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It thus appears that Brown very frankly | 149 Ky. 80, 147 S. W. 882, 41 L. R. A. (N. S.) told the agent, Bohon, the substantial facts 505; Reserve Loan Life Ins. Co. v. Boreing, touching the accident at Covington, Tenn. 157 Ky. 730, 163 S. W. 1085. There is some attempt to show that this fall Some question is made as to the competen. was due to an epileptic attack, but there is cy of Bohon's testimony, but we think bis but slight evidence to support it, and no evi- evidence was competent, and have considered dence that Brown knew it was due to this the whole of it. Ratliff v. Daniel's Ex'r et cause or to any cause seriously or in any ma- al., 137 Ky. 55, 121 S. W. 1034. terial way affecting the condition of his [5] The views we have expressed make it health.

unnecessary to consider alleged errors in the Now we think that the information convey- instructions, as the trial court should have ed by Brown to the agent of the insurance directed a verdict against the insurance comcompany was sufficient to charge it, before pany. the delivery of the policy, with notice of the Wherefore the judgment is affirmed. conditions upon which it now attempts, after Brown's death, to rely to defeat the collection of the insurance it agreed to pay his beneficiary. The company, having notice of

BARRETTS ADM'R v. BRAND. the accident to Brown before the delivery of

(Court of Appeals of Kentucky. March 12,

1918.) the policy, had ample opportunity to make a full investigation of all the facts and cir- 1. EVIDENCE Ow553(4)—HYPOTHETICAL QUES

TION-BASIS IN EVIDENCE. cumstances connected with it and determine

It is error to incorporate facts, in a hypofor itself, before the contract according to thetical question propounded to an expert, for its contention was accepted, whether it would the existence of which there is no testimony in

the record. consummate the contract, and to decline to accept it if not satisfied with the condition of


Though an act may be negligent, and involve Brown's health. But in place of availing it- a violation of duty, before a cause of action can self of this opportunity, and declining, if it be predicated thereon the injury flowing theresaw proper so to do, to deliver the policy at from must have been the proximate result of

such dereliction. the time, it delivered the policy to Brown,

3. EVIDENCE Om512-EXPERT OPINION-MEDleaving him under the impression that the

ICAL TESTIMONY, contract had been completed, and not until In an action against a surgeon for malafter his death did it attempt to make the practice, medical witnesses were properly alinquiry that it should and could have made lowed to state in substance that an operation

was practiced according to the approved methods before the policy was delivered. So that of the medical profession, and that the patient even if it should be admitted that this attack in her diseased and run-down condition would Brown sustained would have justified the have and as a matter of fact did die from such company in refusing to deliver the policy, wound. since, though an expert witness may not

conditions, though defendant left a pad in the yet we think the company is now estopped to take the place of the jury by stating whether make the defense rested on the change in the certain acts constituted negligence, he may giye condition of Brown's health between the date his opinion in regard to matters which reof the application and the date of the deliv-perience, and for which the general common

quire scientific or specialized knowledge or exery of the policy.

sense and practical experience of the jury are Our opinion is that when an insurance inadequate, a rule which should not be extended company, before it delivers the policy, or matters within the common scope of knowledge

to permit witnesses to testify to conclusions or during the life of the insured, comes into and experience. possession of information that would reason- 4. EVIDENCE Om121(1)–RES GESTÆ-ACTION ably put it on notice that some change had

FOR MALPRACTICE. taken place in the physical condition of the who assisted at the operation concerning state

Evidence given by some of the physicians insured, which, if it had known of, the con

ments made by defendant relating to the conditract would not have been accepted, or if ac- tions which he found in the patient, and other cepted, would have been concealed, it, must, subjects connected with the operation, during if the information is received before the poli- and while he was performing it, was admissible

as part of the res gestæ. cy is delivered, refuse to deliver it, or, if de- 5. PHYSICIANS AND SURGEONS O18(10)-AClivered, must, within a reasonable lime after TION FOR MALPRACTICE-INSTRUCTION. receiving the information, take such steps as undertaking the operation, the court properly in

After defining defendant surgeon's duty on it thinks necessary to cancel the contract, structed as to liability, "and they (the jury) furand failing to do either of these things, it ther believe from the evidence that such neglicannot, after the death of the insured, defeat gence or want of care, if any, on the part of the collection of the insurance money upon

defendant, was the proximate cause of the death

decedent,” without adding that decedent's the ground that if it had known before the death "was not caused by ovaritis or other disdelivery of the policy, or during the life of the ease, if any, not produced by the operation.” insured, what it found out after his death, it 6. PHYSICIANS AND SURGEONS Cmw18(10) would not have accepted the contract, or,


OF “OPERATION." having accepted it, would have canceled it.

