to recover possession of the property illegally taken or detained, and he will not be accorded the protection of the court appointing him."

As pointed out in the original annotation in 39 A.L.R. 6, there is no doubt but that the custody of property by the receiver of the court is the custody of the court; therefore, it naturally follows that one dispossessing a receiver of property consigned to him by the court dispossesses the court, and, of course, becomes in contempt of court, and the property may be restored to the receiver. The rule was applied in Coker v. Norman (1926) Ga. 133 S. E. 740, where

one claiming title to land by reason of default of her vendee in failing to pay for it, and also on the ground that she held title under a tax deed, took possession of the property and removed a house which was under construction thereon, while said property was in the possession of a receiver, who had been appointed upon the petition of one who had furnished materials to the defaulting vendee for the purpose of constructing the house thereon.

In Cox-Rushing Greer Co. v. Richardson (1925) Tex. Civ. App. —, 277 S. W. 718, however, where the owner of property which had been placed in the possession of a receiver, and which was subsequently set aside as the owner's homestead by a trustee in bankruptcy, conveyed the property to a purchaser, who moved onto this property, the court held that, although the latter's act was an unwarranted interference with the constructive possession of the receiver, it was entirely a matter of diseretion with the court whether it would enter an order holding him in contempt and punishing him therefor; and its refusal to do so was a matter of which the receiver

could not complain; and the court had the discretion, upon hearing the ap plication of the receiver, to permit the purchaser to retain possession pending adjudication of the title to, and right of possession of, the property in a plenary suit brought for that purpose; on the other hand, the court unquestionably had the power, had it desired to exercise it, to have required the purchaser to surrender the property to the receiver.

Harrigan v. Stone (1925) 237 Ill. App. 314, held that an administrator of an estate, who refused or failed to turn over securities which belonged to the estate to the receiver of the property of the estate, who was appointed upon the release of said administrator, in obedience to the decree of the court appointing the receiver, and who did not contend that he was financially unable to comply with the terms of the decree, was guilty of contempt of court.

And the burden is upon the person charged with contempt to prove his inability to comply with the order or decree, by definite and explicit evi-. dence. Ibid.

The reported case (CLEAR CREEK POWER & DEVELOPMENT Co. v. CUTLER, ante, 237), in line with the uniform current of authority, holds that the levying of an execution upon property in the possession of a receiver, without permission of the court appointing the latter, constitutes a contempt of court. And, even if it be conceded that there was irregularity in the appointment of the receiver, or in the foreclosure proceeding in which the property was placed in the possession of the receiver, that would not purge the contempt predicated upon the unauthorized levy of execution.

R. P. D.

negligently, wantonly, and willfully failed to properly protect the finger from the powerful and dangerous rays which were being used, and exposed the finger for too long a time to said rays, and severely and dangerously burned the plaintiff's finger in administering said treatment to such an extent that the plaintiff was unable to use her hand for many weeks after the treatment, has suffered intense and excruciating pain, has been unable to perform her duties in connection with her occupation as an interior decorator, has a permanent injury to her finger, and has a deformity of her finger which will permanently disfigure her hand and make it more difficult for her to carry on her chosen profession, and has incurred medical expense in obtaining treatment for the said burn.

"(6) That the aforesaid injuries were caused by the negligence, wantonness, and willfulness of the defendant in failing to properly protect the plaintiff's finger with a metal guard or shield while administering said treatment, in exposing the finger to the powerful rays for 13 minutes, which was too long a period of time, in failing to properly administer the treatment as above indicated, and in burning the plaintiff's finger by the use of the X-ray; all to the plaintiff's damage in the sum of $10,000."

The following is the answer of the defendant:

"(1) Admits the allegations of paragraphs 1, 2, and 3.

"(2) Admits the allegations of paragraph 4 that on or about the 5th and 19th of November, 1922, he administered X-ray treatments to the plaintiff, and admits further that the finger in question was burned, but has neither knowledge nor information sufficient to form a belief that the burning was of the nature contended for in said paragraph.

(3) Denies specifically the allegations of paragraph 5 as to the manner in which this defendant administered the X-ray treatment and

that this defendant dangerously burned the plaintiff's finger, and has neither knowledge nor information sufficient to form a belief as to the remaining allegations of said paragraph.

66

(4) Denies specifically the allegations of paragraph 6, and denies further each and every other allegation in said complaint contained not hereinabove specifically admitted or explained."

The jury gave a verdict for the defendant. Thereafter a motion was made for a new trial, which was overruled by the trial judge.

(1)

The plaintiff now appeals to this court by four exceptions, imputing error in two main particulars: Error in admitting the testimony of Dr. Jennings and of Dr. McIntosh "as to the efficiency and carefulness of Dr. Shaw and as to his reputation;" and (2) error on the part of the court in refusing plaintiff's motion for a new trial on the ground that the verdict was against the overwhelming preponderance of the evidence.

When Dr. R. T. Jennings, a witness for the defendant, was on the stand, he testified as follows; this testimony being admitted by the court over the objection of the plaintiff:

"Q. What is your observation of Dr. Shaw as to his efficiency or carefulness in general?

"Mr. Herbert: We object. We haven't attacked Dr. Shaw's reputation as a physician. That hasn't been put in issue. He may be a very good physician, and he may have done a very careless thing; he may be very careful, and he may have done a very careless thing.

"The Court: It seems to me it has some probative value. I think it is competent.

"Mr. Herbert: Dr. Shaw's reputation as a careful physician? "The Court: Yes, sir.

"Mr. Herbert: I ask to note my objection.

