organic act, and consequently void and never, in force in the territory of Oklahoma, it did not extend to or remain in force in the state of Oklahoma after the admission of the territory into the Union as a part thereof, although such act would not have been repugnant to the provisions of the Constitution of the state. In the case of Dullam v. Willson, 53 Mich. 392, 19 N. W. 114, 51 Am. Rep. 128, the court said: "The information alleges that the removal was made in pursuance of the statute, and from the fact that the executive order removing the respondent follows the language of the statute, instead of the Constitution, and fills the vacancy until the next session of the Legislature, instead of the unexpired term, I am convinced that the action was had under the statute. But if the power exists under the Constitution, it is im-. material that a misrecital is made as to its source, and would not invalidate the exercise of the power. I am satisfied that the statute furnishes no valid basis for the power of removal, because repugnant to the Constitution of 1835, which vested no judicial power in the Governor. The statute, being void, was not validated by the amendment of 1862, and the question depends solely upon the constitutional amendment of 1862.” See, also, Seneca Mining Co. v. Secretary of State, 82 Mich. 573, 47 N. W. 25, 9 L. R. A. 770; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309; In re Rahrer (C. C.) 43 Fed. 556, 10 L. R. A. 444; Wilkerson v. Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; In re Spickler (C. C.) 43 Fed. 653, 10 L. R. A. 446; In re Van Vliet (C. C.) 43 Fed. 761, 10 L. R. A. 451. When we consider the eminent authorities supporting the Christy Case, to wit, the highest courts of Michigan, at the head of which was Chief Justice Cooley, New Jersey, New York, West Virginia, Indiana, Pennsylvania, and other states, we do not feel that under the circumstances we would be justifiable in overruling the same. 2. APPEAL and Error (§ 1176*)—Reversal. Where in such a case it is apparent from sustained, on reversal the court will not remand the record that the claim of plaintiff cannot be for new trial, but will direct a dismissal. [Ed. Note.-For other cases, see Appeal_and Error, Cent. Dig. § 4595; Dec. Dig. § 1176.*] (Syllabus by the Court.) J. C. Strang, Judge. Action by James B. Elder against J. D. Kernodle. Judgment for plaintiff, and defendant brought error to the Supreme Court of the territory. Case transferred to the Supreme Court of the state, and, on death of plaintiff, the action was revived in the name of Sarah M. Elder, administratrix. Remanded, with instructions. Cotteral & Horner, for plaintiff in error. Lowry & Lowry, for defendant in error. DUNN, J. This action was begun by James B. Elder filing his petition in the probate court of Logan county, territory of Oklahoma, on June 5, 1905, wherein he alleged that on or about the 1st of February, 1905, he fractured the bone of his right hip joint, and that the defendant, holding himself out as a physician and surgeon, and being in the general practice of medicine for hire in Logan county, was employed to set such fractured bone and to attend his said injury. The defendant was charged with having negligently and unskillfully diagnosed the difficulty, in that he dressed and bandaged plaintiff's limb as if the break were between the knee and the hip, and as though the fracture were in the vicinity of the knee, and that by reason of this error on his part the fracture itself was left wholly unattended and uncared for. That this was careless, negligent, and unskillful on the part of defendant, and that by reason thereof plaintiff suffered great pain, and that the broken bone has knit together improperly in such a manner as to leave plaintiff crippled and lame, and to render him a permanent cripple for life. Damages were prayed for in the amount of $1,000. To this petition defendant answered by filing a general denial, and on the trial thereof before a jury a verdict for damages in the amount of $500 was returned. Judgment was rendered (Supreme Court of Oklahoma. May 12, 1909.) thereon, motion for new trial filed and over1. PHYSICIANS AND SURGEONS (§ 14*)-Ao- | ruled, and the cause was taken to the SuTION FOR MALPRACTICE EVIDENCE. In an action against a physician for mal-preme Court of the territory of Oklahoma by practice in the setting and treatment of a frac- petition in error and case-made, and is now tured limb, where there is no guaranty of cure before us for our consideration by virtue of or contract for extraordinary skill or care, and our succession to that court, under the terms where the evidence fails to show that the results are not such as usually and ordinarily reof the enabling act and schedule to the sult in such cases where treated by an ordinarily Constitution. After the argument and subskillful physician using ordinary care, then there mission of this cause, which stood on the is a failure of proof, and plaintiff is not entitled docket of this court as J. D. Kernodle v. James B. Elder, the death of the defendant in error was suggested, and the action has been revived in the name of J. D. Kernodle The judgment of the lower court is, accordingly, reversed and remanded, with instructions to proceed in accordance with this opinion. All the Justices concur. (23 Okl. 743) to recover. KERNODLE v. ELDER. [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. §§ 21-30; Dec. Dig. § 14.