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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.”

sue. This standard bas met with the approp* Defendant presented this point:

al and sanction of this court in every case, "That the defendant is not liable for dam- and that without qualification. It is suffiages arising from the fault, mistake, or neg. cient to refer to the cases of Schneider v. lect of plaintiff's own surgeon, which pro- Penna. Co., 2 Cent. Repr. 74; McLaughlin v. duced injury and loss to plaintiff that could City of Corry, 77 Pa. 109, 18 Am. Rep. 432; under no circumstances have resulted from Scott Township v. Montgomery, 93 Pa. 444; the injuries plaintiff received at the collision. Lake Shore, etc., Railway Co. v. Frantz, 127 Answer: Affirmed. In affirming this point, Pa. 297, 18 Atl. 22, 4 L. R. A. 389; Smedley while we say the defendant is not liable for v. Railway Co., 184 Pa. 620, 39 Atl. 544. an injury caused by the fault, mistake, or Many others as distinctly recognizing and enneglect of the surgeon which could under no forcing the rule could be cited were it necescircumstances have resulted from the injury sary. In the case of Scott Township v. Montcaused by the accident, yet if the plaintiff gomery, 95 Pa. 444, an instruction to the ef. used reasonable care in selecting a physician fect that the “jury shall allow for pain and or surgeon, but owing to unskillful treatment suffering the plaintiff had already endured, by the surgeon thus selected the injury has bodily and mentally, and which he is likely been increased, the defendant will be held to experience," was assigned for error. This liable for the increased injury if it is liable court held in a per curiam that the measure for the original injury."

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.

18 Atl. 22, 4 L R. A. 339, the trial judge in Argued before MITCHELL, C. J., and his charge had allowed the jury to consider FELL, BROWN, MESTREZAT, POTTER, the pain and suffering "the plaintiff has unELKIN, and STEWART, JJ.

dergone and may undergo in the future." Oscar L. Jackson, C. B. Fernald, and This was specifically assigned as error. This Charles R. Davis, for appellant. Robert K. court, whilę disapproving of the expression Aiken, for appellee.

