care. Where a person has used reasonable and should award compensation for future care in selecting a physician or surgeon, but pain and suffering whenever the evidence fur owing to unskillful treatment the injury has nishes just ground for the belief that such been increased, the party causing the injury | pain and suffering will likely or probably enwill be held liable for the latter." Defendant presented this point: "That the defendant is not liable for damages arising from the fault, mistake, or neglect of plaintiff's own surgeon, which produced injury and loss to plaintiff that could under no circumstances have resulted from the injuries plaintiff received at the collision. Answer: Affirmed. In affirming this point, while we say the defendant is not liable for an injury caused by the fault, mistake, or neglect of the surgeon which could under no circumstances have resulted from the injury caused by the accident, yet if the plaintiff used reasonable care in selecting a physician or surgeon, but owing to unskillful treatment by the surgeon thus selected the injury has been increased, the defendant will be held liable for the increased injury if it is liable for the original injury." sue. This standard has met with the approval and sanction of this court in every case, and that without qualification. It is sufficient to refer to the cases of Schneider v. Penna. Co., 2 Cent. Repr. 74; McLaughlin v. City of Corry, 77 Pa. 109, 18 Am. Rep. 432; Scott Township v. Montgomery, 95 Pa. 444; Lake Shore, etc., Railway Co. v. Frantz, 127 Pa. 297, 18 Atl. 22, 4 L. R. A. 389; Smedley v. Railway Co., 184 Pa. 620, 39 Atl. 544. Many others as distinctly recognizing and enforcing the rule could be cited were it necessary. In the case of Scott Township v. Montgomery, 95 Pa. 444, an instruction to the effect that the “jury shall allow for pain and suffering the plaintiff had already endured, bodily and mentally, and which he is likely to experience," was assigned for error. This court held in a per curiam that the measure of damages was correctly stated. In Lake Verdict and judgment for plaintiff for $15,- Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297, 250. Defendant appealed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Oscar L. Jackson, C. B. Fernald, and Charles R. Davis, for appellant. Robert K. Aiken, for appellee. 18 Atl. 22, 4 L. R. A. 389, the trial judge in STEWART, J. The evidence fully warrants the conclusion reached by the jury in this case that the injuries sustained by the plaintiff were severe to an unusual degree. Whether they all were legally chargeable to defendant's negligence is a matter to be considered later on. Under the instructions of the court the jury were allowed, in determining the plaintiff's damages, to take into consideration the pain and suffering he would probably in the future endure, as a sequence of his injuries, as well as that he had already suffered. This instruction is complained of as introducing an element of damage too remote and speculative to form a basis of legal recovery, and it is the subject of the first assignment of error. Nothing is better settled than that in cases of personal injury pain and suffering are to be reckoned as distinct elements for which compensation is to be allowed. It is equally well settled that this rule admits of compensation for future as well as past pain and suffering. With what degree of certainty must it be made to The plaintiff, while a passenger, was inappear that the future pain and suffering will jured in a collision between two of defendensue before compensation for them can be ant's trains, sustaining a fracture of both allowed? That is the question raised by the bones of his left limb between the knee and assignment, and it might well call for con- ankle. This occurred September 7, 1905. He sideration if no rule existed with respect to was at once removed to a city hospital, where it, or the rule were of questionable authority; he was placed in charge of a physician and but neither is the case. In the multitude of surgeon in the employ of the defendant comcases of like character which have come be-pany, who proceeded without delay to place fore this court for review, one unvarying rule the injured limb in alignment and apply has been observed regarding the quantum of splints. The plaintiff remained in the hospi | bore relation to it was affirmed by the court with a single exception. Defendant's fourth point was as follows: "If the jury find that the operation of Dr. Swope caused the dead bone, and that this dead bone was not a sequence or result of the original injury, they should not take this dead bone into account in making up their verdict." In refusing this is true the plaintiff cannot recover for injuries which were not the sequence of the original injury received in the accident, yet if he exercised care, caution, and good judgment in the selection of a skillful and competent surgeon, he has discharged his duty in this respect, and is not responsible for an error in judgment or unskillful treatment on the part of the surgeon who has been selected with care. Where a person has used reasonable