average of the attainments of those practicing the profession. The Iowa doctrine is that which has been more generally accepted by the courts, and is in accord with the weight of authority, and a charge that the physician was required to possess "such reasonable skill and diligence, as are ordinarily exercised by thoroughly educated surgeons, having regard to the improvements and advanced state of the profession at the time," was held to be erroneous. The true rule was declared to be that degree of skill ordinarily exercised in the profession by the members thereof as a body, the average of the skill and diligence ordinarily exercised by the profession as a whole; not that exercised by the thoroughly educated, nor by the moderately educated, nor by the merely well educated, but by the average physician and surgeon." This must be the true rule, if only ordinary diligence and care is required in the application of skill, it must be that no greater skill is necessary than is ordinarily possessed by the profession at large. Judge Cooley does not acquiesce in Wharton's rule, and adopts as the true statement of the law the opinion of the court in Leighton v. Sargent, that the physician and surgeon must "possess that reasonable degree of skill, learning and experience which is ordinarily possessed by the professors of the the same art or science, and which is ordinarily regarded by the community and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business."'7 The English rule, as stated by Tindal, C. J., does not differ from this, "nor does the surgeon impliedly undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill, but he undertakes to bring a fair and competent degree of skill.''8 The severity of the injury or complications in the disease does not raise the standard of the care and skill required; it is still only 5 Smithers v. Hanks, 34 Iowa. 286; Almont v. Nugent, Id. 300; contra, Haire v. Reese, 7 Phil. (Penn.), 138; which declares he must exercise the skill and care ordinarily exercised by a thoroughly educated physician. See also McCandless v. McWha, 22 Penn. St. 261. 6 Leighton v. Sargent, 27 N. H. (7 Fost.) 460. 7 Cooley on Torts, 649. 8 Lamphier v. Phipos, 8 Car. & P. 479; 1 Addison on Torts (Dudley & Baylies Ed.), 496. that of the ordinary physician called upon to prescribe for such an injury or disease.9 He is entitled to have his acquirements judged according to the school of medicine he professes, 10 a homeopathist by the standard of homeopathy," and a "botanic doctor" may show his treatment to have been according to the botanic method. 12 He does not guarantee a cure; the contract implied by law is that he will use all known and reasonable means to accomplish that object, and that he will carefully and diligently attend his patients. Nor does any presumption arise that he was wanting in any of these particulars from his failure to cure his patient. 13 From the foregoing it would appear that a proper and accurate statement of the rule from the adjudicated cases would be as follows: The contract implied by the law is not that the physician or surgeon will certainly effect a cure, but that he will bring to the treatment of the case that degree of skill and learning which the average member of the profession possesses, and that he will exercise the skill, care and diligence ordinarily used by physicians and surgeons in the treatment of like injuries and diseases. 14 2. Must Apply his Skill.-A part of the 9 Utley v. Burns, 70 Ill. 162. 10 Musser v. Chase, 29 Ohio St. 577. 12 Bowman v. Woods, 1 Greene (Iowa), 441; 1 Hilliard on Torts, 240; Wharton on Negligence, § 733. 18 Haire v. Reese, 7 Phil. (Penn.) 138; O'Hara v. Wells, 14 Neb. 403; Hoopingarner v. Levy, 77 Ind. 455; Vanhoover v. Berghoff, 3 S. W. Rep. (Mo. 1887,) 73. 14 Smithers v. Hanks, 34 Iowa, 286; Almont v. Nugent, Id. 300; Leighton v. Sargent, 27 N. H. (7 Fost.) 400; Loudon v. Humphery, 9 Conn. 209; Utley v. Burns, 70 Ill. 162; Retchey v. West, 23 Ill. 385; McNevins, v. Lowe, 40 Ill. 209; Barnes v. Means, 82 Ill. 379; Howard v. Grover, 28 Me. 97; Patten v. Wiggins, 51 Me. 594; Simonds v. Henry, 39 Me. 155; Holmes v. Beck, 1 R. I. 243; Graig v. Chambers, 17 Ohio (N. S.), 253; Galleher v. Thomson, Wright (Ohio), 466; Graham v. Gautier, 21 Texas, 111; West v. Martin, 31 Mo. 375, Wood v. Clapp, 4 Sneed (Tenn.), 65; Alder v. Buckley, 1 Swann. (Tenn.) 69; Long v. Morrison, 14 Ind. 595; Gram v. Boener, 56 Ind. 497; Reilly v. Cavanagh, 29 Ind. 