
    Slosser v. Lagorin.
    (Decided February 8, 1933.)
    
      Messrs. Fraser, Hiett, Wall & Effier, for plaintiff in error.
    
      Mr. T. T. Shaw, for defendant in error.
   Klinger, J.

This is an error proceeding to the court of common pleas of Defiance county, wherein the defendant in error, Emma E. Lagorin, was plaintiff, and plaintiff in error, D. J. Slosser, was defendant. The action was for damages for malpractice. In the trial court, the case went to trial upon the second amended petition of plaintiff, the answer of defendant and the reply to the answer, and the plaintiff recovered a verdict against the defendant in the sum of $2,750, and judgment was entered by the trial court upon this verdict. In this proceeding, defendant seeks to reverse the judgment of the trial court, and also asks that this court render final judgment in his favor.

The second amended petition alleges that plaintiff, on the 18th day of August, 1929, in an automobile accident, received a fracture of the lower end of the radius bone of the right forearm, and an injury to the flesh and muscles of the right arm above the elbow; that she went for treatment to the defendant, who is a resident physician and surgeon of the city of Defiance, Ohio, and that he undertook to treat her injuries.

Plaintiff averred that the defendant was negligent (a) in the manner in which the bones were set and the fracture reduced, that he was careless and unskillful in permitting splints to remain on the arm, when he knew the ends of the fractured bones overlapped and the growing of the bones in that condition would create deformity in the hand of the plaintiff; (b) that defendant was negligent and careless in not having an X-ray or radiograph taken of the injured arm of the plaintiff just prior to putting the arm in the plaster paris jacket or cast; (c) that he was negligent and careless and unskillful in putting the arm and broken bones in a plaster paris cast without first determining whether the bones were in proper position, that he was careless, negligent and unskillful when he took the jacket or cast off the arm and was careless in not notifying plaintiff that he was unable to give her relief, and in continuing ineffective treatment, that he was guilty of negligence and unskillful treatment in pulling and twisting the arm of the plaintiff, and that he was negligent and careless in treating plaintiff’s arm where it was bruised and mashed.

The defendant in his answer denied all the allegations of negligence and carelessness, and averred that, if the results obtained were not satisfactory or perfect, it was because of plaintiff’s own negligence and arose through no fault of the defendant.

The plaintiff further alleges that the defendant, after treating her arm for some time, advised her that he could not do anything further for her and that she should not return for any further treatments, that she later went to another doctor in Columbus, and on April 30, 1930, was operated on at University Hospital in Columbus by Dr. Yernon A. Dodd, and that the present restoration and usefulness of her arm is the result of the treatment that she received from Dr. Dodd.

At the conclusion of plaintiff’s evidence, and again at the conclusion of all the evidence, the defendant moved the court to direct a verdict in his favor, on the ground that there was no evidence of any of the claims of negligence made in the second amended petition sufficient to take the case to the jury.

The chief contention for this motion is premised upon the hypothesis that expert testimony was necessary to support the claim of negligence.

The plaintiff offered in the trial of the cause the testimony of Dr. John Fauster, of Defiance, the depositions of Dr. Yernon Dodd, of Columbus, and the testimony of defendant. The defendant contends that there is no evidence offered by these experts that would support any contention of negligence on the part of defendant. Plaintiff also offered the testimony of a number of nonexpert witnesses, whose testimony contradicts the testimony of the defendant, especially as to defendant’s testimony concerning the length of time the plaster paris cast was on the arm and the time at ■which the plaster paris cast and splints were taken off the arm.

The jury had a right to believe these nonexpert witnesses when they testified as to the time they saw the arm with the plaster paris east on, and with the splints on, notwithstanding the testimony of the doctor to the contrary. In the light of the great variance between the doctor’s testimony as to how he was treating the arm, and the testimony of the plaintiff and a number of disinterested witnesses, the jury had a right to discredit at least a part of the defendant’s testimony as to how he treated the plaintiff’s injuries.

According to the doctor’s own testimony at this trial, the jury had a right to infer that the treatment was not proper, if they believed the testimony of the plaintiff and these other witnesses who testified as to seeing the arm with the cast and splints on it long after the time the doctor said he had taken them off. They had a right to interpret the doctor’s testimony as being his present opinion as to how the arm should have been treated, and they had a right to consider the testimony of these nonexpert witnesses, in connection with all the. other testimony, as to whether or not the doctor did give the treatment that he stated in his testimony he had given, and it is the opinion of this court that expert testimony is not essential in a case of this kind to determine whether the physician or surgeon was guilty of malpractice. See Francis v. Brooks, 24 Ohio App., 136, 156 N. E., 609.

The facts that these nonexpert witnesses testified to are not such as require scientific knowledge. If the nonexpert witnesses were testifying as to facts requiring expert knowledge, the rules laid down in the cases referred to by plaintiff in error would be proper.

The next error complained of is that the court erred in its charge.

Among other things.in the charge, the court read to the jury the second amended petition. This, in and of itself, is not error, the defendant will admit. However, defendant does claim that the court did not charge the jury on the negligence complained of in the second amended petition, limiting the recovery to such negligence as was the proximate cause of the injuries complained of. We agree with counsel for defendant that the court’s charge is not as complete as it might be in this regard. However, no request was made of the trial court at the time to elaborate his charge or to charge on the specific propositions mentioned in defendant’s brief. As far as given, the charge is free from prejudicial error. Therefore, where a party excepts to a charge free from error as given, but which charge fails to cover all the questions involved in the case, such failure is not a ground for reversal unless it was called to the attention of the court, and further instructions requested. Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613.

Defendant also excepts to the charge on the question of contributory negligence. It is true the defendant charged the plaintiff with contributory negligence. However, nowhere in the record is there any evidence offered to support the charge, and defendant offered no evidence which would support an inference of contributory negligence.

The next ground for reversal is misconduct on the part of the attorneys for the plaintiff in the examination of the jurors on their voir dire. This question has been before the Supreme Court of Ohio in a matter quite similar to the case at bar, in the case of Pavilonis v. Valentine, 120 Ohio St., 154, 165 N. E., 730. The Supreme Court, in the first syllabus, holds: “The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualification of a juror and is free from bias or prejudice for or against either litigant. ”

And in the third paragraph of the syllabus the court holds: “It is not error to permit the examination .of a prospective juror on his voir dire as to his connection with, interest in or or relationship to a casualty insurance company, where such a company is directly or indirectly interested in the result of the trial.” We know of no better way than was exercised in this cause for ascertaining these facts.

Another objection taken was that the trial court erred in the admission and rejection of evidence, and especial attention is called to the testimony of Dr. John Fauster, but in the light of all the other testimony that was offered upon this issuable fact, we do not believe there was any error in the ruling of the trial court.

The next ground of error is that the judgment is manifestly against the weight of the evidence. In the opinion of this court, after a careful reading of the entire record, there was an abundance of evidence, if the jury believed the testimony of the witnesses giving the testimony to sustain the verdict, under the instructions of the court.

For these reasons the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Cbow and Kindeb, JJ., concur.  