Lower v. Franks

Niblack, J.

William D. Lower brought this action against William H. Franks and George W. Carr, both practicing physicians and surgeons, for alleged malpractice in treating his broken leg.

The defendants answered: First. In denial. Secondly. That the plaintiff’s neglect and refusal to obey the instructions given him by the defendants, and to observe and follow the treatment prescribed by them, contributed to and caused the suffering and damages complained of.

A demurrer being first overruled to the second paragraph of the answer, issue was joined upon it. Verdict and judgment for the defendants.

The first assignment of error we deem it necessary to notice, is made upon the overruling of the demurrer to the second paragraph of th.e answer. In argument it is claimed that contributory negligence is not admissible as a defence in actions of the class to which this belongs, which are, in legal effect, based upon a contract entered into by the surgeon when he undertook to treat the plaintiff for the wound or injury from which the latter was suffering.

An action against a railroad company for a negligent injury to a passenger while under its charge, is, though sounding in tort, really an action founded upon, and arising out of, a contract. Yet, in that class of actions, proof of contributory negligence is fatal to a recovery. So important is it considered in this State that contributory negligence shall not appear as an element in actions of that class, that the plaintiff is required to aver in his complaint, and to show at the trial, that he did not contribute to the injury complained of. In pleading, therefore, contributory negligence is not, in this State, generally treated as a matter of defence, technically speaking, but as a thing to be negatived, both in the complaint and by the evidence, as a pre-requisite to the right to recover for the negligence of the defendant. Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31.

While there may be some exceptions to the rule, it may be said generally that there can be no recovery in an action sounding in tort, yet founded on contract, where the injury sued for was caused by the mutual neglect of the opposing parties. The reasons which support this rule are stated with great force and perspicuity in the case of Railroad Co. v. Aspell, 23 Pa. St. 147, and the doctrine of that case is fully' approved in Beach on Contributory Negligence, see pages 14, 15 and 37.

In legal parlance, contributory negligence is usually referred to in this and other jurisdictions as a defence to an action for negligence, and, in many of the States, perhaps — in at least some of them — it is treated only as a defence to such an action. Such negligence has been fully recognized in several well considered cases, as well as upon general principles, as a defence to an action against a physician or surgeon for malpractice. 4 Wait Actions and Defences, 681, 682; 6 Wait Actions and Defences, 597, 598, and authorities cited.

In the case of Coon v. Vaughn, 64 Ind. 89, it was held that, owing to some exceptional peculiarities of an action for malpractice, it was not necessary, under our system of practice, to aver the absence of contributory negligence in the complaint. As at present advised we do not feel called upon to overrule that case. It follows that such negligence ought to be admitted in this State, as it has been elsewhere, as a defence to an action for malpractice, and that the demurrer to the paragraph of answer in question was rightly overruled.

At the trial the court gave to the jury what appears to have been a carefully, and, for the greater part, well prepared sei’ies of instructions. The eleventh of the series was as follows:

“ The complaint charges that the defendants jointly undertook to treat the plaintiff’s limb. Under the complaint it must be shown, by a preponderance of the evidence, that the undertaking or contract was made jointly with both the defendants for treating the limb. Such a contract may be implied from the conversations ■ and conduct of the parties and circumstances of the case, as well as by an express agreement. And if you should find from the evidence that the defendants jointly undertook to treat the limb, each would be responsible for the acts of the other in treating the limb, and you would be warranted in finding against both the defendants if the evidence shows that any injury or damage resulted from the want of care or skill of either or both defendants. On the other hand, if you should find that, by an •express agreement; or from the conversations and conduct of the parties, and the circumstances of the case, as shown by the evidence, th.at the undertaking was separate on the part of each defendant, then each would only be responsible for his own acts in treating said limb, and not answerable for the acts of the other. And, in such case, you can not find for the plaintiff, although both the defendants, or either one of them, may have been guilty of not using proper care and skill in treating the limb.”

Acting upon the doctrine of this instruction, the court refused to submit to the jury a form of a verdict against one •of the defendants and in favor of the other.

It .is further claimed that the instruction thus set out is in palpable conflict with section 366 of the civil code of 1852, and continued in force by section 570, R. S. 1881, and with the cases resting upon it. That section is as follows:

“ Though all the defendants have been summoned, judgment may be rendered against any of them, severally, when the plaintiff would be entitled to judgments against such defendants if the action had been against them severally.” Under the construction heretofore-given by this court to that section of our code, the instruction can not -be sustained. Draper v. Vanhorn, 12 Ind. 352; Hubble v. Woolf, 15 Ind. 204; Fitzgerald v. Genter, 26 Ind. 238 ; Carmien v. Whitaker, 36 Ind. 509 ; Murray v. Ebright, 50 Ind. 362; Stafford v. Nutt, 51 Ind. 535; Richardson v. Jones, 58 Ind. 240.

In the case of Hubble v. Woolf, supra, following the case of Blodget v. Morris, 14 N. Y. 482, it was held, in terms, that this provision of the code applies, to all actions indis■eriminately, whether founded upon contract or upon tort; that it is immaterial whether the complaint alleges a joint or a joint and several liability; that the right of recovery is, in this respect, to be regulated by the proof, and not by the allegations of the complaint; that, in other words, every •complaint is, in the respect stated, to be treated as both ioint and several where there are two or more defendants; that the object of the provision obviously is to prevent a plaintiff' who' proves a good cause of action against part of the defendants, but not against all, from being put to the expense and delay of a new action; that the provision simply applies to actions upon contracts the same rules which, at common law, governed actions for torts. This has ever since been accepted as the proper construction of the provision in question, and is, we have no doubt, a construction which ought to be adhered to.

Filed Jan. 17, 1888.

There was evidence to which the instruction under consideration had a material application, and as it is in direct antagonism to the doctrine of the cases cited, the judgment ought to be reversed.

The judgment is reversed, with costs, and the cause remanded for a new trial.