34 W. Va. 252 | W. Va. | 1890
This was an action of assumpsit in the Circuit Court of Marion county, by John Kuhn, resulting in a judgment of nil capiat for the defendant, J. II. Brownfield, to which plaintiff has taken this writ of error.
The appellant’s first assignment of error is in the allowance of pleas one and four. We will examine this question. The declaration alleged that plaintiff had been wounded and hurt, and that his hip-joint, had been dislocated ; and that the defendant represented and held himself out to be
TJpon a trial before a jury the defendant moved the court to exclude the plaintiff’s evidence because it did not sustain the ' allegations of the declaration, but was variant therefrom, and then the court allowed the plaintiff* to amend his declaration by striking out the words “ reduce and cure,” and the words “ and cure,” and the words “ and to reduce
“hlo. 1. The defendant says that the plaintiff his said action against him ought not to have and maintain, because the defendant says that .the supposed cause of action mentioned and set forth in the plaintiff’s declaration, in the cause as amended in court, by leave of the court, towit, on the 19th day of March, 1888, did not accrue to the said plaintiff within one year next before the day the plaintiff amended his said declaration in this cause in court, by leave of the court, towit, the said 19th day of March, 1888; and this the said defendant is ready to verify.”
“Ho. 4. The defendant says that the plaintiff his said action against him ought not to have and maintain, because the defendant says that the said plaintiff did not commence his said action against the said defendant for the supposed cause of action mentioned and set forth in the plaintiff’s declaration in this case within one year next before the said supposed cause of action accrued to the said plaintiff. And this the defendant is ready to verify.”
The plaintiff demurred to said pleas, and, his demurrer being overruled, and the court having offered leave to the plaintiff to file replications to said pleas, and the plaintiff declaring that he did not desire to file any replication to them, and declining to make up any issue on them, the court gave judgment for defendant.
The defendant contends that the amendment introduced a new cause of action, and that as to that cause of action declared upon in the declaration as amended the' statute of limitations did not stop at the commencement of the action, but ran on until the date of the order of amendment (19th of March, 1888) and that therefore his plea that action did not accrue within one year before that'date is'good; while the plaintiff contends that such amendment did not introduce a new cause of action, and that the statute notwith
The theory of the defendant to sustain his claim, that the amendment introduces a new cause of action, is that the declaration, as it was before the amendment, averred that his undertaking was to cure the injury of the plaintiff which must, necessarily be based in law on an express and special contract to cure, not simply one to treat the ailment; that the mere engagement of a surgeon to treat a patient carries with it no implied undertaking to cure, and that the language of the declaration in alleging an undertaking to cure must necessarily be taken as based on an express, special contract to cure the plaintiff’s hurt — whereas the amendment striking out allegations as to cure leaves it based on a mere engagement to treat the patient, which carries with it only an implied obligation to treat to the best of his skill and judgment.
It is true, that a physician or surgeon without a special contract for the purpose never stipulates for the successful conclusion of his service, nor is he ever a warrantor or insurer, and his implied contract with his employer is, that he possesses that reasonable degree of learning, skill and experience, which is ordinarily possessed by professors of the same art or science; that he will use reasonable and ordinary care and diligence in the exertion of his1 skill and the application of his knowledge ; that he will use his best judgment as to the treatment of the case intrusted to him. Leighton v. Sargent, 27 N. H. 460 (59 Amer. Dec. 388) and cases cited in note, Patten v. Wiggin, 51 Me. 594 (81 Amer. Dec. 593) and note.
