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[Ed. Note.-For other cases, see Trial, Cent. Dig. § 603.]

6. PHYSICIANS AND SURGEONS 14(2)-MALPRACTICE-FOLLOWING PARTICULAR SCHOOL OF MEDICINE.

them after so qualifying themselves was en-jury could not consider that fact in determining titled to great or little or no weight is a mat- the physician's want of care. ter with which, as suggested, a reviewing court, in the very nature of the case cannot concern itself. These observations apply as well to the argument that, since the only testimony in favor of the defendants upon Each school of medicine is entitled to practhe question of value was given by the de- tice in its own way, and because one does not use the other's methods will not constitute malfendants themselves, who were directly inter-practice, and it is enough if the treatment emested in the result of the trial, such testimony is not dependable.

[9] The defendants were competent to testify as witnesses in their own behalf, and whether they were influenced in their opinions on value by the fact that they were interested parties was a matter entirely for the determination of the jury and the trial

court.

The order appealed from is affirmed.

ployed has the approval of at least a respectable minority of the profession, since only the exercise of reasonable skill, learning and diligence is required.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 22.]

7. TRIAL 252(8)-MALPRACTICE-INSTRUCTIONS-INAPPLICABLE TO ISSUE.

"when a cause is shown which might produce Instruction given in a malpractice case that an accident in a certain way, and an accident happens in that manner, it is a warrantable presumption, in the absence of showing of other

We concur: CHIPMAN, P. J.; BUR- cause, that the one shown was the operative

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The question of whether a physician was guilty of malpractice in changing diet of a very sick typhoid patient from beef broth to soft toast and poached egg, where patient seemed to be improving on the former diet, and where there was medical testimony showing that the toast and egg diet was improper, under the circumstances, was for the jury.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 44.]

3. APPEAL AND ERROR 1195(1)-LAW OF THE CASE-DECISION ON FORMER APPEAL. Decisions on a former appeal become the law of the case, and will govern when the same questions arise on a retrial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4661.]

4. TRIAL 251(8) — MALPRACTICE-INSTRUCTIONS-GENERAL NEGLIGENCE.

Instructions given in a malpractice case, regarding general negligence not within the issues and in effect stating that for want of ordinary care, the physician was liable, where the only act complained of was a change of diet, and the jury were led to believe they could consider any other negligent acts, held erroneous.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 593.]

5. TRIAL 252(8)—MALPRACTICE-INSTRUCTIONS-ADVANCED STATE OF PROFESSION.

Instruction given in a malpractice case that in determining ordinary skill and diligence, the "advanced state of the profession at the time" might be considered held misleading; there being no evidence relating thereto, and the

agency in bringing about the result" held erroneous, since there was no accident and patient died either from disease, removal, or malpractice.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 603.]

8. APPEAL AND ERROR 263(1)—EXCEPTION TO INSTRUCTIONS-NECESSITY.

Although an instruction was not as complete as it should have been, it will not be considered, where no exception was taken.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1516.]

9. PHYSICIANS AND SURGEONS
PRACTICE-INSTRUCTION.

18(10)-MAL

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MOUNT, J. This is the second appeal in this case. When it was here before, on appeal from a judgment for $1,500 in favor of the plaintiff, it was reversed because of the admission of certain evidence, and the giving of certain instructions to the jury. It was re88 Wash. 237, 152 manded for a new trial. Pac. 1037. The issue in the case was whether the appellant was guilty of malpractice in giving a diet of poached egg and toasted bread to a typhoid fever patient. Upon this

issue, the ease was retried to the court and a jury, and resulted in a verdict and judgment against the defendants for $9.000. The defendants have appealed from that judg

ment.

