Judges: Wheelee, Curtis, Keeler, Maltbie, Haines
Filed Date: 1/8/1926
Status: Precedential
Modified Date: 11/3/2024
This is an appeal from the granting of a motion to set aside a verdict recovered by the plaintiff. *Page 718
The motion states three grounds, that the verdict was contrary to the law and the evidence, that it was excessive, and that the statute of limitations had run against the cause of action. The trial court granted the motion upon the third ground, and the plaintiff appealed. He has, however, failed to have the evidence made a part of the record, and therefore his appeal has no proper standing in court. McCann v.McGuire,
The plaintiff is suing the defendant, a surgeon, for pain, suffering, incapacity, expenditures and losses *Page 719
which he alleges to be due to the failure of the defendant properly to set and treat his broken arm. The complaint is in two counts, the first relying upon the implied obligation of the defendant, arising out of his employment, to use proper skill and care, and the second resting upon the alleged negligence of the defendant in the way in which he set and cared for the arm. Undoubtedly, in such a case, the plaintiff might lay his action either in contract or tort. 1 Swift's Digest, side page 578; 2 Chitty, Pleading (16th Amer. Ed.) p. 27; Kuhn v. Brownfield,
There is no error.
In this opinion the other judges concurred.
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