to establish the facts upon which his right to recover depends.19 One claiming negligence or want of skill on the part of a physician must allege and prove it.20 And if improper abandonment of a case is relied upon for a recovery, it must be set out in the declaration and proved.21 And the burden also rests with the person alleging it to show that the injury complained of resulted from the negligence of the physician;22 or, to show absence of consent to the performance of an operation, when the patient voluntarily submitted.23 And the burden of proof rests with the plaintiff in an action against physicians for falsely making a certificate of insanity of a person, to establish the claim that such person was not insane,24 and that the physician was negligent when he made the examination.25 So, the burden rests with the plaintiff in an action for malpractice to show his freedom from negligence contributing to the result complained of.26 And where the employer employs a physician for the benefit of his employees, he is presumed to use reasonable care in his selection; and the burden of proof of negligence in such selection rests with him who asserts it.27 Where, however, the defendant takes the ground that the terms of his contract were such as to protect him from liability for his acts or omissions, or that the contract has been "Wells v. World's Dispensary Medical Asso. 9 N. Y. S. R. 452; Georgia Northern R. Co. v. Ingram, 114 Ga. 639, 40 S. E. 708; Baird v. Morford, 29 Iowa, 531; State use of Janney v. Housekeeper, 70 Md. 162, 2 L. R. A. 587, 14 Am. St. Rep. 340, 16 Atl. 382; M'Clallen v. Adams, 19 Pick. 333, 31 Am. Dec. 140; Conkey v. Carpenter, 106 Mich. 1, 63 N. W. 990; Vanhooser v. Berghoff, 90 Mo. 487, 3 S. W. 72; Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Wohlert v. Seibert, 23 Pa. Super. Ct. 213. But it is not necessary to prove it by evidence independent of, and unconnected with, the treatment in the case in question. Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323. Robinson v. Campbell, 47 Iowa, 625; McKee v. Allen, 94 Ill. App. 147; Scudder v. Crossan, 43 Ind. 343; Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458; Feeney v. Spalding, 89 Me. 111, 35 Atl. 1027; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117; State use of Janney v. Housekeeper, 70 Md. 162, 2 L. R. A. 587, 14 Am. St. Rep. 340, 16 Atl. 382; Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Winner v. Lathrop, 67 Hun, 511, 22 N. Y. Supp. 516; Haire v. Reese, 7 Phila. 138. It rests with the plaintiff in an action against a physician for malpractice to show that the physician had not reasonable and ordinary skill; or that, having such skill, he neglected to apply it with such care and diligence as in his judgment, properly exercised, the case required. Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593. "Bemus v. Howard, 3 Watts, 255; Ballou v. Prescott, 64 Me. 305. Chase v. Nelson, 39 Ill. App. 53; McKee v. Allen, 94 Ill. App. 147; Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458. 23 State use of Janney v. Housekeeper, 70 Md. 162, 2 L. R. A. 587, 14 Am. St. Rep. 340, 16 Atl. 382. "Pennell v. Cummings, 75 Me. 163. 25 Williams v. LeBar, 141 Pa. 149, 21 Atl. 525. Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894; Baird v. Morford, 29 Iowa, 531; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117. Contra, Secord v. St. Paul, M. & M. R. Co. 5 McCrary, 515, 18 Fed. 221. "Big Stone Gap Iron Co. v. Ketron (Va.) 45 S. E. 740. rescinded, he assumes the affirmative and has the burden of proof to that extent.28 516. Evidence; competency.-The ordinary rules as to competency and relevancy of evidence apply to actions for malpractice, except as affected by the peculiar character of the facts to which they are applied. 29 The question at issue in an action for malpractice is the conduct of, and treatment by, the defendant in the particular case in hand;30 and his general skill or general reputation for skill is not relevant or competent when the basis of the charge against him is negligence.31 Nor is his possession or nonpossession of a license or diploma competent or relevant as evidence.32 But when the charac ter and competency of the physician are put in issue, his qualifications and reputation for skill are competent and material;33 though evidence of this character must be confined to general reputation; particular acts or specified facts are not admissible.34 His skill may be shown, however, by the evidence of others in the same profession having knowledge of his practice;35 and he himself may testify that he "Ballou v. Prescott, 64 Me. 305. 