[1, 2] The facts are substantially as fol

lows: The defendant Rush Banks is a physician, practicing his profession in the city of Centralia. On December 22, 1914, he was called to the home of Donald Ennis, whom he found suffering with typhoid fever. On the next day, Mr. Ennis was removed to a hospital, which was being conducted by Dr. Banks. From that time on until January 14, 1915, Mr. Ennis was treated by Dr. Banks. Mr. Ennis was attended by a nurse, who cared for him constantly during that time. From the time Mr. Ennis was taken to the hospital until the 14th day of January, 1915, he was a very sick man. Gas would accumulate, almost constantly, in his stomach and bowels, and, on the 11th day of January, Dr. Banks called in consultation two other doctors. It was then concluded that an operation was necessary, in order to remove the gas, but Mrs. Ennis, the plaintiff in this case, and the patient's mother would not consent to the operation. The patient, before this time, had been fed upon a milk diet, which apparently did not agree with him, and subsequently had been fed upon beef broth. This latter diet seemed to agree with him better than the milk diet. On the 12th and 13th of January, the patient seemed to be somewhat improved. On the 14th, the doctor caused to be prepared a slice of bread, about three inches square, from which the crust was removed, and which was toasted, soaked in boiling milk until the toast was soft; and an egg was broken in some hot water and allowed to coagulate. This egg was then placed upon the soft toast, and this toast and egg was given to the patient. The patient ate about two-thirds of the egg and toast. About three hours thereafter, an eggnog was prepared, and given to the patient. When the eggnog was administered, the patient vomited the eggnog and the egg and toast which had been administered three hours before. The patient, at that time, seemed to be worse. Mrs. Ennis then became dissatisfied with the treatment of Dr. Banks, and ordered the patient removed to her home, about a block away. The patient was taken from his bed at the hospital, carried out of the room, down a flight of stairs to the street, placed on a stretcher, and taken home. Another doctor, practicing the homeopathic method of medicine, was called, and treated the patient two days, when he died, on January 16, 1915. Afterwards, this action was brought. The basis of the action is malpractice, alleged to be the cause of the death of Donald Ennis, by reason of the feeding of the poached egg and toast.

peal, and the case was remanded for a new trial, we are satisfied that there is merit in these points.

The evidence very conclusively shows that the patient, during the time he was under the charge of Dr. Banks, was a very sick man. Whether the feeding of this toast and egg was the primary cause of his death is open at least to very serious doubt. The evidence shows that Mr. Ennis' death may have been due to one of three causes: First, the disease itself; second, the carrying of the patient from the hospital to another place; and, third, the change of diet. But, under the rule established when the case was here before, we are constrained to hold it was for the jury to determine which of these causes resulted in his death, and whether the doctor, in administering the toast and egg, as hereinbefore stated, was guilty of malpractice. The evidence upon this trial was substantially the same as upon the other trial, and upon the other appeal we used this language:

"The appellant urges that the trial court should have granted his motion for a nonsuit at however, evidence that the toast and egg diet the close of the respondent's case. There was, was, under the circumstances, an improper treatment. Dr. Blair so testified. This was evidence that the specific act alleged was negligent, and this evidence should have been submitted to the jury under proper instructions."

[3] So it is plain that the facts shown upon this trial were sufficient to take the case to the jury. In other words, that statement of the rule became the law of the case.

Pattison v. Seattle, Renton & Southern RailR.A. (N. S.) 660; Provine v. City of Seatway Co., 64 Wash. 370, 116 Pac. 1089, 35 L. tle, 70 Wash. 326, 126 Pac. 927; Hendrick137 Pac. 444; City of Chehalis v. Cory, 64 son v. Simpson Logging Co., 77 Wash. 276, Wash. 367, 116 Pac. 875.

[4, 5] The appellants also argue that the instructions were erroneous. The court, after defining the issues, instructed the jury as follows:

"(Instruction No. IV. With the issues thus made up I instruct you that before the plaintiff can recover in this case she must establish by a preponderance of the evidence that the defendant Rush Banks was either guilty of negligence in the treatment of the case, or that he did not exercise ordinary skill and competence in the treatment thereof, and that such negligent acts nary skill, or both, were the proximate cause of or omissions or said want of proper and ordithe death of said Donald Ennis.)

