Scutchfield v. Kull, 20045

• Decision Date: 18 November 1965
• Docket Number: No. 2,No. 20045,20045,2
• Citation: 210 N.E.2d 260,138 Ind.App. 49
• Parties: Burlie SCUTCHFIELD, Appellant, v. Albert F. KULL and Duane Powers, Appellees
• Court: Indiana Appellate Court

Page 260

210 N.E.2d 260

138 Ind.App. 49

Burlie SCUTCHFIELD, Appellant, v. Albert F. KULL and Duane Powers, Appellees.

No. 20045.

Appellate Court of Indiana, Division No. 2.

Nov. 18, 1965.

[138 INDAPP 49]

Stevens & Wampler, Don F. Kitch, Plymouth, for appellant.

Roland Obenchain, Jr., Jones, Obenchain, Johnson, Ford & Pankow, South Bend, Albert B. Chipman, Chipman & Chipman, Plymouth, for appellees.

BIERLY, Chief Justice.

Appellant, Burlie Scutchfield, commenced this action in the Marshall Circuit Court, Marshall County, [138 INDAPP 50] Indiana, against appellee, Dr. Albert F. Kull, an osteopathic physician and surgeon, located and practicing in South Bend, Indiana, and against defendant below, Dr. Duane Powers, a practicing osteopathic physician located at Culver, Indiana. This action sought to recover damages sustained by appellant resulting from certain alleged acts of malpractice on the part of the defendants in performing an operation.

Plaintiff-appellant alleged in his complaint that in August, 1958 he suffered from a hernia and hydrocele and consulted defendant, Dr. Duane Powers, for treatment; that Dr. Powers prescribed treatments from said time until March, 1959, when he was advised by Dr. Powers to enter the Osteopathic Hospital in South Bend, and undergo an operation for the correction of the hernia and the removal of the hydrocele; that plaintiff and defendant Powers employed Dr. Albert F. Kull to assist Powers in the correction of said hernia and the removal of the hydrocele. Although Dr. Powers was named an appellee herein, however, he is not to be involved in this appeal.

Appellant in his complaint, insofar as it concerned appellee, Albert F. Kull, alleged that said appellee undertook to correct a hernia and to remove a hydrocele and to care for and attend the appellant; that appellee was negligent and unskillful in conducting the operation and that, as a direct and proximate result of the conduct of appellee, the appellant is unable to work and go about his business and he has been rendered impotent as a result thereof. It was further alleged that a spinal block was administered in such an unskillful manner that the appellant suffers continuous back pains.

Appellee filed answer in compliance with Rule 1-3 of the Supreme Court and the case was submitted to trial before a jury.

Appellant brought forth evidence to establish that appellee, Kull, performed the operation and that he was negligent in such performance. Appellee, Kull, moved for a directed verdict[138 INDAPP 51] at the close of appellant's evidence, which motion was overruled. Appellee then introduced evidence to prove that he was not the surgeon who performed the operation. At the close of all the evidence appellee renewed his motion for a directed verdict in his behalf. The trial court sustained appellee's motion and gave Mandatory Instruction 'C': 'The jury is instructed to return its verdict for the defendant, Kull, on the plaintiff's complaint.'

The paramount issue in this appeal is whether or not the trial court erred in sustaining appellee Kull's motion for a directed verdict.

In Garr v. Blissmer et al. (1962), 132 Ind.App. 635, 641, 177 N.E.2d 913 (transfer denied), this court approved the language set forth in 28 West's Indiana Law Encyclopedia, Trial, Sec. 137, pp. 133, 134, 135, which states that it is improper for the court to direct a peremptory instruction for defendant when:

"A court should not give a peremptory instruction for the defendant unless there is a total absence of evidence or reasonable inference on at least one essential element of the plaintiff's case, or unless there is no conflict in the evidence and it is suseptible of but one inference which precludes recovery. It is only when the plaintiff fails to make a case, so that it would be the duty of the trial court, or of a higher court on appeal, to set aside the verdict as not being supported by any competent evidence on some material point, that a verdict for the defendant should be directed.'

"Where there is some or any evidence which with all its reasonable inference and intendment fairly tends to prove the plaintiff's case, a peremptory instruction in favor of the defendant should not be given. The court cannot give a peremptory instruction for the defendant where there is some...