The daily morning journal and courier., 1894-07-25
ApRssUMprIOy OFSKIIL.
Points In the Supreme Court Decision
 styles ss. Tyler.

Points in the Supreme Court Decision in Styles ss. Tyler,
 Among the latest decisions rendered by the supreme court Of errors was one in which two novel points were decided. It will be remembered that suit was brought in the common pleas court by Dr. Elmer L. Styles. a practicing surgeon and physician in New Britain. against one George Tyler to recover for professional services in setting and at tending the broken leg of Tylers minor child. In the court below the defense was set up that the treatment Of the child was unskillful. and that no bene- flt resulted from it. Judge Calhoun rendered judgment for the defendant upon this claim. and filed certain "reas- ons of decision." from which it became apparent that the court placed the bur den of proving that he was not negli- gent upon the physician attending the child.
 The supreme court finds from the lan- guage of these reasons of decision that the court below held that the physician must prove that he was not negligent. The question has never been decided in Connecticut as to where the burden of proof Is in such cases whether on the physician or on the party alleging the negligence. and the supreme court de- ciding the question for the first time held that where a physician Is employ ed in that capacity. that the presump- ton of law is that he used due skill and care, and that his services were valua- ble, and that the party claiming that the physician was negligent or unskill- full, must prove the fact afiirmatively. The supreme court holds that the court below applied different principle to the case in question, and practically compelled the physician to prove that he used due skill and care. and that his services were valuable.
 It Is singular that this question should not have risen before. Under this decision a physician suing for his services simply has to show at the out set that he is physician and surgeon, and was employed as such, and that his charges are reasonable. The defend- ant then, if he charges negligence upon the practitioner, would have to go for ward and prove 1t by fair preponder- ance of evidence. The physician could then reply by any rebuttal to any evil dence so given.
 Another important matter decided by the court in this case is that the law of 1885, allowing appeals on questions of fact, Is constitutional. In 1893 the gen. eral assembly passed an act allowing an appeal to be taken to the supreme court on questions of fact, and provid- ed for a certification of evidence given in the case to the supreme court. That court held. however. that the inten- tion of the legislature was to simply ex- tend remedy already provided by way of appeal on questions of law, and the supreme court, having the record be- fore 1t on which question of law arose, might also have the testimony upon which the record was based. ,r
 A majority of the court hold that if the act were to be interpreted as giving to suitors the right to appeal questions of fact, and so make the supreme court tryers of fact, that the, legislature would be incompetent to confer upon that tribunal any such powers. The whole case has been sent back to the court of common pleas and new trial ordered, and the plaintiff starts it over again in his case with the strong legal presump- tion in his favor above set forth.