#### GALLAHER AND WIFE v. THOMPSON.

Implied contract of attorneys and physicians — don’t undertake for judgment on a case, or cure —suit for injury done to wife — -joinder.

Where one is employed to do an act depending upon the skill of the operator alone, the law implies from the employment an engagement to bring to the work the requisite skill to accomplish it.

But if the act to be done depend upon the skill of the operator and of other causes over which he has no control, the law only implies an engagement to employ the usual skill as a means of accomplishing the end, not that the end shall be attained; as a lawyer, by engaging, undertakes to conduct the business in the usual way, not for the judgment of the-court; so a ohysician engages the use of the common skill of his profession in treating the patient, not to'cure, and is only liable if he fail to treat the patient skilfully.

If the injury complained of be to the absolute rights of person, as a battery of the wife, the cause of action survives to the wife, and they must join in the suit.

Case against the defendant as surgeon and physician. The declaration ./Contained three counts: 1, On the defendant’s undertaking *467skilfully to-set Mrs. Gallaher’s leg, which had been broken; breach, that he so unskilfully set the leg, that it is of no use. 2. On his promise to attend Mrs. Gallaher, and skilfully set and *cure*the broken leg; breach, that the work was done so carelessly, that the leg is ruined. 3. On a contract to attend, take care of, and-cure the leg, in a skilful manner; breach, that he so carelessly performed that the leg is useless. Plea not guilty.

Evidence was introduced to prove that the defendant was a surgeon; that he was called by Gallaher to his wife in the usual way, and attended and reduced the limb, but in the cure the ankle joint became anchilose, and the foot turned in, so that in walking, the weight of the body fell on the outer side of the foot, near the root of the little toe. Much evidence was also given of the kind of treatment bestowed upon the limb, some condemning and some approving, when the plaintiff rested.

*W. B. Hubbard,*for the defendant,

moved for a non suit:

1. Because there is no proof of any engagement by the. husband and wife, as in the first count.

2. Because there is no proof of any contract to cure, and the law does not imply such promise from the retainer; *Esp. Ev.*257; 2 *Com. on Cont.*337.

*8. W. Culbertson,*contra..

Wright, J.

The second and third counts of the declaration áre upon an express undertaking *to cure.*There is no evidence of such an undertaking, and the law does not imply one to that extent from ,the mere employment of a surgeon to attend a patient. When'the act to be done depends upon the skill of the operator alone, the law will imply an engagement to use that skill, and to produce the desired result, from the employment of one professing it, and holding himself out to the world as having it. Where the result desired, as the cure in the case before us, depends both upon skill in the use of means, and the influence of other causes, the law raises no such implied engagement; it regards the undertaking to be only for the use of proper means. The retainer of a lawyer obliges him to the right conduct of the suit, but not for the judgment of the court, for that is beyond his control. The retainer of a physician obliges him to the employment of ordinary medical skill in the treatment of the patient; the cure is not with him, but is dependent upon the constitution of the patient, and the influence of causes beyond the control of the physician. The husbandman employed to cultivate a field, is not supposed to engage for the production of an average crop. He may plough and sow, plant and water, but the increase *468is not from him. A smith, engaging to shoe a horse, impliedly engages skill to put the shoe in the proper place, and to avoid the quick in his fastening, because that is a mere physical operation, the end sought for depends upon nothing but skill. The surgeon,called to a patient, with a broken or dislocated limb, and operating, impliedly engages the ordinary skill of the profession in adjusting the fractured bone,' or reducing the dislocation, and the subsequent treatment of the patient while he attends; these depend on himself. He is not supposed to engage to cure or to insure a recovery, because a cure depends not upon him. This point has been several times before the court, and has been always so decided. As to the second and third counts, therefore, there is at present a want of evidence to sustain them. '

Culbertson, for the plaintiff,

admitted he could only recover on the first count, for the unskilful setting of the bone, and submitted without argument to the jury.

The first count is upon an undertaking with both the plaintiffs; the proof is of an engagement by the husband; this it is urged is proof of a contract different from the one declared on. Where the injury is to the absolute rights of the person, as batteries, injuries to health, reputation, liberty, are inflicted upon a married woman, and the suit seeks compensation for the injury to her, or for her personal suffering, the husband and wife must be joined in the suit; for, in case of his death, the cause of action survives to her, and *she may*prosecute the suit to judgment and execution; 1 *Ch. PL*46, 61; 2 *Kent Com.*151. The difficulty suggested is not perceived; but it is one open on the record, and may be raised hereafter, if further examination is desired.

It is further objected, that the retainer of the surgeon does not, in law, *suppose*an undertaking to reduce or set the bone skilfully, but that such undertaking must be expressly proved. The setting or putting in place the bones, is a mere physical operation, and we think the retainer and the visits and acts of the surgeon do lay a foundation in law to suppose an undertaking to reduce the leg, and treat the patient skilfully. There is evidence, on the subject of the treatment, which is for the jury. The question, whether the skilful setting, and judicious treatment, should at all events effect a perfect cure, is a distinct one, not necessary now to decide. The motion is overruled.

Evidence was then offered bn both sides, as to the manner of treating and dressing the limb, and of surgeons as to-what was the usual and customary mode in the profession, &c. When the evidence was closed—

*469Wright, J.

The question turns solely on the credit due to the physicians who have testified as to the practice. If they are skilful themselves and worthy of credit, your verdict should be for the defendant, for .they all sustain the practice; if unworthy of credit, or unskilful, and the other proof shows the practice careless and unskilful, you should give the plaintiff such damages as will compensate for the injury the wife has received.

Verdict and judgment for the defendant.