tract as intimated by Mr. Justice Cooley above. Yet the court in this case observes that railway companies are deprived under the Texas statute of the right to limit their liability by contract, "even as to matters in reference to which they might legally contract under the common law." The Texas court further says, "the common law duties and liabilities, and not those duties and liabilities as they may be affected by contracts lawful under the common law, are the duties and liabilities of common carriers under the statutes of this State, and they cannot be restricted, or limited by any contract or agreement whatsoever in cases to which the statute is applicable. The rule may seem a harsh one, but be that as it may, the legislature of this State has established it, and courts have no power or right to refuse to enforce it, or to place a construction on the statute which its language does not authorize" and again, "the duties and liabilities imposed on common carriers are inseverable. A failure of duty resulting in loss to the shipper fixes liability; and if, by contract, duties imposed by the common law may be dispensed with, then a restriction or limitation of the common law liability would necessarily follow to the extent to which duty existing without a contract might be dispensed with by it. 30 In the light of this language, the further statement of the court that "we see no reason why contracts executed upon sufficient consideration, and reasonable in character, looking only to the time within which such liability may be enforced, should not be held valid. There is no rule of the common law which forbids such contracts," seems at least a trifle inconsistent, but is, perhaps, good law. The restrictive statement as to the time within which action is to be brought for the recovery of damages is held a saving clause in this case. A contract limiting liability of carrier to his own line, and containing a stipulation in an agreement for the carriage of goods that the company upon whose line a loss or an injury occurs shall be liable therefor, and the receiptor exempted, held void in the Tennessee court.31 This is undoubtedly the correct rule of law with refer

166.

Citing Missouri Pac. Ry. Co. v. Harris, 67 Texas,

31 Merchants' Dispatch Trans. Co. v. Bloch Bros., 86 Tenn. 392.

Supreme Court of Errors of Connecticut, May 22, 1893.

In an action against a homeopathic physician for malpractice, evidence having been given by witnesses as to how the case should have been treated, but also how the allopathic school would treat it, defendant having requested a charge on the subject, the court should have instructed that the jury were not to consider the relative merits of the two schools, but that, so far as defendant was to be judged by either, it was by the tenets and practices of his own school.

FENN, J.: This is an action by a minor child to recover damages against the defendant, who is a homeopathic physician, for alleged malpractice in treating her for ophthalmia. The jury returned a verdict for the plaintiff, and from the judgment rendered thereon the defendant appealed to this court.

The only questions presented, which are necessary to consider, relate to the charge of the court to the jury. Evidence was offered to show that the defendant, in treating the plaintiff. adopted the remedies prescribed by the homeopathic practitioners. It appeared that the allopathic school of medicine would treat such a case differently, and in the latter way the plaintiff claimed that she ought to have been treated. The defendant asked the court to charge the jury "that treatment by a physician of one particular school is to be tested by the general doctrines of his school, and not by those of other schools." The court refused to so charge, and charged as follows: "In regard to that matter, I will say that the defendant's negligence or want of skill in the treatment of the plaintiff's eye must be determined by all of the evidence in the case, and if the defendant adopted the treatment laid down by one particular school of medicine, and the medical testimony offered by the plaintiff related to treatment prescribed by a different school, you will weigh the testimony, having regard to any bias or prejudice that might influence the testimony of those who belonged to a different school from that of the defendant. You should also take into consideration the training and education of the defendant for his profession, the experience which he has had, and the degree of skill with which he handled the case, all bearing upon the question whether the

defendant used ordinary care and skill in the treatment of the plaintiff." The defendant claims that the court erred, both in refusing to charge as requested, and in charging as it did.

