Kirby's Adm'r v. Berea College

• Decision Date: 03 November 1922
• Citation: 196 Ky. 353,244 S.W. 775
• Parties: KIRBY'S ADM'R v. BEREA COLLEGE ET AL.
• Court: Kentucky Court of Appeals

244 S.W. 775

196 Ky. 353

KIRBY'S ADM'R v. BEREA COLLEGE ET AL.

Court of Appeals of Kentucky.

November 3, 1922

Appeal from Circuit Court, Madison County.

Action by Nettie M. Kirby's administrator, against Berea College and others. Judgment entered upon a directed verdict for defendants, and plaintiff appeals. Affirmed.

J. R Llewllyn, of McKee, and J. B. Chenault and Chenault &amp Chenault, all of Richmond, for appellant.

A. R Burnam, Jr., and J. J. Greenleaf, both of Richmond, for appellees.

THOMAS, J.

Appellant and plaintiff below, Larkin Kirby, as administrator of his deceased daughter, Nettie M. Kirby, filed this action in the Madison circuit court against the appellees and defendants below, Berea College, Dr. Harlan Dudley, Dr. R. H. Cowley, Mary S. Longacre, and Nellie V. Miller, seeking the recovery of a judgment for $20,000 against all of the defendants because of alleged negligence, unskillfulness, ignorance, and maltreatment of plaintiff's decedent while she, as a student in Berea College, was an inmate of the hospital operated in connection therewith, while afflicted with measles, which developed into pneumonia, followed by her death. It is alleged in substance that the hospital was maintained by the college, and that defendant Cowley was the chief surgeon in charge and defendant Dudley was his assistant; that defendant Longacre was the superintendent of the hospital and defendant Miller was superintendent of nurses in it; that the physician defendants either failed to exercise ordinary care and skill in examining, treating, and attending the decedent, or were so ignorant as to render them incompetent therefor, and that the other individual defendants did not properly nurse, administer to, and care for the patient, and negligently failed to perform their legal duties, whereby she contracted the disease which produced her death, and that the nurse immediately in charge of her (Miss Emily Neeley) was not only incompetent, but also brutal, which facts were known by defendants, and as a consequence decedent was maltreated and was compelled to do and perform improper acts, resulting in the production of pneumonia, of which she died.

A demurrer filed to the petition was sustained as to the defendants Longacre and Miller, and upon failure to further plead the petition was dismissed as to them, but the demurrer was overruled as to the other defendants, and they answered and denied the affirmative allegations in the petition, and the college in a separate paragraph pleaded its exemption from liability because it was a charitable institution, thereby invoking the doctrine of the case of Emery v. Jewish Hospital Association, 193 Ky. 400, 236 S.W. 577, and others referred to therein; while in a third paragraph all of the answering defendants relied on a plea of contributory negligence. The reply denied the two affirmative paragraphs of the answer, and a trial resulted in a directed verdict for defendants, upon which judgment was rendered, and, plaintiff's motion for a new trial being overruled, he has prosecuted this appeal.

The propriety of the judgment sustaining the demurrer as to the two defendants named, and dismissing the petition as to them, is questioned on this appeal, and a reversal of it is asked, but the statement required by section 739 of the Civil Code makes no complaint of or reference to it, but shows the appeal to be prosecuted only from the judgment based on the directed verdict, and, under numerous decisions of this court, we are forbidden to review the judgment in favor of those two defendants.

The great burden of the argument for reversal is directed toward the support of the contention that the evidence introduced by plaintiff was sufficient to require a submission of the issues to the jury, and that the court erred in holding to the contrary and in giving the peremptory instruction; but we are not convinced of the sufficiency of the grounds stated in the motion for a new trial to raise that question. Those grounds are:

"(1) The court erred in rejecting competent evidence offered by the plaintiff; (2) that the verdict is not sustained by sufficient evidence, or is contrary to law; (3) errors of law occurring at the trial and excepted to by the plaintiff at the time same occurred."

The latter part of ground 2 and ground 3 are each stated in such general terms as not to call the attention of the court to any particular error relied on, and in the cases of Grove Lodge v. Fidelity Ph nix Co., 191 Ky. 666, 231 S.W. 215; Ortwein v. Droste, 191 Ky. 17, 228 S.W. 1028; Louisville & Nashville Railroad Co. v. Woodford & Ireland, 152 Ky. 398, 153 S.W. 722; Chas. Taylor Sons Co. v. Hunt, 163 Ky. 120, 173 S.W. 333; American Credit-Indemnity Co., etc., v. National Clothing Co. (Ky.) 122 S.W. 840, and McClain v. Dibble, 13 Bush, 297--it was held that such general statements, without specifying the errors relied on, do not furnish grounds for reversal, and that such generalization is not sufficient to authorize this court to review particular complained of errors such as the giving of instructions, etc. In the American Credit-Indemnity Co. Case the ground held to be insufficient was "error of law occurring at the trial and excepted to at the time by this defendant." The same was true in the Woodford & Ireland Case; while in the Ortwein and Grove Lodge Cases the motion said that the verdict "is contrary to law." In denying its sufficiency we said in the latter case:

"To say in a motion for a new trial that a verdict 'is

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