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(262 V. S. 276, 67 L. ed. 981, 43 Sup. ct. Rep. 544.) investment at work for the public, proval, rather than of a substituted either as property serving the pub- property.” (P. 1772.) lic, or funds held in reserve for such If the aim were to ascertain the property, no policy should be fol- value (in its ordinary sense) of the lowed in estimating depreciation utility property, the inquiry would that will reduce the property to a be, not what it would cost to reprovalue less than the investment. duce the identical property, but (P. 1726.)

what it would cost to establish a "Estimates of the cost of repro

plant which could render the servduction should be based on the as

ice; or, in other words, at what cost

could an equally efficient substitute sumption that the identical property is to be reproduced, rather than a

be then produced. Surely the cost

of an equally efficient substitute substitute property” (p. 1719),

must be the maximum of the rate -“although such a substitute prop- base, if prudent investment be reerty, much less costly than the ex

jected as the measure. The utilities isting plant, might furnish equal or

seem to claim that the constitutional better service, it is not reproduc- protection against confiscation guartion of service, but of property, that antees them a return both upon unis under consideration; and clearly earned increment and upon the cost the estimate should be of existing of property rendered valueless by property created with public ap- obsolescence.

ANNOTATION.

Rate of return to which telephone company is entitled.

It is well settled that the state may regulation. The judgment in this case regulate telephone companies (26 R. was reversed by the United States C. L. p. 513), and that this power or Supreme Court (1912) 225 U. S. 430, regulation extends to the matter of 56 L. ed. 1151, 32 Sup. Ct. Rep. 741, rates and charges (26 R. C. L. p. 520). on the theory that the enforcement of One of the factors in regulating rates the municipal ordinance there inand charges is the return to which volved should not be enjoined as conthe company is entitled on its capital. fiscatory before the ordinance had

On the return to which a telephone been given a trial to show its actual company is entitled, there is little effect. The court said: “We express judicial authority in addition to the no opinion whether to cut this telereported case (MISSOURI EX REL. SOUTH- phone company down to 6 per cent by WESTERN BELL TELEPH. Co. v. PUBLIC legislation would or would not be conSERV. COMMISSION, ante, 807) holding fiscatory. But when it is remembered that a return of 53 per cent upon the what clear evidence the court reminimum value of its property was quires before it declares legislation inadequate under the facts there otherwise valid void on this ground, existing.

and when it is considered how specuIn Cumberland Teleph, & Teleg. Co. lative every figure is that we have set V. Louisville (1911) 187 Fed. 637, down with delusive exactness, we are where the telephone company had of opinion that the result is too near strong competition from a rival, and the dividing line not to make actual was obliged to contest the validity of experiment necessary." certain municipal legislation, the An order of the railroad commiscourt held that it was entitled to be sion allowing a return of 8 per cent allowed to earn, if it could, as much was affirmed in Detroit v. Michigan as 7 per cent annually on the fair R. Commission (1920) 209 Mich. 395, value of its property devoted to the 177 N. W. 306, on the theory that it public use in the city, before its rates was not shown by those who sought could fairly be reduced by legislative to have the rate reduced that the order of the commission in this regard action to compel the reduction of was unlawful or unreasonable.

rates by a telephone company, it apIn Home Teleph. Co. v. Carthage peared that the company was earning (1911) 235 Mo. 644, 48 L.R.A.(N.S.) approximately 510 per cent on the 1055, 139 S. W. 547, Ann. Cas. 1912D, value of its plant. The corporation 301, it was held that the court would commission, in making its estimates not interfere with rates fixed for tele- and suggestions, had treated an earnphone service which allowed a return ing of 8 per cent on the then value of over 9 per cent on the corporation's of its property as a fair rate it was own valuation of its property. The entitled to earn. The court held it court, in discussing the question, says was not necessary to determine what that, under the facts and circum- rate would be a fair one, saying that stances of the case, rates which would it was sufficient for the purposes of yield a less return upon the telephone the case at bar that, if the rates or company's property than 6 per cent charges yielding a net return to it of would be unreasonably low and could approximately 51% per cent per annum not be sustained. It being shown by were not excessive or unreasonable to the evidence in the case that the re- the public for the service rendered, turn on the investnient was in excess they should be permitted to stand. of 9 per cent, even on complainant's The court then mentioned the fact valuation of the property, and over that the legal rate of interest in the 113 per cent on what the court con- state, in the absence of any contract, sidered a reasonable value, it was held was 6 per cent; by contract, the parthat the telephone company failed to ties might agree upon any rate not to prove that it was entitled to the re- exceed 10 per cent. The conclusion lief prayed for; that is, that the mu- is reached that the schedule of nicipal ordinance involved was invalid charges then made by the telephone and the rates therein prescribed un- company, yielding to it a return upon reasonable.

