121 Ind. 242 | Ind. | 1889
— This was an action, in the circuit court, by the appellee against the appellant, a practising physician and surgeon, for malpractice.
A demurrer to the complaint was overruled, and the appellant excepted.
The errors assigned here are :
First. That the circuit court erred' in overruling the appellant’s demurrer to the complaint.
Second. That the circuit court erred in overruling the appellant’s motion for a new trial.
The complaint in the cause seems to have been copied from the complaint set out in the case, Coon v. Vaughn, 64 Ind. 89. It is urged that the complaint is bad for a failure to aver in what particular the appellant was negligent in the performance of his duties as a physician and surgeon ; but the complaint in the case above cited was held good by this court, and we see no good reason for departing from the ruling in that case. The remedy for uncertainty is by motion to make more specific, and is not reached by a demurrer. The complaint, in our opinion, states a cause of action against the appellant.
The fourth reason assigned by the appellant in the circuit court for a new trial, was as follows :
“ 4. On account of the misconduct of the jury in this : That the jury, without any evidence of that fact, took into consideration and discussed the fact that the defendant was insolvent, and that a judgment against him would be harmless ; and that said jury would not have agreed upon a verdict for the plaintiff if that fact had not been considered, as shown by the affidavit of the bailiff of said jury filed herewith, and made a part hereof.”
The affidavit of the bailiff is filed with the motion, in which it is stated that the jury in its deliberations discussed and argued as a fact that the appellant was insolvent, and that a judgment against him would be harmless ; and that, in the opinion of the affiant, had it not been for such fact the jury would not have made the verdict returned by it into court.
The appellee filed the counter-affidavits of five of the
To authorize the setting aside of a verdict on account of the misconduct of the jury, it must appear that such misconduct was gross, and resulted in a probable injury to the party complaining. Harrison v. Price, 22 Ind. 165 ; Whelchell v. State, 23 Ind. 89; Flatter v. McDermitt, 25 Ind. 326; Medler v. State, 26 Ind. 171; Long v. State, 95 Ind. 481.
The evidence given on the trial of the cause is not in the record, and we have no means of knowing its character. The affidavits upon the subject of the misconduct of the jury are conflicting, and the court trying the cause and hearing the evidence may-have reached the conclusion that the jurors who testified that the insolvency of the appellant was regarded as of no importance by the jury, and had no effect upon the verdict,told the truth.
Where the affidavits, in matters like this, are conflicting, this court will not disturb the conclusion reached by the trial court. Clayton v. State, 100 Ind. 201; Epps v. State, 102 Ind. 539.
If the court believed the affidavits filed by the two last jurors named, it did not err in overruling the motion for a
Judgment affirmed.