Leighton v. Sargent

31 N.H. 119

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Woods, C. J.

One important question involved in the trial related to the degree of skill possessed by the defendant as a surgeon. The fact essential to be proved was, that he was as skillful as surgeons generally in the section of the country in which he practised, or, in other language, that his skill was equal to the ordinary skill of the members of the profession in practice.

1. The opinion of the physician with whom the defendant studied his profession, was asked as to the fact whether he possessed 11 more than the ordinary skill of the members of the profession, judging from his acquaintance with them.” The court declined to permit the inquiry to be made. Was the ruling correct ? It was clearly matter of opinion that was sought. An opinion was asked touching the relative skill of the defendant, so far as the witness could judge. Had the defendant a right to that opinion before the jury ? The general rule is, that the opinions of witnesses are not evidence. To this rule, however, there are some exceptions. In Rochester v. Chester, 3 N. H. Rep. 365, it is said that “ on questions of science and trade, and others of the same kind, persons of skill may no doubt be permitted to give their opinions in evidence, because the jury, being wholly unacquainted with the particulars on which such opinions are founded, could be unable to draw any correct conclusions from hearing them stated ; for instance, was a physician to state the particular medicine administerd to a patient, from being unacquainted with the operation and effect of such medicine, the jury would be wholly incompetent to judge whether such treatment would probably produce the death of the patient or not. So if a shipbuilder should state to a jury of the country the condition of a vessel, they would be unable to judge whether she would be seaworthy or not. So should a mechanic describe to the jury a complicated machine, constructed of different materials, of which they ■were unacquainted, it would be impossible for them to judge, with any degree of accuracy, of its value.” These cases are given as illustrations of the exceptions to the general rule stated above. It would seem from the illustrations, that when it is supposable that jurors can form a correct judgment or opinion, without the aid of the opinions of others, from facts stated, the opinions of others are not, as a general rule, to be received in evidence. But when it is otherwise, their opinions may be received on questions of skill and science. In the case before us, the jury, we conceive, might well be supposed to be able to determine whether the defendant possessed “ the ordinary skill of the members of the profession,” from the facts being stated upon which the witness might found his own opinion. If the witness knew the extent of the knowledge and skill of the members of the profession generally, he might state the facts constituting the evidence of that knowledge and skill among them generally, and also in relation to the particular individual in a case like this; and we think that when they should be stated, the jury might form a correct judgment as to the comparative skill of the profession generally, and of the individual. A competent and skillful surgeon would, doubtless, well know and could easily state what constitutes skill in another. And he could describe the extent of the possession of the qualifications constituting it among the profession, and also so far as it relates to the individual. From such a statement, the jury could readily form a judgment, and make the requisite comparison. We think there was no error in the ruling of the court, in this branch of the case.

2. We are of the opinion that the general reputation of the Vermont Medical Institute, at which it appeared that the defendant had attended lectures, could have no legitimate bearing upon the question of the skill of the defendant as compared with that of other surgeons. Whatever that reputation might be, the individual student might possess more or less skill than others. The proficiency that one makes in the pursuit of science must depend mainly upon personal exertion and talent, and cannot be measured with legal accuracy by the reputation of the institution at which his studies may be pursued.

3. We think, also, that the ruling of the court was correct, in disallowing the third proposed inquiry stated in the case. The object of the inquiry was to lay before the jury the evidence of what practice the defendant had had, and the cases he had treated, and his course of treatment of them, and thus to show his skill. The true objection to the evidence proposed was, that it would not show what the character of the cases was, nor their treatment, excepting by the defendant’s own declarations, which, being in his favor, were not evidence.

4. The evidence proposed to be given of cases in surgery actually treated by the defendant, as showing his skill, was properly rejected. The cases occurred two years after the case in question, and even if he were then as skillful as the rule of law requires, it would not legitimately show that he was so skilled at the date of the act complained of in this case. Skill, possessed two years subsequently to the time of the act complained of, does not presuppose a like degree of skill at its date.

5. The fact that Dr. Grover, a skillful surgeon, assisted the defendant in the treatment of the plaintiff, could have no tendency to prove either the skill or diligence of the plaintiff, and particularly when taken in connection with the evidence of their disagreement as to the mode of treatment pursued by the defendant. We do not understand that Grover attended by the procurement of the defendant, and so his attendance furnishes no evidence of diligence on the part of the defendant, and their disagreement would not prove his skill, Grover being confessedly skillful.