"Instruction No. V. The court instructs you that the implied contract of the defendant when he assumed charge of the treatment of plaintiff's injuries was that he possessed and would employ in the treatment of the case such reasonable skill and diligence as were ordinarily exercised that in which he practiced, by the members as a in his profession at and in localities similar to body; that is, the average of the reasonable skill and diligence ordinarily exercised by the protralia. Regard is to be had in determining this fession at the time and in places similar to Cenordinary skill and diligence to the improvement and advanced state of the profession at the time the case was treated.

The appellants very forcibly argue that the trial court should have granted a judgment notwithstanding the verdict, for the reason that the verdict of the jury is based upon speculation and conjecture, and that if the appellant, Dr. Banks, made any mistake, it was an error of judgment, and not a negli"Instruction No. VI. I charge you, members of gent act. But for the fact that these same the jury, that when the defendant Rush Banks questions were presented upon the other ap-undertook as a physician and surgeon to treat

you that he is liable to the plaintiff in damages. "Instruction No. XI. In connection with the last-mentioned instruction I desire to charge you that the rule of law is in such cases as this, produce an accident in a certain way, and an acas follows: 'When a cause is shown which might cident happens in that manner, it is a warrantable presumption in the absence of showing of other cause that the one known was the operative agency in bringing about the result."'"

and care for Donald Ennis, the deceased husband | tened the death of Donald Ennis, then I charge of the plaintiff, the law required of him no more than that he should exercise that degree of knowledge, skill, and care which physicians and surgeons practicing in this vicinity and similar localities ordinarily possess (and if you should find from the evidence that in his treatment of the said Donald Ennis, the defendant Rush Banks did not use and exercise as high a degree of knowledge, skill, and care as is ordinarily used and possessed by physicians and surgeons practicing in this and similar localities, and as a result thereof the said Donald Ennis was injured and from those injuries he died, your verdict must be for the plaintiff).

"Instruction No. VII. While it is true that a physician is not liable for what is commonly called a mistake in judgment or a mistake in diagnosis (yet if you should find from a fair preponderance of the evidence in this case that the defendant Rush Banks failed to exercise his best judgment, that is, the judgment which a physician of ordinary care, skill, and intelligence in the same or similar localities would have used under like circumstances, then I charge you that the defendant cannot escape his negligent acts because of his failure to use his best judgment, and if you should find that the act, or acts, of the said defendant Rush Banks when he failed to use his best judgment, as I have hereinabove instructed you, approximately contributed to the death of Donald Ennis, then your verdict must be for the plaintiff)."

The parts of these instructions which we have indicated by parentheses should not have been given, because they are instructions upon general negligence, not within the issues of the case, and, in effect, tell the jury that, for want of ordinary care generally, the doctor is liable. When the case was tried before, the court admitted evidence of other acts, which were claimed to be negligent, and which acts were not within the issues, and, for that reason, the case was reversed. The act constituting malpractice, complained of here, and the only act complained of, was the administering of milk toast and soft-poached egg. No other negligence is alleged. Under these instructions, which we have quoted above, the jury were led to believe that they might consider any acts of negligence, or general acts, and make up their verdict outside the issues of the case. Instruction No. V, above quoted, is subject to another objection, namely, that the part underscored, to the effect that in determining ordinary skill and diligence, the advanced state of the profession at that time might be considered. There was no evidence in the case that there was any advanced state of the profession at that time, and, of course, the jury were not authorized to take that fact into consideration in determining want of care on the part of the physician. That part or the instruction was misleading.

These instructions were clearly erroneous. The evidence in this case shows that Dr. Banks was known as an allopathic doctor. One of the doctors who testified that the treatment given by Dr. Banks was improper was a physician of the homeopathic school of medicine, and admitted that his system of treatment was different from that of Dr. Banks, or the allopathic school.