“may undergo," afirmed the judgment on the

ground that in the connection in which it STEWART, J. The evidence fully war- was used it could not have been misleading rants the conclusion reached by the jury in to the jury, in view of the subsequent inthis case that the injuries sustained by the struction that recovery was to be limited to plaintiff were severe to an unusual degree. that already experienced and likely yet to Whether they all were legally chargeable to be experienced.” With such explicit and redefendant's negligence is a matter to be con- peated recognition by our own courts of a sidered later on, Under the instructions of rule which admits compensation for pain and the court the jury were allowed, in determin- suffering likely to ensue, it comes to nothing ing the plaintiff's damages, to take into con- to show that in some jurisdictions recovery sideration the pain and suffering he would for these is allowed only when it is made to probably in the future endure, as a sequence appear that they are reasonably certain to of his injuries, as well as that he had al-result. We are not called upon to vindicate ready suffered. This instruction is complain the justice or reasonableness of the rule ed of as introducing an element of damage which obtains with us. It is only necessary too remote and speculative to form a basis to assert it and express our continued ad. of legal recovery, and it is the subject of the herence to it. All that is required with us first assignment of error. Nothing is better is that there be sufficient evidence from settled than that in cases of personal injury which the jury may fairly derive the conclupain and suffering are to be reckoned as dission that the chances that the plaintiff will tinct elements for which compensation is to endure future pain and suffering preponderbe allowed. It is equally well settled that ate over those that he will not. Such prethis rule admits of compensation for future ponderance denotes probability or likelihood, as well as past pain and suffering. With and that is sufficient. 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 coincases 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. when, being able to go about on crutches, he | Every poir.t submitted by the defendant which was taken to his home. About the middle of bore relation to it was affirmed by the court November following, the same surgeon re with a single exception. Defendant's fourth moved the plaster cast and directed moderate point was as follows: "If the jury find that use of the limb. Plaintiff testified that after the operation of Dr. Swope caused the dead the removal of the cast he suffered pain in bone, and that this dead bone was not a sehis limb so severe that he was scarcely able quence or result of the original injury, they to endure it. It is not alleged that this pain should not take this dead bone into account resulted from any undue or immoderate use in making up their verdict.” In refusing this of the limb. Because of its continued sever- point the learned trial judge said: "While it ity plaintiff procured radiographs to be tak- is true the plaintiff cannot recover for inen of the injured part, and, in view of what juries which were not the sequence of the these were supposed to disclose, he employed original injury received in the accident, yet if Dr. Swope, a surgeon of repute residing and he exercised care, caution, and good judgment practicing in the city of Pittsburg. From an in the selection of a skillful and competent examination of the radiographs and the pa- surgeon, he has discharged his duty in this tient, Dr. Swope concluded that what caused respect, and is not responsible for an error the pain was an overriding of the fibula to in judgment or unskillful treatment on the the extent of three-fourths of an inch, and part of the surgeon who has been selected that an operation was necessary to make the with care. Where a person has used reasonsmall bones unite squarely, and thus relieve able care in selecting a physician or surgeon, the pressure upon the vessels and nerves of but owing to the unskillful treatment the inthe foot resulting from the overriding. The jury has been increased, the party causing operation involved not only an incision, but a the injury will be held liable for the latter." severance of the bones which had partially Putting it somewhat differently, the point united, the removal of the oblique ends, and was refused because it did not comprehend the bringing them into a more perfect apposi- sufficient matters of fact to justify the contion and securing them in proper place by ar-clusion sought to be drawn, and this was tificial tendons. This operation was perform- clearly right. If the operation was performed by Dr. Swope with the assistance of an- ed in good faith, before the recovery of the other surgeon, and in the presence of several, plaintiff from the original injury, with a view at the same hospital where the patient was to promote and insure complete recovery or first treated. Dr. Swope testified that he mitigate plaintiff's pain, either by correcting found the conditions to be just as the radio- what had been done or by supplementing it, graphs represented them, and in addition he by the surgeon in whose skill and judgment found the tissues about the place of fracture the ordinarily prudent person would have a devitalized; the blood supply having been in- right to rely, the consequences following the terfered with by the pressure of the bone. operation and resulting directly therefrom are Several months later another operation was in a legal sense the sequence and result of the required for the removal of a piece of dead original accident. The affirmance of the bone which resulted from the devitalized tis- point would have involved an assumption sues. At that time it was observed that the that there was no evidence from which the tissues were doing no good, not healing, not jury could find such conditions as those we throwing off the bi ken-down processes. Dr. have indicated, and which, once established, Swope gave it as his conclusion from a very would legally refer the consequence to the acrecent examination of the patient that there cident as the proximate cause. Instead of had been but little improvement in his condi- this being the state of the evidence, there was tion, that necrosis was still going on, and that not only abundant testimony in support of another operation would be required for the every contention we have above referred to, removal of dead bone. The effort on part of but there was no attempt whatever on the the defendant was to show that the operation part of the defendant to controvert it. This performed by Dr. Swope was wholly unneces- testimony, if accredited, established not only sary, that plaintiff's limb was in good condi- a connection between the pain and suffering tion at the time the operation was perform- caused by the presence of the dead bone and ed, that the healing processes were steadily the original accident, sufficient in law to make going forward, that if there was any overrid- the accident the proximate cause, but it link: ing of the bone it was so slight as to be of ed the two together in such a way as to make no consequence, nothing beyond what is or- a natural whole. Any consideration of this dinarily looked for in such cases, and the matter must start with the fact that before necrosis which subsequently set in, and is the fractured parts had healed, while the the admitted cause of plaintiff's present dis- process was going on, and after plaintiff had ability and suffering, is due wholly to the been virtually released from the surgeon's operation performed by Dr. Swope. This care and supervision, he was subjected to inview of the case was expressed by Dr. Wil- tense pain and suffering in the region of the son, the surgeon who first treated the plain- fracture. If such were not the fact, or if it tiff, and he was fully supported in it by sev- resulted from something else than the orig. eral others called by the defendant.

inal injury, defendant should have made some Into this controversy we need not enter. effort to controvert the testimony with re spect to it. It is enough in this connection to excuse whatever existed for the operation. know that the testimony was undisputed. Under such circumstances it would have been The natural connection between the pain, if most unjust to the witness to refuse him it existed, and the original accident, is too permission to show by the radiograph what obvious to call for remark. It was just as directed his judgment. He testified that natural that the plaintiff, in his desire to be when operating he found the conditions to be released from the pain to which he was sub- just as the pictures represented. In view of jected, should have recourse to surgical skill this testimony the objection that they were and submit to whatever treatment such skill not taken by a professional comes to nothing. should determine upon. The suffering which The sixth assignment of error, for the reafollowed the treatment, whether that treat- sons given, cannot be sustained. The remainment was wise or unwise, is as directly and ing assignment complains of the inadequacy naturally traceable to the original accident of the charge in that it does not sufficiently as that which attended the setting of the call the attention of the jury to the evidence fractured limb in the first place; both were on the part of the defendant as to plaintiff's parts of the connected whole, and of course ability to make use of the injured limb—this it is of no consequence that one is further in connection with the question of compensa. from the beginning of the chain of events tion. This assignment is without merit. The than the other.

