99 Wash. 570 | Wash. | 1918
Appellant alleged in her complaint that she contracted with respondent to install gold crowns upon teeth, both in her upper and lower jaws, for $175; that, in accordance with her agreement, she paid respondent $75, the balance to be paid upon the completion of the work; that thereupon respondent entered upon the performance of the work, and that, without her knowledge and consent, and in violation of the agreement, he cut off “four of her teeth at the roots and attempted to construct bridge work thereon,” but that the work was so unskillfully and negligently performed as to be of no value to the appellant. Learning these
It is clear that appellant first submitted herself to respondent for the purpose of having gold crowns placed in her mouth; it is equally clear from appellant’s own testimony that, after respondent had commenced his work, she consented to a change from gold crowns to what is known in the record' as a “Richmond bridge,” necessitating the grinding down of the teeth. There is no testimony in the record that this work was unskillfully or negligently performed, or that it, to any degree, contributed to the conditions complained of by appellant.
Accepting appellant’s testimony as to the condition of her gums and teeth, the law is well settled that a bad result is of itself no evidence of negligence, in actions of this character, neither can she predicate her recovery upon the rule of res ipsa loquitur, such rule having no application to a case like this. On these two propositions the law is clear. McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870.
Appellant complains of a remark made by the trial judge in taking the malpractice feature of the case away from the jury, to the effect that no doctor or dentist had substantiated her theory of malpractice. It may be conceded that, in malpractice cases, the case is made by the nature of the testimony and not by the profession or calling of the wit
There was nothing in the evidence that would justify the jury in determining that respondent was responsible for the condition complained of. Irrespective of the court’s remarks as to the absence of expert testimony, the ruling must be tested by the instruction given to the jury and whether or not this instruction finds support in the record. The instruction was:
“The court instructs you that the question of whether or not the defendant was guilty of malpractice in this case has been taken out of your consideration because of the lack of legal evidence to support that contention, and therefore your duty in this case is limited to determining whether or not the defendant refused without good reason to complete his contract according to the terms thereof.”
Under the facts in issue between the parties, this instruction was correct. To have submitted the case to the jury on any other theory would have been undoubted error. The only evidence in the record falling within the instruction was the failure of respondent to complete his contract or to return to appellant the $75 paid by her. It is true, as con
Finding no error, the judgment is affirmed.
Ellis, C. J., Mount, Holcomb, and Chadwick, JJ., concur.