Moor v. Teed — 3 Cal. 190

Majority

p. 190

AUGUSTUS MOOR, Respondent, v. TEED and SEEGARDEN, Appellants.

Headnote

Where the action was brought against surgeons <c for mal-practice, by reason of which amputation became necessary,” it was held to be error for the court to instruct the jury, “ that if they believe, from the evidence, that the defendants were guilty of negligence, carelessness, or inattention, in their treatment of plaintiff’s wounds, by which he was caused great bodily pain and sufferings the plaintiff is entitled to a verdict.”

Appeal from the Tenth Judicial District, Tuba County.

This was an action brought against the defendants, physicians and surgeons, to recover damages for mal-practice, by reason of which the plaintiff alleged the amputation of his arm became necessary. The only point considered by this court, is fully set forth in the opinion of the court.

Fields, for appellants.

Borie and Bana, for respondent.

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

This action is brought against the defendants as surgeons, for alleged mal-practice in the treatment of a wounded arm of the plaintiff, by which amputation became necessary.

Among the instructions given to the jury, at the request of the plaintiff, and to which the defendants excepted, was the following :—

“ That if the jury believe, from the evidence, that the defendants were guilty of negligence, carelessness, or inattention, in their treatment of the plaintiff’s wounds, by which the plaintiff was caused great bodily pain and suffering, the plaintiff is entitled to a verdict.”

In giving this instruction, the court below erred. The defendants are not sued for causing bodily pain and suffering by their negligence or carelessness. They are sued for alleged mal-practice, by which amputation became necessary.

The injury complained of, is the loss of the arm. If the

p. 191

amputation was not rendered necessary by any mal-practice of the defendants, they were, under the pleadings of the case, entitled to a verdict.

The judgment must be reversed, and the case remanded.

Ordered accordingly.