charge is not only a full and adequate presWhat we have here said applies as well to entation of the evidence, but strictly impar. the fourth assignment, which is the answer tial. of the court to the defendant's fifth point, The judgment is affirmed. which asked the court to say "that defendant is not liable for damages arising from the fault, mistake, or negligence of plaintiff's

(104 Me. 352) surgeon which produced injury and loss to SPRAGUE V. INHABITANTS OF ANDROplaintiff that could under no circumstances

SCOGGIN COUNTY. have resulted from the injury plaintiffre (Supreme Judicial Court of Maine. Sept. 12, ceived in the collision." The court affirmed

1908.) the point, and followed the affirmance with a 1. JURY ($_35*)—RIGHT TO JURY TRIAL-EFqualification or explanation which set out FECT OF RIGHT TO APPEAL. the same considerations which led to a re- Chapter 42, p. 36, Laws 1907, providing fusal of the fourth point. It is the qualifi- that a husband who, without lawful excuse, de

serts his wife, or neglects to support her when cation that is assigned for error. Like the in need, may be fined and imprisoned, and that point itself it assumes a case where the in- the proceeds of his labor while in jail estimated jury under no circumstances could have re- as the statute provides shall be paid to his sulted from the original accident, and acquits wife, is not unconstitutional on the ground that

the respondent is deprived of a jury trial. from liability the party causing the accident.

[Ed. Note.-For other cases, see Jury, Cent. It goes on to say, however, that, though in- Dig. 88 236-241; Dec. Dig. $ 35.*] jury was caused by unskillful treatment, yet, 2. JURY (8 35*)—RIGHT TO JURY TRIAL-Conif the plaintiff exercised ordinary care in STITUTIONAL LAW. the selection of the surgeon, the defendant, The proceeding being a criminal one, the acif liable legally for the original injury, would cused convicted by a municipal court has necbe liable for the increased injury as well. essarily the same right of appeal under the gen

eral statute (Rev. St. c. 133, & 17) tbat he would The point submitted should have been refus- have if convicted of any other offense; and, bar'ed for reasons which we have stated in con- ing the right to appeal, he is not deprived of a sidering the former point. The explanation trial by jury in the appellate court. left the affirmance without advantage to the

[Ed. Note.-For other cases, see Jury, Cent. defendant, but so far as it went it was a cor

Dig. 88 236–241; Dec. Dig. $ 35.*] rect statement of the law under the facts of 3. REVIEW ON APPEAL. the case.

Inasmuch as this case comes up on report,

and the only question argued is that of the conIt was entirely proper to allow the witness stitutionality of the statute, the court does not Dr. Swope to state the grounds on which he consider the question whether the form of rembased his conclusion as to what caused the edy adopted is appropriate, or could be sustainpain from which the plaintiff suffered, and ed, if objected to.

(Official.) prevailed with him in determining that an operation was necessary. His conclusions were

4. WORDS AND PHRASES—"MAGISTRATE."

The word "magistrate," as used in Rev. based largely upon what the radiographs re- St. c. 133, § 17, providing for appeals from the vealed. This circumstance made the radio- decisions or sentences of magistrates, includes graphs admissible. While, as we have stat. judges of municipal courts as well as trial jus

tices. ed, it was not a material inquiry in the case whether the operation was a prejudicial one and Phrases, vol. 5, pp. 4271-4273.)

[Ed. Note.-For other definitions, see Words or not, if made in good faith by one on whose skill the plaintiff had a right to rely, yet it Report from Supreme Judicial Court, Anwas around this question that the controversy droscoggin County. was waged; the defendant insisting that no Action by Lizzie M. Sprague against the Inhabitants of the County of Androscoggin. I convicted and sentenced to hard labor in Case reported. Judgment for plaintiff. the jail in Androscoggin county and labored Action to recover money alleged to be due

24 days. All the necessary statutory steps the plaintiff by virtue of the provisions of to establish the plaintiff's right to the money chapter 42, p. 36, Pub. Laws 1907. Plea, the sued for have been taken or waived. general issue.

