Opinion
No. 8,150.
Submitted April 21, 1941.
Decided May 2, 1941.
Dentists — Action to Recover Price of False Set of Teeth — Evidence of Patient Held not Objectionable as Having Been Given by Non-expert Witness — Sufficiency of Evidence — Trial — Instructions are Law of Case. Appeal — Sufficiency of Evidence — Jury Judge of Evidence — Substantial Evidence Rule. 1. The jury is the judge of the evidence, and where there is substantial evidence on which the verdict could be based, it will not be disturbed on appeal. Dentists — Unsatisfactory Set of False Teeth — Evidence of Patient Held not Objectionable as Being Given by Non-expert Witness. 2. In an action by a dentist to recover a balance due from a patient on a set of false teeth, the latter held more competent to testify as to whether the teeth were reasonably fit for the purpose for which they were intended than anyone else, and that his testimony in that regard was not objectionable as being given by a non-expert witness. Trial — Instructions are Law of Case. 3. Instructions to the jury are the law of the case and may not be disregarded. Dentists — Action to Recover Price of False Set of Teeth — Evidence — Sufficiency — Alleged Disregard of Instruction by Jury. 4. Where the evidence of plaintiff in a dentist's action to recover the price of a set of false teeth tended to prove that they were reasonably fit for use, and that of the defendant was to the effect that he had difficulties in using them, but the evidence as a whole substantially supported the verdict for defendant, it will not be disturbed on the ground that the jury disregarded an instruction that if the teeth were reasonably fit, plaintiff had fulfilled his duty under the agreement between the parties.
Appeal from District Court, Lewis and Clark County; A.J. Horsky, Judge.
Mr. Paul T. Keller, for Appellant, submitted an original and a reply brief, and argued the cause orally.
Mr. J.T. Thomas, for Respondent, submitted a brief, and argued the cause orally.
This action originated in a justice's court for Lewis and Clark county, and from a judgment for the plaintiff appeal was taken to the district court for that county, where a trial was had before a jury which resulted in a verdict for the defendant. From the judgment based on the verdict, this appeal is taken.
The specifications of error are two in number, the first being that the verdict was contrary to the evidence, and the second is that it was contrary to the law as set forth in the instructions.
This court has said many times in the past that the jury is [1] the judge of the evidence, and if there is substantial evidence on which the finding of the jury may be based, this court will not disturb such finding. ( Brown Bros. Lumber Co. v. Mitchell, 95 Mont. 408, 26 P.2d 969.)
In this case there can be no question of the sufficiency of the evidence to sustain the findings. Briefly summed up, the testimony is that the defendant purchased from the plaintiff, a dentist, a set of false teeth at an agreed price of $160. Of this amount $10 was paid and the balance is the subject of this suit. On the part of the plaintiff the testimony is that the teeth were built in accordance with the usual dental practice, after impressions had been taken of the defendant's mouth; that they fit the defendant's mouth, and that ordinarily in the case of a patient whose teeth had been extracted within a few months before the fitting of the false teeth, the patient suffered some discomfort when first using the false teeth, and that some time is necessary in order to become accustomed to the plates. The plaintiff's testimony then is that the teeth were reasonably fit for the purpose for which they were intended.
On the part of the defendant, the testimony is that the teeth were not reasonably fit for the purpose for which they were intended. His testimony is that he could not eat while wearing the teeth, that he had difficulty talking with them, that when he drank water the teeth "floated," that he wore them as much as possible during a period of at least two weeks, but that they were still unsatisfactory, and testified to other facts to the same effect.
Some contention is made by the plaintiff that the defendant [2] has not qualified himself as an expert to testify as to whether or not the teeth were reasonably fit for the purpose for which they were intended. No objection was made to his testimony at the time, and certainly his testimony was not introduced as expert testimony within the ordinary rule. He testified, as he was qualified to do, as to the physical facts in connection with the teeth as he knew them. Surely, since he was the one for whom the teeth were made and the one wearing the teeth, or attempting to wear them, then he was better qualified to speak on these facts than anyone else possibly could have been. The record clearly contains substantial evidence to support the verdict of the jury.
Under the second specification, the appellant argues that the [3] jury failed to follow the instructions of the court which are the law of the case under the Montana decisions. ( Ingman v. Hewitt, 107 Mont. 267, 86 P.2d 653.) All of the instructions were given without objection and the particular instruction which the appellant urges the jury ignored is instruction No. 4, which reads: "You are instructed that if you find that the false teeth made by Dr. Cash were reasonably fit for the purposes for which they were ordered, then the plaintiff has fulfilled his duty under the agreement between the parties."
In his brief and reply brief appellant cites a number of cases [4] holding that a dentist, or other professional man, is not a guarantor of his work. Under the instructions here given, those cases have no application. The question of fact, which it is, as to whether or not the teeth were reasonably fit for the purposes for which they were ordered, was left to the jury to determine. The jury had the testimony of the plaintiff to the effect that they were reasonably fit for the purposes intended, and that evidence was substantiated to some extent by the testimony of another dentist. On the other hand, it had the testimony of the defendant as to his experience with the teeth and the difficulties that he had with them. There was substantial evidence to support its findings on this question and nothing in the record indicates that the jury disregarded that instruction.
Finding no error, the judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANGSTMAN, ANDERSON and MORRIS concur.
Rehearing denied May 27, 1941.