(Download) "Kelly v. Mccabe" by Supreme Court of Montana ~ eBook PDF Kindle ePub Free
eBook details
- Title: Kelly v. Mccabe
- Author : Supreme Court of Montana
- Release Date : January 22, 1944
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
Submitted November 9, 1943. Personal Injuries — What Complaint must Contain and Evidence Show to Warrant Recovery — Physicians and Surgeons — Negligence — Insufficiency of Evidence — Appeal and Error — Trial of Cause without Jury — Conflict in Evidence — When Judgment Conclusive. Personal Injuries — What Complaint must Contain and what Evidence must Show. 1. Where plaintiff seeks recovery of damages for actionable negligence his complaint must allege facts showing (1) that defendant was under a legal duty to protect him from the injury of which he complains; (2) that he failed to perform this duty, and (3) that the injury was proximately caused by defendant's delinquency; failure to disclose, directly or by fair inference from the facts alleged, the presence of all three of these elements renders the complaint insufficient; and where on appeal the question of the sufficiency of the evidence to sustain the allegations of the complaint is raised, the same rule applies as to what the evidence must show to warrant recovery. Same — Physicians and Surgeons — Negligence — Insufficiency of Evidence. 2. In an action against a physician, tried without a jury, for damages allegedly resulting from the act of defendant in placing a strip of gauze in an incision in his abdomen and thereafter failing to remove it so that the wound became infected, failed to heal and remained an open sore thus causing a long illness and heavy expense to plaintiff, findings of the court and judgment in favor of defendant held supported by the evidence showing that a ruptured appendix had become gangrenous when the physician operated upon plaintiff, and that the long illness thereafter was due to infection with attendant peritonitis pervading plaintiff's whole system, and that no gauze was ever permitted to remain in the incision. Appeal and Error — Law Action Tried without Jury — Conflict in Evidence — When Judgment not to be Disturbed on Ground that Evidence Insufficient to sustain it. 3. The judgment of the district court in a law action tried without a jury and appealed from on the ground of insufficiency of the evidence, will not be disturbed if the evidence of the prevailing party is substantial and sufficient to justify the judgment.
 "Kelly v. Mccabe" by Supreme Court of Montana ~ eBook PDF Kindle ePub Free){kind=link}