Mallen v. Boynton

132 Mass. 443, 1882 Mass. LEXIS 113

• Court: Massachusetts Supreme Judicial Court
• Decided: March 3, 1882
• Status: Published

Opinion

W. Allen, J.

No objection is urged against the refusal of the court to give the instructions asked; and the refusal was clearly right.

The objection to the instructions given, that they only required the defendant to use the best judgment he possessed, and did not require that he should possess ordinary or reasonable knowledge, skill and experience, is founded upon a meaning given to a part of the instructions taken out of their connection with the rest. The whole of the instructions excepted to are, in substance, that if the defendant was not in fact competent, or if he felt that he was not competent to treat the case, he should have recommended the plaintiff to employ another surgeon; that if he was competent, and felt that he was competent to treat the case, but was uncertain or in doubt as to the nature and extent of the injury, he was required to use his best judgment as to whether he should consult some other surgeon. The instructions are clearly correct. To hold otherwise would require a surgeon to possess competent skill and experience, but hold him liable for exercising them.

The evidence of the conversation between the defendant and the son of the plaintiff in his presence and hearing was properly admitted. The effect to be given to it, and the effect upon it of the testimony of the plaintiff put in after its admission, were matters for the jury, upon which no question is before us.

Exceptions overruled.