The first of these last-quoted instructions told the jury, in substance, that, if Dr. Banks did not follow the practice recognized by other physicians in good standing in that locality, and, as a result thereof, hastened the death of Donald Ennis, the respondent was entitled to recover, which, of course, is not the law. Each school of medicine is entitled to practice in its own way, and because one does not use the methods of the other is no reason for holding the one for malpractice. In the case of Dahl v. Wagner, 87 Wash. 492, 151 Pac. 1079, we said:

"It has been the uniform holding of this court that where doctors of equal skill and learning, being in no way impeached or discredited, disthat the courts cannot hold a defendant in a agree in opinion upon a given state of facts, malpractice suit to the theory of the one to the exclusion of the other. This is the logic of 131. It is enough if the treatment employed Brydges v. Cunningham, 69 Wash. 8, 124 Pac. have the approval of at least a respectable minority of the medical profession who recognized it as a proper method of treatment.' Lorenz v. Booth, 84 Wash. 550, 147 Pac. 31. The reason is obvious. A man who is called upon to exercise professional judgment is bound only to the exercise of reasonable skill and learning he uses the method recognized and approved by and diligence. 'He is not liable for mistakes if those reasonably skilled in the profession' (citing authorities)."

erroneous and misleading.
So, it is apparent that this instruction was

when a cause is shown that might produce-
Instruction No. XI, to the effect that,
dent happens in that manner, it is a war-
an accident in a certain way, and an acci-
rantable presumption, in the absence of show-
ing of other cause, that the one shown was
the operative agency in bringing about the
result, had no place in this case.
was no accident here. Mr. Ennis either died
from natural causes, or from being removed

There

[6, 7] The court, at instructions Nos. X from the hospital, or he died from malpracand XI, used the following language:

tice. There was no occasion, therefore, for giving this instruction.

"Instruction No. X. You are instructed if you should find from a fair preponderance of the evidence that the defendant Rush Banks did not [8] The appellants contend that instrucfollow such established practice in the case and tion No. XX, with reference to the effect to treatment of the deceased, Donald Ennis, as is be given to the testimony upon hypothetrecognized, adopted, and followed by other physi-ical questions, was erroneous. cians and surgeons in good standing, practicing

We are sat

in this and similar localities, and as a result isfied that the instruction was not as comthereof the said Rush Banks contributed or has-plete as it should be, but, since no excep

tion was taken to the instruction, we shall not consider it further.

(95 Wash. 489)

NEWMAN et al. v. VAN NORTWICK et al. (No. 13856.)

[9] The instructions, taken as a whole, were voluminous. There were 24 instructions, covering 11 pages of typewritten matter. They were long and cumbersome, and had a tendency more to mislead, than to enlighten, the jury. The issue in the case was a simple one. It ought to have been covered in, at most, a half dozen instructions, to the points that unless the jury could say that the patient died solely from the effect of the soft toast and egg which was administered to him, and not from the disease, or from being carried from the hospital, at the stage of the disease he was then in, there could be no recovery; that there could be recovery only in case the giving of the toast and egg was the prime cause of the patient's death, and the doctor knew, or should have known, such result would fol-3. MORTGAGES 473 low. Before the respondent would be entitled to recover for malpractice, the jury ought to have been told that they must find that Dr. Banks did not use his judgment in administering the egg and toast, under the circumstances, but was guilty of malpractice in administering such toast and egg at that time. A few simple instructions upon these questions, in addition to those ordinarily given, were sufficient for the jury.

(Supreme Court of Washington. April 3, 1917.) 1. MORTGAGES 468(2)—FORECLOSURE-RECEIVERSHIP PROCEEDINGS.

Where the mortgage did not provide for deless than the face of the mortgage, and the reficiency judgment, but the property was worth ceiver appointed had received in rents almost the amount of delinquent taxes which then drew a 15 per cent. penalty, order discharging receiventitled to his services for preservation of the er was properly refused; the mortgagees being estate.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1375.] 473- FORECLOSURE 2. MORTGAGES CEIVERSHIP PROCEEDINGS.