The principal, if not the only, ground upon When this action came on for trial, an

which the constitutionality of the act is agreed statement of facts was filed, and the questioned by counsel, is that the husband case was then reported to the law court for complained against is deprived of the right determination, with the stipulation that, if of a trial by jury because he has no right judgment is for the plaintiff, the defendant of appeal. Cotton v. Cotton, 103 Me. 210, 68 is to be defaulted in the sum of $12 with full Atl. 824, is cited as authority for ti's posicosts."

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

sions of which a husband of sufficient ability JJ.

neglects or refuses to support his wife may, Harry Manser, for plaintiff. McGillicuddy by a civil proceeding, be compelled to con& Morey, for defendant.

tribute to her support. In such cases the

Supreme Judicial Court, the superior courts, SAVAGE, J. Action to recover money al- the probate courts, and municipal courts leged to be due the plaintiff by virtue of have concurrent jurisdiction. In Cotton v. the provisions of chapter 42, p. 36, Pub. Laws Cotton, it was held, for reasons not necessary 1907. The case comes up upon an agreed to be repeated, that such a proceeding comstatement of facts, and the defendant makes menced in a municipal court is not appealno objection to the present form of proceed

able. ing. Hence we do not consider whether it

That, however, is not this case. The stat. is the proper form or not. The only ques. ute under which these proceedings arose is tion raised in argument is the constitution- a criminal statute. It creates an offense. ality of the statute above referred to, and It provides for a criminal proceeding. It is that question we will decide.

not a substitute for the statute under which The statute provides, in substance, that Cotton v. Cotton arose, but is additional to if a husband, without lawful excuse, deserts it. It provides another and sharper method his wife in destitute or necessitous circum- of enforcing the duties of husbands to necesstances, or if, being able by means of his sitous wives. property or labor to provide for her neces

The proceeding being a criminal one, the acsary support, he willfully neglects or recused convicted by a municipal court has necfuses so to do when she is in destitute or ne. essarily the same right of appeal under the cessitous circumstances, he shall be deemed general statute (Rev. St. 133, 8 that he guilty of a misdemeanor, and may be fined would have if convicted of any other offense. or imprisoned or both; that the court may Within the meaning of this section relating to direct that a fine imposed shall be paid whol appeals the term “magistrate” includes judgly or in part to the wife; that, in lieu of es of municipal courts as well as trial juspunishment, or in addition thereto, the court tices. See same chapter, sections 2, 3, 4, 5, may order the payment of weekly sums to and 6. See, also, the act creating the Auburn the wife for one year, and release the hus. municipal court, respecting the right of apband from custody on his entering into a peal. Priv. & Sp. Laws 1891, p. 254, c. 152, recognizance conditioned for his personal 8 12. The right of appeal appertains to all appearance whenever ordered to do so with criminal proceedings within the jurisdiction in the year, and for his compliance with the of municipal courts. order of payment; that when the husband It is too well settled to require discussion is sentenced to hard labor, and is actually that one put on trial in a municipal court employed in such labor in the county jail, for an offense within its jurisdiction is not the jailer shall each week certify to the unconstitutionally deprived of his right to a county commissioners the number of days trial by jury when he is freely allowed an the prisoner has been thus employed, and appeal to a court where a jury trial can be that the county commissioners shall there- had. Johnson's Case, 1 Me. 230; State v. upon draw their order for a sum equal to fif-Gurney, 37 Me. 156, 58 Am. Dec. 782; State ty cents for each day's labor, and the county v. Craig, 80 Me. 85, 13 Atl. 129. treasurer shall pay the same to the wife. It The counsel for the defendant also disis further provided that the fines and penal cusses the policy of the statute, but with ties named in the act may be recovered and that we have nothing to do. enforced by complaint or indictment. Mu- To enact that a husband who, without lawnicipal courts are given jurisdiction of such ful excuse, deserts his wife or neglects to complaints.

support her when in need, may be fined and In this case the complaint originated in the imprisoned, and that the proceeds of his this statute shall be paid to his wife, does nesses, and the language in which the instrue. not transcend in any respect our conception tions were given in the charge to the jury, fails of constitutional legislative power.

to disclose any exceptionable infringement of the

statute. Judgment for the plaintiff for $12.

(Ed. Note.-For other cases,

see Criminal Law, Cent. Dig. 88 1731, 1750, 1754, 1758, 1759,

1769; Dec. Dig. $ 762.*] (104 Me. 394)

(Official.) STATE V. LAMBERT.