435; Billinger v. Craigue, 31 Barb. (N. Y.), 534; Carpenter v. Blake, 60 Barb. (N. Y.) 488; Hathorne v. Richmond, 48 Vt. 557; Wilmont y. Howard, 39 Vt. 447; Walker v. Goodman, 21 Ala. 647; Braumer v. Stormont, 9 Kan. 57; Hood v. Grimes, 13 B. Mon. 188; Gambert v. Hart, 44 Cal. 542; Heath v. Gilsan, 3 Oregon; Id. 119; Id. 139; Phillips v. Bridge, 11 Mass. 242; O'Hara v. Wells, 14 Neb. 403; Small v. Howard, 128 Mass. 131; Hitchcock v. Burgett, 38 Mich, 501; Cooley on Torts, 649; Hilliard on Torts, 239; Addison on Torts, (Dudley & Baylies) 496. A physician in good faith, treating a patient to the best of his ability, is not criminally responsible for the patient's death, although caused by medicine administered by him; 18 but a person ignorant of the uses and properties of a poisonous drug is criminally liable for the negligent sale and use thereof. 19 A druggist and a physician who compounds his own drugs, and who negligently sells a poison for a harmless medicine, is liable in damages for any injuries which may result from it. 20 A dentist or surgeon using an anaesthetic is not bound to look for any but the probable and natural effects of the drug, and is not liable for results arising from the peculiar temperament or condition of the patient of which he had no knowledge. 21 22 His contract is a personal one, hence his responsibility is not increased by a refusal of the proffered assistance of another physician; but if he turns over the case to another of his own selection he is liable for the want of skill, diligence and care in the party selected. 23 A mere recommendation by a 15 Carpenter v. Blake, 60 Barb. 488; s. c. 17 N. Y. Sup. Ct. 210. 16 Brauner v. Stormont, 9 Kan. 57; West v. Martin, 31 Mo. 375; Carpenter v. Blake, 60 Barb. 488. 17 Leighton v. Sargent, 27 N. H. 460; Vanhoover v. Berghoff, 3 S. W. Rep. (Mo. 1887) 76, and supra. 18 State v. Schultz, 55 Iowa, 328; s. c. 39 Am. Rep. 187; Commonwealth v. Thompson, 6 Mass. 134-142; Reg. v. Long, 4 Car. & P. 433, 398; 1 Hale Plea Crown, 129; Whart. Crim. Law, § 364; Whart. Hom. § 148, 149, 150. 19 Whart. Hom. §§ 152, 155; R. v. Chamberlain, 10 Cox Cr. Cas. 486; Ann. v. State, 11 Murp. 159, and other authorities cited by Wharton. 20 Morton v. Sewall, 106 Mass. 143; French v. Viening, 102 Mass. 135, 136; Bruff v. Mali, 36 N. Y. 206. The last cases were where druggists carelessly labelled poisons as harmless medicine. Quinn v. Moore, 15 N. Y. 432; Hansford v. Payne, 11 Bush (Ky.), 381; Fleet v. Hattenkemp, 13 B. Mon. 227. 21 Boyle v. Winslow, 5 Phil. (Penn.) 136. 22 Potter v. Warner, 91 Pa. St. 362; s. c. 36 Am. Rep. 668. 23 Walker v. Stevans, 79 Ill. 193; Bradstreet v. Everson, 72 Pa. St. 174. physician of another, to be called in case of need during his absence, does not render him liable for the want of skill in the other. 24 Negligence in the application of remedies to prevent the shortening of a broken arm will render him liable, 25 but he must have had an opportunity to apply his skill, and if he is discharged before the time arrived to apply remedies to prevent the shortening, he is not liable. 26 3. The Patient Must Obey Instructions.Whilst the physician is required to employ his skill and learning, the patient must comply with his instructions, and if he does not and injury results, the physician is not liable. 27 This is but the application of the general rule on the question of contributory negligence to this class of cases. So where the conduct of the patient directly contributed to the injury, so as not to be distinguishable from the unskillful treatment, he cannot recover, 28 but the burden of proof is on the physician to show this negligence of the patient. 29 4. The Contract of Employment.-It is as well within the power of the parties to make contracts in this matter as any other. The physician may, by contract, limit his attendance to a short period of time or to a single visit and may discontinue his visits to the patient at any time, but he must give reasonable notice of his intention to cease his attendance.30 It is as much his duty to exercise proper caution in ceasing his attendance as it is to exercise due diligence and skill whilst in attendance. Responding to a call for service without any limit upon the contract will be an undertaking to look after the case as long as it needs attention.82 31 A casual prescription given to a friend on the street does not make the physician his medical attendant.33 24 Hitchcock v. Burgett, 38 Mich. 501. 