Caylor v. Virden
Decision Date | 05 January 1955 |
Docket Number | No. 15123.,15123. |
Citation | 217 F.2d 739 |
Parties | Elmer L. CAYLOR, Appellant, v. C. Edgar VIRDEN, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
David Prager, Topeka, Kan., and Martin B. Dickinson, Kansas City, Mo. (Edward Rooney and Jacob A. Dickinson, Topeka, Kan., on the brief), for appellant.
William A. Rundle, Jr., Kansas City, Mo. (Henry W. Buck and Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, Mo., on the brief), for appellee.
Before GARDNER, Chief Judge, and COLLET and VAN OOSTERHOUT, Circuit Judges.
This was an action brought by appellant as plaintiff against the appellee to recover damages for personal injuries alleged to have been inflicted by appellee, a physican and surgeon, in connection with an X-ray treatment administered by or under the directions of appellee. We shall refer to the parties as plaintiff and defendant respectively. At all times pertinent to the issues here involved defendant was a duly licensed physician and surgeon engaged in the practice of his profession in Kansas City, Missouri, and specializing in the use of the X-ray known in the medical field as roentgenology and radiology. The plaintiff, a farmer residing in the vicinity of Osawatomie, Kansas, had prior to the time of his alleged injury been given other X-ray treatments by the defendant for skin cancer. On June 22, 1951, he again consulted defendant in his professional capacity because of an apparent skin infection and was again given X-ray treatment and it is for alleged injuries received by him as the result of his treatment by defendant on this occasion that the present action is predicated. It is alleged in plaintiff's complaint inter alia that:
In due course defendant filed an answer putting in issue the material allegations of the complaint and specifically denying that the plaintiff suffered injury, permanent or otherwise, by reason of the X-ray treatment he had received but admitting that defendant was a duly licensed and practicing physician and surgeon and that he was consulted by the plaintiff at the time alleged and that he examined plaintiff and recommended the treatment administered. Thereafter defendant took the deposition of the plaintiff as an adverse party and then interposed a motion for summary judgment based on Rule 56(b) and (c) of the Federal Rules of Civil Procedure, 28 U.S. C.A., on the ground that the pleadings and depositions on file showed that defendant was entitled to judgment as a matter of law.
The trial court being of the view that it was disclosed by the pleadings and the deposition of the plaintiff that plaintiff suffered no physical injury, that there was no claim that he was inhumanly, maliciously or cruelly treated, or that plaintiff suffered an unlawful invasion of his rights, granted defendant's motion for summary judgment in his favor. From the judgment thus entered plaintiff prosecutes this appeal.
Rule 56, Federal Rules of Civil Procedure, provides in part as follows:
The proceeding on motion for summary judgment is in the nature of an inquiry to determine whether or not there is a genuine issue of fact. It does not involve a trial and is not for the purpose of determining an issue of fact. The burden of proof is upon the movant and the evidence produced in support of such a motion must be viewed in a light most favorable to the party against whom it is directed. The rule in this regard is similar to that applicable on a motion for a directed verdict. The party against whom the motion is made is entitled to all favorable inferences which may be reasonably drawn from the evidence and if when so viewed reasonable men might reach different conclusions the motion should be denied. Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881; Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213; Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101; Parmelee v. Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130. In Dulansky v. Iowa-Illinois Gas & Electric Co., supra, the court entered summary judgment for the defendant in a death by wrongful act case. In reversing the judgment it is among other things said 191 F.2d 884:
* * *"
It is also there said:
"The burden of proof was upon the movant, not upon the plaintiffs, and all doubts are resolved against the movant." (Citing cases.)
In Traylor v. Black, Sivalls & Bryson, Inc., supra, in reversing a judgment entered on summary proceeding this court said 189 F.2d 216:
It thus...
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