In the absence of special contract physicians and surgeons, by holding themselves out to the world as such, impliedly contract that they possess the reasonable and ordinary qualifications of their profession, and are under a duty to exercise reasonable and ordinary care, skill, and diligence. Landon v. Humphrey, 9 Conn. 209; Kendall v. Brown, 74 Ill. 232; Small v. Howard, 128 Mass. 131; Ballou v. Prescot, 64 Me. 305; Leighton v. Sargent, 31 N. H. 119; Ely v. Wilbur, 49 N. J. Law, 685, 10 Atl. Rep. 385, 441; Potter v. Warner, 91 Pa. St. 362; Hathorn v. Richmond, 48 Vt. 557; Gates v. Fleischer, 67 Wis. 504, 30 N. W. Rep. 674. In determining what constitutes reasonable and ordinary care, skill, and diligence, 'the test is that which physicians and surgeons in the same general neighborhood and in the same general line of practice ordinarily have and exercise in like cases. Hathorn v. Richmond, supra; Utley v. Burns, 70· Ill. 162; Almond v. Nugent, 34 Iowa, 300; Small v. Howard, supra; Leighton v. Sargent, supra. In addition to this, however, regard must be had to the advanced state of the profession at the time of the treatment. Small v. Howard, supra; Gates v. Fleischer, supra; Smother v. Hauks, 34 Iowa, 286; Nelson v. Harrington, 72 Wis. 591, 40 N. W. Rep. 228.

Premising these general principles, we come to the precise question presented by the appeal: Ought the defendant's request to charge to have been complied with? And was the charge, as given, correct and sufficient? The language of the request may be found in Patten v. Wiggins, 51 Me. 504, where the following charge was held to be correct: "If there are distinct and different schools of practice, and a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, and not by those of other schools. It is to be presumed that the parties so understood it. The jury are not to judge by determining which school, in their own view, is best." And the same principle was clearly stated, in an able opinion, in Bowman v. Woods, 1 Greene, 441, and we are aware of no authority to the contrary. But, notwithstanding this, it seems to us that the inherent difficulty in an endeavor to vindicate the action of the court below is not because the court failed to charge in the identical language of the request, nor because of the language actually used by the court which appears correct So far as it goes, but rather because the court, in refusing to charge as requested, and only charging as it did, omitted to bring to the attention of the jury a consideration which, in view of the testimony received, and the claims made thereon by counsel, ought to have been presented to them. It having appeared how the allopathic school of medicine would treat a case of the character of the one in question, the court, as we have

seen, said: "If the defendant adopted the treatment laid down by one particular school of medicine, and the medical testimony offered by the plaintiff related to the treatment prescribed by a different school, you will weigh the testimony, having regard to any bias or prejudice that might influence the testimony of those who belonged to a different school from that of the defendant." Doubtless, this is correct. The testimony should be so weighed. But if the defendant adopted the treatment, not of one particular school in the abstract, but of his own particular school, which he publicly professed and practiced, and the medical testimony offered by the plaintiff related to treatment prescribed by a different school, such testimony should be weighed, not alone with regard to bias or prejudice influencing the testimony of witnesses, but with regard to bias or prejudice which might influence or incline the jury in favor of one school rather than the other; for, as was said in Patten v. Wiggin, supra, "the jury are not to judge by determining which school,in their own view, is best." And as it seems to us, from the testimony presented, which did not stop with the statement of how, in the view of the witnesses, such a case ought to be treated, but went further, and stated how "the allopathic school of medicine would treat it," it was precisely from such bias or prejudice the defendant stood in danger. Indeed, the counsel for the plaintiff freely admitted, in argument before us, that the respective merits of the two schools of medical practice were—and, as he claimed, of right ought to have been-on trial before the jury. We cannot concede such right, and the jury, we think, should have been told that the relative merits of the two schools were in no sense before them for their consideration; that, so far as the defendant was to be judged by either, it was by the tenets, rules, principles, and practices of his own school, not by those of another; and that, if the defendant adopted the treatment laid down by his own school the fact, that another school prescribed another treatment tended in no wise to show that the defendant was chargeable with lack of skill or negligence. It would seem that if it could be held negligent or unskillful, in a given case, to use the treatment prescribed by the school to which the practitioner belonged, such negligence or want of skill must consist either in the mode of use, the application of such remedies under improper circumstances, or because they were intrinsically wrong, inappropriate, or inadequate. If there be any valid objection to the language quoted from Patten v. Wiggin, supra. it is in the failure to incorporate with the general statement the further one that the test there given does not exclude the duty of keeping pace with the progress of professional knowledge, ideas, and discoveries, to the extent that a faithful, conscientious, and competent practitioner, of whatever school, may be reasonably expected, and is therefore lawfully required, to do, not because the test of the treatment of some other school can be applied. It may be added that the general ex