*] against Sarah M. Elder, administratrix of require the most thorough education or the the estate of James B. Elder, deceased. A motion to dismiss was filed on the grounds that the case-made was not properly a part of the records of this court, and that the motion for new trial was overruled at the request of plaintiff in error, and also the petition in error was not filed within one year. This motion was overruled on the 25th day of June, 1907, by our predecessor, and the ruling will not be reviewed here. Plaintiff in error relies upon one proposition to secure reversal, which is, "that the verdict and judgment are not sustained by sufficient evidence.” To the issue thus raised, both parties have filed very full briefs, and the court has had the benefit of an able oral argument on the part of counsel, all of which have had our best attention and consideration. The record of the trial as presented here is unusually free of irrelevant or immaterial matter. The issue before the court and the jury was closely adhered to by counsel, and the instructions of the court are exceptionally lucid and comprehensive. All of these things tend to render it easier for us to determine the precise proof in the case, and to ascertain and determine whether or not the verdict rendered was in fact legally sustained by the evidence. Let us first notice the law governing the responsibility of physicians and surgeons in cases of this character. The general rule is quoted in volume 1 of Witthaus & Becker's Medical Jurisprudence, Forensic Medicine and Toxicology, at page 30, wherein the authors of this work adopt the rule as laid down in Shearman & Redfield's work on the Law of Negligence, pars. 433-435 (paragraphs 605-607, inclusive [4th Ed.] Shearman & Redfield on Negligence): "Although a physician or surgeon may doubtless by express contract undertake to perform a cure absolutely, the law will not imply such a contract from the mere employment of a physician. A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected, it must be expressly stipulated for. * * * The general rule, therefore, is that a medical man who attends for a fee is liable for such want of ordinary care, diligence, or skill on his part as leads to the injury of his patient. To render him liable, it is not enough that there has been a less degree of skill than some other medical man might have shown, or a less degree of care than even himself might have bestowed; nor is it enough that he himself acknowledged some degree of want of care; there must have been a want of competent and ordinary result. * * But a professed physician or surgeon is bound to use not only such skill as he has, but to have a reasonable degree of skill. The law will not countenance quackery; and, although the law does not largest experience, it does require that an uneducated, ignorant man shall not, under the pretense of being a well-qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations." The rule as adopted by the Supreme Court of Oklahoma Territory is announced in the case of Champion v. Kieth, 17 Okl. 204, 87 Pac. 845, wherein, on the authority of numerous cases cited, Mr. Justice Pancoast, in a well-considered opinion, says of the practicing physician: "He is never considered as warranting a cure, unless under a special contract for that purpose. His contract, as implied by law, is that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes; and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not responsible for damages for want of success, unless it is shown to be the result of want of ordinary skill and learning, such as ordinarily possessed by others of his profession, or for want of ordinary care and attention. He is not presumed to engage for extraordinary skill or for extraordinary diligence or care, nor can he be made responsible in damages for errors in judgment, or mere mistake in matters of reasonable doubt or uncertainty." In order for plaintiff to recover in this case, it is absolutely essential that two conditions be shown to exist: First, it must appear from the evidence that the plaintiff sustained and suffered legal detriment or damage; and, second, such detriment or damage may not be referable solely to the accident with which he met, but it must be shown on his part that considering the accident which he suffered, and his employment of a physician, still he is left in a condition worse than was his right to demand and expect, if his physician was ordinarily skillful and gave him the proper care. In the case at bar plaintiff complains of two things as constituting his detriment or damage: First, that his fractured limb was from an inch to an inch and one-half shorter than it had been; second, that the fractured and injured part was still painful, and that it was necessary, in order to use it, to call to his assistance a crutch or cane. Of course, if plaintiff's limb within a proper time had been restored in the treatment secured to a perfect limb, as it was prior to the time when broken, he could not recover from the physician who treated him, notwithstanding lack of skill shown or negligent care bestowed. So, in our judgment, it would follow if in the consensus of opinion of men schooled and learned in the science of surgery, well acquainted with the facts controlling and surrounding, and results attend ing, such an accident as this, the limb, after treatment, if no unnecessary pain was occasioned or time consumed, was in as good a condition as an ordinarily skillful physician, using ordinary care, could in the usual and expected course of events produce, then the plaintiff has failed to show that he has suffered such damage or detriment as the law will compensate him for; for while it may not be physically and actually perfect, it is in that condition in which the limitations of human skill leaves a limb, fractured as it was. This being true, the plaintiff has not suffered legal damage. He is not damaged. Getchel v. Hill, 21 Minn. 464; Feeney v. Spalding, 89 Me. 111, 35 Atl. 1027; Stern v. Lanng, 106 La. 738, 31 South. 