care in selecting a physician or surgeon, but owing to the unskillful treatment the injury has been increased, the party causing the injury will be held liable for the latter." Putting it somewhat differently, the point was refused because it did not comprehend when, being able to go about on crutches, he | Every point submitted by the defendant which was taken to his home. About the middle of November following, the same surgeon removed the plaster cast and directed moderate use of the limb. Plaintiff testified that after the removal of the cast he suffered pain in his limb so severe that he was scarcely able to endure it. It is not alleged that this pain resulted from any undue or immoderate use of the limb. Because of its continued sever-point the learned trial judge said: "While it ity plaintiff procured radiographs to be taken of the injured part, and, in view of what these were supposed to disclose, he employed Dr. Swope, a surgeon of repute residing and practicing in the city of Pittsburg. From an examination of the radiographs and the patient, Dr. Swope concluded that what caused the pain was an overriding of the fibula to the extent of three-fourths of an inch, and that an operation was necessary to make the small bones unite squarely, and thus relieve the pressure upon the vessels and nerves of the foot resulting from the overriding. The operation involved not only an incision, but a severance of the bones which had partially united, the removal of the oblique ends, and the bringing them into a more perfect apposi-sufficient matters of fact to justify the contion and securing them in proper place by artificial tendons. This operation was performed by Dr. Swope with the assistance of another surgeon, and in the presence of several, at the same hospital where the patient was first treated. Dr. Swope testified that he found the conditions to be just as the radiographs represented them, and in addition he found the tissues about the place of fracture devitalized; the blood supply having been interfered with by the pressure of the bone. Several months later another operation was required for the removal of a piece of dead bone which resulted from the devitalized tissues. At that time it was observed that the tissues were doing no good, not healing, not throwing off the biken-down processes. Dr. Swope gave it as his conclusion from a very recent examination of the patient that there had been but little improvement in his condition, that necrosis was still going on, and that another operation would be required for the removal of dead bone. The effort on part of the defendant was to show that the operation performed by Dr. Swope was wholly unnecessary, that plaintiff's limb was in good condition at the time the operation was performed, that the healing processes were steadily going forward, that if there was any overriding of the bone it was so slight as to be of no consequence, nothing beyond what is ordinarily looked for in such cases, and the necrosis which subsequently set in, and is the admitted cause of plaintiff's present disability and suffering, is due wholly to the operation performed by Dr. Swope. This view of the case was expressed by Dr. Wilson, the surgeon who first treated the plaintiff, and he was fully supported in it by several others called by the defendant. Into this controversy we need not enter. effort to controvert the testimony with re clusion sought to be drawn, and this was clearly right. If the operation was performed in good faith, before the recovery of the plaintiff from the original injury, with a view to promote and insure complete recovery or mitigate plaintiff's pain, either by correcting what had been done or by supplementing it, by the surgeon in whose skill and judgment the ordinarily prudent person would have a right to rely, the consequences following the operation and resulting directly therefrom are in a legal sense the sequence and result of the original accident. The affirmance of the point would have involved an assumption that there was no evidence from which the jury could find such conditions as those we have indicated, and which, once established, would legally refer the consequence to the accident as the proximate cause. Instead of this being the state of the evidence, there was not only abundant testimony in support of every contention we have above referred to, but there was no attempt whatever on the part of the defendant to controvert it. testimony, if accredited, established not only a connection between the pain and suffering caused by the presence of the dead bone and the original accident, sufficient in law to make the accident the proximate cause, but it linked the two together in such a way as to make a natural whole. Any consideration of this matter must start with the fact that before the fractured parts had healed, while the process was going on, and after plaintiff had been virtually released from the surgeon's care and supervision, he was subjected to intense pain and suffering in the region of the fracture. If such were not the fact, or if it resulted from something else than the original injury, defendant should