Ghere v. Zey

• Decision Date: 27 January 1908
• Citation: 128 Mo. App. 362,107 S.W. 418
• Parties: GHERE v. ZEY.
• Court: Missouri Court of Appeals

107 S.W. 418

128 Mo. App. 362

GHERE v. ZEY.

Kansas City Court of Appeals. Missouri.

January 27, 1908.

1. APPEAL — REVIEW — QUESTIONS REVIEWABLE.

Where the evidence is conflicting, the facts are for the jury, and the court on appeal can only ascertain whether the trial court committed error in admitting or rejecting evidence, or in giving or refusing instructions.

2. EVIDENCE — ARGUMENTATIVE STATEMENTS.

In an action for malpractice, the statement of defendant while testifying in his own behalf that he was interne for a city hospital, that the assistant in the medical college was something every medical student worked for, and that was the height of their ambition, was properly stricken out as argumentative.

3. PHYSICIANS AND SURGEONS — MALPRACTICE — ACTIONS — INSTRUCTIONS.

An instruction in an action for malpractice which limited the skill of defendant to that ordinarily used by competent physicians and surgeons under like circumstances and conditions was proper, and, in substance, only required that defendant, to be relieved from liability, should have exercised the ordinary skill of physicians in the locality where he practiced.

4. TRIAL — INSTRUCTIONS — REQUESTS — NECESSITY.

A party cannot complain of an instruction perfect as far as it goes, where he did not ask for a more specific instruction.

5. PHYSICIANS AND SURGEONS — ACTIONS FOR MALPRACTICE — EVIDENCE — INSTRUCTIONS.

Where, in an action for malpractice, the evidence showed that defendant was employed to treat plaintiff professionally, and that defendant, contemplating a trip abroad, desired to leave another physician in charge of plaintiff, and that plaintiff refused the offer and employed others, a charge that defendant under his employment had no right to substitute any other person to take his place in treating plaintiff without the latter's consent was proper.

6. TRIAL — INSTRUCTIONS — REFUSAL OF INSTRUCTIONS COVERED BY THOSE GIVEN.

It is not error to refuse instructions embodied in those given.

7. SAME — COMMENT ON EVIDENCE.

It is not error to refuse a requested instruction amounting to a comment on a particular part of the evidence.

Appeal from Circuit Court, Bates County; Chas. A. Denton, Judge.

Action by Joseph L. Ghere against E. G. Zey. From a judgment for plaintiff, defendant appeals. Affirmed.

Francisco & Clark and Silvers & Silvers, for appellant. W. O. Jackson and Thos. J. Smith, for respondent.

ELLISON, J.

The defendant is a physician and surgeon, and was employed to serve plaintiff professionally. Plaintiff brought this action for malpractice, and recovered judgment in the trial court.

It appears that plaintiff was driving when his horse became frightened at an automobile, and he was thrown from his vehicle; his leg being broken from the fall. Defendant was called, and the charge is that he so negligently and unskillfully performed the service required in and about the broken leg as to cause it to be "impossible to get a perfect union and to get the leg properly extended, as a result of which said leg has been materially shortened, and plaintiff rendered a cripple for life." Though the case seems to have been sharply contested, and though the record presented here is quite large, yet there appears to be little in the case which is the province of this court to determine. The record discloses that there was evidence which, if believed by the jury, tended to support the plaintiff's theory and charge of negligent treatment; and, upon the other hand there was evidence tending to sustain defendant...