Acton v. Smith

• Decision Date: 22 November 1912
• Citation: 150 Ky. 703,150 S.W. 854
• Parties: ACTION v. SMITH.
• Court: Kentucky Court of Appeals

150 S.W. 854

150 Ky. 703

ACTION v. SMITH.

Court of Appeals of Kentucky.

November 22, 1912

Appeal from Circuit Court, Pulaski County.

Action by Emma Smith against T. J. Acton. From judgment for plaintiff, defendant appeals. Reversed and remanded.

T. Z Morrow and M. G. Colson, both of Somerset, for appellant.

Wesley & Brown and Virgil P. Smith, all of Somerset, for appellee.

SETTLE J.

In this action for malpractice appellee recovered of appellant, a physician, a verdict and judgment in the court below for $750 in damages. The latter, being dissatisfied with the judgment and the refusal of the circuit court to grant him a new trial, has appealed.

The petition, in substance, alleged that appellant was employed as physician to treat appellee for an illness caused, as he declared, from an ulcer of the womb, but which was, as alleged, in fact caused by her pregnancy; that the treatment appellant gave her was so unskillfully and negligently performed as to produce an abortion, which, with its consequent ills and his unskillful treatment of same, caused her intense and continued physical and mental suffering, and resulted in "great injury to her health and strength."

The record furnishes no ground whatever for appellant's contention that a peremptory instruction should have been given directing a verdict in his favor. There was abundant evidence conducing to prove his negligence or want of skill in his treatment of appellee during her illness, and that it caused the miscarriage and consequent illness suffered by her as charged in the petition. On the other hand, the evidence introduced in appellant's behalf, consisting chiefly of expert testimony, conduced to establish his skill in the treatment of appellee, and that the miscarriage suffered by her did not result from his negligence or want of skill. Obviously, the case should have gone to the jury, and it cannot be said that the verdict was flagrantly against the evidence.

A more serious matter is presented by appellant's contention that the jury were not properly instructed. We think however, that the instructions, except the one on the measure of damages, were substantially correct. The instruction on the measure of damages is as follows: "If you shall find for the plaintiff, you will award her such a sum in damages as you may believe from the evidence will fairly compensate her for her mental and physical suffering and pain, if any or the impairment of her health and strength, if any, caused by the defendant's failure to exercise ordinary care and skill in his treatment of her as physician, provided you do not find exceeding $10,000." The petition makes no claim to special damages, such as loss of time or expenditures for medical or surgical treatment. Nor is it therein alleged that the negligence of appellant resulted in any permanent injury to appellee or in a permanent impairment of her power to earn...