Stewart v. Tyler , 1 How. N.P. 80 ( 1880 )

Bay Circuit.

Evidence Mwst H<m«nionize With the N<xrr.

A party suing for negligent injury is bound to set forth in his declaration the material facts relied on as his cause of action and to prove the same combination of circumstances.

Pleadings are for the purpose of informing the parties and the court of the precise subject of the controversy; their wording must be precise. (49 Mich., 184.)

Trespass on the case for malpractice, claiming $20,000 damages.

Plaintiff’s counsel, in his opening statement, said:

“ The plaintiff on September 14, 1878, was accidentally thrown from a carriage and sustained a compound comminutee fracture of the left leg below the knee. The negligence we offer to prove was:

1. An improper splint was used.

2. The detached pieces of bone, spicula, should have been removed from the wound, and

8. The large bone which protruded through the-flesh at the time- of the accident, should have been cut off.”

The leg was amputated Jan. 15, 1879.

Plaintiff ivas SAVorn in his own behalf, when defendant’s counsel objected to any evidence under the declaration,^* as the case stated in the opening was not the one set out in the declaration. Citing F. & P. M. R’y Co. vs. Stark, 38 Mich., 714; Marquette, Houghton & Ontonagon R. R. Co. vs. Marcott, 41 Mich., 433; and Batterson vs. Chicago & Grand Trunk R’y Co., 13 N. W. Rep., 508. (49 Mich., 184.)

Objection sustained.

Plaintiff voluntarily submitted to a non-suit, which was set aside on "payment of costs.

fDECLARATION.

John Stewart, plaintiff herein, hy Simons & Gillett, his attorneys, comes into court according to the form'of the statute authorizing the commencement of suit hy declaration, and complains of Columbus V. Tyler, the defendant in this suit, of a plea of trespass on the case.

For that whereas before and at the time of the committing of the wrongs and grievances by the said defendant, as hereinafter next mentioned, the said defendant held himself out to he and was a physician and surgeon.

That on or about the 14th day of September, A. D. 1878, said plaintiff met with an accident whereby the left leg of plaintiff was greatly injured and the bones thereof were fractured below the knee.

That thereupon and on or about the said 14th day of September aforesaid, at Bay county aforesaid, the plaintiff employed said defendant as such physician and surgeon to attend upon the plaintiff and endeavor to set, reduce and cure the said leg of said plaintiff for a reasonable reward to be thereafter paid by plaintiff to said defendant.

That defendant then accepted and entered upon such employment and retainer to wit, on the day and year aforesaid, at Bay county aforesaid, and thereupon it then and there became and was the duty of said defendant to receive and use ordinary and reasonable care, skill and diligence in endeavoring to reduce said fracture and to set and cure the leg of said plaintiff.

Yet the said defendant, not regarding such his duty, or his said retainer and employment, but contriving, and intending to injure and aggrieve the said plaintiff in this behalf, did not nor would use and exercise ordinary and reasonable care, skill and diligence, endeavoring to reduce said fracture and set and cure the leg of said plaintiff, in an ordinarily skillful, proper and diligent manner, but on the contrary thereof, the said defendant treated and attended to said plaintiff and the fracture of his said leg in so improper, unskillful and negligent a manner in not using the ordinary and proper means and remedies to reduce said fracture and to set and cure said leg, and in not using proper means and remedies to reduce said fracture and set and cure said leg that the said plaintiff became weak and lost flesh, and the wound occasioned by said fracture became sore and festered, and the bone of his said leg diseased, and by reason of such default it became and was necessary thereafter. to wit, on or about January 13, 1879, at Bay City, county aforesaid, to amputate and cut off the said leg of said plaintiff, whereby he, the said plaintiff, suffered and underwent severe pain, and became and was permanently injured and disabled, and was hindered and prevented from performing and transacting his affairs and business by him to be performed and transacted for a long space of time, to-wit, thenceforth, at Bay county aforesaid. Thereby he sustained great loss and damage, to wit, ten thousand dollars, and was also by reason thereof forced and obliged to pay out and expend a large sum of money in and about endeavoring to be cured of said fracture and amputation in medical attendance, medicines and other expenses, to wit: The sum of one thousand dollars, and was otherwise greatly injured and damnified in this behalf at Bay county aforesaid to wit, to the plaintiff’s damage, twenty thousand dollars.

And also for that whereas, before and at the time of the committing of the wrongs and grievances by the said defendant hereinafter next mentioned, he the said defendant claimed to be and was a physician and surgeon, and held himself out to the public as such.

That on or about the 14th day of September, 1878, the said plaintiff met with an accident wherein and whereby the left leg of said plaintiff was greatly injured, and the bones thereof were fractured below the knee. That thereupon, and on or about said 14th day of September aforesaid, at Bay county aforesaid, the said plaintiff retained and employed the defendant as such physician and surgeon, to attend the said plaintiff, and to treat and endeavor to set and cure the said leg of said plaintiff, for a reasonable reward to be therefor paid by said plaintiff to said defendant.

That the said defendant then and there accepted and entered upon such employment, and agreed to reduce said fracture and to set and cure the said leg of said plaintiff.

That thereupon it became and was the duty of said defendant to treat and endeavor to set and cure the plaintiff’s said leg, and reduce said fracture in an ordinary, skillful and diligent manner, yet the said defendant not regarding his said duty, nor his said employment, but contriving and intending to injure and aggrieve the said plaintiff, so conducted himself in an ignorant, unskillful and negligent manner in that behalf in that he did not nor would use the ordinary and proper means and remedies, and did not nor would use any means or remedies to reduce said fracture, and to set and cure said leg of said plaintiff, whereby the said fracture became set, and the wound occasioned thereby became sore and festered, and tlie bones of the said plaintiff’s left leg diseased and he, the said plaintiff, lost flesh and strength, and by reason of such default and neglect of said defendant, in order to save plaintiff’s life, it became and was necessary thereafter, to wit, on or about January 15th, 1879, at Bay county aforesaid, to amputate and cut off the said leg of said plaintiff, whereby the said plaintiff suffered and underwent severe pain, and became and was permanently injured and disabled, and was hindered and prevented from performing and transacting his ordinary affairs and business by him to be performed and transacted for a long space of time, to wit, thence hitherto, to the great loss and damage of said plaintiff, to wit: Ten thousand dollars, and was also by reason thereof compelled to pay large sums of money in endeavoring to be cured of said fracture, and said amputation, so occasioned by said defendant’s default and neglect, to wit: One thousand dollars, and said plaintiff hath been and still is, by reason of the premises, otherwise greatly injured and damnified, to wit, at Bay county aforesaid, to plaintiff’s damage, twenty thousand dollars, and therefore he brings suit, &c.