pressions in the charge under consideration, that the question of defendant's negligence "must be determined by all of the evidence in the case" and that the jury should consider "the training and education of the defendant for his profession, the experience which he had had, and the degree of skill with which he handled the case," in no sense appear to meet or supply the wanting element in the charge, and that because of such element, if the unqualified language of the request was too broad, still the rule stated in Seeley v. Town of Litchfield, 49 Conn. 138, applies, and that, "if it was not the duty of the court to charge precisely as requested, yet it was its duty to respond to the request by charging the jury correctly on that subject."

It was not claimed that the fact that the plaintiff was an infant of tender years, incapable of contracting, and that the physician was called by her father, in any way extended or altered the implied contract and duty of the defendant, por do we think such a claim, if made, would have heen valid. It appeared that the defendant had, at least to some extent, been the family physician, and had previously, as such, prescribed for the plaintiff; but this circumstance, also, is one to which no importance has been attached. There is error, and a new trial is granted. The other judges concurred.

NOTE. Physicians, surgeons and dentists, by holding themselves out to the world as such, impliedly contract that they possess the reasonable and ordinary qualifications of their profession and are under a duty to exercise reasonable and ordinary care, skill and diligence, but that is the extent of their liability. Nevins v. Lowe, 40 Ill. 209; Barnes v. Means, 82 Ill. $79; Long v. Morrison, 14 Ind. 595; Jones v. Angel, 95 Ind. 376; Tefft v. Wilcox, 6 Kan. 46; Branner v. Stormont, 9 Kan. 51; Small v. Howard, 128 Mass. 131; Hitchcock v. Burget, 38 Mich. 501; Getchell v. Lindley, 24 Minn. 265; Patten v. Wiggin, 51 Me. 594; Ballou v. Prescot, 64 Me. 305; Leighton v. Sargent, 31 N. H. 19; Ely v. Wilbur, 49 N. J. L. 685; 14 Am. & Eng. Ency. of Law, 76, and cases cited. A person who, without special qualifications, volunteers to attend the sick, can at most be only required to exercise the skill and diligence usually bestowed by persons of like qualifications under like circumstances. The burden of proof is upon the plaintiff in an action for malpractice to show that there was a want of due care, skill and diligence (Holtzman v. Hoy, 19 Ill. App. 459; Baird v. Morford, 29 Iowa, 531; Vanhoover v. Berghoff, 90 Mo. 487; Craig v. Chambers, 17 Ohio St. 253; State v. Housekeeper, 70 Md. 162), and also that the injury was the result of such want of care, skill and diligence. Getchell v. Hill, 21 Minn. 464. The reasonable and ordinary care, skill and diligence which the law requires of physicians and surgeons is such as physicians and surgeons in the same general neighborhood, in the same general line of practice ordinarly have and exercise in like cases, Hathorn v. Richmond, 48 Vt. 557; Wilmot v. Howard, 39 Vt. 447; Uttley v. Burns, 70 Ill. 162; Small v. Howard, 128 Mass. 131; West v. Martin, 31 Mo. 375. The locality in which a physician or surgeon practices is to be taken into account. One practicing in a small town or sparsely settled country district, is not to be expected

to exercise the care and skill of one residing n and having the opportunities afforded by a large city. He is bound to exercise the average degree of skill possessed by the profession in such localities generally. Gramm v. Boener, 56 Ind. 497; Kelsey v. Hay, 84 Ind. 189. Physicians and surgeons should keep abreast of the times and make use of the latest and most approved methods and appliances, having regard to the locality and general practice of the profession. And it is for the jury to decide from the particular circumstances of each case whether the physician has fulfilled his duty in this respect. McCanless v. McWha, 22 Pa. St. 261; Vanhoover v. Berghoff, 90 Mo. 487. A departure from approved methods of practice result. ing in injury to the patient will render the medical practitioner liable however honest the intention and expectation of benefit to the patient may be. Physicians and surgeons are bound to give their patients the benefit of their best judgment, but they are not liable for a mere error of judgment which is not so gross as to be inconsistent with reasonable care, skill and diligence. Tefft v. Wilcox, 6 Kan. 46; Patten v. Wiggin, 51 Me. 594; Vanhoover v. Berghoff, 90 Mo. 487; Leighton v. Sargent, 27 N. H. 460; Carpenter v. Blake, 60 Barb. 488; Williams v. Poppleton, 3 Oreg. 139; West v. Wartin, 31 Mo. 375; Howard v. Grover, 28 Me. 397.

