(dissenting) :
I dissent, and in doing so concur in the dissenting opinion of Mr. Justice Callister.
The main opinion concedes everything that Mr. Justice Callister asserts, but overrides the trial court’s conclusion, which many times we have said is invulnerable to reversal on appeal unless he was capricious. I do not think the trial court was capricious here, but correctly applied established legal principles.
The main opinion places the stamp of incompetence on a chiropractor by innuendo and conjecture, without competent evidence. It arrives at its result by reciting what was said by a couple of doctors, which recitation seems to have been unnecessary. It concedes it to be inadmissible as expert testimony, but says that discounting it nonetheless the interested plaintiff and the lady next door and up the street, if asked to testify, would testify that if a chiropractor manipulates a torso in a particular fashion he is tortious, if unhappy results evolve, and that such testimony would be competent.
The case upon which the main opinion relies, Fredrickson v. Maw, conceded the general rule, but based its decision on an exception to the rule requiring that expert testimony is essential to establish tortious compensability in fields of science. The court said in that case that compensability was justified only because the doctor “carelessly left gauze dressings, threads and sutures in the tonsil cavity.” In the next paragraph it defended such conclusion by emphasizing the exception to the general rule. Such exception says doctors are negligent, without expert testimony, if it is demonstrated that they left “instruments, needles, sponges, bandages, gauze or foreign particles in incisions, wounds, or open cavities.” It could have included dynamite, or a bar of Lifebuoy soap.
The factual dissonance between that case and this is so ear-piercing as to induce jurisprudential deafness. In that case, of course, including the lowly midwife, anyone would conclude that leaving flotsam and jetsam in the sewed-up innards of a trusting patient would not merit a kudos at the medical college. Not even a flunked premed student would or could attest to the proposition that expert testimony would be necessary to conclude that leaving sponges and knives and other sundry knick-knacks in the throat, or elsewhere, was not standard chiropractice in the community.
In this case it is conceded 1) that the doctor’s testimony was not expert testi-*323many; 2) that the plaintiff may have suffered ill effects from manipulation of her spine by a licensed practitioner doing what he thought was best to do; 3) that no expert testified that his treatment was abortive or unusual in his field- — and that is all.
The net result is that this whole decision is a guess and speculation as to what the unlearned man on the street would conclude, given the facts of this case. I would venture a guess that a vast majority would not conclude that the chiropractor failed to do what other chiropractors in the community would do under the facts here. Even if they concluded otherwise, it would not change the rule of evidence. Otherwise we were dead wrong in Forrest v. Eason and Marsh v. Pemberton, cited by Mr. Justice Callister, both of which were decided by unanimous vote of this court.
In my opinion this case destroys the other two, where stronger facts would have justified the conclusion of the main opinion here.
The trial court was correct in entering a non-suit for plaintiff’s complete failure to present expert testimony to the effect that the chiropractor’s manipulation of the spine was not in accordance with accepted methods of treatment by members of his profession in the community. This was the sole question in this case, and there is no evidence whatever that others would have done otherwise. The main opinion seems to look not to evidence and rules applicable thereto, but only to results, and to “instruments, needles, sponges, bandages, gauze or foreign particles (left) in incisions, wounds or cavities.” This puts the scalpel to a judicial incision to the well-established rule of evidence mentioned, suturing it with legal thread, after which the evi-dentiary instruments, needles, sponges, etc. are left to fester the legal wound.
The trial court should be affirmed.