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Ritchie v. Waller.

of the river, they did not cease to be engaged in the master's business. Even if the motive was some purpose of their own, they were still about their usual employment, although pursuing it in a way and manner to subserve also such purpose. When they took this passenger to the tow, and in so doing deviated from the usual route and stopped the boat mid river for that reason, they were still engaged in the master's business of transporting freight and passengers across the river. They were doing it in a mode and manner perhaps not authorized, and possibly in some sense to effect a purpose of their own, but none the less acting within the scope of their employment and engaged in the master's business."

In

Some of the above remarks are quite applicable to the case at bar. In making the detour Blackwell was still in charge of his master's team, though on a roundabout way home, carting manure to his master's farm. That was his main purpose and object throughout the entire transaction. the language of the case last cited, even if the motive was some purpose of his own, he was still about his usual employment, although pursuing it in a way and manner to subserve such purpose also.

Applying these principles to the case at bar, the question for the court below was whether or not Blackwell, for the time being, totally departed from the master's business and set out upon a separate journey and business of his own. If the rule of law were that any deviation by the servant “to carry some business of his own into effect," was of itself such a departure, the above question would be one of law. But this, as we have seen, is not the rule of law. To decide the question in a case like the present, the trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it.

Without spending more time upon this point, we think the above question is one of fact in the ordinary sense, and

Ritchie v. Waller.

that the case at bar clearly falls within the class of cases where such question is strictly one of faet to be decided by the trier. As such we think the court below decided it. It is true that upon our interpretation of the finding the court below has not found formally and in terms that Blackwell during the time of the detour was in the execution of his master's business, and perhaps such interpretation does that court an injustice; but, however this may be, the court in deciding as it did necessarily found that Blackwell continued in the execution of the master's business all the time, and this is enough without so finding in terms. This court will not review such a finding upon the errors assigned.

If, however, we should hold the question raised upon this point to be one of law, we have no hesitation in saying that the court below reached the correct conclusion on the facts found. In either point of view then there is no error.

The remaining question relates to the allowance of the amendment. The complaint alleged that the damage was done by the defendant, while the proof was that it was done by his servant. After the plaintiff rested, the defendant moved for a nonsuit on the ground of this variance, and the court permitted the plaintiff to amend his complaint in this respect. According to the record, the only objection made by the defendant was a general one to the allowance of the amendment, and the error assigned upon this point seems to relate wholly to the allowance of the amendment. Under the statute, § 1023, the court clearly had the discretionary power to allow the amendment, and the power for aught that we can see was very properly exercised. Santo v. Maynard, 57 Conn., 157.

The real grievance of the defendant, however, upon this part of the case, as stated upon his brief, seems to be that he was not allowed time to demur to the amended complaint. Now if we admit for argument's sake that the amended complaint was demurrable, there are two sufficient answers to this claim of the defendant. The first is that it is not fairly included in the assignments of error, and the second is that it nowhere appears that the defendant asked or offered

Force v. Gregory.

to demur, or that his right to do so was questioned or de

nied by the court below.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

MABEL FORCE v. EDWARD P. GREGORY.

New Haven & Fairfield Cos., April T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE, FENN and BALDWIN, JS.

In determining what constitutes the reasonable and ordinary skill and diligence which it is the duty of a physician to possess and exercise, the test is the degree of skill and diligence which other physicians in the same general neighborhood and in the same general line of practice, ordinarily have and practice.

A homeopathic physician gave to a case the treatment prescribed by his school of practice, and was charged with negligence and malpractice. Held that the question was not to be determined by applying to the case the rules and practice of the allopathic school, but those of the school to which he belonged and within which he practiced. Where there were numerous medical witnesses of the allopathic school who condemned his mode of treatment, and the court charged the jury that "the defendant's negligence or want of skill must be determined by all the evidence, and that they must weigh the testimony, having regard to any bias or prejudice that might influence the testimony of those who belonged to a different school," it was held that the charge did not make it sufficiently clear to the jury that no question as to the comparative merits of the two modes of practice was to be considered by them, and that the defendant's treatment of the case was to be judged only by the rules and practice of his own school.

And held not to affect the case that the plaintiff was an infant, incapable of contracting; nor that the defendant was called in by her father.

[Argued May 3d-decided May 22d, 1893.]

