In October, 1892, the plaintiff suffered an oblique fracture of the humerus of the left arm, at a point about three inches above the elbow; and the defendant, a physician, was employed to reduce the fracture. He did so, and continued to treat the injury at intervals until about the middle of December, 1892, when it was regarded as healed. The arm is now crooked. The plaintiff alleges that its condition is due to negligent and unskilful treatment on the part of the defendant, m consequence of which the fracture was not properly reduced; that the parts of the bone did not and coold not unite, but remained out of place and disconnected, so that recovery was impossible; and that the arm is left in a deformed and disabled condition. The defendant denies the alleged negligence and lack of skill in treating the injury, and avers that the condition of the arm is due to a fall upon it after the defendant had ceased to treat it; that by reason of the fall the arm was injured and became bent; and that its present condition is due to the negligence of the plaintiff in failing to call a physician and have the arm treated after the fall. The defendant, in a counter-claim, seeks to recover forty-eight dollars for services rendered in reducing and treating the fracture. The verdict was for one dollar, and the judgment was for that sum and costs. This is the second submission of this case in this court. After the opinion on the first submission was filed, a rehearing was granted, and the cause is again submitted for our consideration.
1 *6352 *6373 *634I. The court, in the fourth paragraph of its charge, instructed the jury that it was the duty of the defendant, under his employment, “to exercise that degree of proficiency, skill, and care in the treatment of the plaintiff’s injuries that is ordinarily possessed, and exercised by men of average *635skill, learning, and proficiency in the medical profession generally, in the vicinity of where the defendant practiced, and was bound to. possess and exercise such degree of proficiency, skill, and care, both in the reduction of the fracture of plaintiff’s arm, and in its treatment at the time and afterwards during the course of his employment.” In the fifth paragraph the court further charged the jury that “negligence, in this case, consists of the doing by the defendant, in the treatment of the plaintiff’s injury, of some act which a physician and surgeon, possessing the average proficiency, skill, and care of the medical profession in the vicinity of defendant’s residence would not ordinarily do under like circumstances, or the omission to do some act in such treatment, which a physician or surgeon possessing such average proficiency, skill, and care, would ordinarily do under like circumstances.” The application of the rule thus given to the evidence in the case was then stated. The appellant claims that the portions of the charge thus given were conflicting and erroneous. We do not think there is any material conflict 'between them, but are of the opinion that the rule in regard to proficiency, skill, and care required in such cases was erroneously stated. In Smothers v. Hanks, 34 Iowa, 287, it was said that the skill and diligence required is “that ordinarily exercised in the profession by the members thereof, as abody, — that is, the average of the reasonable skill and diligence ordinarily exercised by the profession as a whole”; that, “in determining the ordinary skill, regard. must be had to the improvements and advanced state of the profession at the time”; and that “it is also, doubtless, true that the standard of ordinary skill may vary even in the same state, according to the greater or lesser opportunities offered by the locality for observation and practice, from which alone the highest degree of skill can be *636acquired.” See, also, Almond v. Nugent, 34 Iowa, 300; Peck v. Hutchinson, 88 Iowa, 327 (55 N. W. Rep. 511). It was said in Small v. Howard, 128 Mass. 136, of a physician charged with malpractice, that “he was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practicing in similar localities, with opportunities for no larger experience, ordinarily possess.” In Gramm v. Boener, 56 Ind. 497, it is said: “It seems to us that physicians or surgeons practicing in small towns or rural or sparsely-populated districts, are bound to possess and exercise at least the average degree of skill possessed by and exercised by the profession in such localities generally. It will not do, as we think, to say that, if a surgeon or physician has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practices, it will be sufficient. There might be but few practicing in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them; and it would not do to say that, because one possessed and exercised as much skill as the others, he could not be chargeable with the want of reasonable skill.” See, also, Kelsey v. Hay, 84 Ind. 189; Howard v. Grover, 48 Am. Dec. 478, note; Wilmot v. Howard, 39 Vt. 447; Pelky v. Palmer (Mich.) 67 N. W. Rep. 561; Tefft v. Wilcox, 6 Kan. 46, 60. There are authorities which tend to support the rule as staled by the district court. Gates v. Fleischer, 67 Wis. 506 (30 N. W. Rep. 674; Nelson v. Harrington, 72 Wis. 591 (40 N. W. Rep. 228; Lawson v. Conaway (W. Va.) 16 S. E. Rep. 564; Hathorn v. Richmond, 48 Vt. 557; 14 Am. & Eng. Enc. Law, 78. But we are of the opinion that the correct rule is that a physician and surgeon, when employed in his professional capacity, is required to exercise that degree of knowledge, skill, and care which physicians and surgeons practicing in similar *637localities ordinarily possess. We conclude, however, that the portions of the charge under consideration, although not correct, considered abstractly, could not have prejudiced the plaintiff. The evidence shows that there were several educated and experienced physicians and surgeons who practiced in Iowa Falls and vicinity. They are not shown to have been incompetent, and the presumption is that they had the average ability ordinarily possessed by men of their profession in similar localities. Pelky v. Palmer, supra.
