of persons acting as surgeons; and | 16. A refusal to charge that if the neg2d. If he did, whether he was chargeable with negligence in not applying it in his treatment of the plaintitt. Whether he possessed greater skill, or had been successful in the treatment of other patients, is wholly immaterial. ib
12. Where the judge charged the jury that it was impossible to show that a surgeon possessed the skill required, except by showing what skill he applied in the treatment of the particular case; it was held that if this part of the charge was to be construed by itself, without reference to other parts of it, the proposition could not be supported. But that if construed (as the context warranted,) as an instruction that the defendant was required to have an ordinary degree of skill, and whether he had any more was wholly immaterial, it was correct. ib
13. That a physician or surgeon possesses skill, may be shown by the testimony of members of the same profession who can speak from personal knowledge of his practice. When the point in issue is, whether skill was applied in a given case, the possession of skill, without proof that it was applied, would be no defense to an action for malpractice. But there may be cases in which such proof is admissible. Per MULLIN, P. J. ib
14. When it is proved that the surgeon has omitted, altogether, the established mode of treatment, and adopted one that has proved to be injuri ous, evidence of skill, or of reputation for skill, is wholly immaterial, except to show (what the law presumes) that he possesses the ordinary degree of skill of persons engaged in the same profession. In such a case, it is of no consequence how much skill he may have; he has demonstrated a want of it, in the treatment of the particular case.
gligence of the plaintiff contributed to the injury, the defendant was not responsible, is not erroneous, when put upon the ground that there was no evidence, in the case, of the plaintiff's negligence; or, if there was any negligence, it was the result of ignorance on the part of the plaintiff as to how the injured limb should be treated, which ignorance it was the duty of the defendant to remove. b
17. Where the judge charged the jury
that a surgeon contracts that he will bring to the case that ordinary and reasonable degree of skill which is possessed by the average of his profession;" that "he undertakes to bring to the case the exercise of that reasonable degree of skill ordinarily possessed by the members of the profession"-adding the remark"I think it the reasonable rule that he is required to exercise the average skill of his profession;" Held that the judge having first laid down the rule correctly, a change of phraseology, in the latter part of the instruction, did not change the rule; it being obvious that in the last sentence he did not intend to modify or vary the rule previously stated.
18. If the case is a new one, the patient
must trust to the skill and experience of the surgeon he calls. So must he if the injury or disease is attended with injury to other parts, or other diseases have developed themselves for which there is no established mode of treatment. But when the case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does it is prepared to take the risk of establishing, by his success, the propriety and safety of his experiment. Per MULLIN, P. J.
PLEADING.
See ANSWER. COMPLAINT. EQUITY, 1, 2.
When a public body is clothed with power to do an act, which the public
3. When a nonsuit is moved for upon the whole case and evidence, and the right judgment or decision is rendered, it will not be set aside, as a general rule, upon exceptions to such decision, because an erroneous reason was given for denying the motion. But if the point presented for the motion be a sound one, it must be clearly avoided or overreached by other clear facts or points in the case; or else an exception to the erroneous ruling must prevail. Shoemaker v. The Glens Falls Insurance Company, 84
The 33d section of the Code, which provides that in case of the death of a sole plaintiff, the action may be continued in the name of his representatives or successor in interest, does not apply to a case where a sheriff sues as such, and dies during the term at which the action is tried, and his deputy is also dead. Orser The Glenville Woolen Company, 371
7. Such a case is provided for, however, by the Revised Statutes, which direct that "where an action is authorized or directed by law to be brought in the name of a public officer, his death or removal shall not abate the suit, but the same may be continued by his successor; who shall be substituted by the court, and a suggestion of such substitution shall be entered on the record." (3 R. S. 670, 5th ed.) ib
See CREDITORS.
EVIDENCE, 5 to 8. HIGHWAYS, 7, 8. INFANTS.
JURISDICTION.
USURY, 1, 2.
PRINCIPAL AND AGENT.
1. It is well settled that a debtor is authorized to pay to an agent any sum which is due upon a security which has been entrusted to the agent by the holder, for the purpose of collecting any part of it; as where the agent has been authorized to receive the interest, only, but receives the principal. Doubleday v. Kress, 181
2. Indeed the authorities go to the extent of holding a payment valid, made to an agent who is merely entrusted with the possession of the security, without express authority to receive or collect any part of it. The ostensible authority attributed to a party to whom is entrusted an instrument to secure the payment of money, is to receive payment according to its terms. Per TALCOTT, J. ib
3. The principal is, as to third per- sons, not having any notice of a limitation, bound by the ostensible authority of the agent, and cannot avail himself of secret limitations upon the authority and repudiate the agency, where innocent third persons have in good faith acted upon the ostensible authority con- ferred by the principal. ib
4. The plaintiff held a promissory note for $800 and interest, payable to her order, at the office of W., made by the defendant. When it fell due, the plaintiff, without indorsing the note, handed it to M. to present for pay- ment. M. accordingly presented the note, at the place of payment, to- gether with a forged order upon W. purporting to be signed by the plain- tiff, requesting W. to pay her money to M. The principal and interest was thereupon paid, by W., and the note delivered up and canceled, and M. absconded with the $800. Held that the payment was clearly valid, both upon authority and principle, and discharged the note.
but was at his residence in this State, where he had committed no criminal offense for which he could be ar- rested or imprisoned; having made, at most, as was alleged by the payee, only some fraudulent representa- tions in respect to the value of land upon which he had a mortgage that he had sold to the payee of the note; which sale, and the represen- tations that induced it, were made in the State of Illinois; it was held that as there was no ground for the defendant's arrest, in either State, on a criminal charge, or for his being taken to Illinois in any criminal pro- ceeding for such fraud, a threat of such an arrest constituted no defense to an action upon the note. v. Hyde,
Where, in an action upon a promis- sory note, the case does not show that the note was negotiable, its negotiability will not be presumed. Evans v. Williams, 346
If a note is not negotiable, the as- signee takes it subject to all defenses of the maker against the payee; whether it be due at the time of the assignment or not; the same as the holder of a negotiable instrument does, who takes it after it has be- come due.
