Ferrell v. Ellis

Supreme Court of Iowa

Ferrell v. Ellis

105 N.W. 993, 129 Iowa 614

CourtSupreme Court of Iowa

DecidedFebruary 12, 1906

StatusPublished

Cited by10 cases

This text of 105 N.W. 993 (Ferrell v. Ellis) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ferrell v. Ellis, 105 N.W. 993, 129 Iowa 614 (iowa 1906).

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Opinion

Ladd, J.

The defendant is a physician residing in the village of Powersville, Mo. On the 18th day of October, 1902, he was called to attend the plaintiff, who lived about three and one-half miles distant. He had fallen from a ladder and dislocated the radius of his arm at the elbow. Whether it was a forward or backward dislocation was in dispute. Defendant testified that it was a backward dislocation; that he brought the head of the radius in apposition with the external condyle and dressed the arm extended ; that it healed as well as usual in such cases. The arm was examined by other physicians some months after-wards, and in May of the following year was operated on by Dr. Bamford of Centerville, assisted by two other physicians. According to their testimony the head of the radius had slipped forward and after breaking the adhesions they set the arm and dressed it flexed or at right angles. The court instructed the jury that: “ The standard of skill and learning required in any case is that reasonable degree of skill and learning ordinarily exercised by the members of the profession at the time of the treatment in question, having regard to the advanced state of the profession at the time.” This was erroneous in not limiting the degree of skill and learning to that ordinarily possessed by physicians and surgeons practicing in similar localities. Whitsell v. Hill, 101 Iowa, 629; Decatur v. Simpson, 115 Iowa, 348.

The presumption that prejudice resulted is in no way obviated by the record. No physician, other than defendant, residing at Powersville testified. Surgeons of more or less experience from Lineville, Oorydon, Allerton, and Centerville, places varying in population, according to the last federal census, from 690 to more than 5,000 inhabitants, testified; while the village of Powersville was too small to find place in .the enumeration. Judicial notice is taken of the population of towns and cities. Bennett v. Marion, 106 Iowa, 628; Wigmore on Ev., section 2571. We have done so, not to sustain an error, but in order to ascertain, if pos[616]*616sible, that an error committed might not have been without prejudice. No other debatable question is raised by the record.

For the error pointed out the judgment must, be, and is, reversed.

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Ladd, J.

The defendant is a physician residing in the village of Powersville, Mo. On the 18th day of October, 1902, he was called to attend the plaintiff, who lived about three and one-half miles distant. He had fallen from a ladder and dislocated the radius of his arm at the elbow. Whether it was a forward or backward dislocation was in dispute. Defendant testified that it was a backward dislocation; that he brought the head of the radius in apposition with the external condyle and dressed the arm extended ; that it healed as well as usual in such cases. The arm was examined by other physicians some months after-wards, and in May of the following year was operated on by Dr. Bamford of Centerville, assisted by two other physicians. According to their testimony the head of the radius had slipped forward and after breaking the adhesions they set the arm and dressed it flexed or at right angles. The court instructed the jury that: “ The standard of skill and learning required in any case is that reasonable degree of skill and learning ordinarily exercised by the members of the profession at the time of the treatment in question, having regard to the advanced state of the profession at the time.” This was erroneous in not limiting the degree of skill and learning to that ordinarily possessed by physicians and surgeons practicing in similar localities. Whitsell v. Hill, 101 Iowa, 629; Decatur v. Simpson, 115 Iowa, 348.

The presumption that prejudice resulted is in no way obviated by the record. No physician, other than defendant, residing at Powersville testified. Surgeons of more or less experience from Lineville, Oorydon, Allerton, and Centerville, places varying in population, according to the last federal census, from 690 to more than 5,000 inhabitants, testified; while the village of Powersville was too small to find place in .the enumeration. Judicial notice is taken of the population of towns and cities. Bennett v. Marion, 106 Iowa, 628; Wigmore on Ev., section 2571. We have done so, not to sustain an error, but in order to ascertain, if pos[616]*616sible, that an error committed might not have been without prejudice. No other debatable question is raised by the record.

For the error pointed out the judgment must, be, and is, reversed.

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105 N.W. 993, 129 Iowa 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrell-v-ellis-iowa-1906.

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