25 Barnes v. Means, 82 Ill. 379. 26 Kendall v. Barnes, 74 Ill. 232. 27 Baird v. Morford, 29 Iowa, 22; Hibbard v. Thompson, 109 Mass. 286; Gram v. Boener, 56 Ind. 497; Geiselman v. Scott, 25 ohio St. 86. 28 Hibbard v. Thompson, 109 Mass. 206. 29 Gram v. Boener, 56 Ind. 497; but see Baird v. Morford, 29 Iowa, 22. 30 Ballou v. Prescott, 64 Me. 305. 31 Id. 32 Ballou v. Prescott, 64 Me. 305; Dale v. Donoldson Lumber Co., 2 S. W. Rep. (Ark. 1887,) 703. 33 Edington v. Mutual Life Ins. Co., 5 Hun (N. Y.), 1. 34 It does not lessen the obligation to use due care, skill and diligence to show that the service was gratuitous, and it is inadmissible in an action for malpractice to prove that no fee has been demanded. 35 The fundamental idea on the subject is that where honesty, average intelligence, skill and learning is possessed and is applied to the treatment of the case, with ordinary diligence and caution, the physician is not liable for any mischance that may befall his patient. It is only where he has been culpable that he is liable in damages, hence no recovery can be had for injuries resulting from the original hurt, but only for those arising from the physician's negligent treatment of his patient.36 JOHN D. MARTIN. Memphis, Tenn. 34 Baird v. Gillett, 47 N. Y. 186. 35 McNevins v. Lowe, 40 Ill. 209; Hard v. Grimes, 13 B. Mon. 188; Connor v. Winton, 8 Ind. 315; Musser's Executors v. Chase, 29 Ohio (N. S.). 577. 36 Wenger v. Colder, 78 Ill. 275. CRIMINAL LAW - HOMICIDE-SELF-DEFENSE -INTENT. STATE V. PARTLOW. Supreme Court of Missouri, October Term, 1886. 1. One who begins a quarrel with the felonious purpose to kill the person assaulted, and accomplishing such purpose, is guilty of murder, and cannot avail himself of the doctrine of self-defense; and if the quarrel be begun without a felonious purpose, the homicidal act will not be murder. 2. The main feature in such cases is the intent with which the accused brought on the quarrel. If with no felonious intent-no premedidated purpose of doing great bodily harm or killing the person assaulted-then the accused is not a murderer, let the result of the quarrel turn out as it will. 3. The defendant has a right to testify as to his intent, and to have an instruction based on his own testimony. 4. The intent with which the accused committed the homicide must be considered by the jury, and, taking his testimony and that of others who corroborated him as true, there was ample ground for holding that he had not lost his right of imperfect self-defense; and if there was no felonious intent the offense would not be murder, but manslaughter, and the court erred in instructing the jury that the offense could not be less than murder in the second degree, no matter what the intent may have been, provided he brought on the quarrel. 5. If the accused, by mere words, "brought on the difficulty," or be in the wrong in the first instance, and then in good faith withdraws as far as he can, really intending to abandon the conflict, and his adversary still pursues him, then, if taking life becomes necessary to save his own, he will be justified. And the retreat must be continued until the only apparent means of escape is to turn and attack the pursuer, but need not be attempted or continued when the attack is so fierce that the assailed by retreating will apparently expose himself to death or great bodily harm. 6. Evidence of threats made by accused against a third person in the house of the deceased at the time of the homicide are admissible, as disclosing the animus of defendant in going to deceased's house. 7. Before dying declarations are admissible in evidence, it must first appear and be proved that the declarations were "made under a sense of impending death," or with the impression on the mind of the declarant of "almost immediate dissolution." 