the value of its property less than In Pioneer Teleph. & Teleg. Co. v. the legal rate of interest in the state, Westhaver (1911) 29 Okla. ' 429, 38 could not be said to be unreasonable L.R.A.(N.S.) 1209, 118 Pac. 354, an or an oppressive schedule of charges.

W. A. E.

HERMAN F. KUECHLER, Appt.,

V.
FRANK C. VOLGMANN, Respt.

Wisconsin Supreme Court - April 3, 1923.

(180 Wis. 238, 192 N. W. 1015.)

Physicians and surgeons liability of chiropractors for negligence in

diagnosis. 1. Chiropractors who are permitted to practise without a license are required to exercise care and skill in diagnosis if they undertake to diagnose, under a statute providing that any person practising any form or system of treating the afflicted without having a license shall be liable to all the penalties for malpractice, and ignorance shall not lessen such liability for failing to perform or unskilfully performing any duty assumed, and which is ordinarily performed by a licensed physician.

[See note on this question beginning on page 830.]

(180 Wis. 238, 192 N. W. 1015.) measure of care required.

of skill or care in diagnosis, as well 2. A physician is required to exer- as in treatment. cise only that degree of care, dili- [See 21 R. C. L. 388; 3 R. C. L. Supp. gence, judgment, and skill which other 1152.] physicians of good standing of the Pleading - construction - liberality. same school, or system of practice, 4. A complaint must be liberally usually exercise in the same or similar construed in favor of the pleader. localities under like or similar cir- [See 21 R. C. L. 466; 3 R. C. L. Supp. cumstances, having due regard to the 1159.] advanced state of the medical profes- - sufficiency of complaint. sion at the time in question.

.

5. A complaint for malpractice is [See 21 R. C. L. 381-385; 3 R. C. L.

not bad which charges lack of skill in Supp. 1152; 4 R. C. L. Supp. 1413.]

diagnosis, although it alleges that de- negligence in diagnosis as malprac- fendant treated plaintiff according to tice.

the methods used by members of his 3. Malpractice may consist in a lack school of practice.

APPEAL by plaintiff from an order of the Circuit Court for Kenosha County (Belden, J.) sustaining a demurrer ore tenus to the complaint in an action brought to recover damages for alleged malpractice. Reversed.

Statement by Vinje, Ch. J.: and cure him of such disease or mal

Action for malpractice. The ma- ady from which he then suffered terial allegations of the complaint for compensation to be paid there- . are as follows:

for, and for that purpose the said "That the above-named defendant defendant undertook as a chiropracis a chiropractor, so called, practis- tor to attend and care for the plaining his profession in the city of tiff. Kenosha, in said county and state. “That the said defendant then enThat at the time hereinafter men- tered upon such employment, and, tioned he has held himself out to the either through lack of care, want of public as capable of treating persons understanding, or knowledge of the afflicted with disease and bodily ail- symptoms of well-known disease, ments, and holding out, represent- did not use due and proper care or ing, and advertising to relieve and skill in endeavoring to cure plaincure persons so afflicted, without the tiff of the disease or malady of which use of medicines or drugs, and by a he was suffering, and negligently form or method peculiar to the class undertook the treatment of said of practitioners to which the de- plaintiff upon misapprehension that fendant belongs, and who are known the said plaintiff was suffering from to the public as chiropractors. some derangement of the stomach