"A. He has always been very careful with me and I have got good results.

"The Court: One minute-what is his reputation?

"Witness: His reputation is good as an X-ray man.”

This suit was based upon certain specific acts of the defendant, alleged to be negligent, willful, and wanton. No attack was made upon, nor does this action involve, his general skill, competency, ability, or reputation. A physician might be ever so skillful or competent in a general way, or might have an unexcelled reputation, and yet be guilty of the grossest negligence in his treatment of a particular case. It It is clear to reason, therefore, that, in the case at bar, testimony as to Dr. Shaw's reputation was inadrnissible, and the admission of such testimony was reversible error. This view is supported

Evidence-of carefulness of physician.

by the weight of authority.

In 5 Thompson on Negligence, § 6712, it is said: "Where the physician or surgeon is charged with negligence, and not with incompetency, the matter of his fitness is not an issue, and evidence to show competency and skill is clearly inadmissible."

In 30 Cyc. 1585, we find: "Where the action is for negligence, and the skill of the physician is not put in issue, he cannot show his general reputation for skill."

In 22 Am. & Eng. Enc. Law, 2d ed. 809, we find: "The general reputation of a physician for compe

tency and skill is inadmissible in an action for malpractice, because the issue is his conduct in the particular case."

In Jones on Evidence, § 148, it is said: We have already seen that "in actions based on negligence it is irrelevant to prove that the plaintiff or the defendant has on similar occasions been careful or negligent; in like manner it is irrelevant to show that either party has hitherto had the reputation of being prudent or negligent."

In Stevenson v. Gelsthorpe, 10 Mont. 563, 27 Pac. 404, the court said: "In the trial of this case the court allowed, over the objection. and exception of defendant's counsel, certain witnesses to testify as to the defendant's reputation, at Sand Coulee, for skill and ability as a physician. This was clearly improper. Defendant's reputation as a physician was not in issue. It was his specific acts in the treatment of a certain case, and the facts as to whether his acts were unskillful and negligent in this treatment was the matter in issue. A doctor's reputation for skill and ability will not exonerate him, where gross negligence and want of the application of skill is alleged and proved. Nor can the fact that a doctor is reputed to be negligent or unskillful be allowed as proof to establish negligence or unskillful treatment in a particular case, because he may have treated that case with unusual skill and care. The introduction of that evidence was not only improper from a legal view, but it was of a character which may have unjustly prejudiced defendant's case before the jury upon a point where defendant had made no preparation to defend. It is likely such improper evidence misled two-thirds of the jury who concurred in the verdict."

In Engstrom v. Wise Dental Co. 97 Or. 634, 193 Pac. 187, it was held that (quoting syllabus) "in an action where negligence on the part of a dentist is charged, evidence as to his reputation for care is inadmissible."

In Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323, 64 N. E. 38, which was an action for malpractice, defendant's testimony as to the successful treatment of other patients by him for the same disease was held inadmissible.

Hackler v. Ingram, Tex. Civ. App., 196 S. W. 279, was an action against a physician for alleged negligence in the performance of a particular operation. The court held that evidence of the general skill and efficiency of the physician was not admissible, and said: "However careful and competent a person may be generally, such fact is no defense to a specific act of negligence."

Holtzman v. Hoy, 118 Ill. 534, 59 Am. Rep. 390, 8 N. E. 832, was an action against a physician for malpractice in treating a fractured leg. The court said: "As a physician or surgeon cannot bring the requisite skill to any case unless he has it, it follows the professional skill of the defendant was, if not in express terms, at least by implication, put in issue in this case, and the onus probandi was upon the plaintiff to Ishow his want of such skill. The proper and only mode of doing this was by proving that he did not exercise it in the treatment of the plaintiff's leg. It does not, however, follow that because the defendant's skill, or rather the want of it, was put in issue, that it could be either established or disproved by showing his general reputation. While his skill, or the want of it, was put in issue, his reputation in that respect was not put in issue and therefore evidence to establish it was properly excluded. Suppose it appeared from the evidence that the treatment of the plaintiff's leg was proper, and in every respect according to the most approved surgery, and evidence of the character offered had been admitted, would it have availed the plaintiff anything if it further appeared from the evidence that the defendant was generally reputed to be an unskillful and unsafe surgeon? Surely not.

The use of dangerous instrumentalities, such as electricity, radium, etc., in the treatment of disease, demands not only skill and competency, but the exercise of such care as may be necessary and required by reason of the inherent danger of the instrumentality employed.

The highly specialized expert employing such dangerous instrumentalities and the more humble general practitioner employing the simpler remedies are alike subject to the rule that they cannot escape the consequences of their negligent acts in a special case by showing or attempting to show their general reputation for skill and competency.

-effect of al

fulness.

The oral contention of the respondent that the allegation of willfulness in the complaint takes the case out of the rule, and makes compe- legation of wiltent the evidence complained of, is without merit. This does not in any way change the rule of law. The allegation implies that the defendant was not only negligent but was actually willful in his disregard of the rights of his patient in the proper treatment of her disease, the only difference being that under this allegation punitive damages may be recovered.

But the respondent contends that even if the admission of the testimony was error, such error was cured and the objectionable testimony rendered competent by the appellant's cross-examination of defendant's witness Dr. McIntosh, as follows:

"Q. Dr. Shaw has a good reputation? A. Yes, sir.

"Q. He would say the same thing for you, and you would say the same thing for the most of our doctors? A. Yes, sir.

"Q. You try to get along together? A. Yes, sir."

In support of this position, the re