Exceptions from Superior Court, Cumber(Supreme Judicial Court of Maine. Nov. 4, land County. 1908.)

Thomas L. Lambert was convicted of lar. 1. CRIMINAL LAW ($ 351*)-EVIDENCE-AD- ceny, and he excepts. Exceptions overruled. MISSIBILITY-CONSCIOUSNESS OF GUILT.

The fact of an accused's flight, escape from The defendant was indicted for the larcustody, resistance to arrest, concealment, as- ceny of "one horse of the value of $200, one sumption of a false name, and related conduct, are admissible as evidence of consciousness of wagon of the value of $100, and one harness guilt, and thus of guilt itself. But it is for the of the value of $10." jury to determine what weight and value should Tried at the January term, 1908, superior be given to such evidence.

court, Cumberland county. The jury found [Ed. Note.-For other cases, see Criminal the defendant guilty. The defendant exceptLaw, Cent. Dig. $8 776, 778–785; Dec. Dig. $ed to several rulings made by the presiding 351.*] 2. CRIMINAL LAW (8 351*) – EVIDENCE – AD- justice during the trial, and also excepted to MISSIBILITY-CONSCIOUSNESS OF GUILT. an alleged expression of opinion by the pre

The defendant was indicted for larceny, and siding justice. It appears from the bill of at the trial the arresting officer testified that the exceptions that “the notes of the official defendant had a loaded revolver in his overcoat pocket when arrested. Held, that the evidence stenographer taken at the trial of this inwas admissible.

dictment were lost in the fire which destroy(Ed. Note.-For other cases, see Criminaled City Hall (Portland) on January 24, 1908, Law, Cent. Dig. 88 780, 796; Dec. Dig. $ 351.*) so that it is impossible to make exact quota8. WITNESSES (88 344, 355, 361*)-CRIMINAL tions either from the evidence or the LAW (8 1169*)-REPUTATION OF ACCUSED-charge.” SPECIFIC INSTANCES. The defendant, when on trial for larceny,

The case is stated in the opinion. called as a witness a resident of Portland, who Argued before EMERY, C. J., and WHITEtestified that he had known the defendant for | HOUSE, SAVAGE, PEABODY, SPEAR, and five years, and that he had seen him quite fre

BIRD, JJ, quently and had numerous business dealings with him. There was no evidence that the de- Joseph E. F. Connolly, Co. Atty., for the fendant had ever resided ip Portland, nor that state. John B. Kehoe, for defendant. the witness had ever resided in a community where the defendant had resided. The defendant's counsel asked the witness if he knew the WHITEHOUSE, J. At the January term, defendant's “reputation for honesty in that com- 1908, of the superior court of Cumberland munity." The question was excluded. witness further testified, however, that in his county, the defendant was found guilty by dealings with the defendant he had found him the jury of the larceny of a horse, wagon, "honest and reliable," but that he had never and harness, the property of George A. Lufheard his reputation discussed or referred to.

Held: (1) That it was not indispensable that kin, on the evening of Sunday, September 15, the witness to the defendant's reputation should | 1907. The case comes to the law court on have resided in the same community with the exceptions to the rulings of the presiding defendant.

judge admitting and excluding certain evi. (2) That the defendant's reputation for hondence during the progress of the trial, and esty was not regularly provable by personal knowledge of the witness derived from specific to the alleged expression of opinion by the instances in his dealings with the defendant. presiding judge upon issues of fact, in con

(3) That the ruling allowing the witness to travention of section 97 of chapter 84 of the state that he "found him honest and reliable" was more favorable to the defendant than he Revised Statutes. was entitled to.

Eugene Groves, who was indicted at the (4) That the defendant was not aggrieved by same term as an accomplice and pleaded the ruling excluding the question relating to the guilty to the charge, appeared as a witness defendant's "reputation for honesty in that community."

for the state, and testified that the defendant (Ed. Note.-For other cases, see Witnesses,

came to his house with a team Saturday Cent. Dig. $$ 1125, 1154, 1171; Dec. Dig. 88 evening September 14th, and remained there 344, 355, 361;* Criminal Law, Dec. Dig. Å overnight; that the next evening, at the de 1169.*]

fendant's request, he rode with himn to Wal4. CRIMINAL LAW ($ 762*)_TRIAL-EXPRES

nut Hill Church, and saw the defendant BION OF OPINION BY COURT ON FACTS.

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 contra vention 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 tes team and Groves driving the other; that timony, and the conduct and appearance of wit-Lambert then stopped and gave him $2 and

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