4 II. The plaintiff complains of the sixth paragraph of the charge, on the ground that it refers to a matter- not in issue. The complaint is not well founded. The paragraph instructed the jury that it was the duty of the plaintiff Co co-operate with the defendant, and to conform to all of his reasonable directions in regard to the care and treatment of the injury, and that, if he had failed to follow such directions, he could not hold the defendant liable for injurious consequences for the failure. The plaintiff claims, that the defendant bandaged the arm in an improper manner, and that injury resulted. The defendant claims that he had given instructions in regard to the bandage, which, if followed, would have prevented the injury; and the paragraph of the charge in question was applicable to that controversy. It was treated by both parties as in issue, and it was not erroneous for the court to charge the jury with respect to it, and the statement of the law given, appears to be substantially correct, as applied to the facts of the case.
*6385 *637III. The eleventh paragraph of the charge to the jury is as follows: “You will determine the amount, if anything, due the defendant on his counter-claim, and after deducting the lesser from the greater amount, you will return your verdict for the difference, *638if any, in favor of the plaintiff or defendant, as you find the fact to be. If you find nothing due either party, you will simply return a verdict in favor of the defendant.” The appellant complains of this paragraph and urges that a valid claim for services rendered by a physician, and one for damages sustained by the patient in consequence of malpractice, cannot co-exist; that a recovery for one is a bar to a recovery for the other. Some authorities tend to support this claim. Bellinger v. Craigue, 31 Barb. 534; Patten v. Wiggin, 51 Me. 594. The thought of the appellant seems to be that the right of a physician to recover for services rendered rests upon a contract, and that, if he fails to use the requisite diligence and skill, he forfeits all right to a compensation. That is not in accord with the law and the practice of this state. It was held in Pixler v. Nichols, 8 Iowa, 107, that a person who has contracted to render services need not show that he has fully performed his contract, as a condition precedent to a recovery, but that he may show performance in part, and recover the value of the services rendered. That rule was followed in McClay v. Hedge, 18 Iowa, 66; Byerlee v. Mendel, 39 Iowa, 385; Wolf v. Gerr, 43 Iowa, 341; and Ætna Iron & Steel Works v. Kossuth County, 79 Iowa, 40 (44 N. W. Rep. 215). The principle upon which the rule rests has been recognized in other cases. The right of one party to a contract but partly "performed by him, to recover the value of the services he has rendered, is subject to the right of the other party to a proper allowance for damages he may have sustained without fault on his part for the failure of the party seeking to recover to fulfill the agreement on his part. We do not know of any sufficient reason for not applying these rules to the contract between a physician and his patient. A physician-may render service which in the main is all that is *639required of him, hut he may have been negligent in some particulars, to the injury of his patient, and in such a case a proper allowance for the injury should be made. If the physician’s treatment is so unskilful or negligent that the injury exceeds the value of his services, he should be permitted to show the-value of the services, to reduce the amount for which he is liable. And this is true whether the action against him for malpractice is regarded as founded upon contract or tort. The claim of the' defendant was properly set out as a counter-claim. Code, section 2659. And the charge to the jury required it, in fixing its verdict, to allow each party the amount to which the evidence showed him to be entitled on the claim he made. The result thus sought was just to both parties, and should not be defeated by technical considerations. The case of Ressequie v. Byers, 52 Wis. 650 (9 N. W. Rep. 779), supports our conclusion.
Note. — Degree of care and shill lohich a physician or surgeon must exercise. I.General duty of physician. II.What he undertakes to 'do. a. General statements. t). Does not undertake to cure. c. ¡Special contract. III.Degree of care and shill required.IY. Other questions are discussed, but we do not find any of them of sufficient importance to require special mention. We have examined all of them, but without finding any ground upon which the judgment of the district court should be disturbed, and it is therefore affirmed.