Lizzie Souter, by her next friend, commenced this action against the appellant, a physician, to recover damages for alleged malpractice of appellant in the treatment of said Lizzie during her sickness. The action was begun in the Greene, and tried in the Sullivan Circuit Court, upon change of venue. The trial resulted in a verdict against appellant for $700. His motion for a new trial was overrulеd, and judgment rendered on the verdict. Before the appeal was perfected, Lizzie Souter died, and appellee Dabblemont was appointed administratrix of her estate. The transcript was subsequently filed in this court, and notice given appellee.
Appellant assigns as error: (1) The action of the court in overruling appellant’s motion to make the complaint more sрecific; (2) and (5) in overruling appellant’s motion to require plaintiff to separate her causes of action; (3) in overruling aрpellant’s demurrer to each paragraph of the complaint; (4) in permitting plaintiff to file second paragraph of complaint; (6) in overruling appellant’s motion for a new trial.
It is conceded by appellant that the first and second specifications of error are nоt properly presented. It is correctly claimed, however, that the ruling of the court in refusing to require plaintiff to separatе her causes of action is raised by the third specification, viz., the overruling of appellant’s demurrer to the complaint. The imрroper joining of causes of action is cause for demurrer, and was one of the grounds given in the demurrer filed to each pаragraph of the complaint. Judged by the general scope and the controlling averments of each paragraph of the complaint, each is in tort. DeHart v. Haun,
The complaint was originally in one paragraph. The court permitted appellee to file a substituted first paragraph. Subsequently appellee was permitted to file a second paragraph. In this there was nо error. It does not appear that in these rulings the trial court abused its discretion.
In discussing the question arising upon the motion for a new trial complaint is made of the action of the court in requiring, over objection, upon cross-examination, appellant to detail the kind of medicine he administered to the patient, there being no charge in the complaint that he had administered mediсines of any kind. There was
It is also alleged that plaintiff was granted too much latitude in embracing alleged facts in hypothetical questions proрounded to Dr. Rose, an expert witness in behalf of appellee, that it embraced assumed facts that were without support in the evidence, and which, in their nature, were calculated to create prejudice in the minds of the jury. It is pointed out that the questions assume, without warrant, that the physician placed his arm about the plaintiff’s waist, caressed, and kissed her, and solicited her to sexual intercourse with him. The plaintiff testified that appellant, while they were out riding in the doctor’s cab, put his arm around her neck twice, tightly holding her*, until she urged him to take it away; that he put his hand into the bosom of her dress, and, while he did not, in terms, solicit her to sexual intercourse, his talk аnd conduct were suggestive and offensive to a pure-minded young girl. All the facts embraced were not proved, but in an instruction the cоurt informed the jury that the value of an opinion given by an expert upon a hypothetical question must depend upon the facts рroved which are embraced in the question. The error, if any, was thus cured. It is due to appellant to say that he denied the alleged indecent conduct, and that certain facts and circumstances testified to corroborate him, but it was the province of the jury to pass upon this conflict.
Objections were made and exceptions taken to the giving to the jury of certain instructions; with others, the seventh. It is as follows: “If a person holds himself out to the public as a physician, he must be held to possess and exercise ordinary skill and knowledge and care in his profession in every case of which he assumes the charge, whether in the particular case he receives a fee or not. Where an injury results from the want of ordinary skill
A physician is bound to possess and exercise only the averagе degree of skill possessed and exercised by members of the medical profession practicing in similar localities. Baker v. Hancock,
We have examined thе remaining instructions to which exceptions were taken, and find in them nothing warranting a reversal of the «judgment.
There is nothing in the record to indicate upon which paragraph of the complaint the verdict was founded. There was serious conflict in the testimony based upon the assault charged and the medical treatment.
We are not warranted in saying from the record that the substantial rights of the aрpellant were not affected by said instruction seven, nor that it was harmless.
Judgment reversed, with instruction to sustain appellant’s motion for a new trial.