or skill, or care and atten- tects the community against reckless extion, or exercise of his best judgment, and a periments, while it admits the adoption of physician might be held liable, however new remedies and modes of treatment only high his former reputation.”

when their benefits have been demonstrat. In this connection, although out of its ed, or when, from the necessity of the case, order, we notice instruction No. 16, as it the surgeon or physician must be left to the embodies somewhat the same principle, in exercise of his own skill and experience." the following language: “That, if writers And, furthermore, this instruction could not on the treatment of phimosis, or practical in any event be prejudicial to the rights of surgeons prescribe a mode of treatment, it defendant, since the evidence before the jury is incumbent on surgeons called on to treat

concurred as to the proper treatment to be such an ailment to conform to the system of used in a case of phimosis, and there was treatment thus established, and, if they de- therefore no contention as to different modes part from it, they do so at their peril.” The of treatment, should the jury find from the learned writer of the opinion of the court of evidence that plaintiff suffered from that appeals condemns this instruction, because it malady. And when we limit our investigacontra venes the rule that the criterion by tion to the testimony upon which the case which to judge of the correctness of a par:

was submitted to the jury, as we must, we ticular mode of treatment must be one uni- find no possible aspect of the case in which versally adopted by the profession, and that the instruction complained of could consti. the language used in the instruction may tute prejudicial error. be construed to mean that a treatinent pre

The following instruction, No. 8: "If the scribed by some writers or some surgeons jury find from the evidence that, through may not be departed from without peril, the negligence of the defendant, gangrene and for the further reason that, if sustained, attacked the plaintiff, and necessitated the the rule announced will prohibit further prog. | amputation of the organ, or if you find that ress in surgery. We do not think the lan- gangrene had set in upon the first visit of guage used should be construed, or that the the defendant, yet he neglected to take the jury could have understood it to mean, that proper and ordinary measures to prevent its

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progress, and thus necessitated amputation, whole organ was more or less gangrenous. or greater amputation than would otherwise it was my impression then, and it is now, have been necessary, he is liable in dam- that the constriction was from congenital ages,”—was held to be error by the court of | phimosis. That was the predisposing cause. appeals, because it assumed that at the * Q. What other symptoms have you time Dr. Burnham was called, and during besides color to detect gangrene? A. Why, the time he was in attendance, gangrene had the sensation transmitted to you by the set in, and, further, because the record fail- touch; feeling of the tissues and cracking ed to disclose testimony satisfactorily estab- sensation, the formation of the gas and lishing that fact, and it was a conclusion of the composition of the parts. The swollen the court wholly unwarranted by the evi- condition, and possibly the degree of the dence. We are unable to concur in this temperature of the parts, determine gan. view for either of the reasons stated. We grene from that source as well. cannot see wherein the instruction contains From the condition of the person at my any assumption of fact, but we think it first visit, my opinion was that there was a clearly leaves the finding of the facts to time when liberation of this compression or the jury. We furthermore find considerable constriction would have prevented gangrene testimony tending to establish the fact that of the glands in the body." William A. gangrene had set in during the time, at Rothwell testified: “At the first cut, the least, that defendant was treating the case, skin and tissue under the cut was alive; and certainly much evidence that very the center part entirely dead.

It strongly supports the conclusion that, even was all gangrenous up to the roots. When if it had not set in on his first visit, through I went there, it was very much swollen, his negligence gangrene attacked the plain and on pressure, gas came off, and the smell tiff, and necessitated the amputation. Up- was simply terrible.” John Boice testified: on this point the plaintiff testified, inter alia: I am a surgeon.

Made it a spe“When he (referring to defendant) was there cialty for twelve years. Was called in conTuesday morning, he did not ask me to feel sultation with Dr. Craig and Dr. Rothwell of the organ and tell what I felt. But then to the plaintiff about 8th of January last. I was handling it. * This gas came Think I saw him on the 9th with Dr. Rothout, and bloodlike, and he saw that.

well. Dr. Craig was not present. I found The head was perfectly black, and the skin the penis very much swollen, with the prepart looked as though there was corruption puce slit up to the corona, and the glands under it, ready to break out; looked whit- in a sloughing condition." The defendant ish all from the head back to a half inch or himself testified: "I examined the organ so from the body.” Peter Vass, a witness as far as I could, but I found it in a filthy for plaintiff, testified on this point: “I had condition. Not only in appearance, but in sole charge of making and putting on the odor; it was filthy. It was practically what poultices. I first detected any odor on I would term stinking." On cross-examinaTuesday. * * When I first noticed the tion: “Q. You saw no symptoms of ganodor, the head of the penis was very dark, grene? A. I saw, sir, a condition that led not the natural color of the skin.

me to fear. Q. Gangrene? A. Yes, sir. Q. When I would touch it, it seemed as though What are the different kinds of gangrene, it was dead; like you press your flesh doctor? A. Well, there is dry gangrene, down, and it didn't stay there. There was

and there is moist gangrene.

In this case no life." P. D. Rothwell, a physician, testi- it was moist gangrene, I should judge, from fied: "Was called on the 8th, Wednesday the symptoms I've heard. * * Q. Doc. night. * * * I examined the organ by tor, did you know that gangrene had set in taking it in my hand, and pressing upon it, at the last time you were there? A. Not and determining the nature as near as I positively, sir. Q. If you did not know this, could what constituted or made that swell- why did you prescribe the disinfectant, such ing. I told him it was gangrenous, and I as charcoal? A. Well, sir, because I feared. didn't wish to have anything to do with the Q. You feared there was? A. I feared there case.” William B. Craig testified: "I am a might be, sir." Other testimony to the same physician. Have practiced since 1875. Was effect appears in the record, but we have called in consultation with Dr. Rothwell in cited this much to show that there was plaintiff's case Wednesday evening, between evidence sufficient to justify giving this ineight and nine o'clock, January 8th. Found struction. Whether it satisfactorily estabthe penis in a state of gangrene. As far lished the fact that gangrene had set in as I could judge from the history of the case while Dr. Burnham was attending the case, and condition of the organ, the grangrene or resulted through his negligence, was for was due to phimosis.

