281 F. 411 | D.C. Cir. | 1922
The appellee, by her next friend, sued the appellant for damages sustained by her through his alleged negligence. The declaration is in four counts, differing from one another in nothing that is material on this appeal. She states that she was suffering from a disease of the bone of the left arm, known as osteomyelitis of the radius, and she applied to the defendant, who is a physician and surgeon, for medical treatment; that he undertook to treat her in consideration of the promise of a reward to be paid by her father; that, through negligence, he at first failed to discover tire presence of the disease, or the extent thereof, and treated her arm as if it were not afflicted with the disease named; that afterwards he discovered the
Appellant groups the points to be argued under four captions:
“That if any person * * ~ shall be at the time of the accruing of such right of action under twenty-one years of age, - * * such person or his proper representative shall be at liberty to bring such action within the respective times in this section limited after the removal of such disability.”
The limit, as we have seen, with respect to this action, is 3 years. The statute, therefore, gives a minor 3 years after arriving at his majority to institute the action. Appellant does not deny this, but says that, if the minor brings the action during his minority, he must do so within 3 years from its accrual. If this be correct, we would have the anomalous situation of a minor being barred after 3 years from bringing action during his minority, but free to bring it at any time during a period of 3 years after he had reached 21 years of age. This is not the correct meaning of the statute. The minor, in our judgment, has the entire period of his minority and 3 years thereafter within which to institute the action.
A contention similar to the one now made by appellant was advanced many years ago in Chandler v. Villett, 2 Saund. 117, 120, and rejected as untenable. In accord with the decision in that case are Buswell, Limitations and Adverse Possession, § 107; Angell, Limitations (5th Ed.) 196; Hopkins v. Virgin, 11 Bush (74 Ky.) 677, and Whirley v. Whiteman, 1 Head (38 Tenn.) 609, 616. Appellant produced no authority in support of his position, and we are not aware of any.
“In your opinion, would you say that the doctor had given the case the care and attention which a physician and surgeon of ordinary skill and ability practicing in the District of Columbia would have given under all the cm cumstances as related?”
Objection was made to it on the ground that it was put. at an inapt time, that no medical witness had testified to what was done, that the treatment as given to the arm by the defendant was described to the
The ground on which it is claimed the question was not asked at a proper time is not disclosed, and therefore we put aside that part of the objection as of no moment. We see no reason why the testimony of laymen concerning the treatment given by defendant to the child’s arm was not a sufficient basis for the hypothetical question. The laymen who testified were found competent by the court, we must assume, to give the testimony in question, else it would not he in the record, and appellant does not say it was improperly admitted. The surgeons, men eminent in their profession in the District, regarded it as sufficient to enable them to express an opinion concerning the treatment given by the defendant. Of course, testimony of laymen or experts might fall so far short of describing a situation that the court would be obliged to exclude a hypothetical question based upon it. But our examination of the record shows that this was not the case here. It was open to the defendant to show that the testimony did not correctly describe the treatment or condition of the child, and, if he had satisfied the jury that it did not, the answer of the surgeons, bottomed on it, would necessarily have failed of effect.
A like question was put to physicians in Allen v. Voje, 114 Wis. 1, 89 N. W. 924. They were asked whether or not the treatment given the patient was proper and sanctioned by physicians and surgeons possessing and exercising ordinary skill and intelligence in the vicinity of Oconomowoc, and it was held the question was proper. Another case says:
“The question of negligence and carelessness on tlie part of the surgeon in • the treatment he gave the plaintiff’s leg, while it is one which the jury must necessarily determine upon the whole evidence in the case, is still a question which must he determined mainly upon expert evidence,” and in such a case*416 it is admissible for 'the person on whom the burden is to show, if he can, “by witnesses having superior knowledge and skill in surgery, that the treatment he gave the plaintiff’s leg was such as a surgeon of ordinary knowledge and skill in his profession would and ought to have given.” Quinn v. Higgins, 63 Wis. 664, 666, 24 N. W. 482, 53 Am. Rep. 305.
See, also, 5 Ene. Ev. p. 582 (b).
The defendant testified in his own behalf as to- his treatment of the plaintiff. In rebuttal surgeons were asked a series of short hypothetical questions based on testimony given by the defense. We think this was proper. Counsel do not seriously contend that it was not, but they argue that the questions assumed facts not in accord with the evidence. These facts were not pointed out at the trial, and, for the reasons already given, the rulings of the court on the objections to the questions are not properly before us.
While respecting very highly the ability of the court which decided the August Case, we are not convinced that the Code section we are reviewing was intended to completely overturn the necessity for specific objections and exceptions in the trial court. It does not say so. On the contrary, its plain meaning, as we conceive it, is that technical errors, defects, or exceptions, which do not affect the substantial rights of the parties, should be disregarded. If the section meant what counsel contend for, it would have said that, notwithstanding there were no objections or exceptions, the reviewing court should examine the entire record and give judgment according to the right. The purpose of the section is to minimize the value of technical errors and objections, unless they affect the substantial rights of the litigants, and not to do away with the necessity of proper objections and exceptions. This interpretation finds support in the report of the House Committee on the Judiciary, when submitting the bill for consideration of the House. It said:
*417 “Its object is to limit the power given in this section by directing that technical errors that may occur in the trial of an action shall be disregarded, unless it is made to appear that such errors affect the substantial rights of the parties. Under the practice that prevails in many jurisdictions, every error is presumed to affe°ct the substantial rights of the parties litigant, unless the contrary clearly appears, and such errors are grounds for a new trial. The object of the proposed legislation is to cast upon the party seeking a new trial the burden of showing that any technical errors that he may complain of have affected his substantial rights; otherwise, they are to be disregarded.” House Report No. 913, 65th Cong. 3d Sess.
The view suggested by appellant, if adopted, would put a premium, on laxity and negligence in the trial of cases, and would greatly add unnecessarily to the burden of appellate courts. Moreover, we are satisfied from an inspection of the record that the questions were proper, and that no error was committed in allowing them.
Finally it is suggested that a prayer for an instruction directing the jury to return a verdict for the defendant should have been given. Deféndant requested five instructions, each’of which contemplated a submission of the case to the jury on the assumption that there was in it a question of fact for their consideration. • One was given, and the rest refused. Then he asked that the- case be taken from the jury, on the theory that there was no question of fact for their determination. This is somewhat inconsistent. But, however that may be, we are of opinion that it was a clear case for the jury. There was quite enough of evidence to support a verdict for either side. It was for the jury to determine which side should prevail.
The case wás carefully and thoroughly tried. No substantial errors were committed by the court. The jury found against the defendant, and we have no right to disturb the finding. Hence the judgment is affirmed, with costs.
Affirmed.