303; Hesse v. Knippel, Mich. N. P. (Brown) 109; Tomer v. Aiken et al., 126 Iowa, 114, 101 N. W. 769; Craig v. Chambers et ux., 17 Ohio St. 254; Ewing et al. v. Goode (C. C.) 78 Fed. 442. On this proposition the Supreme Court of Ohio, in the case of Craig v. Chambers, supra, held, in the syllabus, that: "The implied liability of a surgeon, retained to treat a case professionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care, or diligence in the execution of his employment. And, in an action against the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence, or want of due skill in the defendant, will not be entitled to recover nominal damages." Should it be shown, however, by the evidence, that the limb which plaintiff had was not such a limb as a physician of ordinary skill and using ordinary care and diligence should have left him with, after treating it, then the burden is upon plaintiff, in order to sustain the verdict in this case, to show by the evidence that this result was brought about through lack of skill on the part of the physician, or through some wrongful or negligent act of omission or commission on his part. Neither of these conditions should be supported merely by theory, conjecture, or inference, but they should be based upon tangible, substantial evidence which the court and jury may grasp and understand. A physician employed in a case such as this, it should be remembered, as was said by Justice Upton (Williams v. Poppleton, 3 Or. 139), "is obliged by his calling constantly to enter the abode of others, and frequently to undertake difficult cases, and to perform critical operations in the presence of those who are ignorant and credulous. He is liable to have his acts misjudged, his motives suspected, and the truth colored or distorted even where there are no dishonest intentions on the part of his accusers. And, from the very nature of his duty, he is constantly liable to be call In the case last cited, Ewing et al. v. Goode, Taft, Circuit Judge, said: "It is well settled that in such an employment the implied agreement of the physician or surgeon is that no injurious consequences shall result from want of proper skill, care, or diligence on his part in the execution of his employment. If there is no injury caused by lack of skill or care, then there is no breach of the physician's obligation, and there can be no recovery. Craig v. Chambers, 17 Ohio St. 253, 260. Mere lack of skill, or negligence, not causing injury, gives no right of action, and no right to recover even nominal damages. This was the exact point decided in the case just cited. In Hancke v. Hooper, 7 Car. & P. 81, Tindal, C. J., said: 'A surgeon is responsible for an injury done to a patient through the want of proper skill in his apprentice; but, in an action against him, the plaintiff must show that the injury was procured by such want of skill, and it is not to be inferred.' Before the plaintiff can recov-ed upon to perform the most critical operaer, she must show by affirmative evidence: tions in the presence of persons united in inFirst, that defendant was unskillful or neg- terest and sympathy by the ties of family, ligent; and, second, that his want of skill where he may be the only witness in his or care caused injury to the plaintiff. If own behalf. It is the intention of the law to either element is lacking in her proof, she protect the physician or surgeon as well as has presented no case for the consideration the patient. * A fracture or dislocaof the jury. The naked facts that defendant tion, or both combined, may be so complicatperformed operations upon her eye, and thated that no human skill can restore it. Or the pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, established neither the neglect and unskillfulness of the treatment, nor the causal connection between it and the unfortunate event. A physician is not a warrantor of cures. If the maxim, 'Res ipsa loquitur,' were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon, causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly patient may, by disregarding the surgeon's directions, impair the effect of the best-conceived measures. . The surgeon does not deal with inanimate or insensate matter, like the stone mason or bricklayer, who can choose his materials and adjust them according to mathematical lines; but he has a suffering human being to treat, a nervous system to tranquilize, and an excited will to regulate and control. Where a surgeon undertakes to treat a fractured limb, he has not only to apply the known facts and theoretical knowledge of his science, but he may have to contend with very many powerful and hidden in of life, hereditary disease, the state of the climate. These or the mental state of his patient may often render the management of a surgical case difficult, doubtful, and dangerous, and may have greater influence in the result than all the surgeon may be able to accomplish, even