29 Both from the necessity of the case and on general grounds of public policy, a married woman is a competent witness for her husband in an action brought by him against a physician for malpractice in medical services rendered to her, notwithstanding the general rule that a married woman is incompetent to testify in behalf of her husband. Cramer v. Hurt, 154 Mo. 112, 77 Am. St. Rep. 752, 55 S. W. 258. 30 Mertz v. Detweiler, 8 Watts & S. 376; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117. Mertz v. Detweiler, 8 Watts & S. 376; Holtzman v. Hoy, 19 Ill. App. 459; Smith v. Stump, 12 Ind. App. 359, 40 N. E. 279; Clark v. Com. 111 Ky. 443, 63 S. W. 740; Carpenter v. Blake, 60 Barb. 488; Williams v. Poppleton, 3 Or. 139; Graham v. Gautier, 21 Tex. 111; Poling v. San Antonio & A. P. R. Co. (Tex. Civ. App.) 75 S. W. 69. And evidence in an action for malpractice, of a claim by a physician that he possessed extraordinary skill and would effect a cure, is not admissible under a declaration charging a want of ordinary care and skill. Goodwin v. Hersom, 65 Me. 223. Bute v. Potts, 76 Cal. 304, 18 Pac. 329; Big Stone Gap Iron Co. v. Ketron (Va.) 45 S. E. 740. But where a physician testifies in an action for malpractice that he was ordinarily skilful and had much experience, it is within the legitimate range of cross-examination to prove by his admission that he did not have a license obtained after examination as to his medical knowledge, for the purpose of discrediting his testimony. Challis V. Lake, 71 N. H. 90, 51 Atl. 260. 33 Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689; Grannis v. Branden, 5 Day, 260, 5 Am. Dec. 143; Vanhooser v. Berghoff, 90 Mo. 487, 3 S. W. 72; Carpenter v. Blake, 50 N. Y. 696. Ana see Doyle v. New York Eye & Ear Infirmary, 80 N. Y. 631. But evidence of the general character of the defendant in an action for malpractice, and that he was not a regu larly educated physician and surgeon, is improper if offered to enhance damages. Grannis v. Branden, 5 Day, 260, 5 Am. Dec. 143. 34Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689; Link v. Sheldon, 45 N. Y. S. R. 165, 18 N. Y. Supp. 815. Carpenter v. Blake, 60 Barb. 488; Williams v. Poppleton, 3 Or. 139; Clark v. Com. 111 Ky. 443, 63 S. W. 740. But the opinion of a physician with whom the defendant in a malpractice case studied his profession, as to wheth er the defendant possessed more than the ordinary skill of members of the profession, is not competent. Leighton 36 37 used his best skill and ability, and explain the meaning of his acts.3 Evidence of the professional character of assistants is admissible as tending to show performance of the duty to exercise care in their employment;38 and evidence of the admission to practise of a physician would appear to be material and competent on the question as to whether his employment by an employer for the benefit of his employees was negligent.39 And when evidence of good reputation for skill has been given, it may be rebutted by showing defective professional education or attainments, or irregular qualification.40 So, the general result of similar cases or operations is admissible ;41 but the particular results of the defendant's own cases cannot be shown.42 Nor is it competent to show that no effort was made to re v. Sargent, 31 N. H. 119, 64 Am. Dec. 323. And the general reputation of a medical institute at which a physician has attended lectures is not admissible in a malpractice case as bearing upon the question of his skill as compared with that of other surgeons. Ibid. Doyle v. New York Eye & Ear Infirmary, 80 N. Y. 631; Fisher v. Nic colls, 2 Ill. App. 484. Twombly v. Leach, 11 Cush. 397. And a physician who has testified in an action for malpractice against him, that he administered proper remedies, may be required on cross-examination to detail the kind of medicine administered, though there was no charge in the complaint that he had administered medicine of any kind. Thomas v. Dab blemont, 31 Ind. App. 146, 67 N. E. 463. Doyle v. New York Eye & Ear Infirmary, 80 N. Y. 631; Jones v. Angell, 95 Ind. 376. But the fact that a skilled surgeon assisted the defendant is not admissible in an action for malpractice as tending to prove either the skill or diligence of the defendant, where there appears to have been a disagreement in their mode of treatment, and the skilled surgeon did not attend by the procurement of the defendant. Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323. Poling v. San Antonio & A. P. R. Co. (Tex. Civ. App.) 75 S. W. 69. But a newspaper publication of the proceedings of a medical board which admitted a physician to practise is immaterial and incompetent on that issue. Ibid. "Grannis v. Branden, 5 Day, 260, 5 Am. Dec. 143; Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90, 17 Am. St. Rep. 355, 23 N. E. 156; Mayo v. Wright, 63 Mich. 32, 29 N. E. 832; Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S. W. 450. While no particular system of medicine may be established or favored by the laws of a state, proof that the defendant in an action for malpractice was a botanic physician, and of methods of treatment adopted under the botanic system of practice, and that his methods were according to that system, is admissible. Bowman v. Woods, 1 G. Greene, 441. "Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511. But evidence as to how certain fractures are generally treated is not competent in an action for malpractice in improperly attending to such a fracture. Link v. Sheldon, 45 N. Y. S. R. 165, 18 N. Y. Supp. 815. "Greeno v. Roark, 8 Kan. App. 390, 56 Pac. 329; Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696, Affirming 45 N. Y. S. R. 165, 18 N. Y. Supp. 815; Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323, 64 N. E. 38; Olmsted v. Gere, 100 Pa. 127. And evidence of what practice the defendant has had and of what cases he has treated, and his course of treatment with them, is inadmissible for the purpose of showing his skill in a malpractice case, where the character of the cases and their treatment appear only through the defendant's declarations in his own favor. Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323. But where the defendant in an action against a veterinary surgeon for the improper performance of an operation cover compensation for services;43 and the jury should not be permitted to determine for themselves as to the propriety of a physician's treatment, by personal inspection.44 But the actual condition and its probable causes may always be shown.45 And the exhibition of the injured member has been permitted, apparently for the purpose of showing such condition;46 and it is always competent to show a change of condition apparently due to the injury;47 and the subsequent medical treatment may be shown.48 So, consultations held by physicians or surgeons at the time of the alleged improper treatment may be given in evidence ;49 but consulta upon an animal, testified without objec- mit to an examination by experts for tion on cross-examination to the per- the purpose of enabling them to deterformance of two other similar opera- mine the extent of the injuries. Walan tions on other animals, he may properly v. Sayre, McClelland, Civil Malpractice, be asked as to the cause of the death of 303. the other animals operated upon. Williams v. Gilman, 71 Me. 21. Baird v. Gillett, 47 N. Y. 186. But evidence that a physician received no compensation from, and made no charges against, a patient for services, introduced by the defendant in an action for malpractice, if incompetent, is harmless, and not a ground for reversal at the instance of the plaintiff; since such evidence would be favorable to his case. Jones v. Angell, 95 Ind. 376. "Carstens v. Hanselman, 61 Mich. 426, 1 Am. St. Rep. 606, 28 N. W. 159. But an injured wrist of the plaintiff, in an action for malpractice in improperly attending to it, may be examined by the defendant in the presence of the jury, where she bared it, and exhibited it to the jury, and assumed to move it for the purpose of showing its defects. Winner v. Lathrop, 67 Hun, 511, 22 N. Y. Supp. 516. Williams v. Nally, 20 Ky. L. Rep. 244, 45 S. W. 874; Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894; Quinn v. Higgins, 63 Wis. 664, 53 Am. Rep. 305, 24 N. W. 482. And evidence in an action for malpractice alleged to have caused blindness, that the treatment by a physician subsequently called was improper, is admissible; since, if the blindness was produced by his bad practice, the defendant could not be held responsible. Doyle v. New York Eye & Ear Infirmary, 80 N. Y. 631. Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90, 17 Am. St. Rep. 355, 23 N. E. 156; Fowler v. Sergeant, 1 Grant, Cas. 355. The plaintiff may be required to sub And the bones of a fractured leg may be introduced for the inspection of experts, in an action for malpractice in improperly setting it. Williams v. Nally, 20 Ky. L. Rep. 244, 45 S. W. 874. "Hewitt v. Eisenhart, 36 Neb. 794, 55 N. W. 252; Prichard v. Moore, 75 Ill. App. 553; Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564. And photographic negatives taken by the Roentgen or X-ray process, showing the shape and size of a broken bone at different times in its treatment, are competent evidence in an action for malpractice. Tish v. Welker, 5 Ohio S. & C. P. Dec. 725. Bower v. Self (Kan.) 75 Pac. 1021; Doyle v. New York Eye & Ear Infirma ry, 80 N. Y. 631. Evidence as to