have made some This spect to it. It is enough in this connection to know that the testimony was undisputed. The natural connection between the pain, if it existed, and the original accident, is too obvious to call for remark. It was just as natural that the plaintiff, in his desire to be released from the pain to which he was subjected, should have recourse to surgical skill and submit to whatever treatment such skill should determine upon. The suffering which followed the treatment, whether that treatment was wise or unwise, is as directly and naturally traceable to the original accident as that which attended the setting of the fractured limb in the first place; both were parts of the connected whole, and of course it is of no consequence that one is further from the beginning of the chain of events than the other. excuse whatever existed for the operation. Under such circumstances it would have been most unjust to the witness to refuse him permission to show by the radiograph what directed his judgment. He testified that when operating he found the conditions to be just as the pictures represented. In view of this testimony the objection that they were not taken by a professional comes to nothing. The sixth assignment of error, for the reasons given, cannot be sustained. The remaining assignment complains of the inadequacy of the charge in that it does not sufficiently call the attention of the jury to the evidence on the part of the defendant as to plaintiff's ability to make use of the injured limb-this in connection with the question of compensation. This assignment is without merit. The charge is not only a full and adequate presentation of the evidence, but strictly impartial. The judgment is affirmed. What we have here said applies as well to the fourth assignment, which is the answer of the court to the defendant's fifth point, which asked the court to say "that defendant is not liable for damages arising from the fault, mistake, or negligence of plaintiff's surgeon which produced injury and loss to plaintiff that could under no circumstances have resulted from the injury plaintiff re (Supreme Judicial Court of Maine. Sept. 12, ceived in the collision." The court affirmed the point, and followed the affirmance with a qualification or explanation which set out the same considerations which led to a re (104 Me. 352) SPRAGUE v. INHABITANTS OF ANDRO SCOGGIN COUNTY. 1908.) 1. JURY (§ 35*)-RIGHT TO JURY TRIAL-EFFECT OF RIGHT TO APPEAL. Chapter 42, p. 36, Laws 1907, providing serts his wife, or neglects to support her when [Ed. Note. For other cases, see Jury, Cent. STITUTIONAL LAW. fusal of the fourth point. It is the qualifi- that a husband who, without lawful excuse, decation that is assigned for error. Like the point itself it assumes a case where the injury under no circumstances could have resulted from the original accident, and acquits from liability the party causing the accident. It goes on to say, however, that, though injury was caused by unskillful treatment, yet, if the plaintiff exercised ordinary care in the selection of the surgeon, the defendant, if liable legally for the original injury, would be liable for the increased injury as well. The point submitted should have been refus'ed for reasons which we have stated in considering the former point. The explanation left the affirmance without advantage to the defendant, but so far as it went it was a correct statement of the law under the facts of the case. It was entirely proper to allow the witness Dr. Swope to state the grounds on which he based his conclusion as to what caused the pain from which the plaintiff suffered, and prevailed with him in determining that an operation was necessary. His conclusions were based largely upon what the radiographs revealed. This circumstance made the radiographs admissible. While, as we have stated, it was not a material inquiry in the case whether the operation was a prejudicial one or not, if made in good faith by one on whose skill the plaintiff had a right to rely, yet it was around this question that the controversy was waged; the defendant insisting that no The proceeding being a criminal one, the accused convicted by a municipal court has neceral statute (Rev. St. c. 133, § 17) that he would essarily the same right of appeal under the genhave if convicted of any other offense; and, having the right to appeal, he is not deprived of a trial by jury in the appellate court. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 236-241; Dec. Dig. § 35.*] 3. REVIEW ON APPEAL. Inasmuch as this case comes up on report, and the only question argued is that of the constitutionality of the statute, the court does not consider the question whether the form of remedy adopted is appropriate, or could be sustained, if objected to. (Official.) 