13 N.J. Misc. 809 | N.J. | 1935
The opinion of the court was delivered by
The plaintiff sued defendants for the balance due plaintiff for dental services rendered to the defendants (husband and wife). Part of the work for the wife consisted of a bridge. The wife in support of the counter-claim testified that the plaintiff agreed to make the bridge to her satisfaction and that it would be comfortable. “Q. Did Dr. Jedel agree to make the bridge to your satisfaction? A. Yes, he said it would be to my satisfaction, and that it would loolc nice, and would be comfortable.” The plaintiff denied any such undertaking. “A. I [plaintiff] promised to make the bridge for Mrs. Tapper in the best workmanship possible, to give her everything I could. I made no promises. I remember telling you that it was possible to break the bridge, but argued and discussed with you that possibly it would be worth taking the chance and putting the bridge in.”
At this posture of the case, the trial judge directed a verdict for the plaintiff and against the defendant husband
In so doing we think that the trial judge fell into reversible error.
Our courts have not adopted the scintilla of evidence doctrine (Schmid v. Haines, 115 N. J. L. 271; 178 Atl. Rep. 801, 804); moreover, no point is made on this score. But even if it had been raised it would not lead to a different result. For the proof as to the undertaking here between the parties was not a mere scintilla of evidence. It was clear and positive; but it was also divergent, and so were the inferences to be drawn therefrom. It, therefore, clearly raised a jury question.
In directing a verdict on the counter-claim and limiting the question submitted to the jury, as aforesaid, the trial judge—among other things said: “I find that the doctor exercised ordinary skill and that was all that was expected of him. When he exercised care and prudence in the application of ordinary skill consistent with his locality he had performed his task.”
This is not a correct statement of the. law applicable even if there had been no specific undertaking between the parties. The correct principle of law in such cases is that a physician or a dentist undertakes, in the practice of his profession, that he is possessed of that degree of knowledge and skill therein which usually pertains to other members of his profession. Ely v. Wilbur, 49 N. J. L. 685; 10 Atl. Rep. 358; Smith v. Corrigan, 100 N. J. L. 267; 126 Atl. Rep. 680; Lolli v. Gray, 101 N. J. L. 337; 128 Atl. Rep. 256; Woody v. Keller, 106 N. J. L. 176; 148 Atl. Rep. 624.
Judgment is reversed; costs to abide the event.