“That on or about the 28th day with resulting nervousness and of September, 1918, the above- headache, of which the said plaintiff named plaintiff was afflicted with then suffered. That at said time the and suffering from such disorders said plaintiff was afflicted with and of bodily functions as to cause him suffering from a tumor which was to believe in the necessity of con- growing in his head, and which was sulting and conferring with some the cause of such derangement of person of the required learning, bodily function. skill, and experience to alleviate, re

"That the said defendant, for lieve, and cure such affliction of compensation paid to him from time which he was suffering.

to time by the plaintiff, continued "That on or about said day he to treat the plaintiff according to the consulted the above-named defend- methods used by members of defendant, who was then practising his ant's profession for a period of eight said profession at the city of Keno- months, during which time the said sha, and employed the said defend- defendant failed to either relieve or ant as such chiropractor to relieve alleviate the suffering of said plaintiff, but the pain and suffering of time when the plaintiff first consaid plaintiff continued to grow sulted the said defendant would have worse and worse, and disorders of effected an immediate and permahis body became more aggravated

nent cure. under such treatment, whereupon “That because of the long time the said defendant advised plaintiff which the said tumor was allowed to go West for relief on or about the to grow under the treatment of the 21st day of May, 1919.

said defendant, it became impossible “That while in the West the de- for surgeons of acknowledged skill fendant continued to fail in health and ability to remove such tumor and the pain and suffering con

from the head, but the only relief tinued to increase, and his headaches

which could be accorded to the plainand dizziness of which he continu- tiff was the operation hereinbefore ally suffered became more severe,

alleged. and finally he became at times

“That by reason of the defendblind.

ant's negligence and unskilled exam

ination and treatment of said plain"That on or about the 8th day of August, 1919, he returned to Keno

tiff, the said plaintiff was made sick,

and kept from attending to his busisha, Wisconsin, and on the 10th day of September, 1919, he went to the

ness ever since about the 8th day

of September, 1918, suffered much Augustana Hospital in the city of

pain and was put to great expense, Chicago, for treatment, and there

and has been, and still is, disabled his malady was immediately diag

from attending to his labor and businosed by a physician and surgeon of

ness, to the damage of the plaintiff, skill and experience as a tumor growing within the head, which had

$25,000.”

The defendant entered a demurrer been for a long time, and then was,

ore tenus, which the court sustained. irritating the brain, and it became

From an order entered accordingly, necessary to operate upon the said

the plaintiff appealed. plaintiff, and, in order to save the life of plaintiff, it was necessary to

Mr. Robert V. Baker for appellant. remove a large portion of the skull Messrs. Lewis W. Powell and Morof plaintiff in order to relieve the

ris, Winter, Esch, & Holmes, for reintracranial pressure resulting from

spondent: the growth of such tumor.

A physician is not required to exer

cise the highest degree of skill or the "That this plaintiff is informed utmost care in diagnosis or treatment; and believes that if the said defend- but, whether duly licensed or not, only ant had possessed ordinary skill or

that degree of care, diligence, judg. ability in the treating of disease he

ment, and skill which others of good would, by the exercise of ordinary

standing of the same school or system care, have known that the said de

of practice usually exercise in the

same or similar localities under like fendant was suffering from the ef

or similar circumstances, having due fect of a tumor growing in his head,

regard to the advanced state of the and by the exercise of ordinary care science at the time in question. would have known that the methods Nelson v. Harrington, 72 Wis. 591, adopted by him to relieve said plain

1 L.R.A. 719, 7 Am. St. Rep. 900, 40 N. tiff were useless and only aggra

W. 228; Wurdemann v. Barnes, 92

Wis. 206, 66 N. W. 111; Marchand v. vated his suffering and affliction.

Bellin, 158 Wis. 184, 147 N. W. 1033; “Plaintiff further alleges, and he Hrubes v. Faber, 163 Wis. 89, 157 N. is informed and believes, that if the W. 519; Jaeger v. Stratton, 170 Wis. said defendant had used ordinary

579, 176 N. W. 61; Finke v. Hess, 170 care and skill in diagnosing the af

Wis. 149, 174 N. W. 466; 30 Cyc. 1571fliction of the plaintiff he would have

1588; 21 R. C. L. 28; Force v. Gregory, known by the use of such ordinary Rep. 371, 27 Atl. 1116; Patten v. Wig.

63 Conn. 167, 22 L.R.A. 343, 38 Am. St. care that the said plaintiff was af

gin, 51 Me. 594,81 Am. Dec. 593; flicted with tumor, and that an op- Grainger v. Still, 187 Mo. 197, 70 eration upon the plaintiff at the L.R.A. 49, 85 S. W. 1114.

(180 Wis. 238, 192 N. W. 1013.) Vinje, Ch. J., delivered the opin- strued in favor of the pleader. By ion of the court:

examining the com

PleadingThe trial court sustained the de- plaint set out in the constructionmurrer on the ground that, the com

statement of facts,

liberality. plaint having alleged that defend

it will be found that the pleader says ant treated the plaintiff according that through a lack of skill and care to the methods used by members of

the defendant negligently undertook defendant's profession, namely, by

to treat plaintiff for a malady from chiropractors, it negatived negli

which he was not suffering, and that

had the defendant possessed ordigence and lack of skill; since the rule is that a physician is required to ex

nary skill or ability in treating dis

ease he would, by the exercise of ercise only that degree of care, dili

ordinary care, have known the true gence, judgment, and skill which

cause of his ailment.

The comother physicians of good standing plaint also alleges that plaintiff of the same school or system of prac- is informed and believes that, tice usually exercise in the same or if the said defendant had used similar localities under like or simi

ordinary care and skill in diaglar circumstances, having due re

nosing the affliction of the plaingard to the advanced state of the tiff, he would have known by the medical profession at the time in use of such ordinary care that the question-citing Nelson v. Harring- said plaintiff was afflicted with ton, 72 Wis. 591, 1 L.R.A. 719, 7 tumor, and that an operation upon Am. St. Rep. 900, 40 N. W. 228; the plaintiff at the time when the Wurdemann v. Barnes, 92 Wis. 206, plaintiff first consulted the defend66 N. W. 111; Marchand v. Bellin,

ant would have effected an immedi158 Wis. 184, 147 N. W. 1033;

ate and permanent

cure.Hrubes v. Faber, 163 Wis. 89, 157

This

-sufficiency of ex

complaint, N. W. 519; Jaeger v. Stratton, 170 pressly charges lack Wis. 579. 176 N. W. 61. Such is

of care and skill in diagnosis, with

resultant damages. undoubtedly the rule of law in this

That chiropractors, who by the state, and, were the Physicians and

complaint grounded provisions of § 1435e, Stat. 1921, are

upon a lack of skill, permitted to practise without a lirequired.

cense in this state, are required to care, or of negli

exercise care and gence in treatment only, the trial

Physicians and

skill in diagnosis, if court came to the right conclusion.

they undertake to

liability of But we construe the gravamen of the

chiropractors for

diagnose, there can negligence in complaint to charge a lack of skill

diagnosis.

be no doubt. Secand care in diagnosis, in the failure

tion 1435i directly so provides and of defendant to discover the nature makes them liable for malpractice. of the ailment from which plaintiff

So far as here applicable, it reads: suffered. "Malpractice” may con- "Any person practising medicine,

sist in a lack of skill -negligence in

surgery, osteopathy, or any other diagnosis as or care in diagnosis form or system of treating the afmalpractice.

as well as in treat- flicted without having a license or a ment. Jaeger v. Stratton, supra. certificate of registration author

A woman may be in the early izing him so to do, shall not be exstages of pregnancy. A doctor may

empted from, but shall be liable to, diagnose it as an ovarian tumor and

all the penalties and liabilities for operate. There may be no lack of malpractice; and ignorance on the skill or care in the operation, but part of any such person shall not there may be in the diagnosis. lessen such liability for failing to

It is a familiar principle that a perform or for negligently or uncomplaint must be liberally con- skilfully performing or attempting

surgeonymeasure of care

surgeon

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