Cowger v. Land

• Decision Date: 12 May 1887
• Citation: 12 N.E. 96,112 Ind. 263
• Parties: Cowger v. Land.
• Court: Indiana Supreme Court

112 Ind. 263

12 N.E. 96

Cowger

v.Land.¹

Supreme Court of Indiana.

May 12, 1887.

Appeal from circuit court, White county.

Reynolds & Sellers and W. E. Uhl, for appellant. R. Gregory, for appellee.

Howk, J.

In this case errors are assigned here by appellant, the plaintiff below, which call in question the overruling (1) of his demurrer to the fourth paragraph of appellee's cross-complaint; (2) of his demurrer to the fifth paragraph of such cross-complaint; and (3) of his motion for a new trial. In his brief of this cause in this court, appellant's learned counsel has confined his arguments to such questions only as are presented by or arise under the alleged error of the court below in overruling appellant's motion for a new trial. In the outset of his brief, counsel says: “The case involves two suits in one,-that of appellant against appellee on the complaint, and (2) that of appellee against appellant on the cross-complaint,-and the issues joined in one case were very different from those in the other. Practically, the whole action was a success and a failure to both parties; for, while the verdict was in favor of appellee on the complaint, it was, in effect, for the appellant on the cross-complaint, and vice versa. But appellee has assigned no cross-error, and there is but one of the cases on appeal,-that of appellant against appellee on the complaint, and issue joined thereon,-and I shall consider the evidence only with reference to its bearing on that branch of the case.” This is the view of appellant, as presented by his counsel, in relation to what is “on appeal” in this case. In this view, he is probably mistaken in regard to the extent of his appeal. The whole case, and all the issues joined therein, as well on the cross-complaint as on his complaint, are brought before this court by his appeal herein. Of course we consider such questions only as are presented by or arise under the errors assigned here by the appellant; but in the decision of these questions we explore the entire record, if necessary, in order to arrive at a right conclusion. Appellant may limit the questions to be considered here by his assignment of errors, and he may, and under our practicewill, waive the consideration and decision here of any question which he has failed to discuss in his brief of the cause. In the case in hand, appellant has wholly failed to notice, even in his brief herein, the errors assigned by him upon the overruling of his demurrers to the fourth and fifth paragraphs of appellee's cross-complaint, and therefore it must be held that he has practically waived such errors.

Appellant sued appellee in this action upon an open account for medical services rendered and medicines furnished by appellant to the wife of appellee, at his special instance and request. Appellee answered in three paragraphs as follows: (1) A general denial of the complaint; (2) payment; and (3) a set-off. Appellee also filed a cross-complaint in two paragraphs, numbered, respectively, 4 and 5. In such fourth paragraph, appellee alleged that on December 4, 1882, appellant was a practicing physician and surgeon of White county, and as such he was called by appellee to attend Judith Land, appellee's wife, who was then sick, and was then, and on divers days after that day, and before the filing of such paragraph, requested by appellee to administer the proper medicines and treatment for the cure of appellee's wife, Judith Land; that appellant on the days aforesaid, as such physician and surgeon, undertook to administer medicines to and treat Judith Land, appellee's wife; that appellant so negligently, unskillfully, and unprofessionally managed and treated Judith Land that by reason thereof she became mortally sick in body, and, in great pain, lingered for, to-wit, one year, and finally died; that, by reason of her treatment by appellant as aforesaid, appellee was put to the expense, to-wit, $1,000, in employing skilled physicians to cure her, and nurses to take care of her; that by appellant's aforesaid acts, appellee was deprived, during all such sickness of his wife, of her society and services, and of all the benefit, pleasure, and advantages which he otherwise would have enjoyed from her services and society; and that the services and medicines sued for herein by appellant were the same rendered and given by him under his employment as aforesaid. Wherefore appellee...