Chamberlin v. Morgan

68 Pa. 168, 1871 Pa. LEXIS 174

• Court: Supreme Court of Pennsylvania
• Decided: March 23, 1871
• Status: Published

Opinion

The opinion of the court was delivered,

by Sharswood, J.

It is certainly true that if a servant has been wrongfully dismissed before his term of service is out, and he sues to recover his entire wages during the period, the defendant can show in mitigation of damages that he might have procured employment in the interim: King v. Steiren, 8 Wright 69. It was the duty of the plaintiff in such case not to remain idle if he was able to work. Undoubtedly it is incumbent- in every case upon an injured party to do whatever he reasonably can to lessen the injury. But is there any similarity between these cases and that presented upon this record ? Is it the duty of a person who has been injured by the malpractice of a physician or surgeon to make any experiment which may be suggested to him, however plausible it may appear ? A man who is not himself a physician and cannot be expected to know anything upon the subject, cannot be himself a judge of such matters. It was very reasonable for.the father of Hattie Morgan to say when Dr. Richardson proposed to put her under the influence of an anaesthetic and attempt to reduce the limb, “ that so long as she was improving so fast as she had done since he came home, he should not have it disturbed.” Had Dr. Chamberlin proposed this experiment there might be some reason to hold that he should have the opportunity of redeeming his mistake, or even if he had called in Dr. Richardson to act on his behalf. Mr. Morgan merely requested -Dr. Richardson to examine his daughter’s arm and give his opinion about it. That did not oblige him to adopt his advice, or to incur the hazard and expense of another operation. He owed no such duty to Dr. Chamberlin. It was offered to prove that the injury could then have been reduced. But how was Mr. Morgan or Hattie to have known this ? Had the experiment failed, it might well have been) urged that as she was improving she ought to have been let alone, and that Dr. Chamberlin was relieved from all responsibility by the case having been taken out of his hands. We cannot see then that the evidence offered would, if received, have had any legitímate effect in mitigating the damages. There was, therefore, no error in its rejection.

Judgment affirmed.