and totally omits all reference to the point of law upon which the plaintiff was insisting. The instruction, in form, is not hypothetical, but the hypothesis, if framed, could only have included a fact which seems to have been taken for granted, and may be considered as a concession upon all hands, viz: that the defendant did actually enter upon the treatment of the plaintiff's fractured arm. If the instruction had said that, if the jury found the defendant entered upon the treatment of the plaintiff's fractured arm, then the defendant was bound to use all reasonable care, etc., and the plaintiff had a right to rely on instructions and directions, if any, given by the defendant, the proposition would have been correct, and the instruction unobjectionable in form.

I think there was no error in refusing the plaintiff's third instruction, because it fails to distinguish between the expenses and damages resulting from the original fracture and those consequent upon malpractice: Field on Damages, sec. 609; Leighton v. Sargent, 31 N. H. 119; 64 Am. Dec. 323.

168 Before closing, it is perhaps necessary to define with more accuracy than we have yet done the implied contract between physician and patient, the violation of which on the part of the former constitutes malpractice.

When a physician is employed to attend upon a sick person, his employment continues while the sickness lasts, and the relation of physician and patient continues, unless it is put an end to by the assent of the parties, or is revoked by the express dismissal of the physician. The physician is bound. to bestow such reasonable, ordinary care, skill, and diligence as physicians and surgeons in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. Time and locality are to be taken into the account, and the physician is bound to exercise the average degree of skill possessed by the profession in such localities. In the absence of special agreement, his engagement is to attend the case as long as it requires attention, unless he gives notice of his intention to discontinue his visits, or is dismissed by the patient, and he is bound to exercise reasonable and ordinary care and skill in determining when his attendance should cease. But his engagement is not to cure the patient, nor does he insure that his treatment will be successful. The mere failure to effect a cure does not even raise a presumption of a want of proper care, skill, and diligence. It is the duty of the patient to co-operate with the physician,

and to conform to his prescriptions and directions, and if he neglect to do so he cannot hold the physician responsible for the consequences of his own neglect. On the other hand, he has a right to rely upon the instructions and directions of his physician, and incurs no liability by doing so: McClelland on Civil Malpractice, 18, 19, 109; 14 Am. & Eng. Ency. of Law, 80, 82; 15 Am. & Eng. Ency. of Law, 439.

A feature in the case, yet to be noticed, is the fact that the plaintiff introduced a justice of the peace, who proved substantially, that for his services in this behalf the defendant recovered a judgment against the plaintiff. The docket or record, if it may be called such, of said justice, was before the jury, but seems to have been omitted intentionally from the record here. It is claimed in this court 169 by counsel for defendant in error that this judgment against the plaintiff below estopped him from prosecuting his cross-action for malpractice. As the case will have to go back to the circuit court, we deem it our duty to decide this interesting question.

As a general rule, estoppel by a former judgment has to be introduced by a special plea of res adjudicata. No such plea was offered by the defendant in this case; but, on the other hand, the plaintiff himself introduced this record of the magistrate's court; and, if we had it before us, we should be able to decide whether the plaintiff had proved himself out of court-a privilege which he always has, and though his counsel, not unfrequently, though unwittingly, exercises.

The question involved is this: In a suit for malpractice, is the plaintiff estopped by a judgment in an action against him, brought by the physician, to recover compensation for services rendered in the same case. Upon this subject the decisions are much divided. In New York, in the leading case of Gates v. Preston, 41 N. Y. 113, and in Bellinger v. Craigue, 31 Barb. 534, the affirmative was held, and such has been the uniform current of decision in that state: Blair v. Bartlett, 75 N. Y. 150; 31 Am. Rep. 455; Dunham v. Bower, 77 N. Y. 76; 33 Am. Rep. 570; New Jersey, Arkansas, and perhaps other states, have followed the New York decision: Ely v. Wilbur, 49 N. J. L. 685; 60 Am. Rep. 668; Dale v. Donaldson Lumber Co., 48 Ark. 188; 3 Am. St. Rep. 224. Upon the other hand, in Indiana, Ohio, Wisconsin, and perhaps other states, a contrary doctrine has been held: Goble v. Dillon, 86 Ind. 327; 44 Am. Rep. 308; Sykes v. Bonner, 1 Cin. Rep. 464; Ressequie v. Byers, 52 Wis. 650; 38 Am. Rep. 775.

The dividing line between the New York decisions and those of the states which have taken a contrary view is upon the fact whether the judgment obtained by the physician was a judgment by default; for all the cases concede that if the patient has appeared, and defended the action on the ground of neglect or want of skill, the judgment against him is an estoppel, and he cannot bring his cross-action for malpractice. But when the judgment is by default, and no defense whatever has been made, the majority of the cases would seem to hold that the question of malpractice 170 or diligence and skill was not involved, and that the patient has not impaired his right of action by neglecting or refusing to appear to the suit against him.

