Adolay v. Miller

• Decision Date: 03 February 1916
• Docket Number: No. 8906.,8906.
• Citation: 111 N.E. 313,60 Ind.App. 656
• Parties: ADOLAY v. MILLER et al.
• Court: Indiana Appellate Court

60 Ind.App. 656

111 N.E. 313

ADOLAY

v.MILLER et al.

No. 8906.

Appellate Court of Indiana, Division No. 2.

Feb. 3, 1916.

Appeal from Superior Court, Marion County; Chas. J. Orbison, Judge.

Action by Fred W. Adolay against Albert W. Miller and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Frank S. Roby, Ward H. Watson, Sol H. Esarey, and E. D. Salsbury, all of Indianapolis, for appellant. Solon J. Carter, and D. P. Williams, both of Indianapolis, for appellees.

IBACH, C. J.

Appellant suffered a compound fracture of the bones of the right forearm, and appellees, physicians and surgeons, were employed to reduce the fracture. In this suit appellant seeks to recover damages which he claims he has suffered in consequence of appellees' failure to exercise a reasonable degree of care and skill in their treatment of him. The record discloses, after the complaint was filed and before the filing of the separate answers by each defendant, separate motions to require plaintiff to make his complaint more definite and certain were overruled. At the close of plaintiff's evidence, the trial court sustained defendants' motion for a peremptory instruction in their favor, a verdict was returned accordingly, and judgment for defendants entered thereon. The correctness of this action of the trial court is the only question presented for our consideration. Or, as appellant has expressedit, the question is “whether an inference of negligence against appellees or either of them because of omissions or commissions might have been drawn by the jury from the facts before it.”

The only evidence produced at the trial was that introduced by appellant, and consists of the testimony of himself and his wife and to skiagraphs of the injured arm taken several weeks after the accident by another physician and surgeon. A narrative statement of the testimony, portions of which we have taken from the briefs, is as follows: Appellant was injured by being run over by a wagon, was carried into a house close by. Dr. Miller was called. He, together with other persons, extended and pulled on the arm, using “a whole lot of force.” “After they got it together, they bandaged it up.” The doctor then stated it was all right. The splints used by him were made from pieces of a soap box, padded with cotton. One of them was placed on the front of the arm, the other on the back thereof, and then bandages were wrapped around the splints. Appellant was then moved to his home. His arm continued to hurt, but “there was no swelling.” He called Dr. Miller again, the same day, because of his suffering, and he informed appellant he could not do more; “he would have to stand his suffering.” At the request of both appellant and his wife, Dr. Miller brought a specialist, Dr. Kolmer, who, after examining his body generally, moved the fingers of the injured man up and down and said the fingers are all right and the arm is set all right. This visit was on Friday, the same day of the injury. The Tuesday following, Dr. Kolmer came again with Dr. Miller. They removed the bandages and splints, extended the arm, manipulated the fractured bones, and reset the arm. They worked on it 15 minutes, Miller at the elbow and Kolmer at the hand, and they pulled it and manipulated it, using a lot of force, and after they “had it right they applied the splints and bandaged it up.” Kolmer said it would be all right. Appellant wanted an “X-ray put on the arm.” Kolmer said it was unnecessary. Kolmer did not visit appellant after this time, neither did he see the arm again until after the bandages and splints were removed, about 12 or 13 weeks thereafter. Dr. Miller, however, saw him every day during the first two weeks. The second day after the doctors reset the arm, Miller removed the dressings and bandages, rubbed the arm with alcohol, replaced the splints and bandages, and continued such treatment every second day thereafter. For a period of 3 weeks appellant was confined to his bed because of injuries to his back and side. After he left his bed, he visited Dr. Miller in his office...