The appellants further argue that the court erred in not granting a new trial because of misconduct of the jury, in arriving at their verdict, for the reason that the result of the verdict was a quotient verdict, and not based upon the judgment of the jurors, and for the further reason that the verdict and judgment are excessive. There is merit in both these contentions, but, in view of the fact that a new trial must be granted for errors in the instructions, we shall not discuss them.

RE

It was proper for the receiver to apply for permission to pay the taxes from the rents. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1384.]

OF

MAINTENANCE PROPERTY "NECESSARY CHARGES"-"CurRENT EXPENSES.

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Taxes upon mortgaged property are "necessary charges" and "current expenses" properly chargeable against the income of the property. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1384.

For other definitions, see Words and Phrases,
Necessary Charges.]
First and Second Series, Current Expenses;

Department 1. Appeal from Superior
Court, King County; Mitchell Gilliam, Judge.

Suit by Hannah Hill Newman and others against Bernice Van Nortwick and others. From an order refusing to discharge a receiver, the defendants appeal. Affirmed.

Weter & Roberts, of Seattle, for appellants. Walter S. Fulton, of Seattle, for respondents.

MORRIS, J. [1] Appeal from an order refusing to discharge a receiver in an action to foreclose a mortgage on real property. The conceded facts are: That the property is

The judgment is reversed, and the cause worth less than the amount due on the mortremanded for a new trial.

gage; that there is no provision for any deficiency judgment; that the receiver has col

HOLCOMB and PARKER, JJ., concur. lected $1,465.01 from rentals; that the propELLIS, C. J., concurs in the result.

(95 Wash. 700)

erty is well rented and well cared for; that the owners of the property had permitted delinquent taxes to accumulate to the sum of $1,712.09 now drawing interest at 15 per cent. per annum. With these facts before it the WHIT-lower court denied a motion to discharge the receiver. As stated by appellant, the question to be determined is:

CALHOUN, DENNY & EWING v.
COMB. (No. 12844.)
(Supreme Court of Washington. April 3, 1917.)
En Banc. Appeal from Superior Court,
King County.

"Are delinquent taxes alone a proper ground for the appointment of a receiver in the foreclosure of a mortgage, it being admitted that the security is inadequate to discharge the debt and

On rehearing. Judgment affirmed.
For former opinion, see 90 Wash. 128, 155 that no deficiency judgment can be taken?"
Pac. 759.

PER CURIAM. Upon a rehearing en banc, a majority of the court still adhere to the opinion heretofore filed herein as reported in 90 Wash. 128, 155 Pac. 759; and, for the reasons there stated, the judgment is affirmed.

Our answer is in the affirmative. Appellant relies upon Norfor v. Busby, 19 Wash. 450, 53 Pac. 715. Nothing in that case sustains the negative of appellants' query. It was there held that insufficiency of property to pay a mortgage indebtedness was not of itself sufficient ground for the appointment of a receiver in order to secure the applica

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tion of rentals to the discharge of a mortgage debt.

[3] It will hardly be questioned but that taxes are "necessary charges" and "current expense" upon real estate. Under his contract the mortgagee could only look to the property for the satisfaction of the debt, but he had the right to look to all of the property and the right to have it preserved in the hands of a receiver and not have it subject to a paramount lien against which he could not protect himself without the payment of additional money upon a property already overburdened with debt. The law gave this right and equity will preserve it. The mortgagor could not add to the burden assumed by the mortgagee in payment of the mortgage debt. Neither could the mortgagee add to the burden of the mortgagor in obtaining a satisfaction of that debt. Judgment is affirmed.

ELLIS, C. J., and CHADWICK, MAIN, and WEBSTER, JJ., concur.

(95 Wash. 510)

STATE ex rel. SWAN v. SUPERIOR COURT
FOR CLARKE COUNTY et al. (No.