Finding this contrariety of opinion in the courts of last resort, we naturally recur to the text-writers to ascertain how the scale ought to be adjusted, and what held to be the better opinion. But, instead of resolving our doubts, we find the conflict renewed with an energy almost acrimonious in its vigor. We find that Mr. Bigelow (1886) dissents from the New York decisions upon the ground that the right to sue for malpractice was a cross-demand, and the defendant might elect to litigate it in the first suit, but if he declined to do so it was reserved to him for future action. On page 175 of Bigelow on Estoppel he thus comments upon the New York decisions:

"Such an argument, however, like the view taken by the courts of New York, that the former judgment has shown that the services or property, according to the case, were of value, while the second suit declares, or may declare, the same to be worthless, is only plausible; for a judgment on default is not equivalent in principle or on authority, to a judgment on an issue fought out. Judgment on default is good for the pri mary purpose of a judgment for plaintiff. It gives him the right to have the sum adjudged collected. But it has not the full effect of a res judicata, because in reality it has been ex parte. There is the best authority for saying that judgment by default does not conclude defenses in confession and avoidance in a different action. And if the view here presented, that the cross-demand is an independent cause of action, is correct, it cannot matter that the former judgment was rendered upon an issue contested, if that issue did not embrace the cross-demand."

Upon the other hand, Mr. Herman (1886) takes the oppo

site view, and denies that the action for malpractice can be, in strict legal sense, a counterclaim, and hence it cannot, he argues, in the absence of statutory regulations, be the subject. of an independent action: 1 Herman on Estoppel, sec. 235. In section 236 he states his argument, in earnest and vigorous language, as follows:

171 "Courts maintaining a doctrine contrary to that of Gates v. Preston, 41 N. Y. 113, do so, except where otherwise compelled by statute, by violating every principle on which the doctrine of res adjudicata is founded. Without citing again the long and unbroken line of cases which will be found in another portion of this work, we may state the following as the substance of the decisions: 1. The maxim, interest reipublicæ ut sit finis litium, has never yet been questioned; and, 2. Whenever, a matter is adjudicated, such judgment decides every matter which pertains to that cause of action, or the defense set up, or which is involved in the measure of relief to which the cause of action or defense entitles the party, even though such matter may not be set forth in the pleadings so as to admit proof and call for an actual decision upon it. This principle prevails throughout the civilized world, with but few exceptions, and includes, not only what actually was determined, but also extends to every other matter which, under the issues, the parties might have litigated in the case-to everything within the knowledge of the parties which might have been set up as a ground of relief or defense. This principle is but the repeated reiteration of the maxim above cited, which is so deeply fixed in the law of fundamentals. This maintenance of this principle is one of the necessities in all civilized communities, and it has been handed down, from generation to generation, without ever being questioned, until the present time; and we doubt whether there ever can be a so well-established and universally sustained principle of law. A court that cannot doubt, distinguish, or make an exception to a well-settled rule of law is among the impossibilities of this age. The case of Gates v. Preston, 41 N. Y. 113, follows the universal rule above cited. In the early case of Marriot v. Hampton, 7 Term Rep. 269, it was held that where, in an action, a party had a complete defense, as payment, and failed to maintain it, he was concluded by that judgment, and, although he had the written receipt of the plaintiff, yet he was compelled to pay the same money twice. This principle

has never been questioned. So a party having a defense like that of usury, limitation, and coverture, a statutory right of exemption, or any defense which will defeat a plaintiff's claim, and fails to 172 set up such defense, cannot thereafter relitigate matter which would have defeated the plaintiff's action in another cause between the same parties by simply reversing their positions as parties."

A later writer (1891) as umpire in the dispute between Herman and Bigelow, decides against the New York view, and supports the western cases as having the better reason: 2 Black on Judgments, sec. 769.

"Thus, where a physician sued a party for services rendered by him in treating a broken limb, and the defendant appeared and pleaded general denial, it was held that the fact of performance of plaintiff's contract was impliedly averred and denied by the pleadings, and that a judgment in favor of the plaintiff for the services as claimed necessarily included the fact of due performance by the plaintiff, and that the question of malpractice was involved in the issue, and concluded by the judgment, so that the patient could not thereafter sue upon that cause of action. And a similar rule has been applied in Massachusetts, though the services were of an entirely different nature, where defense was taken to the first action on the ground of negligence, but without seeking to recoup the damages. But these cases have been vigorously criticised and resolutely denied in decisions rendered in other states, which seem to us to be much better supported by legal reason and the best considerations of convenience and justice. This may be illustrated by the judgment in the case of Ressequie v. Byers, 52 Wis. 650, 38 Am. Rep. 775, where, after an action was commenced for malpractice in attendance upon a certain case, defendant instituted a suit before a justice of the peace for the value of his services for such attendance, in which suit the defendant interposed a general denial as to the value of the services, but afterwards failed to appear at the trial, and judgment was given for the physician for the amount he claimed. It was held that such judgment was no defense to the action for malpractice, and a supplementary answer setting it up as a plea in bar was demurrable."

Amidst this great contrariety of opinion, we must draw our conclusions in conformity with the spirit of our own decisions, and according to the dictates of a sound adherence 173 to general principles. No court has insisted more strenuously