Van Valkenburg v. Slowick
Van Valkenburg v. Slowick
Opinion of the Court
Exceptions overruled. This is an action of tort brought in the Superior Court to recover compensation for personal injuries alleged to have been sustained by the plaintiff as a result of a negligent examination of the plaintiff by the defendant, a physician. The case was heard by a judge sitting without a jury. He found for the defendant. The plaintiff made numerous requests, some of which were given. The judge denied requests numbered 1 (a), 1 (b) and 1 (c) without comment. He denied requests numbered 4, 5, 6 and 11, stating with respect to each of these requests that he did “not find as set out" therein. The judge found "that there was no negligence on the part of the defendant in making the examination.” The plaintiff excepted to the denial of these requests. In accordance with established principles there was no error in denying these requests. Request numbered 1 was for a finding or ruling that upon “all the law and evidence, judgment must be for the plaintiff because” —setting forth seven reasons, including “(a) The examination of the plaintiff by the defendant was done in a negligent manner, which negligence was the cause of plaintiff’s injuries complained of.” The judge was not required to make findings of fact even upon request therefor. And if request numbered 1 (a) is regarded as a separate request for a ruling of law, it could not rightly have been given. Whether or not the evidence warranted a finding for the plaintiff on the ground that the defendant was negligent — as we do not decide — the evidence clearly did not require such a finding, so that it could not have been ruled as matter of law that “judgment must be for the plaintiff.” The judge was not required to accept as true the testimony of the witnesses, except as he was bound to believe the defendant's testimony unfavorable to himself so far as there was no other evidence more favorable to him. The defendant’s testimony, however, did not require a finding that he was negligent. This request is not within the principle of Bresnick v. Heath, 292 Mass. 293, 298-299, where the denial of a request involved a ruling upon the sufficiency of the evidence to warrant a finding for the plaintiff — a very different matter from a ruling that a finding
Reference
- Full Case Name
- Elizabeth Van Valkenburg v. Frank A. Slowick
- Cited By
- 1 case
- Status
- Published