The fact that a physician or surgeon renders serv ices gratuitously does not affect his duty to exercise reasonable and ordinary care, skill and diligence. Nevins v. Lowe, 40 Ill. 209. If the fault or negligence of a patient or his attendant contribute to the patient's injury he cannot recover for malpractice by the physician or surgeon. Lower v. Franks, 115 Ind. 334; West v. Martin, 31 Mo. 375; Potter v. Warner, 91 Pa. St. 362; Reber v. Herring, 115 Pa. St. 599. Where the injury attributable to the fault of the patient can be separated from that of the physician the former may recover for so much of the jnjury as is due to the fault of the latter. Hibbard v. Thompson, 109 Mass. 286; Wilmot v. Howard, 39 Vt. 447.

A late case on the subject of malpractice is Young v. Mason, decided by the Supreme Court of Indiana, 35 N. E. Rep. 521. It was therein held that, though a surgeon negligently fail to properly reduce the fracture of a limb, the patient cannot recover damages from the surgeon, if the limb become stiff, if such stiffness result in part from the patient's violation of the surgeon's orders in treating the limb. The case, citing previous authorities, applies the ordinary doctrine of contributory negligence to malpractice cases. The court lays down the following general principles in the conclusion of the opinion: "Where both the surgeon and patient are free from negligence, or where the surgeon and patient are both guilty of negligence, or where the surgeon is free from fault and the patient is guilty of negligence, no recovery can be had by the patient against the surgeon in any case. It is only where the surgeon is guilty of negli gence and the patient is without negligence on, his part contributing in any degree to such injuries that the patient can recover damages of the surgeon. In this case it appears, as we have seen, that both parties were, in some degree at least, at fault in producing the injuries in question, and therefore the court below did not err in rendering judg ment for the appellee."

Upon the subject of the principal case it seems that the law does not favor any particular school of medicine and the treatment of a physician is to be tested by the principles of that school to which he belon

Bowman v. Woods, 1 Greene (Iowa), 441; Patten v. Wiggin, 51 Me. 594; Heese v. Knippel, 1 Mich. (N. P.) 109; Williams v. Poppleton, 3 Oreg. 139; Corsi v. Maretzk, 4 E. D. Smith (N. Y.), 1. Clairvoyants do not constitute a school since they have no fixed principles or formulated rules for the treatment of di sease. They are under a duty to treat their patients with the ordinary skill and knowledge of physicians in good standing practicing in their vicinity. Nelson v. Herrington, 72 Wis. 591.

JETSAM AND FLOTSAM.

EQUITABLE OYSTER STEWS.

Not long ago a certain Chicago corporation engaged in the dry goods trade became insolvent, and was placed in charge of a receiver. The receiver was empowered to continue the business of the coporation, and proceeded to do so. Attached to the retail store of the insolvent corporation is a restaurant to which the fair bargain-hunters resort for rest and refreshment after their arduous exertions in shopping. In. asmuch as such a restaurant is a necessary appurtenance to a modern dry goods house, it became necessary for the receiver to continue the restaurant. Accordingly there appeared in the daily papers an immense advertisement of the receiver's sale. After describing the wonderful bargains in haberdashery to be obtained at this sale, the receiver set forth the advantages of the aforesaid restaurant, and among other delicacies, announced: "Oyster Stews, only 20 cents." Shades of Hardwicke and Eldon! Has it come to this, that the chancellor, once the keeper of the king's conscience and of the great seal, should now be engaged in making ten-penny oyster stews? Little did old John Waltham suspect when he devised that bete noire of the old common law judges, the subpoena, that the result of his ingenuity would be to give the court of chancery jurisdiction over oyster stews made five centuries later. Nor could the judges who laid down the well-known rule in the ancient case of Shelley, have foreseen that that rule would be of no aid to the court of today in an oyster-shelly case. Since the tenancy of modern times is toward the codification of the law, the following code de cuisine is suggested, with the hope that the Commissioners on Uniform State Legislation may be able to secure its universal adoption.

