This is an action for malpractice by a physician. The defendant appeals from a verdict and judgment against him for $5,000, and from an order denying a new trial. The complaint is, in effect, that in July, 1914, the plaintiff accidentally swallowed a peanut, which lodged in one of her bronchial tubes. That defendant was employed as *598physician to remove the peanut and to treat the plaintiff; that he cut into her throat and attempted to remove the peanut without having a proper instrument for that purpose, and kept her in terrible pain for a week, when she was taken to Minot and by the use of a proper instrument, known as a bronchoscope, the peanut was quickly removed. By the proper use of á bronchoscope a physician may see into the lungs. He does not grope in the dark. The doctor claims he told the parents of the child that he did not have such an instrument, and undertook to remove the peanut by the operation of cutting into the throat and the use of forceps. The doctor claims that when the child was brought to him about 11 o’clock at night, there was danger of suffocation, and the operation was performed to prevent suffocation rather than to remove the peanut. There is a large volume of conflicting testimony, from which it fairly appears that if it was reasonably necessary to cut into the throat as an emergency operation, when.the doctor failed to remove the peanut by forceps,'he should have at once telegraphed to Minot for a bronchoscope or should have directed that the child be taken immediately to Minot. There does not appear any reasonable excuse for keeping the child in agony for six days, hoping that it might cough up the peanut.
The counsel for plaintiff contend that if there is any evidence to support the verdict, it must be sustained; and that the evidence does-overwhelmingly support the verdict. We do not agree with either proposition, but assuredly there is evidence on which honest, conscientious men and judges might well differ in opinion, and there is ample evidence to support the verdict, and that is really the only question in the case.
The defendant has had a fair trial, and it seems but fair to him and to plaintiff to end the expensive litigation. On considering the evidence and the arguments, we feel no assurance that a new trial would benefit the defendant. Hence, this court affirms the judgment and the order denying a motion for a new trial.
In this and in similar cases the judge who writes this opinion holds that the bulk of damages which may be recovered should go directly to the party sustaining the damage, regardless of any agreement with the infant plaintiff or her guardian, and the the attorney’s fee should be *599limited to a just and reasonable sum, to be allowed by order .of 'the court, to be entered and made a part of the record.
Christianson and Grace, JJ., concur in an affirmance of the judgment.