But though we be compelled to view the declaration, as it was before amendment, as one founded on an express contract to cure, I do not think that it by any means follows, that an amendment so changing it that it came to be founded on the simple retention of the defendant for service in treating his patient, carrying with it the implied contract or undertaking to possess and exercise reasonable skill, and alleging negligent treatment, would introduce a new, distinct and substantive cause of action. "Whether the contract for
Here the question is not exactly how the surgeon was engaged, or what duties he assumed, but it is whether the ■wrongful act charged in the declaration, as amended, as the cause of the plaintiff’s damage, is a different act from that specified in the declaration before amendment. It seems to me to be very clear, that in the declaration, as it was before amendment and as it is since the amendment, the gravamen or gist of the action, the cause from which the damage ensued, is the malpractice of the defendant, his negligence and omission to exercise skill, judgment and care ; and that the statement of his undertaking or contract with the plaintiff is only explanatory of how he came to be engaged, and as raising a duty on his part, and is to be treated as if it were inducement. Whether he engaged by special contract to cure or by implied contract to use ordinary skill, the wrongful act charged against him, that he treated his patient unsldllfully, carelessly, negligently and improperly, would be a violation both of such special and implied undertakings. It is one and the same transaction in the declaration as it was and as it is, and not a distinct different transaction first heard of after amendment. The change does not change the form of action, for assumpsit may be maintained against a physician or surgeon upon his implied undertaking to exercise proper skill arising from his simple engagement as physician, as well as on an express contract to cure.
It is stated in 2 Wait, Act. & Def. 103, that “case lies against surgeons, physicians and apothecaries for improper treatment or want of skill or care, though assumpsit is also maintainable.” In Addison on Torts, p. 13, it is stated that “ a tort may be dependent upon or independent of contract. If a contract imposes a legal duty, the neglect of that duty is a tort founded on contract; so that an action ex contractu
“"Where there is an express promise, and a legal obligation results from it, the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where, from a given state of facts, the law raises a legal obligation to do a particular thing, and there is a breach of the obligation, and a consequential damage, there, though assumpsit may be maintainable upon a promise implied by law to do such act, still an action on the case is the more proper form of action in which the declaration states the facts out of which, the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach.”
In note v, to 1 Chit. PL 152 (16th Amer. Ed.) it is said that where the gist of the action is a tort, if it arises out of a contract, the plaintiff' may declare in tort or contract at his election; and that so much of the contract must be ' stated as is necessary to describe the wrong, or as qualifies the nature and character of the wrong. In 1 Wait, Act. & Def. 135, it is laid down that attorneys, surgeons and engineers undertake to discharge their duties with a reasonable amount of skill and with integrity, and for their neglect or unskillfulness there may be an action either in tort for the wrong done or for breach of the contract at plaintiff’s election. See Add. Torts, 15,16.
Section 8, c. 131, Code 1887, provides that “if at the trial of any action there appear tobe a variance between the evidence and allegations, the court may, if in its opinion substantial justice will be promoted thereby, allow the pleadings to be amended.” I concede that under this statute of amendment or at common law a new cause of action can not be introduced. In the leading case of Stevenson v. Mudgett, 10 PL H. 338, the law is laid down thus: “Amendments are not allowed which are inconsistent with the nature of the pleadings, or change the cause of action. Particular allegations may be changed, and others added, provided the identity of the cause of action is preserved.”
There is nothing in the case of Snyder v. Harper, 24 W. Va. 206, militating against the amendment allowed in this case, but I think it supports it. The court there holds that the courts should be liberal in allowing such amendments as tend to promote the fair trial of the subject-matter upon which the action was originally really based; but no amendment should be allowed against protest, introducing a new substantive cause of action, different from that declared upon, and different from that which the party intended to declare upon when he brought his action.
Now, I ask, is it not clear that the plaintiff'in this casein-tended to declare upon the negligent, unskillful professional treatment of him by the defendant as the source of his injury, and the cause of his action ? Did he not in his declaration, as it was when filed, allege that as the gist of his action, and use the defendant’s contract or undertaking merely as an incident in the transaction to show how and why the duty rested on the defendant ? The declaration as amended is just the same as it was in respect to its allegations of the malpractice alleged against the defendant.
In Lamb v. Cecil, 28 W. Va. 653, it was held, that a plaintiff can not, under pretence of amendment of his bill, introduce an original and different cause of action or ground of relief; but if the cause of action and relief sought are substantially the same, it is immaterial that the form, in which the claim is presented by the amendment, differs essentially from that in the original bill.
In the case now in hand the amendment changed only the form of statement, not the cause of action. Holding,
Judgment is reversed, the demurrer to pleas Nos. 1 and 4 sustained, those pleas rejected, and cause remanded for further proceedings.
REVERSED. REMANDED.