210 P. 907 | Mont. | 1922
prepared the opinion for the court.
A motion for rehearing was made in this case. After considering this motion it was deemed advisable to amplify certain statements made in the original opinion. To that end, and to avoid encumbrance of the record, the original opinion has been withdrawn and this one substituted, although the result reached is the same.
This is an action for damages for alleged malpractice. On November 20, 1918, the plaintiff while driving a team of horses hitched to a cart, was thrown therefrom, and one of the wheels of the cart passed over the plaintiff’s left leg, breaking both bones of the leg at a point about three inches above
The complaint sets forth two causes of action. Under the allegations of the first cause of action the defendant was charged with liability for the loss of plaintiff’s foot and leg, and general, as well as special, damages were sought. At the conclusion of the plaintiff’s case, the defendant moved the court to withdraw from the consideration of the jury the first cause of action. This motion was granted. A like motion was made as to the second cause of action, which motion was denied. Thereupon defendant offered testimony covering the second cause of action. Both parties having rested, defendant moved the court for a directed verdict, which motion was overruled. The jury returned a verdict for plaintiff in the sum of $3,500, and judgment was rendered upon such verdict. Thereafter defendant moved for a new trial. This motion was overruled. These appeals are from the judgment and an order overruling the motion for a new trial.
The second cause of action of the amended complaint alleges that the defendant is a physician and surgeon duly licensed to practice as such within the state of Montana; that the plaintiff suffered a simple fracture of the left leg and em
“That by reason of the defendant’s said negligent, unskillful, willful and wanton conduct and treatment, the plaintiff’s entire left leg became infected with gangrene and mortified, and the infection commenced to spread throughout his entire system, and the plaintiff was compelled to, and did on the fifth day of December, 1918, consult and call upon other physicians and surgeons, and it became necessary to, and such other physicians and surgeons did, in order to save his life, at once amputate and remove his said left leg at a point about five inches above the knee. •
Certain testimony was admitted over the objectioxx of the defendant teixding to prove the earning capacity of the plaintiff. It is argued that the- admission of this testimony prejudiced the defendant. Whether or not it was error to admit this testimony, all consideration thereof was withdrawn from the jury by instruction No. 7, which reads as follows: “In this case evidence has been ixxtroduced coneexmixxg plaintiff’s earning capacity before the injury and since and his future earning capacity, and generally the impairment of his earning capacity. You are instructed that, if you find for the plaintiff, in view of the fact that no special damages of this kind have been pleaded, that plaintiff is not exxtitled to recover for such impairmexxt of earning capacity or for loss of earnings since the injury complained of, and you should disregard such evidence as to earning capacity, as well as evidence of what it would cost to purchase annuities.”
No error is predicated upon the giving of this instruction. It withdraws from the coxxsideration of the jury all of the testimony to which objection was made. Therefore defendant could not have been prejudiced by the admission of the testimony. (Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063.)
It is earnestly contended by counsel for the appellant that the evidence is insufficient to support the verdict and judgment. The' testimony is quite voluminous, and a recapitulation thereof herein would serve no useful purpose. We will content ourselves with an examination of that part thereof which relates to the damages alleged to have been suffered.
The loss of the plaintiff’s foot, together with a portion of the leg between where the break occurred and the knee, is attributable to and a direct result of the injury resulting from the accident. No attempt is made in the complaint to hold the defendant liable for this loss. This is apparent from the allegations of the complaint as set forth in the second cause of action. Amputation of the injured limb was actually made between the knee and the hip. But it is alleged that the part of the plaintiff’s leg below the point at which the break occurred became affected with gangrene; that the defendant knew of such infected condition, but that he did nothing to prevent the spread of the infection and did not amputate the leg promptly, or cause amputation to be made, so as to prevent the spread of the infection, and that because of such negligence the infection spread, and the plaintiff lost the additional portion of the leg and was damaged thereby. The damage claimed is that which it is alleged resulted from the loss of the additional portion of the leg.
Assuming that the defendant was negligent in the manner charged, and that such negligence was the proximate cause of the loss of the additional portion of the limb, then, upon proof thereof, the plaintiff is entitled to recover such damages as will compensate for all of the detriment proximately caused thereby. (Sec. 8686, Rev. Codes 1921.)
All of the evidence in the record which relates to the damage alleged to have been suffered, except the fact of the amputation, is contained in the plaintiff’s testimony, and is as follows: “I have not been able to make a success of trapping
But in this testimony the plaintiff is comparing his ability after the amputation, in the several respects mentioned, with his efficiency in like respects, before the accident occurred. However, a part of this difference was caused by the loss of the foot and a part of the leg below the knee, and this, admittedly, was the result of the unfortunate accident and not in anywise occasioned by the negligence of the defendant.
The plaintiff further testified: “If I had only lost my foot, so that I would still have a knee-joint, I could earn more money in that way than I could without the knee-joint, as I am now. When I speak of the amputation being such that I could have gotten around better with simply an artificial foot, I had in mind that I could get around better because of having the knee-joint. That would give me action that I could not get with an artificial limb. The amputation now is about one-third of the way up from the knee to the thigh. I do not suppose that it makes very much difference where the amputation is above the knee, so long as it is between the knee and the thigh; I don’t have the knee-joint. I have sufficient from below the hip to attach an artificial leg. There is two-thirds of the leg between the knee and thigh left after my amputation. When I spoke about the strength of the leg being largely dependent upon the length of what is left, I meant that the' more of the muscles there were left the stronger it would be. I would then be better able to lift an artificial leg.”
While it is true that in cases of this character damages cannot be ascertained with mathematical certainty, yet a jury must have some competent evidence before it from which to arrive at its conclusions and must not base its verdict upon mere conjecture and speculation. And this rule is not altered by the fact that the ascertainment of the proper amount of damages is a matter of practical difficulty. The rule is laid down in Corpus Juris as follows: “Hence, where an action is for damages which are uncertain or have not been admitted, the burden is on plaintiff to establish the amount thereof, and that they resulted from the act of defendant.” (17 C. J. 1023; 8 E. C. L. 438.)
This court, in passing upon the proof of damages required, has said: “Like all other cases for the recovery of damages in actions upon torts, a jury must be trusted to arrive at a fair estimate of the damages, after a full consideration of all of the evidence which may be introduced upon the subject. However, competent evidence must be produced of all facts necessary to recover, upon which the jury can base a reasonably reliable conclusion; nothing can be left to mere conjecture.” (Watson v. Colusa-Parrot M. & S. Co., 31 Mont. 513, 79 Pac. 15.)
The supreme court of Connecticut has announced the rule in the following language: “If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied of damages, nor the other loaded with damages to which he is not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty.” (Sellick v. Hall, 47 Conn. 260.)
We are of the opinion that the evidence in this ease, considered in the light of the instructions given, is not sufficient to support a verdict or judgment for more than nominal damages.
Contention is further made by counsel for appellant that the evidence is insufficient to support the verdict or judgment in that it is not proven that the defendant was negligent, or, if that negligence be proven, then it is not proven that the injury-complained of is the proximate result of such negligence.
These same matters have been heretofore presented in this court and by this court decided in a number of cases, and particularly in the eases ’ of Loudon v. Scott, 58 Mont. 645, 12 A. L. R. 1487, 194 Pac. 488; Schumacher v. Murray Hospital, 58 Mont. 447, 193 Pac. 397. What has been said in the opinions in these cases should serve as a sufficient guide in this cause in the event of its retrial.
* We recommend that the judgment and order be reversed, and the cause remanded for a new trial.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded to the district court, with directions to grant a new trial.
Reversed.