6. The account-books were clearly not evidence in his favor as to the time of his visits to other patients. They were nothing more or less than written declarations as to facts material to the cause of the defendant, made by himself. They might or might not be accurately and truly made. The case of Batchelder v. Sanborn, 2 Foster’s Rep. 325, is a case directly in point, to show that the books were not competent evidence for the purpose for which they were offered. That action was case, for flowing the plaintiff’s land by means of a dam, and the defendant justified upon the ground of an alleged license to build and maintain it. No direct evidence was given of the license, but the second season after it was built it was carried away by a freshet, and the defendant gave evidence tending to show that the plaintiff worked one day in repairing the dam, and after offering a witness of that fact, he offered in evidence his book of accounts to establish the fact of the day of the date of the labor. It was decided that the evidence was incompetent for that purpose, it being the mere written statement of a fact by the party himself, not calculated to elucidate it, and deriving no credit from it. A similar principle is recognized in Mattocks v. Lyman, 18 Vt. Rep. 98.

7. The court below were right in instructing the jury that the burden of proof was on the plaintiff, to show a want of proper knowledge and skill on the part of the defendant, but that it was not necessary to prove it by evidence independent of, and unconnected with the treatment in the ease. It is quite clear that the treatment of the particular case might show such gross Ignorance of the business of the surgeon, as to put it beyond all doubt that he had not the amount of skill usually possessed by the profession, or even, in fact, that he had no knowledge of his profession at all. It might appear that the course pursued was wholly unknown to the profession, and that it resulted, as it necessarily must, in detriment to the patient. Nothing further, certainly, would need to be shown to render one answerable for an injury done, who should offer his services as a skillful surgeon.

8. We think the instruction to the jury that, in estimating the damages, they might consider the amount paid by the plaintiff to the defendant, for his professional services in the case, was, to a certain extent, erroneous. The damages to which the plaintiff was entitled, were those resulting from the injury sustained by reason of the unskillful treatment of the case. Of such would be the pain, loss of time, suffering and increased delay in obtaining a cure, and, perhaps, a permanent injury, and an expenditure of money necessarily consequent upon the injury sustained by the maltreatment. The amount paid to the plaintiff not appearing to be paid wholly for services to remedy the injury resulting from the defendant’s want of skill, can hardly be said to be of the character of damage to the plaintiff, entitling him to recover on that account, and to that extent. It might be that the amount paid him far exceeded what would have been necessarily incurred, if the plaintiff’s case had been properly treated, and for that excess he might well recover; but the direction to the jury went further, and embraced the entire sum paid the defendant. "We think there was error in this instruction, as it was stated to the jury. It was not properly limited.

9. The course of the court in sending written instructions to the jury, in the absence of counsel, when called for, and preserving the written request of the jury, was entirely justified by the settled practice in this State, as well as by the decision in the case of Shapley v. White, 6 N. H. Rep. 172. The instructions given were returned and filed with the verdict, and the request preserved by the court, so that it could be seen by counsel whether any erroneous information or direction had been given to the jury. No harm could possibly result from such a practice.

10. It is now fully settled, in this State, that the affidavit of a juror is admissible in exculpation of himself, and to sustain a verdict, but when it relates to what took place after the jury had retired, is wholly incompetent to impeach it. Tenney v. Evans, 13 N. H. Rep. 465; State v. Ayer, 3 Foster’s Rep. 301.

11. For the cause that brandy was furnished to the jury,, and drank by several of them while deliberating upon the-cause, after retiring to form their verdict, we think the verdict must be set aside. The quantity drank was probably-small; but we cannot consent that that fact should make a difference. We fully concur in the remark made by the learned judge in People v. Douglas, 4 Cow. 36. “ It will; not do to weigh and examine the quantity which may have-been taken by the jury, nor the effect produced.” The cause alleged of slight illness, will not justify the use made of the liquor. The case was not so pressing as not to allow of opportunity for leave to be given for its use, if found to be one properly requiring it. Brant v. Fowler, 7 Cow. 562. Many other eases in the books go quite far enough to sustain this opinion in this particular.

12. No evidence having been laid before us, in support of the charge of misconduct on the part of Josiah Moulton, of course no question arises respecting it claiming our consideration.

Verdict set aside.