the condition of a patient's health at the time medical treatment began, and as to the length of time he was treated by others after defendant had ceased to attend him, is admissible in an action for malpractice, where the jury is cautioned to compensate the plaintiff only for such injury and damage as may have been caused by the negligence of the defendant. Leisenring v. LaCroix (Neb.) 94 N. W. 1009. "Williams v. Poppleton, 3 Or. 139. And where. in an action for malprac tice in attending to a patient's leg, it appears that medical gentlemen other than the attending physician had met in consultation without notice to him, it may be shown by other medical witnesses what the practice with regard to consultations was. Mertz v. Detweiler, 8 Watts & S. 376. 50 tions on other occasions cannot.5 And the acts and condition of the physician at that time with reference to being intoxicated are admissible as a part of the res gestæ,51 and so are the acts and conduct of the physician with reference to the case ;52 and the nature and properties of the medicines given may be shown.53 And evidence of exclamations accompanying pain, and indicative of physical suffering upon the part of the plaintiff, made at the time of the alleged injury, is also admissible as original testimony.54 517. Evidence; sufficiency.-The usual rule regarding a preponderance of evidence to warrant a verdict seems to apply with full force to actions for malpractice.55 A physician cannot be held liable, how Williams v. Poppleton, 3 Or. 139. "Merrill v. Pepperdine, 9 Ind. App. 416, 36 N. E. 921. "Evidence of a statement by a physician that he would guarantee a cure of his patient in three months is admissible on an issue as to his incompetency and negligence, when taken in connection with other evidence going to show the incurable nature of the patient's ailment. McDonald v. Harris, 131 Ala. 359, 31 So. 548. And a conversation between a patient and a third person, tending to show the patient's ignorance of his physician's absence from town, is admissible in an action for malpractice, in which it was alleged that the physician abandoned his patient without notice while the attention of a physician was still necessary. Barbour v. Martin, 62 Me. 536. And evidence in an action for malpractice. that the defendant falsely or improperly pretended that the defendant's wife was afflicted with a named disease, attributing his want of success to that, is proper for the consideration of the jury for the purpose of showing his ignorance of the true state of her case, but is not to be considered as enhancing the damages. Grannis v. Bran den, 5 Day, 260, 5 Am. Dec. 143. Mertz v. Detweiler, 8 Watts & S. 376. And testimony on the part of the father of the plaintiff in an action for malpractice, in whose house she lived, and who had abundant means of knowing the treatment she received, as to whether he would be likely to know of the application of any other medicines than those prescribed, is not subject to the objection that it calls for the opinion of the witness on a matter of fact. Cochran v. Miller, 13 Iowa, 129. W. 832; Hyatt v. Adams, 16 Mich. 180; This is the rule, though some of them were made in the absence of the physician. Hyatt v. Adams, 16 Mich. 180. And the fact that a physician attending a patient with a broken leg measured the limb, and said that it was all right, in the presence of the patient, who made no objection to the statement, is properly admitted in evidence in an action for malpractice in improperly caring for the limb, as a part of the res gesta and as a verbal statement in the presence of, and acquiesced in by, the opposite party. Piles v. Hughes, 10 Iowa, 579. But the opinion of the plaintiff in an action for malpractice, alleging improper treatment of his injured leg, that the bandages were too tight, is not admissible. Mayo v. Wright, 63 Mich. 32, 29 N. W. 832. 55 See Yaggle v. Allen, 24 App. Div. 594, 48 N. Y. Supp. 827; Getchell v. Lindley, 24 Minn. 265; Langford v. Jones, 18 Or. 307, 22 Pac. 1064; Gores v. Graff, 77 Wis. 174, 46 N. W. 48. Conflicting evidence as to the result of an operation performed by a physician will not warrant a verdict against him in an action for manslaughter, in the absence of evidence of any want of skill, knowledge, or care upon his part, where the evidence for the defense was positive and uncontradicted that the operation was a proper one, and was performed in a skilful and careful manner, and that it was impossible that it should have caused the injury complained of. Feeney v. Spalding, 89 Me. 111, 35 Atl. 1027. And the mere fact that the credibility "Mayo v. Wright, 63 Mich. 32, 29 N. of a witness against the plaintiff in an |