Lansdown v. Worthey, 71-1080.
| Decision Date | 24 April 1972 |
| Docket Number | No. 71-1080.,71-1080. |
| Citation | 458 F.2d 485 |
| Parties | Donald O. LANSDOWN and Melvin D. Sears, Appellants, v. Dr. F. E. WORTHEY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harold J. Fisher, Woolsey, Fisher, Clark & Whiteaker, Springfield, Mo., for appellee.
Elwyn L. Cady, Jr., Independence, Mo., for appellants.
Before GIBSON and HEANEY, Circuit Judges, and VAN PELT, Senior District Judge.*
This action was brought under 42 U. S.C.A. § 1983. A verdict was directed against plaintiffs, appellants herein, at the close of their evidence. We affirm.
Appellants claim that defendant, who is a medical doctor, deprived each of them, to their injury, of certain constitutional rights and privileges in violation of § 1983, supra, in that he failed to render medical service to them after an alleged beating which they claim was inflicted in the Wright County jail at Hartville, Missouri, by the sheriff and deputy sheriff of Wright County, while they were inmates.
Separate § 1983 actions against each of these officers were combined for trial with this case. While the court has been advised of the verdicts in these two cases they have no bearing on the issue here.
The sole issue here is whether the evidence is sufficient to submit to a jury the question of the liability of Dr. Worthey to plaintiffs under § 1983 of the Civil Rights Act.
It is stated in the complaint that Dr. Worthey was "the designated physician who had assumed the responsibility of rendering medical aid to persons in custody at said County Jail pursuant to custom and color of law of the said County and State" and that he failed to render such aid and "consequently violated the provisions of the Ku Klux Act . . . ."
There is no allegation in the complaint connecting Dr. Worthey with the beatings, and no claim that he was present when inflicted.
Dr. Worthey is a medical doctor practicing at Hartville. He has never held an appointment as county physician. The argument disclosed that he is not the only physician in the county. He was never called to render aid to either appellant for the alleged injuries here involved. He had no knowledge of their injuries. His treatment of Sears for a metal splinter in the eye was prior to the alleged beating. Thus at the time of the claimed beating, the physician-patient relationship with Sears had terminated. He had no duty by contract or by state law or statute to go to the jail at other times. He was paid for any calls he made by billing the "County court, county clerk" (T. 11). He did not make regular or periodic calls at the jail. He visited the jail only when called by the sheriff. After the beatings and prior to the time they were taken to the State Penitentiary, he was called and vaccinated both plaintiffs.
42 U.S.C.A. § 1983 gives protection when "under color of any stat...
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United States ex rel. Ingram v. Montgomery Cty. Pris. Bd., Civ. A. No. 73-1063.
...cited in Antieau, supra. We must bear in mind that Andrews was the prison physician. Thus we do not have a case like Lansdown v. Worthey, 458 F.2d 485 (8th Cir. 1972), in which a directed verdict was granted in favor of defendant Doctor Worthey because he never held an appointment as county......