The head the jury to determine; and the question, we was shrunken, mummified in appearance. think, was properly submitted to them by Strangulation had taken place when I saw this instruction. it. * * * It was impossible to say just The objection urged, and sustained by the how long gangrene had existed in the glands. court of appeals, to instruction No. 15, is It had existed for some time. I should of more serious import. This instruction is judge, from the extent of the gangrene, the as follows: “That it is important to the

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interests of society that the profession in- contract, being joint, and in effect calling for trusted with the preservation of the health the purchase of 6,400 shares to come out of and lives of the community should be held

5,000, was impossible of performance, and void.

2. Where such contract was made to be to a strict rule of accountability.” This is used as collateral security for such note, and it not the affirmance of any legal proposition, and the certificate of stock were attached to the but is true only as a statement of a moral

note when delivered to the payees before they

parted with the consideration for the note, the obligation that rests upon one who assumes

contract was not without consideration. to exercise the function of a profession that

Error to district court, Arapahoe county. deals with the important matter of life and

Action by Horace W. Bennett and Julius death, and, as well said by the learned writer of the opinion of the court of ap

A. Meyers against Fred. C. Morse to recover peals: "That it is referring to matters which

damages for breach of contract. There was should not have been called to the attention

a judgment sustaining a demurrer to the of the jury.” But, notwithstanding this,

petition, and plaintiffs bring error. Atfirm

ed. unless it may be held to have in some way prejudiced the minds of the jury against Benedict & Phelps and Horace Phelps, for defendant, it does not constitute reversible plaintiffs in error. L. B. France. for defenderror. That it could not have had that ant in error. effect when construed in connection with the other instructions, wherein the court THOMSON, J. In this case a demurrer had repeatedly advised the jury as to the was sustained to the complaint, and final measure of defendant's duties and obliga-judgment rendered upon the demurrer, from tions, we think, is evident. They had been which error is prosecuted to this court. It told, both in the instructions asked by plain- | appears from the complaint that one E. A. tiff and those given on the part of defend- Willoughby, for the purpose of procuring ant, that the defendant, in the treatment of a loan from the plaintiffs, Bennett & Meyers, the case, was required to exercise only or- in the sum of $2,300, on the 18th day of Jandinary care and skill, and that he could be uary, 1892, executed his promissory note, held liable only for ordinary neglect. The whereby he promised to pay that sum to expression, therefore, that physicians "should them six months after the date of the note, be held to a strict rule of accountability," with interest from date at 12 per cent per in the light of all the instructions, must annum. At the time of making the note, have been regarded by the jury in the sense and before its delivery, there was attached that it was originally used in the opinion to it a certificate for 5,000 shares of the from which it was copied; and that is that capital stock of the Colorado & Utah Mining a compliance on their part with their legal & Investment Company, duly assigned to obligation should be strictly enforced. It the plaintiffs, and which was delivered to has been frequently held that only prej- them at the time of the delivery of the udicial error constitutes a ground for re- note. After the note was executed, and the versal; and if the court can see that upon stock certificate attached to it, and before the whole testimony of the case, and under delivery to the plaintiffs, Willoughby prothe governing principles of law, the result cured the defendant and 15 other persons to reached in the trial of the cause is a just enter into the following agreement, which one, the judgment must be upheld. School- was also attached to the note: "The pay. field v. Houle, 13 Colo. 391, 22 Pac. 781. ment of the above note is secured by attach

Our conclusion is that the record in this ed certificate of stock numbered forty-four
case does not disclose any error prejudicial (41) of the Colorado & Utah Mining and In-
to the rights of defendant. The judgment vestment Company for five thousand (5,000)
of the court of appeals is accordingly re- shares of the par value of $20 each,-a total
versed, and the cause remanded to that of $100,000. We, the undersigned, hereby
court, with instructions to affirm the judg- agree that if the above note for the sum of
ment of the district court. Reversed.

$2,500, with interest, is not paid, when due,
by the above-named E. A. Willoughby, we

will each purchase of the above-attached (6 Colo. App. 122)

stock 400 shares, and pay therefor in cash BENNETT et al. v. MORSE.1

fifty (50) cents per share, or $200 for 400 (Court of Appeals of Colorado. Dec. 10, 1894.)

shares." This agreement was signed by 16 CONTRACT_VALIDITY-ACTION FOR BREACI

persons, including the defendant. It was PARTIES.

executed for the purpose of securing to the 1. Sixteen persons signed a contract at- plaintiffs the payment of the note, and to tached to a note of W., which recited that the induce them to loan the money to Willoughnote “is secured by attached certificate of stock No. 41" of a specified corporation "for 5,000

by. The note, certificate, and agreement shares of the par value of $20 each"; and that were then delivered to the plaintiffs, who if the note for $2,500, with interest, is not paid thereupon advanced the money to Willough. by W. when due, "we will each purchase of the above-attached stock 400 shares, and pay there

by. Willoughby failed to pay the note at for in cash 50 cents per share," lleld, that such

its maturity, and four of the parties to the

agreement each purchased 400 shares of the i Rehearing denied March 11, 1895.

stock, paying the agreed price therefor.

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