Powell v. Galloway

• Decision Date: 16 April 1929
• Citation: 16 S.W.2d 489,229 Ky. 37
• Parties: POWELL v. GALLOWAY.
• Court: Kentucky Court of Appeals

16 S.W.2d 489

229 Ky. 37

POWELL v. GALLOWAY.

Court of Appeals of Kentucky

April 16, 1929

Appeal from Circuit Court, Henderson County.

Action by Randolph Galloway against E. N. Powell. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 16 S.W.2d 492.

Yeaman Pentecost & Yeaman, of Henderson, for appellant.

Dorsey & Dorsey, of Henderson, for appellee.

WILLIS J.

This was an action for damages instituted by Randolph Galloway against Dr. E. N. Powell, which resulted in a verdict and judgment for plaintiff in the sum of $3,000. A motion for a new trial was overruled, and the defendant has appealed. It is insisted that numerous errors prejudicial to the appellant's rights intervened at the trial, all of which will be noticed as the opinion proceeds.

The first complaint is that the evidence was insufficient to take the case to the jury or to sustain the verdict for plaintiff.

It is correctly contended that a physician is not an insurer of results, and can be held liable to his patient for damages only in the event that negligence on the part of the surgeon is shown as the proximate cause of injury. Hanners v Salmon, 216 Ky. 584, 288 S.W. 307. But when evidence is offered tending to sustain the cause of action alleged by the plaintiff, the case must be submitted to the jury for determination. Leadingham v. Hillman, 224 Ky. 177, 5 S.W.2d 1044; Knopp v. Thornton, 199 Ky. 216, 250 S.W. 853.

It was charged in the petition that the plaintiff, while cranking an automobile, broke one of the bones of his right forearm and immediately employed the defendant to treat, care for, and attend the injured arm; that the defendant accepted the employment and undertook to render the necessary and proper services and attention; that defendant was negligent in the treatment and handling of the injury, and as a direct result thereof plaintiff's hand and fingers were stiff, deformed and permanently impaired. The proof for the plaintiff tended to sustain the allegations of the petition. The accident occurred near the doctor's office, and the injured man was immediately taken to the doctor for treatment. The doctor put the broken bones in place, but before a splint could be applied they separated again. The doctor then placed the arm in position and caused it to be held there until a metal splint was put under it and the arm firmly bandaged, so that it remained in the position fixed. The splint was somewhat longer than necessary and extended beyond the ends of the fingers. Only the thumb was left free. The splint was curved, and after the arm was placed in it the curve was toward the thumb. A shorter splint was put on the arm later, and the doctor saw the injured arm frequently. The accident happened November 18th, and the splint was removed on January 2d following. The doctor's attention had been called to the fact that the arm appeared to be crooked, and that a knot or bony substance had formed on the back of the hand at the wrist. The doctor insisted that the arm was not crooked, and explained that the knot was a mere swelling, which would soon disappear. In about one week after the splint was removed, the patient returned to the doctor, who appeared to be shocked at the condition of the arm.

Plaintiff testified that the doctor remarked that he knew there was a little deformity, but was surprised at the extent of it. He continued treating the arm until about the middle of March, but it remained stiff, crooked, and useless. In April another doctor was consulted and operated on the arm, removing the bony substance from the wrist, and again placing the arm in splints. There was testimony by physicians to the effect that the arm was not properly set in the splint, and that the knot on the wrist indicated the displacement of a fragment, and that the fracture was not properly reduced. There was further testimony that the arm had been held in a malposition, and that the abnormal result was caused thereby. It is apparent that the testimony for plaintiff made out a case for the jury, and sustained the burden which the law imposes in a case of this character to prove negligence resulting in injury. On the other hand, the testimony for defendant was positive and direct that the doctor had carefully and correctly treated the injured arm, and that the bad result was caused by inherent bodily conditions of the patient which prevented a union of the broken bones, and was not traceable to any omission or fault of the doctor. The doctor not only sustained his defense by his own testimony, but proved it by a number of other physicians.

The credibility of the witnesses and the finding of facts from conflicting evidence are essentially for the jury to determine. Whilst this court has power to grant a new trial, where the verdict of a jury is palpably against the evidence, yet, when there is sufficient evidence, if believed, to sustain the verdict, a new trial will not be granted, even though the losing party has the greater number of witnesses, or appeared to have proven his case more convincingly than his adversary. Baute v. Haynes, 104 S.W. 272, 31 Ky. Law Rep. 876, 12 L. R. A. (N. S.) 752; Acton v. Smith, 150 Ky. 703, 150 S.W. 854; Hoover v. McCormick, 197 Ky. 509, 247 S.W. 718; Stevenson v. Yates, 183 Ky. 196, 208 S.W. 820. We are unable to say that the verdict in this case was palpably against the evidence.

Complaint is made of rulings of the court regulating the admission of evidence. It is said that the amount of compensation collected by the patient from his employer's insurance carrier was admissible in reduction of special damages. There was no pleading alleging that compensation had been paid, or seeking to bring before the court the insurance carrier or the employer. It has been held that evidence that an employee had received compensation from his employer under the Workmen's Compensation Act is not admissible in an action against a third party whose negligence caused the injury. Book v. City of Henderson, 176 Ky. 785, 197 S.W 449; Hardy v. Muensch, 195 Ky. 398, 242 S.W. 586. But a verdict in favor of an employee against a wrongdoer may be credited with the amount of compensation collected by him, when the wrongdoer is liable also to the employer or his insurance carrier to that extent. Williams v. Brown, 205 Ky. 74, 265 S.W. 480; Maryland Casualty Co. v....