Part 1 — CASES. (continued 3)

Curia: 1st, It is objected that this is laid to be a joint undertaking, and therefore it ought to be proved, and we a_193are of opinion that it ought; the question therefore is, whether there is any evidence of a joint undertaking; we are of opinion there is; Mr. Stapleton declines acting alone, but in concurrence with Mr. Baker attends the plaintiff every time any thing is done, and assists jointly with Mr. Baker; this appears in evidence, and is sufficient, for there is no occasion to prove an express joint contract, promise or undertaking; when an offer is made to Baker of a guinea, Stapleton says, you had better be paid all at last; they both attended plaintiff together every time, and Stapleton said, we have consulted and done for the best; when the plaintiff complained of what they had done, Stapleton considered himself as one of the persons to join in the cure of the leg, for he put his hand on the knee when Baker nodded, and then the bone cracked; he is the original person aiding in this matter, and there is no ground for this objection. When we consider the good character of Baker, we cannot well conceive why he acted in the manner he did; but many men very skilful in their profession have frequently acted out of the common way for the sake of trying experiments; several of the witnesses proved that the callous was formed, and that it was proper to remove the plaintiff home; that he was free from pain and able to walk with crutches; we cannot conceive what the nature of the instrument made use of is; why did Baker put it on when he said that plaintiff had fallen into good hands, and when plaintiff only sent for him to take off the bandage, it seems as if Mr. Baker wanted to try an expedient with this new instrument.

2dly, It is objected that this is not the proper action, and that it ought to have been trespass vi & armis; in answer to this, it appears from the evidence of the surgeons that it was improper to disunite the callous without consent; this is the usage and law of surgeons; then it was ignorance and unskilfulness in that very particular, to do contrary to the rule of the profession, what no surgeon ought to have done; and indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put a_194himself in such a situation as to enable him to undergo the operation; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass vi & armis to be brought for the same damage; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers vi & armis; the court will not look with eagle’s eyes to see whether the evidence applies exactly or not to the case, when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their respective professions as any two gentlemen in England, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons.

Judgment for the plaintiff per totam curiam.

Seare against Prentice. From 8 East.

This was an action on the case brought by the plaintiff, a shoemaker, against the defendant, whom he employed as a surgeon, for negligently, ignorantly, and unskilfully reducing a dislocated elbow and fractured arm of the plaintiff, of which he had undertaken the cure. The cause was tried before Heath J. at the last assizes at Hertford; and a verdict having been given for the defendant under the direction of the learned Judge; that direction was now impeached, and a rule nisi for setting aside the verdict and granting a new trial was moved for by Gurney, upon the ground that there was evidence laid before the jury of the unskilful treatment a_195of the plaintiff by the defendant; but that they were told by the learned Judge, that unless negligence were proved, they could not examine into the want of skill: and the evidence, he now admitted, did not substantiate the charge of negligence, though it proved the want of skill. And he referred to Slater v. Baker^[178], to shew that an action lay against a surgeon for ignorance and unskilfulness in his profession: and to Bull, N. P. 73. where the general rule is laid down, that in all cases where a damage accrues to another by the negligence, ignorance, or misbehaviour of a person in the duty of his trade or calling, an action on the case will lie: as if a farrier kill my horse by bad medicines, or refuse to shoe, or prick him in the shoeing.

The Court granted a rule nisi. And now, upon the Judge’s Report being read, the case appeared to be this:

The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of April 1805, the defendant attended the plaintiff, who had fallen from a horse, and told the defendant that his arm was broken: the defendant said that he thought the arm, which was swollen, was not broken, and applied vinegar to it, and bound it with tape. That the plaintiff was under the defendant’s care for ten weeks without being cured: he could not bend his arm or work at his trade. That he then applied to Mr. Kingston, another surgeon, and after some time could work, and put his arm to his head. On cross-examination the same witness proved that the defendant was first sent for at night, and came directly; that he regularly attended the plaintiff every day but one till the latter applied to Mr. Pidcock, another surgeon, who, about nine or ten days after the accident, attended and assisted with the defendant in setting the elbow. Mr. Kingston, the surgeon, then proved that in July 1805 the plaintiff was brought to him a cripple in his arm, one bone of which was broken obliquely below the elbow. That the plaintiff’s arm was almost straight; he could not turn his wrist, and a_196had no motion in his elbow. That the witness broke the callous and set it again, and made (what the witness himself described as) a very fine cure, which was spoken of about the country. He imputed the failure of the defendant in his attempt to cure the plaintiff to negligence and carelessness: an apprentice boy (he said) might have known better: that the bone might have been set within five hours after the accident; though he admitted that the swelling, if much, must first be reduced, which might take a fortnight. And he recommended the plaintiff to bring an action. He also spoke to a conversation with the defendant, who considered it as a very difficult dislocation to reduce; and said that he would make a compensation to the plaintiff. The learned Judge told the jury that the gist of the action was negligence; of which direct evidence might be given; or it might be inferred by the jury, if the defendant had proceeded without any regard to the common ordinary rules of his profession, That unskilfulness alone, without negligence, would not maintain the action. And that he was at a loss to state to the jury what degree of skill ought to be required of a village surgeon. But that, whether or not his direction were accurate in this respect, at any rate the witness Kingston imputed only negligence and carelessness to the defendant and Pidcock, in not discovering the fracture of the bone of the arm when they reduced the dislocated elbow; which there was no doubt was properly reduced: and that considering all the circumstances of the case, he did not think that such gross negligence was imputable to the defendant as to make him liable in damages to the plaintiff. The report concluded by stating that the jury found a verdict for the defendant, much to the Judge’s satisfaction; who intimated that the vaunting language of the witness Kingston must have diminished his credit with the jury.

Shepherd Serjt. and Espinasse were now to have shewn cause: but though all the Court seemed to be satisfied, as well now as when the rule was moved for, that the action a_197well lay for unskilfulness in the profession of a surgeon; yet upon a revision of the evidence as reported, they asked of the plaintiff’s counsel what evidence there was of want of skill in the defendant; Kingston, the surgeon, only imputing to him negligence and carelessness; which the learned Judge had stated to be a ground of action, and had left to the jury for their consideration; but which the jury had negatived; as indeed the evidence well warranted them in doing.

Gurney, in support of the rule, said, that it was to be collected from the whole of Kingston’s evidence that he imputed want of skill to the defendant; and that was shewn by the expression used by him, that an apprentice boy might have known better. That so much skill at least was required of a surgeon as to be able to tell whether or not an arm was broken, or an elbow dislocated. But it was enough that the question of want of skill was wholly withdrawn from the consideration of the jury.

Lord Ellenborough C. J. The surgeon who was examined specifically imputed the failure of the cure to negligence and carelessness, whatever other expression he may have used in the manner of giving his evidence, upon which the learned Judge has commented. Therefore, however we may differ from the learned Judge, as I certainly do, in thinking that an ordinary degree of skill is necessary for a surgeon who undertakes to perform surgical operations; which is proved by the case in Wilson, and indeed by all analogous authorities; in the same manner as it is necessary for every other man to have it in the course of his employment; as the farrier who undertakes to cure any horse must have common skill at least in his business, and that is implied in his undertaking: and although I am ready to admit that a surgeon would be liable for crassa ignorantia, and would be justly responsible in damages for having rashly adventured upon the exercise of a profession, without the ordinary qualification of skill, to the injury of a patient: yet the question did not arise upon the evidence in this case; a_198for no want of skill was imputed to the defendant: and therefore the opinion of the learned Judge upon that point does not affect the merits of the verdict upon the evidence in the cause.

The other Judges concurred; and Grose J. referred to 3 Blac. Com. (ch. 9. p. 163, 4.) as confirming the general doctrine.

Rule discharged.

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