1. Courts of equity shall have concurrent jurisdiction with the admiralty courts over all navigable oyster-beds.

2. Either party to the action may have a decree for the discovery of the location of such oyster-beds.

3. The rule of evidence forbidding "fishing expe ditions" shall not apply when discovery of said oysterbeds is sought.

4. Only adult oysters of sound mind shall be used for culinary purposes, those insane or under age being under the especial protection of the court.

5. The oysters may be gathered either in a hanaper or a petty-bag, but must be transmitted to the court kitchen without laches Equitis vigilantibus non dormientibus subvenit.

6. Profert of the oysters may be demanded by the defendant.

7. The oysters must be opened in season. If not opened in season the party prejudiced by such failure to open them in season may demand a continuance and fresh oysters.

8. Title to the oysters may be acquired by twenty years adverse possession, but such possession must be nec ai nec clam.

9. The oysters will be served rari nantes in gurgite vasto, in order to prevent excessive court costs.

10. Crackers will be added to the stew as tabulæ in naufragio for the oysters. Any party desiring bread in addition must apply to the Master of the Rolls.

11. He who comes into equity must do so with clean hands and a white apron. (This refers to the cooks and waiters only).

12. The fee (to the waiter) may be kept in suspense, any rule of the common law to the contrary notwithstanding; but no waiter shall receive a fee upon a fee.

13. Any person finding fault with any stew made under the direction of the court shall be guilty of constructive contempt, but shall be allowed to purge himself by any lawful means.

14. The contingent remainders of all stews will be kept in gremio legis.-Northwestern Law Review.

"I am now convinced that the country is safe," said J. B. Johnson, "for I know that democracy of the purest water, the good old-fashioned sort, exists in all its old-time lovliness at Jefferson City.

"While submitting an argument before Division No. 1 of the Supreme Court, I noticed the grave and reverend judges now and then reaching under the high railing, behind which they sat in judicial dignity, and surreptitiously but, frequently conveying to their lips something or other concealed from the vulgar gaze.

"My curiosity was excited, but it was not until later in the day that I discovered the meaning of their unusual action. Having occasion to pass back of the bench into division No. 2, in returning I had a full view of the railing behind which the judges sat, and there on a shelf lay a great hank of long green tobacco, from which each judge, except Judge Barclay, was in the habit of pinching off a chew as the spirit moved him. Therefore, I say the country is safe, for so long as the judges of the Supreme Court are democratic enough to chew long green tobacco, you can count on'em voting the old ticket straight without a scratch." -Nevada Post.

BOOK REVIEWS.

BIDDLE ON INSURANCE.

The scope of the work may be best stated in the words of its author who says "it is an attempt to develop the principles applicable to all branches of nonmarine insurance by regarding the contract of insurance as the fundamental idea of the work and then by proceeding to consider its structure, the essential elements in its formation, the rights that accrue to the parties to it after it is formed, the capacity to avoid it, its performance, the consequences dependent upon its breach and the measure of damage. An endeavor has been made to embrace the many principles of law applicable to this subject in as brief and compact a form as possible without being obscure, though the difficulty in this respect is considerable on account of the universality of the contract and the subtlety of the distinctions frequently drawn by the courts." The main topics of the work, wrought out in detail under

sub-heads and chapters are: The formation of the contract. Rights of the parties in the contract before the contingency insured against occurs. Avoidance of the Contract, Performance of the Contract, Breach of the Contract and Measure of Damage. The work is in two large volumes. The text is admirably prepared and the diligence of the author is easily discernible in the citation and discussion of the authorities. This work is intended to be and is undoubtedly a comprehensive treatise on the law applicable to Fire, Life, Accident, Guarantee and other non-marine risks and as such has an advantage over most of the works on the specific topics. In fact, as it occurs to us, this is the only modern work of any pretentions which covers the entire subject and for that reason should be popular with the profession. It is pub lished by Kay & Brother, Philadelphia.