8. If a person enters another's dwelling peacably, he cannot be ejected, except on request to leave, followed by no more than the necessary and proper force. SHERWOOD, J., delivered the opinion of the court: The defendant was indicted for the murder of William J. Taylor, by shooting him with a pistol, and being brought to trial, was convicted of the second degree of that offense, and sentenced to imprisonment in the penitentiary for ten years. As is usual in such cases, there was a great deal of conflict in the testimony, the State making out a case which indicated that a felonious purpose actuated the defendant in visiting the house of Taylor on the day of the homicide, while the testimony on behalf of the defendant, and it would seem the weight of the testimony in the case favored the theory that he went to Taylor's house with no other end in view, but that of escorting his wife home, who was then at Taylor's, attending the wedding ceremony between Willis Bunch and Mary Reno. Against the life of Bunch, it appears that threats had been made by defendant some two years before, and at frequent intervals since almost down to the time of the homicide, which occurred the 25th day of December, 1884, and within about ten days prior to that time. 1. The instructions of the court, in regard to murder in its first and second degrees, were in usual form, and the jury were in effect instructed that, under the evidence and law of the case, that unless they could find the defendant guilty of murder in the first or in the second degree, to acquit him altogether. The eleventh instruction, given at the instance of the State, was as follows: "Before the right of self-defense can avail the defendant in this case, the jury must believe from the evidence not only that the defendant had at the time he shot the deceased reasonable cause to apprehend a design on the part of the deceased, or others aiding in consent with him, if they find others were so aiding, to do him some great bodily injury, and that he had reasonable cause to apprehend immediate danger of such design being accomplished, and that he shot deceased to avert such apprehended danger, but they must also be lieve from the evidence that the defendant neither sought, invited, provoked nor commence, by any willful act of his own, said difficulty. And if the jury believe from the evidence that there was an affray or difficulty between the defendant and deceased, and that defendant voluntarily sought or invited the difficulty, or provoked or commenced it. or brought it on by any willful act of his own, or that he voluntarily and of his own free will engaged in it, then and in that case the jury is not authorized to acquit him upon the ground of selfdefense; and this is true, no matter how violent his passion became, or how hard he was pressed, or how imminent his peril may have become during said difficulty." The phraseology of this instruction as to the defendant seeking or bringing on the difficulty, is also used in instruction No. 2, given by the court of its own motion, and also in instruction No. 7, given at the instance of the State. The defendant saved exceptions to the refusal of three instructions asked by him as follows: No. 1. The court declares the law to be, that homicide is justifiable, whenever there is reasonable cause to apprehend immediate danger of any felonious maiming, wounding or disfiguring being committed upon the person committing such homicide, when the same is done to prevent the execution of such felonious maiming, wounding or disfiguring, provided at the time the deceased or those aiding, abetting and assisting him, made or were about to make such demonstrations as would induce a reasonable man to believe such danger was imminent. No. 2. The court instructs the jury that, even if defendant did voluntarily enter into a difficulty with deceased, still if the jury believe from the evidence that, after said difficulty had commenced, the defendant attempted in good faith to withdraw from the difficulty, but was prevented from so doing by the deceased, then, in that event, defendant would be excused in taking the life of said Taylor, if it became necessary to do so, in order to save his own. No. 3. Before the jury can refuse to allow the defendant the benefit of the plea of self-defense, on the ground that he sought or voluntarily entered into a fight with deceased, they must believe from the evidence that defendant, at the time he so sought, or voluntarily entered into a fight with deceased, he was actuated by a felonious intent to maim, wound, hurt or kill said deceased. As to the first of the instructions just mentioned, no error occurred in its refusal, because, aside from any other consideration, the principle embraced in it had already been fully and more properly stated in instructions one, six and seven, given by the court of its own motion. I cannot speak so favorably of the refusal of defendant's third instruction, and there are many reasons for this assertion. Although the evidence on behalf of the State disclosed the existence of certain matters, which, if believed by