Dewitt v. Schweitzer ( 1928 )

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

RICHARDS, J.

It will be noticed that while the patient was suffering from severe physical injuries, it is claimed that the asserted malpractice of the physician resulted in further serious injuries. In the trial of a case of that character it would, of course, be vital for the trial judge, in charging the jury, to clearly distinguish between the injuries which Schweitzer received in falling from the tree and the injuries, if any, resulting from the claimed malpractice of his physician. The trial judge, in charging the jury, used the word “injuries” or “injured” as many as fifteen times, and, from the context, it appears that on some occasions the word referred to the injuries received in falling from the tree, on some occasions, it referred to the injuries claimed to have been received by reason of malpractice, and sometimes it apparently referred to both classes of injuries. That portion of the charge relating to this subject ends with the following instructions:

“You will take into consideration, in determining the amount of damages for his injuries, if you find he is entitled to damages, the nature and extent of his injuries, whether permanent or not, and the pain he suffered.”

Certainly that does not discriminate between the injuries he received in falling from the tree and the injuries, if any, which he received at the hands of his physician, and the instruction also directs the jury to consider, in awarding damages, “the pain he suffered,” without regard to how it was caused.* This instruction was manifestly erroneous and prejudicial to the physician, and this is apparent from the size of the verdict.

Immediately after the conclusion of the charge the trial court was requested, in the presence of the jury, to correct the language by limiting the term “injuries” to such as were received at the hands of the physician and so as to exclude injuries sustained by falling from the tree, but this the trial court refused to do. This incident served to intensify the erroneous and prejudicial character of the instruction.

We have examined the other claimed errors and >find none prejudicial to the plaintiff in error, but for the reasons given the judgment must be reversed and the cause remanded for a 'new trial.

(Williams and Lloyd, JJ., concur.)