194 Pa. 32 | Pa. | 1899
Opinion by
■ The defendant is a reputable physician and surgeon of many
The burden of appellant’s complaint in his nine assignments of error is, that in view of the uncontradicted evidence the charge tended to unduly inflame damages, especially in assuming there was ample evidence of such malice as would warrant a verdict for vindictive damages.
We think there was no evidence in this case, and we have carefully read every word of it, which would warrant a jury in finding punitive damages. A surgeon of established reputation attends a patient for three months; in the exercise of his best judgment, a critical operation is attempted which results in death; at once the widow accuses him of malpractice, and in no doubtful language threatens suit for damages; the accusation is kept up in the days following until the trial, for while she does not recollect so saying to others, she admitted at the trial
In the case before us, the defendant first uttered the slanderous words out of court at plaintiff’s dwelling; this raised a cause of action in favor of the plaintiff; on the trial of the cause, he sought to show extenuating circumstances in mitigation of damages; the jury were permitted to stamp this defense in a subsequent trial as a repetition of the slander, and swell the damages. It is a harsh rule, not sustained on either reason or authority. It was error to give to the evidence the effect allowed to it in the charge of the learned judge.
"Whether the testimony of defendant at the former trial was .admissible for any purpose we are not called upon to decide, for there was no objection to it when offered. But the sixth, ■seventh and eighth assignments, embracing those parts of the charge which permitted the jury to give it the effect of aggravating damages, are sustained. The other assignments are overruled, judgment is reversed and a venire facias de novo .awarded.