Smith v. Feerer, 17537.

• Citation: 70 N.E.2d 770,117 Ind.App. 304
• Decision Date: 31 January 1947
• Docket Number: No. 17537.,17537.
• Parties: SMITH v. FEERER.
• Court: Court of Appeals of Indiana

117 Ind.App. 304

70 N.E.2d 770

SMITH

v.FEERER.

No. 17537.

Appellate Court of Indiana, in Banc.

Jan. 31, 1947.

Appeal from St. Joseph Superior Court No. 2; J. Elmer Peak, Judge.

Malpractice action by Blanche Smith against Dr. Donald J. Feerer. From an adverse judgment, plaintiff appeals.

Affirmed.James P. Gleason, of Michigan City, Robert H. Moore, of Gary, and Floyd O. Jellison, of South Bend, for appellant.

Walter C. Williams, of Michigan City, and Louis C. Chapleau, of South Bend, for appellee.

ROYSE, Judge.

Appellant brought this action for damages against appellee. She alleged malpractice of appellee in treating her right arm.

The acts of negligence charged in the complaint may be summarized as follows: (a) Appellee found only one break in the arm; that the upper arm was fractured near the elbow socket and in the small bone of the wrist; the knuckles were twisted out of shape; that appellee failed to discover and treat these fractures, etc. (b) He failed to properly set the arm and to get proper apposition of the bones. (c) He failed to straighten out the bones of the knuckle and wrist and place them in proper shape. (d) He placed the arm in a plaster of paris cast and left it there for five weeks; that said break should have been placed in an aluminum cast. (e) He failed to X-ray the arm after setting it to see if the bones were in proper position. (f) He failed to diagnose a dislocation to the bones of her shoulder. (g) He failed and neglected to have an X-ray of the right shoulder. (h) He failed to treat her for a dislocation of the bones of said shoulder.

In the trial court, at the conclusion of appellant's evidence appellee's motion for a directed verdict in his favor was sustained. Pursuant to the court's instruction the jury returned a verdict for appellee. Judgment that appellant take nothing and that appellee recover his costs.

This appeal questions the action of the trial court in directing a verdict for appellee, and overruling her motion to amend her complaint by interlineation.

In passing on the questions here presented, all facts and reasonable inferences therefrom must be considered as true against appellee. Hummel v. New York Central Railway Co. et al., Ind.App.1946, 66 N.E.2d 901.

In actions of this nature it is incumbent on the appellant to establish by the evidence that appellee was unskillful or negligent, and that his want of skill or care caused injury to her. If either element is lacking in her proof, she...