ACTION to recover damages for malpractice by the defendant as a physician, the plaintiff being a minor and suing by her next friend; brought to the District Court of Waterbury and tried to the jury, upon a general denial, before Bradstreet, J. Verdict for the plaintiff, and appeal by the defend

Force v. Gregory.

ant for error in the rulings and charge of the court. case is fully stated in the opinion.

The

J. W. Webster, for the appellant, cited-2 Shearm. & Redf. on. Negligence, § 609; 3 Wharton & Stillson's Med. Jurisprudence, § 766; Rogers on Expert Testimony, § 64; Sumner v. Utley, 7 Conn., 257, 264; Smith v. Hyde, 19 Verm., 54; Patten v. Wiggin, 51 Maine, 594, 597; McCandless v. Mc Wha, 22 Penn. St., 261; Corsi v. Maretzek, 4 E. D. Smith, 1; Bowman v. Woods, 1 Greene, (Iowa,) '441.

C. G. Root, for the appellees, cited-1 Swift's Dig., 563; 1 Shearm. & Redf. on Negligence, § 116, and note 2; 2 id., §§ 606, 607; Landon v. Humphrey, 9 Conn., 209, 216; Thomas v. Winchester, 6 N. York., 397; Carpenter v. Blake, 75 id., 12; Scudder v. Crossan, 43 Ind., 343; Leighton v. Sargent, 27 N. Hamp., 460; Norton v. Sewall, 106 Mass., 143.

FENN, J. This is an action by a minor child to recover damages against the defendant, who is a homeopathic physician, for alleged malpractice in treating her for ophthalmia. The jury returned a verdict for the plaintiff, and from the judgment rendered thereon the defendant appealed to this

court.

The only questions presented which are necessary to consider relate to the charge of the court to the jury. Evidence was offered to show that the defendant in treating the plaintiff adopted the remedies prescribed by the homeopathic practitioners. It appeared that the allopathic school of medicine would treat such a case differently, and in the latter way the plaintiff claimed that she ought to have been treated. The defendant asked the court to charge the jury-" that treatment by a physician of one particular school is to be tested by the general doctrines of his school, and not by those of other schools." The court refused to so charge, and charged as follows:-"In regard to that matter I will say that the defendant's negligence or want of skill in the treatment of the plaintiff's eye must be determined by all of the

Force v. Gregory.

evidence in the case, and if the defendant adopted the treatment laid down by one particular school of medicine, and the medical testimony offered by the plaintiff related to treatment prescribed by a different school, you will weigh the testimony, having regard to any bias or prejudice that might influence the testimony of those who belonged to a different school from that of the defendant. You should also take into consideration the training and education of the defendant for his profession, the experience which he has had, and the degree of skill with which he handled the case, all bearing upon the question whether the defendant used ordinary care and skill in the treatment of the plaintiff." The defendant claims that the court erred, both in refusing to charge as requested and in charging as it did.

In the absence of special contract physicians and surgeons, by holding themselves out to the world as such, impliedly contract that they possess the reasonable and ordinary qualifications of their profession, and are under a duty to exercise reasonable and ordinary care, skill and diligence. Landon v. Humphrey, 9 Conn., 209; Kendall v. Brown, 74 Ill., 232; Small v. Howard, 128 Mass., 131; Ballou v. Prescott, 64 Maine, 305; Leighton v. Sargent, 31 N. Hamp., 119; Ely v. Wilbur, 49 N. Jer. Law, 685; Potter v. Warner, 91 Penn. St., 362; Hathorn v. Richmond, 48 Verm., 557; Gates v. Fleischer, 67 Wis., 504. In determining what constitutes reasonable and ordinary care, skill and diligence, the test is that which physicians and surgeons in the same general neighborhood and in the same general line of practice ordinarily have and exercise in like cases. Hathorn v. Richmond, supra; Utley v. Burns, 70 Ill., 162; Almond v. Nugent, 34 Iowa, 300; Small v. Howard, (supra,) 35 Am. Rep., 363; Leighton V. Sargent, supra. In addition to this, however, regard must be had to the advanced state of the profession at the time of the treatment. Small v. Howard, supra; Gates v. Fleischer, Supra Smothers v. Hanks, 34 Iowa, 286; Nelson v. Harrington, 72 Wis. 591.

Premising these general principles, we come to the precise question presented by the appeal: Ought the defendant's

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