See ANSWER 3.
GENERAL ISSUE.
MARRIED WOMEN.
MENACES.
PRINCIPAL AND AGENT, 4 to 7. USURY 1.
1. Where the defendant, at the time of making a promissory note, was not under arrest or imprisonment,
1. In an action against a railroad com- pany, to recover damages of the defendant, for causing the death of the plaintiff's intestate, a brakeman in its employ, by negligence, the defense was that the intestate was guilty of negligence, or want of
care, which contributed to his death, in being absent from his post, at the time, and omitting to apply the brakes. And the evidence rendered it more than probable that but for such absence, his life would not have been endangered. Held that it was erroneous for the judge to leave it to the jury to determine whether the intestate being absent from his post, warming or enjoying himself by a fire, was guilty of contributory negligence; whether the absence of a caboose did not authorize him to leave his post, in a cold morning; and whether the train being on an ascending grade, he had not a right to suppose his services were not as likely to be called in request as they would be on a downward grade. Sprong v. The Boston and Albany Rail- road Co.
2. And that it being probable that the jury were influenced by these considerations, so submitted to them, was a proper case for a new trial. ib
3. The defendants owned and operated two tracks between Syracuse and Rochester, upon different routes, one of which (the Auburn route) was longer than the other, and upon which forty-five cents more was charged, for passenger fare, than was charged upon the shorter route (via Palmyra.) The plaintiff pur chased a ticket at Syracuse, for Rochester, which had, upon the face of it, the words "via Palmyra," pay- ing therefor the lesser fare, and got upon a train bound for Rochester, by the Auburn route. Upon ex- hibiting his ticket, the conductor told him that he was on the wrong train; that he could not go to Roch- ester on that train unless he paid forty-five cents more; and that the ticket would carry him to F. (the next station,) and no further. The plaintiff said he expected to go through on that train, and would not pay any more. The conductor thereupon marked the ticket, with his punch, and returned it to the plaintiff. He again came to the plaintiff and asked him if he was going to pay the additional forty-five cents, and being answered in the negative, he told the plaintiff he must get off at F., and on arriving there, ordered the plaintiff to leave the train, and upon his refusal, put
him off the cars, as he was required to do, by his instructions. In an ac- tion to recover damages for such ejection, the referee reported in favor of the plaintiff, on the ground that the conductor, instead of punch- ing the plaintiff's ticket, should have expelled him from the cars upon discovering that his ticket was by the other route, and his refusing to pay the additional fare. Held, that this was erroneous. That the conductor was under no obligation to the plaintiff to eject him from the cars, at any time before he should arrive at the point to which he was entitled to travel, on his ticket, so long as he persisted in remaining on the train. Adwin v. The New York Central, &c., Railroad Co. 590
That the plaintiff having taken this train through his own fault or inat- tention, his voluntary continuance upon it, after being fully notified of the consequences, must be deemed an election, on his part, to abide by the regulation of the company, since it was one lawful and proper to be made and to enforce.
1. To constitute a defense to an action of ejectment on the ground that the language and legal effect of a deed differs essentially from the intent of the parties, a case must be pre- sented which would induce a court of equity to interpose and reform the defective instrument; not that it is absolutely necessary, in such a case, that a judgment reforming the instrument should be pronounced, if the defendant is content to waive, or does not demand, such full relief. For the judgment that he recover in the action is giving him the full effect, so far as the title to the prem- ises in controversy is concerned, of
1. The fact of res adjudicata is not to be made out by inferences. An estoppel requires strict proof. A fact cannot be held to have been adjudicated in a former suit, unless it so expressly appears by the record, or, at least, it is clearly shown by evidence aliunde, that it was deter- mined. Bissell v. Kellogg, 617
2. Where there is a trial by the court, the judge who tried the cause, being required, in settling the case, to specify the facts found by him, and his conclusions of law, the facts thus specified are conclusive upon the parties, in that case, if founded on sufficient evidence; and there is no reason why they should not be con- sidered as res adjudicata for all pur- poses, the same as though contained in the original findings of the judge. ib
3. Where it appeared by the record of a former recovery, that the ques- tion whether a certain mortgage was executed upon a usurious contract was in issue in that case, and that the fact of usury was found by the judge; it was held, in a subsequent action, brought by the defendant in the former suit and his privy in
1. In action by a father, to recover damages for the seduction of his daughter, evidence of a promise of marriage, made by the defendant to the daughter, previous to the seduc- tion, is inadmissible. Whitney v. Elmer,
3. The judge instructed the jury that "if they found that the defendant promised to marry the plaintiff's daughter, before he had sexual in- tercourse with her, they were at lib- erty to consider that, with other cir- cumstances attending her seduction; and they might also regard it as one of the circumstances of the case, in determining the damages to be recovered by the plaintiff, not for the purpose of giving damages for a breach of promise of marriage, but as one of the circumstances at- tending, and under which the seduc- tion of the daughter was effected." The defendant's counsel excepted to this instruction, and requested the judge to instruct the jury that the plaintiff was not entitled to re- over any additional damages on account of the promise of marriage; which request the judge refused. Held that the defendant was entitled
« PreviousContinue » |