Schuster v. Sutherland

Citations

• 92 Wash. 135
• 158 P. 730
• 1916 Wash. LEXIS 1124

Syllabus

<p>Physicians and Surgeons — Contract eor Services — Breach— Question for Jury. The making of a contract for a surgical operation and the failure to perform it, are questions for the jury, where, though conflicting, there was evidence to the effect that defendant agreed to remove all gallstones in the plaintiff’s body, that he failed to remove one which, when removed nine weeks later, was of such size that it could not have formed within that time, and which was found within the field of exploration under the contract as admitted by him.</p> <p>Appeal — Review—Harmless Error — Instructions. Where, in an action for damages for breach of contract to perform a surgical operation, the court at defendant’s request gave an instruction that the plaintiff could not recover unless the jury found by a preponderance of .the evidence that the specific contract alleged was entered into and breached, error cannot be assigned on the failure of the court to instruct in terms on the theory of a contract as testified to by defendant, the instruction given being the more favorable of the two.</p> <p>Witnesses — Impeachment — Contradictory Statements. In an action for damages for breach of contract to perform a surgical operation for the removal of gallstones, in which a physician testified for plaintiff to having subsequently removed a gallstone which was soft, evidence by other witnesses for plaintiff that the stone so removed, shown to them by the witness, was hard, is not inadmissible as tending to impeach the plaintiff’s own witness; since merely contradictory statements by witnesses are not inadmissible as impeaching in character.</p>