This suit was by Mrs. Trinidad Patino, for herself and as next friend for her children, Viola and Olga, seeking to recover damages against Dr. Aureliano Ur-rutia for the death of her husband, Edward M. Patino. The total judgment recovered was $7,500.
This is the second appeal of this case. The first appeal appears in 297 S. W. page 512. As the facts are so nearly the same in the two cases, we adopt the statement of that case, marking or noting herein the difference, if any, in the two cases.
This case was submitted to the jury on but two issues:
“Was the defendant, Dr. Urrutia, guilty of negligence in the administration of the injection or injections, if any, to Edward M. Patino composed of the substances that they were composed of and in the manner and quantity so administered? Answer ‘Yes’ or ‘No.’
“After administering the treatment to Edward M. Patino, and prior to the date Dr. Good-son was called on the case, July 27th, 1925, did the defendant, Dr. Urrutia, after having been called, if he was called, fail to wait upon and treat the said Edward M. Patino?”
To the first question the jury answered, “No,” thereby eliminating any question of “negligence in the administration of the injection or injections, if any, to Edward M. Pa-tino, composed of the substances that they were composed of in the manner and quantity so administered.” This was one of the issues in the case, and the jury eliminated that issue of negligence.
The other issue of negligence was that “Doctor Urrutia, after having been called, if he was called, failed to wait upon and treat Edward M. Patino.” He refused to attend, because he did not go outside of his office to practice his profession, unless it was an emergency, and this was not shown to be an emergency case, as the deceased lived several months thereafter. Thereafter deceased’s wife employed other learned and competent physicians, who undertook at once to and did give ‘him the best of care and skilled treatment. Appellee knew that appellant confined himself to office practice, and there is no evidence that the case was of such a nature as to demand a quick remedy. There is no fact proven or shown that appellant was negligent in not calling on Edward Patino that Sunday evening, or that if he had he would have been relieved and would not have died.
Now, when appellant refused to call on the patient, other physicians were called in, who treated him until he died, and it is not clear that he had syphilis at all, for Dr. Urrutia gave only the one injection, which was on the 23d day of July; and the physicians in the ease testified the substance injected would not cause death. Dr. Goodson, who treated him from the very beginning up to his death, testified that he did everything a medical man could do for him, and stated the cause of his death was from septic infection of the bladder, for the duration of four months; contributory: spinal cord injury, cause undetermined, causing paralysis. Dr. Dorbandt, another learned and skillful physician, treated the deceased with Dr. Goodson, and stated it was a case of poliolnyelitis, or infantile paralysis of the brain and spinal cord. The gravamen of this case centers around the point that Dr. Urrutia did not go to see. the patient when called but there is no evidence to show that the patient would not have died if he had gone. We expressed ourselves fully in the original opinion on this particular point.
*583This states the only issue: Was it negligence for the doctor to refuse to call and treat the deceased on the Sunday in question, and was it such negligence as to he the proximate cause of his dea.th? We think not. Lawson v. Conaway, 37 W. Va. 159, 16 S. E. 567, 18 L. R. A. 627, 38 Am. St. Rep. 17; Lathrope v. Flood, 6 Cal. Unrep. Cas. 637, 63 P. 1007; Lee v. Moore (Tex. Civ. App.) 162 S. W. 440 ; 30 Cyc. pp. 1573, 1574; Cooley on Torts (3d Ed.) p. 99; G. H. & S. A. Ry. Co. v. Hanway (Tex. Civ. App.) 57 S. W. 695. “The death must he the natural and probable result of the negligence, one that could have been foreseen, else the negligence is not the probable ca--se.”
This is not a case of malpractice, in which plaintiff might recover if the fact had been established that the surgeon negligently failed in his duty to the injury of the patient, but is an action where there can be no recovery unless the plaintiff proved that the failure of appellant to perform his professional duty to visit the deceased at his home was the direct cause of the death of the patient.
In other words, the jury have found in favor of defendant on the question of negligence in administering the medicine, but found against defendant on the issue of the failure to visit deceased at his house on Sunday.
We have carefully gone over the record in this case and find it free of error, except that the court should have instructed a verdict as requested by appellant.
The judgment of the trial court is reversed, and judgment is here rendered for appellant, with costs of court.