with the best skill and care." This being true, he should not be condemned except the evidence requires and justifies it. This is the proof of the damage on which he relies to recover. On his examination by his counsel, being requested to stand in his natural position with his back to the jury, he stated that the reason he did not put his right heel to the floor, upon being requested to do so, was that he could not. On being asked how far his heel was from the floor, he stated it was about two inches, whereupon his counsel stated, "It may feel that way, but I guess it is about an inch." Plaintiff also stated that since the treatment by defendant he had applied to Messrs. Sharp and Stagner, local physicians, for treatment. Dr. Stagner, one of these physicians, called by plaintiff, testified that he made an examination of his limb at his own and at Dr. Sharp's office, and was present when the same was examined with the X-ray. That the exam neck of the femur, the result of which he stated necessarily shortened the limb. He further testified that in a case of this character it was very likely that treatment would not produce the best results, and that the limb would be shorter than its normal length. That some of the authorities claim this shortening to be inevitable, as the bones of old persons do not knit as well as those of young people, and that the union is more likely to be fibrous. That he would not regard 81 per cent. of bad results as being much too high a per cent. in cases of this character. With these observations and the law before us, we now turn to the evidence upon which the plaintiff relies for recovery, and find that it shows briefly the following facts: About four months prior to the filing of his petition in this case, plaintiff, who was a man of the age of 56 years and of fairly good health and activity, fell on the ice and fractured the femur bone of his right leg at or near the neck. He called in the defend-ination revealed an impacted fracture at the ant to treat him, and defendant arrived in about two hours after the accident, placed the plaintiff under the influence of chloroform, and made an examination. Plaintiff and a number of other witnesses, members of his family and neighbors, testified that the defendant informed him and them that the limb was fractured at a place above the knee between it and the upper part of the femur, perhaps about the middle. It also appears that defendant applied what the physicians term a "Buck's extension," which consisted of, in this case, a splint in the shape of a board, attached to the limb on the under side, to which was fastened a rope which extended to a window frame, with a 51⁄2 pound iron attached, for the purpose of tiring and extending the muscles to bring the broken parts of the bone in apposition. This occurred on the 1st day of February, 1905; the doctor remained with the plaintiff all of that night, and on the morning of the second day thereafter he returned, bringing with him what is commonly known as a "Hodgin splint," an appliance which he had made, consisting of an iron rod, bent much in the shape of a hairpin, the two sides laced together with webbing or cloth, and of about the length and shape of the leg. Into this the limb was placed with the foot near the loop, the open end being toward the body, the inside piece being about 10 inches shorter than the outside piece. This entire frame was then swung about two inches clear of the bed, allowing the limb to lie in this splint, which was attached to a pulley from the ceiling or window ledge by ropes or cords. That in this condition plaintiff remained in bed about three weeks, during which time he was waited upon by the physician. Plaintiff testified that his limb was left by this treatment in a weak or stiff condition in the hip, which interfered with its use, that it hurt him in walking, and he stated: "I cannot use it as well as I could before it was hurt; it is stiff, and the muscles won't expand;" also that he could not walk without the use of a cane or crutch. A. I Dr. Sharp, the other expert called on behalf of plaintiff on this proposition, testified as follows: "Q. In treatment of fractures in the neck of the femur, how about shortening of the limb; is that a good result? A. In many cases it is. Q. Is it not a fact that there are eminent authorities who say that, in patients above 50 years of age, the shortening of the limb is inevitable? think there are a number of authorities who make that statement." The foregoing presents substantially all the evidence given by the experts called on the part of plaintiff upon the question of the shortening of the limb. From them it appears that the injured limb was from one inch to one inch and one-half shorter than the other, and from this evidence no other inference can be drawn than that this was as good a result as could be reasonably expected, considering the age and condition of the plaintiff. At all events, there is an absolute lack of any evidence showing that in cases of this character, under any kind of treatment, the limb is ever perfect afterwards or equals in length the uninjured limb. In this case the burden was not upon the defendant to show that plaintiff's limb was in as good a condition as medical science and skill could place it after its injury, but the burden was upon the plaintiff to show that it was not. This, in our judgment, he totally failed to do. The defendant, however, voluntarily assumed the burden of showing that