Stamets v. Wilson
| Citation | 164 N.E. 300,89 Ind.App. 403 |
| Decision Date | 14 December 1928 |
| Docket Number | 13,031 |
| Parties | STAMETS v. WILSON |
| Court | Court of Appeals of Indiana |
Rehearing denied April 16, 1929. Transfer denied May 29 1929.
From Allen Circuit Court; John Morris, Special Judge.
Action by George G. Wilson against Zenith H. Stamets. From a judgment for plaintiff, the defendant appealed.
Affirmed.
W. H Eichhorn, Frank W. Gordon and John H. Edris, for appellant.
William N. Ballou and Guy Colerick, for appellee.
Complaint by appellee alleging that appellant, as a physician, negligently failed to properly reduce and treat a fracture of the femur of appellee's right leg. Trial by jury resulted in a verdict and judgment for appellee for $ 3,150. The error assigned relates to the overruling of the motion for a new trial.
The first contention is that the verdict is not sustained by sufficient evidence. In support of this contention, appellant insists there is no evidence to prove that appellant did not possess reasonable skill and did not exercise ordinary care, such as would be possessed and exercised by members of his profession in the locality where he resided and practiced. This contention cannot prevail. At least one physician testified that it was the ordinary and usual practice among physicians and surgeons in the locality where appellant resided and practiced, before starting to reduce a fracture of the femur, to use the X-ray to ascertain the exact nature of the fracture; that it is the ordinary practice of physicians and surgeons in that locality, before discharging a patient who has a femur fracture, to use the X-ray to ascertain whether there has been a proper reduction of the fracture. A physician who accompanied appellee when he was first taken to appellant's hospital and when appellant was first employed to treat appellee, testified that he suggested to appellant that the X-ray machine be used; that appellant said his machine was not working at that time, but that he would take an X-ray later. Appellant did not make use of an X-ray in order to ascertain the nature and extent of the fracture, or to ascertain whether there had been a proper reduction; and there is other evidence of improper treatment.
We are not impressed with the contention that the damages assessed are excessive. Appellant testified that a fracture of the femur was one of the easiest to set. The fracture of appellee's leg was not set. The ends of the bone were not placed in apposition but were allowed to slip past one another, so that the leg is about four inches shorter than it should be, and the bone was allowed to unite in such a manner that the leg is crooked. As a result of the condition of appellee's leg, he is a permanent cripple and will be compelled to use a cane as long as he lives. He has lost about fifty per cent of the use of his ankle. Appellee's knee is stiff, and the evidence is sufficient to warrant a finding that such stiffness was in part caused by the negligence of appellant. Before his injury, appellee was able to and did do about all kinds of farm work. He is not now able to do that work.
The court, in instruction 1 given at the request of of appellee, told the jury, in substance, that if they found appellee did not receive the care and attention an ordinarily-skilled physician in the vicinity would have given, and that, as a result of such failure, without negligence on his part, he suffered increased pain and injury, the jury should render a verdict for appellee, and assess his damages as found from all the evidence not in excess of $ 10,000. Appellant, challenging the correctness of this instruction, says it does not limit the amount of damages to compensation for the pain and suffering endured and for the amount in which appellee's capacity to earn money is impaired. While this instruction is not happily worded, it is not shown to have been damaging to appellant. As was said in Pittsburgh, etc., R. Co. v. Reed (1909), 44 Ind.App. 635, 88 N.E. 1080: "No fact or circumstance is brought to our attention by appellant in either its original or reply brief, which can be said to have improperly influenced the jury in its finding either for or against the appellant, and without a showing that the inadvertent expression probably had some influence on the jury to the injury of appellant, it will be treated as a harmless error," etc. And this is especially true when this instruction is considered in connection with instruction 5, given at the request of appellee, wherein the jury was told, if it found all of the material allegations of the complaint had been proved, then, in determining the amount of the verdict, it might consider the personal disfigurement, if any, sustained by appellee as alleged in the complaint, the inconvenience and annoyance on account thereof and "render a verdict in such sum as will compensate the plaintiff for the damages the evidence shows he has sustained" not exceeding $ 10,000. As was said by Judge Myers, speaking for the court in Pittsburgh, etc., R. Co. v. Reed, supra: "We are not persuaded that any ordinarily intelligent juror would have misunderstood this instruction to the detriment of either party."
Appellant next contends the court erred in giving said instruction 5, for the reason that evidence was offered on the trial in support of alleged negligent acts not alleged in the complaint, and that the instruction did not limit the amount of the recovery to the damages sustained as a "result of the negligence complained of as shown by the evidence." If any evidence was introduced on matters outside of the issues, appellant has not in this connection called our attention to such evidence. No error is shown in the giving of this instruction.
In instruction 6, given at the request of appellee, the court among other things told the jury if it found, in reducing the fracture, ordinary care required a sufficient and proper counterextension be applied to the muscles surrounding the fractured bone so as to keep the bone in alignment, and if it also found from the evidence insufficient counterextension had been negligently used and placed so as not to keep sufficient counterextension upon the muscles, and by reason thereof the ends of the bone were not kept in alignment but were permitted to pass and cross each other, by reason of which the leg became shorter than the other, its verdict should be for the plaintiff if the other allegations of the complaint were proved.
Appellant says the giving of this instruction was error, because there is no charge in the complaint that the counterextension applied was insufficient.
The complaint, among other things, alleges that a large weight was placed upon his leg to retain the leg in position and reduce the fracture; that his leg was shorter than it should have been if properly treated; that such weight was applied improperly, by reason of which he suffered an injury to his ankle of such a nature that he will never be able to use his foot in a proper manner, and that, by reason of such improper treatment, he will always be compelled to use crutches and be unable to work; that appellant never properly reduced the fracture and placed the bones in a proper position; that, by reason of the failure to properly reduce the fracture and by reason of placing the weight upon his foot in an improper manner, the plaintiff lost the use of his leg and ankle. The court, at the request of appellant, instructed the jury that there was no allegation in the complaint that the weight did not exert the proper pull, or that the weight was an improper...
To continue reading
Request your trial