PARSONS ON PARTNERSHIP.

This is the fourth edition of a work which first appeared in 1867 and which has always been considered as one of the classics of the profession. For that reason an extended notice on our part would seem to be superfluous. It is sufficient to say that the work of the present editor Joseph Henry Beales, assistant professor of law in Harvard University seems to have been conscientiously performed and in harmony with the design and great reputation of the book. The notes prepared by the editor are extensive and add very much to the substantial value of the book. It is in one volume beautifully printed and bound. Published by Little, Brown & Co., Boston.

BIGELOW ON BILLS AND NOTES.

This is a twelve mo. volume of over three hundred pages bound in cloth containing the elements of the law of Bills, Notes and Cheques intended for the use of students. It is admirably prepared and contains general principles of the law clearly and concisely stated. It is published by Little, Brown & Co., Boston.

AMERICAN DIGEST (Annual), 1893.

This immense volume of nearly fifteen hundred pages contains a digest of all the decisions of the United States Supreme Court, all the United States Circuit and District Courts, the courts of last resort of all the States and Territories, and the intermediate courts of New York State, Pennsylvania, Ohio, Illinois, Indiana, Missouri and Colorado, U. S. Court of Claims, Supreme Court of the District of Columbia, etc., as reported in the National Reporter system and elsewhere from September 1, 1892, to August 31, 1893. It also contains notes of English and Canadian cases, memoranda of statutes, annotations in leading periodicals, etc., also a table of the cases digested and a table of the cases overruled, criticised, followed, distinguished, etc., during the year. References to the State Reports are given by an improved method of topical citation. It will be seen from the above that the work lacks nothing that is necessary to make it a complete digest of decisions for the year it comes and we have no hesitation in commending it to the profession as comprehensive, thorough, accurate and reliable. We have this and preceding annual digests before us and make constant use of them in editorial work and our use and admiration for the series grows with the issue of each volume. Its admirable arrangement of heads and sub-heads and its means of ready reference are especially noteworthy. It can be had of its publishers, West Publishing Co., St. Paul, Minn.

TEXAS, 8, 13, 14, 15, 23, 39, 73, 74, 76, 77, 81, 82, 89, 101, 110, 111, 113, 133, 140, 157, 159, 165, 170, 187, 200, 207, 208 UNITED STATES C. C.. ..78, 85, 105, 106, 168, 173, 206, 213 UNITED STATES C. C. OF APP. 1, 9, 16, 17, 45, 46, 137, 144, 149, 153, 166, 172, 176, 192, 193 UNITED STATES S. C...

VIRGINIA.... WASHINGTON... WISCONSIN..

...62, 84, 86, 87, 88, 123, 130, 148, 205 42, 56, 126, 203 .36, 102, 189 .19

1. ACCIDENT INSURANCE-Application-Classification. -Where an applicant for insurance against accident makes a true and full statement of his occupation to the company's agent, the company is bound, after loss, by the classification which the agent gives him; and if he is wrongly classified, according to the com pany's rules, the fact that he certifies to an under standing of the company's classification of risks, and that he belongs to the class given, is immaterial, when in fact his only means of understanding such classifi cation is through the representations of the agent.— PACIFIC MUT. LIFE INS. Co. v. SNOWDEN, U. S. C. C. of App., 58 Fed. Rep. 342.

2. ACCOUNTING.-A sheriff in possession of a stock of goods pending their sale for the satisfaction of certain attachments in his hands, having sold a part of said goods, and collected claims due the attachment defendant, paid the proceeds of such sales and collections to the purchaser of the stock, who bought irrespective of such sales and collections: Held, in a suit for an accounting between the attachment defendant, who has paid all claims against him, and the recipient of such proceeds and collections, that said attachment defendant is entitled to recover the amount of such proceeds, with interest from the time they were received by said purchaser.-MCCONNELL V. FIRST NAT. BANK OF LINCOLN, Neb., 56 N. W. Rep. 1013.