14027.)

(Supreme Court of Washington. April 4, 1917.) MANDAMUS 44-CHANGE OF VENUE-DISCRETION OF COURT.

[2] The same rule was recently announced in Gerber v. Heath, 92 Wash. 519, 159 Pac. 691, where it was said that the property, and not its income, is the security for the mortgage debt, and that the mortgagor is under no obligation to apply the income of mortgaged property to either the principal or interest of the mortgage debt. That would mean, as applied to this case, that notwithstanding the inadequacy of the property to pay the mortgage debt, the receiver could not apply the rentals in payment of the amount due on the mortgage. We have no doubt such is the law in this state, but that is not the case here. So far as the record goes there is no intention on the part of the receiver to apply the rentals to the debt. He did, however, ask leave to apply the rentals in payment of the delinquent taxes. This, we think, was a proper request. In Euphart v. Morrison, 39 Wash. 311, 81 Pac. 695, and Collins v. Gross, 51 Wash. 516, 99 Pac. 573, it was held that it is the proper procedure in this state under section 741, Rem. Code, to appoint a receiver where it appeared that the property was in danger of being lost or materially injured or where in the discretion of the court it was necessary to secure ample justice to the parties. Such was the situation here. When taxes on real property are permitted to judge of a superior court shall try any proceedRem. Code 1915, § 209-1, provides that no become delinquent and accumulate an added ing when it is shown that such judge is prejuburden of 15 per cent. per annum, there is diced against any party or attorney in such danger of material injury to the property. cause, and that he shall forthwith transfer the The payment of taxes is necessary to the action to another department of the same court, or call in a judge from some other court or appreservation of the property. "Equity de- ply to the Governor to send a judge to try the volves it upon him who has the use; not to case, or if the convenience of the witnesses or pay them is waste." The failure of the own- the ends of justice will not be interfered with ers of this property to pay the taxes and al-acter that a change of venue may be ordered, he by such course, and the action is of such charlow them to become delinquent "was casting may send the case for trial to the most convena burden upon the mortgaged estate which ient court. Relator, who was attorney in three equity demanded the mortgagor should dis- cases, filed affidavits that the presiding judge of the superior court of the county was prejucharge." Winkler v. Magdeburg, 100 Wis. diced against him, whereupon the presiding 421, 76 N. W. 332. In an earlier case, Schrei- judge entered orders changing the venue to anber v. Carey, 48 Wis. 208, 4 N. W. 124, the other county, the orders reciting that the consame court said it was a want of good faith venience of witnesses and the ends of justice would not be interfered with. Held that, as on the part of a mortgagor not to pay the there are several alternatives given the presidtaxes upon mortgaged property and yet re- ing judge in case of prejudice, his discretionary main in possession and appropriate all the ruling that a change of venue to another counprofits of the property to his own purpose. witnesses or defeat the ends of justice cannot, ty would not interfere with the convenience of Similar observations are made in Philadel- there being only one department of the superior phia Mortgage & Trust Co. v. Oyler, 61 Neb. court in the county, be interfered with by a writ 702, 85 N. W. 899, and in Philadelphia Mort- of mandate to vacate the order. gage & Trust Co. v. Goos, 47 Neb. 804, 66 N. W. 843. In Gerber v. Heath, supra, after saying that the mortgagor was under no obligation to apply the income of the property to the payment of the mortgage debt, the court added that "a receiver is sometimes appointed to collect the income of property and apply the same to necessary charges pending the foreclosure proceedings in order Henry Crass and Edgar Swan, both of to protect the property," continuing to the Vancouver, for relator. James O. Blair and effect that current expense is a proper charge L. M. Burnett, both of Vancouver, for reagainst the income of property.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 90, 91.]

Department 2. Original application by the State of Washington, on the relation of Edgar Swan, for a writ of mandate against the Superior Court for the State of Washington, and County of Clarke, and R. H. Back, Judge thereof. Application denied.

spondents.

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