Moor v. Teed

3 Cal. 190

• Court: California Supreme Court
• Decided: July 15, 1853
• Status: Published

Opinion

Wells, Justice,

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

This action is brought against the defendants as surgeons, for alleged mal-practice in the treatment of a wounded arm of the plaintiff, by which amputation became necessary.

Among the instructions given to the jury, at the request of the plaintiff, and to which the defendants excepted, was the following :—

“ That if the jury believe, from the evidence, that the defendants were guilty of negligence, carelessness, or inattention, in their treatment of the plaintiff’s wounds, by which the plaintiff was caused great bodily pain and suffering, the plaintiff is entitled to a verdict.”

In giving this instruction, the court below erred. The defendants are not sued for causing bodily pain and suffering by their negligence or carelessness. They are sued for alleged mal-practice, by which amputation became necessary.

The injury complained of, is the loss of the arm. If the amputation was not rendered necessary by any mal-practice of the defendants, they were, under the pleadings of the case, entitled to a verdict.

The judgment must be reversed, and the case remanded.

Ordered accordingly.