the jury to be true, would perhaps have warranted the jury in finding the defendant guilty of the highest grade of homicide, yet that on behalf of the defendant disclosed such matters as would well have warranted the jury in acquitting the defendant altogether, or in finding him only guilty of manslaughter. In State v. Hays, 23 Mo. 287, the evidence disclosed a state of facts well covered by the third and sixth instructions there given at the instance of the State. "If the defendant, with a spade in his hand, took a position near Brown and gradually approached him for the purpose of inducing an altercation and getting a chance to kill him, and commenced raising his spade at the same time Brown commenced drawing his pistol, and then struck him and killed him, he is guilty of murder in the first degree; and in such case it would be no defense, even if the evidence showed that Brown drew his pistol before the defendant commenced raising his spade, for the law will not permit a man thus to induce a provocation and so take advantage of it." "Although the jury may believe from the evidence that Brown was attempting to draw his pistol, or had it drawn at the time Hays struck, and that Hays' life or person was in imminent danger, yet, if they further believe that Hays intentionally brought on the difficulty for the purpose of killing Brown, he is still guilty of murder in the first degree." That case is a clear enunciation of the law as applicable to the state of facts disclosed by that record, a record abounding in all the incidents of murder in the first degree, prior expressions of ill-will and murderous threats, followed up on the fatal occasion by Hays "inching up toward" his victim with a spade in his hands, with which he carried out his deadly purpose. The principle thus announced in that case was followed in that of the State v. Starr, 38 Mo. 270; for there a qualifying instruction, given by the court of its own motion, was expressly approved, which told the jury that: "The foregoing instructions are given with this qualification, that the right of self-defense which justifies homicide does not imply the right of attack; and the plea of justification in self-defense cannot avail in any case where it appears that the difficulty was sought for and induced by the act of the party in order to afford him a pretense for wreaking his malice." Wagner, J. remarking: "The qualification was necessary in view of the evidence in the case. The testimony tended to show that the accused sought the altercation, and was instrumental in bringing it on, and if the jury found such to be the fact, the law would not permit him to shield himself behind the doctrine of self-defense. Besides, the qualification is couched in the very language of Wharton, and commends itself for its justice, and is well supported by authority." Whart. on Hom. 197. The author just cited with approval, when speaking of a case "where the attack is sought by the party killing." uses this language; "The plea of provocation will not avail in any case, where it appears that the provocation was sought for and induced by the act of the party in order to afford him a preteuse for wreaking his malice; and it will presently be seen that, even where there may have been previous struggling or blows, such plea cannot be admitted, where there is evidence of express malice; and it must appear, therefore, that when he did the fact he acted upon such provocation, and not upon any old grudge." And the same learned author uses similar language in another work. 1 Whart. Crim. Law, (8th ed.) §§ 474, 476. Treating of this subject of seeking quarrel, an eminent text-writer says: "If a man determines to kill another, or to do him great bodily harm and seeks a quarrel, he cannot avail himself of the passion it excites; because he acts from an impulse which his mind receives in its cool moments." 