4. WORDS AND PHRASES-"MAGISTRATE." The word "magistrate," as used in Rev. St. c. 133, § 17, providing for appeals from the decisions or sentences of magistrates, includes judges of municipal courts as well as trial justices. [Ed. Note. For other definitions, see Words and Phrases, vol. 5, pp. 4271-4273.] Report from Supreme Judicial Court, Androscoggin County. Action by Lizzie M. Sprague against the Inhabitants of the County of Androscoggin. | convicted and sentenced to hard labor in Case reported. Judgment for plaintiff. Action to recover money alleged to be due the plaintiff by virtue of the provisions of chapter 42, p. 36, Pub. Laws 1907. Plea, the general issue. When this action came on for trial, an agreed statement of facts was filed, and the case was then reported to the law court for determination, with the stipulation "that, if judgment is for the plaintiff, the defendant is to be defaulted in the sum of $12 with full costs." the jail in Androscoggin county and labored 24 days. All the necessary statutory steps to establish the plaintiff's right to the money sued for have been taken or waived. The principal, if not the only, ground upon which the constitutionality of the act is questioned by counsel, is that the husband' complained against is deprived of the right of a trial by jury because he has no right of appeal. Cotton v. Cotton, 103 Me. 210, 68 Atl. 824, is cited as authority for ti's posi tion. That case arose under chapter 123, p. Argued before EMERY, C. J., and WHITE-130, § 6, Pub. Laws 1905, under the proviHOUSE, SAVAGE, PEABODY, and BIRD, who willfully and without reasonable cause JJ. sions of which a husband of sufficient ability Harry Manser, for plaintiff. McGillicuddy by a civil proceeding, be compelled to con& Morey, for defendant. SAVAGE, J. Action to recover money alleged to be due the plaintiff by virtue of the provisions of chapter 42, p. 36, Pub. Laws 1907. The case comes up upon an agreed statement of facts, and the defendant makes no objection to the present form of proceeding. Hence we do not consider whether it is the proper form or not. The only question raised in argument is the constitutionality of the statute above referred to, and that question we will decide. The statute provides, in substance, that if a husband, without lawful excuse, deserts his wife in destitute or necessitous circumstances, or if, being able by means of his property or labor to provide for her necessary support, he willfully neglects or refuses so to do when she is in destitute or necessitous circumstances, he shall be deemed guilty of a misdemeanor, and may be fined or imprisoned or both; that the court may direct that a fine imposed shall be paid wholly or in part to the wife; that, in lieu of punishment, or in addition thereto, the court may order the payment of weekly sums to the wife for one year, and release the husband from custody on his entering into a recognizance conditioned for his personal appearance whenever ordered to do so within the year, and for his compliance with the order of payment; that when the husband is sentenced to hard labor, and is actually employed in such labor in the county jail, the jailer shall each week certify to the county commissioners the number of days the prisoner has been thus employed, and that the county commissioners shall thereupon draw their order for a sum equal to fifty cents for each day's labor, and the county treasurer shall pay the same to the wife. It is further provided that the fines and penalties named in the act may be recovered and enforced by complaint or indictment. Municipal courts are given jurisdiction of such complaints. In this case the complaint originated in the neglects or refuses to support his wife may, tribute to her support. In such cases the Supreme Judicial Court, the superior courts, the probate courts, and municipal courts have concurrent jurisdiction. In Cotton v. Cotton, it was held, for reasons not necessary to be repeated, that such a proceeding commenced in a municipal court is not appeal able. That, however, is not this case. The statute under which these proceedings arose is a criminal statute. It creates an offense. It provides for a criminal proceeding. It is not a substitute for the statute under which Cotton v. Cotton arose, but is additional to it. It provides another and sharper method of enforcing the duties of husbands to necessitous wives. The proceeding being a criminal one, the accused convicted by a municipal court has necessarily the same right of appeal under the general statute (Rev. St. c. 133, § 17) that he would have if convicted of any other offense. Within the meaning of this section relating to appeals the term "magistrate" includes judges of municipal courts as well as trial justices. See same chapter, sections 2, 3, 4, 5, and 6. See, also, the act creating the Auburn municipal court, respecting the right of appeal. Priv. & Sp. Laws 1891, p. 254, c. 152, § 12. The right of appeal appertains to all criminal proceedings within the jurisdiction of municipal courts. It is too well settled to require discussion that one put on trial in a municipal court for an offense within its jurisdiction is not unconstitutionally deprived of his right to a trial by jury when he is freely allowed an appeal to a court where a jury trial can be had. Johnson's Case, 1 Me. 230; State v. Gurney, 37 Me. 156, 58 Am. Dec. 782; State v. Craig, 80 Me. 85, 13 Atl. 129. The counsel for the defendant also discusses the policy of the statute, but with that we have nothing to do. To enact that a husband who, without lawful excuse, deserts his wife or neglects to support her when in need, may be fined and imprisoned, and that the proceeds of his tions were given in the charge to the jury, fails to disclose any exceptionable infringement of the statute. this statute shall be paid to his wife, does | nesses, and the language in which the instruc not transcend in any respect our conception of constitutional legislative power. Judgment for the plaintiff for $12. (104 Me. 394) STATE V. LAMBERT. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1731, 1750, 1754, 1758, 1759, 1769; Dec. Dig. § 762.*] (Official.) Exceptions from Superior Court, Cumber (Supreme Judicial Court of Maine. Nov. 4, land County. 1908.) 1. CRIMINAL LAW (§ 351*)-EVIDENCE-ADMISSIBILITY-CONSCIOUSNESS OF GUILT. The fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself. But it is for the jury to determine what weight and value should be given to such evidence. Thomas L. Lambert was convicted of larceny, and he excepts. Exceptions overruled. The defendant was indicted for the lar ceny of "one horse of the value of $200, one wagon of the value of $100, and one harness of the value of $10." Tried at the January term, 1908, superior court, Cumberland county. The jury found [Ed. Note. For other cases, see Criminal the defendant guilty. The defendant exceptLaw, Cent. Dig. 88 776, 778-785; Dec. Dig. 8ed to several rulings made by the presiding 351.*] 2. CRIMINAL LAW (§ 351*) - EVIDENCE-AD MISSIBILITY-CONSCIOUSNESS OF GUILT. The defendant was indicted for larceny, and at the trial the arresting officer testified that the defendant had a loaded revolver in his overcoat pocket when arrested. Held, that the evidence was admissible. [Ed. Note.-For other cases. see Criminal Law, Cent. Dig. §8 780, 796; Dec. Dig. § 351.*] 3. WITNESSES (§§ 344, 355, 361*)-CRIMINAL LAW (§ 1169*)-REPUTATION OF ACCUSEDSPECIFIC INSTANCES. The defendant, when on trial for larceny, called as a witness a resident of Portland, who testified that he had known the defendant for five years, and that he had seen him quite frequently and had numerous business dealings with him. There was no evidence that the defendant had ever resided in Portland, nor that the witness had ever resided in a community where the defendant had resided. The defendant's counsel asked the witness if he knew the defendant's "reputation for honesty in that community." The question was excluded. The witness further testified, however, that in his dealings with the defendant he had found him "honest and reliable," but that he had never heard his reputation discussed or referred to. Held: (1) That it was not indispensable that the witness to the defendant's reputation should have resided in the same community with the defendant. (2) That the defendant's reputation for honesty was not regularly provable by personal knowledge of the witness derived from specific instances in his dealings with the defendant. (3) That the ruling allowing the witness to state that he "found him honest and reliable" was more favorable to the defendant than he was entitled to. (4) That the defendant was not aggrieved by the ruling excluding the question relating to the defendant's "reputation for honesty in that community." [Ed. Note. For other cases, see Witnesses, Cent. Dig. $ 1125, 1154, 1171; Dec. Dig. 88 344, 355, 361;* Criminal Law, Dec. Dig. 8 1169.*] justice during the trial, and also excepted to or the The case is stated in the opinion. Joseph E. F. Connolly, Co. Atty., for the WHITEHOUSE, J. At the January term, 1908, of the superior court of Cumberland county, the defendant was found guilty by the jury of the larceny of a horse, wagon, and harness, the property of George A. Lufkin, on the evening of Sunday, September 15, 1907. The case comes to the law court on exceptions to the rulings of the presiding judge admitting and excluding certain evidence during the progress of the trial, and to the alleged expression of opinion by the presiding judge upon issues of fact, in contravention of section 97 of chapter 84 of the Revised Statutes. Eugene Groves, who was indicted at the same term as an accomplice and pleaded guilty to the charge, appeared as a witness for the state, and testified that the defendant came to his house with a team Saturday evening September 14th, and remained there overnight; that the next evening, at the defendant's request, he rode with him to Walnut Hill Church, and saw the defendant The defendant excepted to an alleged ex- Lambert drive away from the horse sheds pression of opinion by the presiding justice up back of the church with the Lufkin team; on issues of fact in contravention of Rev. St. that thereupon they drove along the road c. 84, § 97. Held, that a careful examination of all the defendant's exceptions relating to the some distance, Lambert driving the Lufkin comments of the presiding justice upon the testeam and Groves driving the other; that timony, and the conduct and appearance of wit-Lambert then stopped and gave him $2 and 4. CRIMINAL LAW (§ 762*)-TRIAL-EXPRESSION OF OPINION BY COURT ON FACTS. |