the re sults which were attained by the treatment | some of the results of a fracture of this were all that could have been expected un- kind? A. Yes, sir, they are among the most der the conditions. common results." The plaintiff was able to get around on his limb by the use of a cane or a crutch. It was, as we have seen, from an inch to an inch and one-half shorter than the sound one. This condition was presented to a number of physicians called by the defendant, and they were interrogated upon the proposition as to whether or not such a result was practically all that medical science could promise. We note a few of their answers to this question. Dr. Reed testified as follows: "Q. Have you had information and know, Doctor, either by observation, experience, study, or reading, the liability of shortening of the limb by a break in the neck of the femur? A. I have. Q. What is the likelihood or probability of that? A. We always expect to get shortening. Q. Under the most approved and proper methods of treatment? A. Yes, sir. Q. In a person as old as the plaintiff here, what about soreness in the parts? A. There would probably be tenderness for a long time. Q. What do you mean by a long time, Doctor? A. Several years. Q. What about the ability to get around after an injury of that kind and at his age? A. The results are never perfect in a man of that age; the period of getting about varies in different patients. I would consider, if he was The defendant himself testified: "Q. Would there likely be a perfect recovery in a fracture of that kind, Doctor, under any kind of treatment that medical science could give it? A. In a man of Mr. Elder's age, the latest statistics say there are absolutely none that are perfect. Q. In what way would there be any imperfection? A. There would be a shortening of the limb, | ever able to use the limb in walking by putand consequently a lameness." He further stated that the statistics in cases of this character show that of young and old, taken together, 80 per cent. get a bad result. Dr. Morse, who for 18 months was shown to have been on the house staff of surgeons in the Cook County Hospital, in Chicago, after he had graduated, testified to having had many cases of this character, and deposed as follows: "A. It seems, so far as I know, it is an unknown thing in the profession to get a good result, and a good result is one in which there is no abnormal condition; it is practically never obtained in hip bone fractures. Q. What are the ordinary results? A. I should say that, after a period of six months or within a year the ordinary case, if not too feeble, will get out with crutches first, and then with a cane, and then they will be fortunate if they can get along either with or without a cane. Q. And are these the results that are expected and anticipated in the best hospitals? They are." A. Dr. Morse further testified on this same subject as follows: "A. Sometimes if they get a bony union and good apposition of the bones, particularly where they are strong, I mean where the patients are strong, they can get along with practically very little limp or without even a cane, but this is only in exceptional cases; the majority of them use the crutch or crutches for a period of months, and sometimes never get along without a crutch, and in some instances never get out of their wheel chair. Q. What about the shortening of the limb? A. The degree of shortening varies from three-fourths of an inch to two inches, with more or less tenderness remaining all their lives. Q. Then inability to get about without the use of a crutch or cane, a permanent shortening of the limb and a decided halt in their ting his weight on it, that it would be as good or better than the average result." Dr. Hill testified: "Q. In fractures in the neck of the femur, what is the probability or likelihood of a shortening of the limb in a person as old as the plaintiff, here? A. It is practically inevitable, and it is expected in every case. Q. What about soreness, Doctor, and how long continued? A. That would depend upon the immobility of the joint, but ordinarily it would last a year or two; depends upon the amount of inflammation at the time of treatment." Dr. Baker testified: "Q. In a person of this age, Doctor, and his apparent condition, what would you say as to the probability of a shortening of the limb? A. I would say there would be a very remote possibility of getting a result without a shortening of the limb to some extent. Q. What about soreness in the parts, and what might you expect in that regard? A. He could expect trouble for the balance of his life in some way or other. If he didn't get union, he would have a limb that would be almost useless; if he got union, he might expect trouble in the way of soreness and things in that line, and the probability is he never would get entirely over it, so he would always have trouble. * Q. Why is it that there is such a large per cent. of bad results in the treatment of a fracture of this character? A. Well, in the first place, it is on account of the location of the injury; it is impossible to get the broken parts in apposition, and it is equally impossible to keep them there if you do get them; then a great many are mixed fractures, part intracapsular or extracapsular, difficult both of diagnosis and treatment; then in that location you may not get union at all on account of the intervention of muscles; the blood supply may be deficient, or a disease of the |