This is an action to recover damages alleged to have been sustained by plaintiff as the result of negligent surgical treatment administered to him by defendant.
The case was tried by a jury, which rendered a verdict in favor of plaintiff, in accordance with which judgment was entered against defendant in the sum of three thousand five hundred dollars.
The appeal is from the judgment and an order denying defendant's motion for a new trial; his chief contention being that the evidence was insufficient to justify the verdict.
It appears that on January 25, 1911, due to the kick of a horse, the ulna of plaintiff's right arm was broken, and that, after receiving emergency treatment, he, on the day following the injury, placed himself in the care of defendant, who was a physician and surgeon and who undertook the treatment of the injured arm. The negligence of defendant is predicated, not only upon the alleged fact that in setting and treating the fracture there was a lack of care and skill by reason of which the fractured bone failed to unite, but that the bone known as the radius was at the time or at a later date during the treatment dislocated at the elbow, which fact defendant, by reason of his failure to exercise ordinary care and skill, failed to discover or properly treat.
On January 26th, after an examination of the fractured arm with a fluoroscope, defendant set the arm, using splints to retain the broken bones in place. On the following day he discovered that it would be necessary to wire the fractured ends of the bone and had plaintiff go to a hospital, where the operation of wiring was performed by defendant. After the operation, defendant dressed, bandaged, and otherwise treated the arm until March 29th, on which date plaintiff consulted Dr. Rowley, who found a dislocation at the elbow, of the bone known as the radius; that there had been no union of the ends of the fractured bones; that the wire used in securing the same had broken and that pus had developed in the wound; all of which conditions, except the formation of pus in the wound, *323 were indicated by an X-ray photograph of plaintiff's arm taken on said last mentioned date. At this time plaintiff placed himself in the care of Dr. Rowley, who treated the injured arm until about May 1st, when he and Dr. Lewis operated upon the arm by cutting off the head of the radius, declared necessary in order to reduce the dislocation, and reset and wired the fractured bone, which, however, as under defendant's treatment, from some cause unknown to Drs. Rowley and Lewis and contrary to their expectations, failed to unite. While plaintiff by his evidence shows in detail just what defendant did in operating upon the arm and in the treatment thereof while under his professional care, he produced no evidence tending to prove that defendant, either in performing the operation or treatment administered thereafter, was guilty of negligence. The condition of the arm on March 29th — that is, the dislocation of the radius; the fact that the wire intended to retain in place the fractured bones had broken; failure of the fractured bones to unite, and suppuration of the wound — was not, in the absence of other proof, sufficient evidence that there had been a want of ordinary care and skill on the part of defendant in treating plaintiff's injuries. In short, the record merely shows what defendant did in caring for plaintiff professionally, the condition of the arm existing on and prior to March 29th, when plaintiff placed himself in the care of Dr. Rowley, and what he and Dr. Lewis thereafter did professionally to effect a cure. Indeed, not only is there no evidence of negligence on the part of defendant, but the evidence of both Dr. Rowley and Dr. Lewis, who, by the way, were the only witnesses called on behalf of plaintiff who were competent to testify whether or not defendant had exercised reasonable care and skill in treating plaintiff's injury, tends to prove the contrary. This evidence was to the effect that the nature of the fracture was such as to demand the wiring of the bones, and that the wire used was such as surgeons generally used in such cases; that in operating upon the fracture they used like wire, which in the adjusting thereof likewise broke. Dr. Lewis said: "After I operated on the bones they did not unite with a bony union and have never united." And further: "I did not see anything in the condition of the bones at the fracture, referring to the location of the holes in which the wires had been placed or the manner in which the wires were there, *324 that would indicate that the operation which had been performed by Doctor Dickson was in any way improperly performed. . . . The condition of pus frequently follows an operation, especially operations upon bone. . . . That is true even with the utmost use of surgical care." And that he certainly expected, in performing the operation and his wiring of the bones, they would make a perfect union, in which, however, he was disappointed, since the result was to secure a ligamentous union only, and that he did not know what caused such condition.
The implied contract on the part of defendant was, not only that he possessed that reasonable degree of learning and skill possessed by others of his profession, but that he would use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he was employed (Bonnet v. Foote,
The evidence wholly fails to show any lack of care and skill on the part of defendant in setting and treating the fractured bone of plaintiff's arm, and likewise fails to show when the *326 dislocation of the elbow occurred, or that a physician, in the exercise of ordinary care and skill in treating plaintiff, should, under the circumstances shown, have discovered the dislocation and treated the same.
The judgment and the order denying defendant's motion for a new trial are reversed.
Conrey, P. J., and James, J., concurred.