It was not necessary for the court in its Masonic Life Ass'n of W. N. Y. v. Robinson, I instructions to define what constituted an opera

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tion, since any ordinary layman would know, the use of morphine, and in addition had conthat an "operation” included everything done, i tracted other ailments more or less dangerfrom its commenecment until it was completely ous, and at the time of the operation comfinished.

[Ed. Note. For other definitions, see Words plained of she was in an exceedingly prerariand Phrases, First and Second Series, Opera- bus condition. The operation occurred in tion.]

November, 1911, and in the early part of 7. PHYSICIANS AND SURGEONS Eww18(8) that year two minor operations had been per

MALPRACTICE-LIABILITY-SUFFICIENCY OF formed by the defendant; but the one in EVIDENCE.

November, which is termed the major operaIn an action against a surgeon for malpractice in negligently performing an operation for tion, is the one about which negligence is ovaritis, evidence held to sustain verdict for charged. Other physicians and a trained defendant, the patient's condition baving been so nurse attended the operation, and the latter precarious that it could not be said that any negligence was the proximate cause of her death. gave to and received from the defendant the

gauze pads which he used while performing Appeal from Circuit Court, Mason County. the operation. The patient showed signs of

Action by Florence Barrett's administrator dissolution, and the cavity was hurriedly against Leslie Brand. From a judgment for closed up to prevent it, and shortly thereafter defendant, plaintiff appeals. Affirmed.

the nurse discovered that one of the pads Allen D. Cole, H. W. Cole, and J. M. Col- was missing. In closing up the cavity, as is lins, all of Maysville, for appellant. Worth- usual in such cases, a gauze drainage was ington, Cochran & Browning and Slattery & arranged so as to let out pus or other dele. Rees, all of Maysville, for appellee.

terious substances, and in it was one of the

pads which was discovered four days after THOMAS, J. This is a malpractice suit the operation by the wound being opened up, brought by appellant, as administrator of at which time some of the parts, including his wife, Florence Barrett, against the ap- some of the smaller intestines, were found pellee, a physician and surgeon, to recover to be inflamed and the patient shortly died. damages because of the death of plaintiff's The chief act of negligence complained of is decedent, which he alleges was the proxi- that of leaving the pad in the patient, but mate result of negligence, unskillfulness, and under the evidence and instructions of the carelessness on the part of the defendant court the jury found that this was not an while performing an operation upon decedent act of negligence, or, if it was, it could not for chronic ovaritis.

be termed the proximate cause of the paThe negligence charged was denied by an- tient's death, and accordingly returned the swer, and upon trial the jury returned a ver- verdict complained of. dict in favor of defendant, from which plain [1] It is first insisted that the court erred tiff prosecuted an appeal, and the judgment in permitting a hypothetical question to be was reversed in an opinion reported in 165 asked of two professional witnesses introKy. 616, 177 S. W. 461. In that opinion the duced in behalf of defendant, because it is substantial and material facts are recited claimed that there was incorporated in that somewhat in detail, and it will be wholly un- hypothetical question facts which were not necessary to repeat them here, they being proven, or for which there was no evidence practically the same upon the last trial as tending to establish them. Eleven such on the first one. The first judgment was re-wrongfully incorporated facts are pointed out versed, as will appear from the opinion, upon as being erroneously included in the comthe two grounds: (1) That the court erred in plained of hypothetical question, which is so permitting the defendant to testify, since long that we will not incumber this opinion it was held that under subsection 2 of with its repetition, but we have thoroughly section 606 of the Civil Code of Practice he examined the record, and we are convinced was an incompetent witness, and (2) that the that counsel is in error when he says that court erred in giving two instructions which there was no evidence to support the asare set out in the opinion, but all other ques- sumption of the existence of the alleged tions were left open. Upon the second trial, wrongfully incorporated facts. That it is in which the court eliminated the errors error to incorporate facts in a hypothetical pointed out when the case was first here, the question propounded to an expert, for the jury again returned a verdict for the defend- existence of which there is no testimony in ant, and to reverse it this appeal is prose- the record, is thoroughly established. In cuted.

support of it counsel cite many authorities There are numerous errors urged against from the text-books and opinions from forthe correctness of the judgment, but we deem eign courts, and also the case of Champ 1. it necessary to consider only such as will be Comlth., 2 Metc. 17. A still later case from discussed in this opinion. From the testi- this court upholding the rule is that of Kenmony as recited upon the former appeal, and tucky Traction & Terminal Co. v. Humphrey, which was the same upon the last trial, it 168 Ky. 611, 182 S. W. 854, in which many appears that Mrs. Barrett had long been a authorities, both foreign and domestic, ara sufferer, and perhaps because of her almost referred to; but if the complained of vice constant pain she had become addicted to has no existence in point of fact, manifestly

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there is no room for the application of the yer in their opinion the case was practiced acrule, and, as stated, we are convinced that cording to the approved methods of surgery, there is substantial evidence in the record but they were not asked, nor were they perauthorizing the court to allow the predicat- mitted to state, whether any particular act ing of the hypothetical question upon all of done or omitted to be done was or not a the material facts complained of, and this careless or negligent one. According to our objection will have to be denied.

view, there is quite a distinction between [2, 3] Again, it is insisted that there was whether a case has been practiced according error in permitting the professional witness to the rules of surgery and whether those es to state, in substance, that the case was rules or any of them, are dictated by the practiced according to the approved methods soundest prudence and the most careful conof the medical profession, and that, accord- siderations. A case might be practiced acing to the opinions of those witnesses, the cording to such approved methods of surpatient, in her diseased and run-down condi- gery, and still not be characterized by caretion, would have and as a matter of fact did ful and prudent action, and we are clearly of die from those conditions, notwithstanding the opinion that the complained of questions there might have been negligence in the man- and answers did not invade the province of ner complained of. It is of course fundament- the jury and were proper subject matters of al that although an act may be negligent and inquiry of the expert witnesses. involve a violation of duty, still, before a [4] Objection is made to evidence given by cause of action can be predicated thereon, some of the assisting physicians concerning the injury flowing therefrom must have been statements made by the defendant relating the proximate result of such derelictions. to the conditions which he found, and other While it is not denied in this case that the subjects connected with the operation, during pad was overlooked and left in the patient's and while he was performing it. It is conbody, yet it is clear that it was confined in tended that such statements are hearsay, the drainage gauze, which was an essential self-serving, and incompetent. To the genand necessary part of the operation, and it eral rule excluding hearsay evidence there was therefore not in a condition to produce are many exceptions, one of which is eviinjurious consequences. However that may dence apparently hearsay in its nature, but be, the rule is that while an expert witness strictly not so coming within the res gestä may not take the place of the jury by stating rule. This rule renders competent statements, whether certain acts constitute negligence, acts, or conduct accompanying or so nearly he may give his opinion in regard to matters connected with the main transaction as to which require scientific or specialized knowl-form a part of it. This is upon the ground edge or experience, and for which the gen- that such declarations, exclamations, or coneral common sense and practical experience duct were made or performed under such cirof the jury are inadequate. The rule is cumstances as to raise a reasonable presumpthus generally stated in 11 R. C. L. 572, tion that they were spontaneous, and that wherein the further statement is made that, they sprang out of the transaction itself, and *The untrained layman would be unfit to de- so as to exclude the presumption that they cide what condition of bodily or mental health were the result of premeditation or design or disease is indicated by a recital of obscure and unusual symptoms; still less would he be or intended for any self-serving purpose. able to form a reasonable opinion as to the pro- The general rule upon the subject is stated priety of the medical treatment given, or the in 10 R. C. L. 976, thus: probable continuance of the disability. A jury of country farmers could not estimate the value the nature of verbal acts, and are admissible in

"Such statements are of the res gesta, are of of a city lot by a physical description of it, evidence with the remainder of the transaction and such illustrations might be indefinitely mul- which they illustrate." tiplied. From such situations arises the necessity of admitting in evidence the opinion of ex

On page 977, in defining the conditions unperts."

der which the res gesta rule will apply, it

is said: But this rule should not be extended so as to permit witnesses to testify to conclu- doctrine of res gestæ, they must be connected

“To bring acts and declarations within the sions upon matters within the scope of com- with, and grow out of, the act or transaction mon knowledge and experience, since the which is the subject-matter of inquiry, so as to jury is a tribunal well qualified and fitted form one continuous transaction, and must in to perform that task. 11 R. C. L. 565. These acterize the act, and, in a legal sense, be a part

some way illustrate, elucidate, qualify, or charquestions were considered by us in the case of it.” of L. & N. R. R. Co. v. Conn, 179 Ky. 478, Further along, and on page 980, the author 200 S. W. 952, and the general rules as above of the work says: stated were therein recognized and applied. “The declarations of a party may be evidence

It is insisted that some of the complained for himself, as a part of the res gestä, when of questions went beyond the rule permitting not when they are mere self-serving deciarations,

they accompany and explain his actions; but the introduction of the opinions of experts, and do not accompany the acts in issue, but and usurped the functions of the jury, which, are made at a place distant from it." if true, they were evidently improperly ad The rule as found stated generally in the mitted. For illustration, the defendant's ex-excerpts made has been many times followed pert witnesses were permitted to state wheth-' by this court, as will be seen from the fol.

lowing cases: McLeod v. Ginther's Adm'x, | that an operation included everything done 80 Ky. 399; O'Donnel's Adm'r v. Louisville from its commencement until it was comElec. Light Co., 55 S. W. 202, 21 Ky. Law pletely finished. Every act necessary to its Rep. 1362; Brown v. Louisville Ry. Co., 53 performance is included within the known S. W. 1041, 21 Ky. Law Rep. 995; Louisville meaning of the term. As well might it be & N. R. R. Co. v. Shaw's Adm'r, 53 S. W. insisted as being necessary to define the word 1048, 21 Ky. Law Rep. 1041; Louisville R. “trip” to mean and include all the time from Co. v. Johnson's Adm'r, 131 Ky, 277, 115 s. the moment the traveler boarded the instruW. 207, 20 L. R. A. (N. S.) 133; Lewis' Adm'r ment of conveyance or mounted his steed v. Bowling Green Gas Light Co., 135 Ky. 611, until he alighted therefrom at his destina117 S. W. 278, 22 L. R. A. (N. S.) 1169; I. C. tion. These acts are component parts of and R. R. Co. v. Houchins, 125 Ky. 483, 101 S. essential to a trip, but no one would seriousW. 924, 31 Ky. Law Rep. 93; Fidelity & Cas- ly insist that it was necessary to so define ualty Co. v. Cooper, 137 Ky. 544, 126 S. W. the word by an instruction. 111; Owensboro City Ry. Co. v. Rowland, Instruction No. 3 given by the court is one 152 Ky. 175, 153 S. W. 206. See, als), Jones which this court in the first opinion directed on Evidence, 8 344. Under this well-estab- should be given if the evidence was substanlished rule there can be no doubt but that tially the same. It fully states the duty of the evidence complained of constituted a part the defendant with reference to reopening of the res gestä growing out of the main the wound for the purpose of searching for transaction, which was the operation, and the missing pad. serving to explain it, and the objection is [7] It is lastly insisted that the verdict is therefore untenable.

flagrantly against the evidence, and is not [5] It is again insisted that the instructions sustained by it; but we cannnot agree with are erroneous and that the judgment should this. There is abundant testimony to show be reversed for that reason. The instruc that the unfortunate patient, because of her tions complained of are Nos. 1 and 2, given long standing ailments, was in a most preby the court. No. 1 is criticised because it carious condition. According to the testidid not expressly say to the jury that de- mony, she had an extremely short time in cedent's death "was not caused by ovaritis which to live without the operation, and it or other disease, if any, not produced by the was resorted to as a last chance. Unfortuoperation.” The court in the complained of nately, it was unsuccessful; and, although instruction, after defining the duty of the it may be conceded that the leaving of the defendant upon undertaking the operation, pad in the manner described was an act of said: “And they (the jury) further believe negligence, yet before liability could be fixed from the evidence that such negligence or upon the defendant therefor it must further want of care, if any, on the part of defend- be shown that such negligence was the proxiant was the proximate cause of the death mate cause of her death. of the decedent," etc. It is contended that These matters were submitted to the jury following the quotation just made the clause by instructions which we think are not subfirst above should have been inserted; but ject to the criticism aimed at them, and we we do not find any merit in this contention, are not authorized, under the well-established for if the negligence of the defendant, if any, rules of practice governing this court, to diswas not the proximate cause of the patient's turb the verdict, and the judgment is there. death, the defendant would not be liable; or fore affirmed. if her death was not the result of the disease with which she was afflicted, it would necessarily follow that the operation was the

FOSTER v. ROBERTS et al. cause of it, and if negligently performed the (Court of Appeals of Kentucky. March 12, defendant would be liable. It is not essen

1918.) tial in instructing the jury to negative what 1. BOUNDARIES (ww52 (3)-REPORT OF PROCESwould be a proximate cause, for the jury are


A report of processioners under Ky, St. $ presumed to possess some intelligence and 2368, after notice to adjoining owners, is prima to be able to understand the instruction facie evidence of the true location of a boundary without such negation.

line. [6] It is furthermore claimed in regard to


A deed of a tract of land of which S. O. the instructions that the court should have died possessed, lying on the waters of the Little defined what constituted an operation, i. e., South fork of Cumberland river in W. county, that the court should have said to the jury containing 365 acres, was sufficiently definite to in its instructions that the operation commenced at the beginning of making the inci. 3. ADVERSE Possession Omw103—INTERFERING

PATENTS-POSSESSION. sion and ceased when the incision was clos Where one with legal title enters land, ed; but we do not regard the term “opera- covered by a patent of a grantor, prior to entry tion" to be one of such technical meaning as

of another into an interference under a junior to require a definition at the hands of the tual close of the latter, although he never en

patent, the former has possession beyond the accourt. Any ordinary layman would know I tered within the interference.

pass title.

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4. QUIETING TITLE 37(1)-ANSWER OF DE-, scriptions in the deeds from certain of the FENDANT-DESCRIPTION OF LAND.

heirs of Stephen Owens to George Owens Under Civ. Code Prac. § 125, requiring answer in an action to recover land to state were too indefinite to pass title. The rule is whether defendants claim any part of the land, that a deed is not void for uncertainty if and, if so, to describe that part claimed so as from the description contained in the deed to identify it, an answer which described cer: the property can be located. 8 R. C. L. tain land was sufficient to warrant a judgment for defendant for land forming only a part 1073; Barbour v. Tompkins, 58 W. Va. 572, thereof.

52 S. E. 707, 3 L. R. A. (N. S.) 715. In each

of the deeds in question, the grantor was
Appeal from Circuit Court, McCreary stated to be the heir of Stephen Owens, and
Suit to quiet title by Sarah Roberts and interest and share to a certain tract or par-

the property was described as “my undivided others against John Foster and others. From cel of land of which my said father, Stephen a judgment, the named defendant appeals, Owens, aforesaid, died seised and possessed, and plaintiffs prosecute a cross-appeal. Af- lying on the waters of the Little South fork firmed.

of Cumberland river in Wayne county, conVirgil P. Smith, of Somerset, and H. M. taining about 365 acres in all.” In our opinCline, of Whitley City, for appellant. H. c. ion this description was sufficiently definite Gillis, of Williamsburg, for appellees.

to pass title. Pennington v. Cumberland

Valley Land Co., 150 Ky. 576, 150 S. W. 655; CLAY, C. Alleging that they were the Ratliff v. Sowards' