I am persuaded this cause should be reversed and remanded for a new trial in accordance with proper instructions. My Brethren concede error on the part of the trial court in authorizing the jury to allow punitive damages, but say this is harmless error. I think the verdict was influenced by, and in response to, this erroneous instruction. The circumstances detailed by plaintiff and her witnesses were calculated to arouse the indignation of jurors. The poverty of plaintiff, the ignoration of her rights by the defendant, according to the plaintiff's evidence, and the natural sympathy of all for a woman in impending travail are bound to have aroused a desire to punish the physician in this case.
Admitting the contract and the breach thereof, the actual damages are nominal. The contract as stated in the majority opinion was to render plaintiff "medical assistance at her approaching accouchement" When Dr. Hood was sent for, the full time for plaintiff's delivery had not come. This event was a week later, and in her labor, plaintiff had the attention of a competent physician. For what then are damages allowed in this case? The rule is elementary that to recover more than nominal damages for breach of contract there must be shown substantial loss or injury. Mrs. Moffett herself says she felt better after the runner for the doctor got back, and during that day, Saturday, objected to her husband sending for another physician, saying:
"Mr. Moffett asked me if I wanted another doctor. I told him I would let him know when I thought I needed another one."
And again:
"I would get one [doctor] as quick as I needed one. I knew I would need a doctor; I got better and knew that I would get worse again before I needed one again."
I think the main complaint in this case was about the money retained by Dr. Hood. This is, on analysis, a very bad case that might have been! Had plaintiff been delivered of her child before another physician was summoned, then a different case would have confronted the defendant as well as the court.