2 Bishop Crim. Law § 715. Elsewhere the same writer says: "If, without provocation, a man draws his sword upon another, who draws in defense, whereupon they fight, and the first slays his adversary, his crime is murder. For he who seeks and brings on a quarrel cannot, in general, avail himself of his own wrong in defense. But where an assault, which is neither intended nor calculated to kill, is returned by violence beyond what is proportionate to the aggression, the character of the combat is changed; and if without time for his passion to cool the assailant kills the other, he commits only manslaughter." Ib. § 702. It would seem needless to say that this view of the law is supported by the most abundant authority. State v. Lane, 4 Ired. 113; Reg v. Smith, 8 Car. & P. 160; Slaughter's Case, 11 Seigle, 681; Purphy v. State, 37 Ala. 142; Adams v. People, 47 Ill. 376: State v. Hildrette, 9 Ill. 429; State v. Hogue, 4 Jones (N. C.), 381; State v. Martin, 2 Ired. 101; Atkins v. State, 16 Ark. 568; Cotton v. State, 31 Miss. 504; Stewart v. State, 1 Ohio St. 66; State v. Hill, 4 Dev. & Bat. 491. In all of these cases I have cited, and I might have cited "a great cloud of witnesses" to bear testimony to this well established legal principle, the idea is made prominent that the main feature in such cases is the intent with which the accused brought on the quarrel or difficulty; if with no felonious intent, no harboring of malice, no premeditated purpose of doing great bodily harm, or killing the person assaulted or with whom the quarrel is begun, then the accused is not a murderer, let the result of the difficulty turn out as it will. This view I will further illustrate by quotations from some of the cases cited, supra. Thus, in Stewart v. State, Thurman J. said: "And again, the combat must not have been of his own seeking, and he must not have put himself in the way of being assaulted, in order that when assaulted and hard pressed he might take the life of his assailant. ** * Now it does seem to us clear that Stewart sought to bring on the affray, that he desired and intended, if assaulted, to make good his previous threats of using his knife. True, he had a right to dun Doty for his money, but he had no right to do so for the purpose of bringing on an affray in order to afford him a pretext to stab his enemy." In Adams v. People, Breese, J. said: "The twelfth instruction for the people was right. It was as follows: If the defendant sought a difficulty with the decased for the purpose of killing him, and in the fight did kill him, in pursuance of his malicious intention of taking the life of Bostic, they will find the defendant guilty of manslaughter, although the cutting and killing were done in order to prevent an assault upon him by Bostic, or to prevent Bostic from getting an advantage in the fight." In Cotton v. The State, Fisher, J. said: "The qualification by the court, made to the third instruction, is clearly erroneous. The instruction is in substance that, if Cotton killed Smith, not in pursuance of a premeditated design, but on a sudden quarrel, the crime of murder is not made out. The modification made is, 'unless Cotton sought the quarrel, she used a deadly weapon.' The question was, whether malice prompted the accused to kill. He interposed, as his defense by the instruction, 'no design to kill,' and that the killing was on a sudden quarrel. The court say to him that this is no defense, not even to mitigate the crime, if you sought the quarrel and used a deadly weapon. Now, he may have done both without being guilty of murder; for he may not, by seeking the quarrel, have intended only the slighest personal injury to the deceased, and he may, from sudden provocation, have used his weapon, or he may have been forced to do so in self-defense, although he was the aggressor in the quarrel. The modification amounts to this, that although there must be a formed design to take life to constitute murder, yet such design is not necessary where the party killing seeks the quarrel and uses a deadly weapon. There must be proof of malice in some form; the seeking of the quarrel and using the deadly weapon may be evidence for this purpose. But this is what the defendant below was endeavoring to meet, by showing no design to take life, because the killing occurred on a sudden quarrel. The modification virtually declares this to be no defense, if the party sought the quarrel." In State v. Lane, Ruffin C. J. said: "If the prisoner sought the deceased and entered into that fight with the purpose, under the pretense of fighting, to stab him, it was clearly murder, no matter what provocation was then given, or how high the prisoner's passion rose during the combat; for the malice is express and was promptly wreaked, and puts the idea of provocation out of the case. In State v. Hill, the defendant was convicted of murder in the first degree. He had "brought on the difficulty" by striking the deceased a blow with his fist, when the deceased stabbed him, and he thereupon stabbed and killed the deceased, but |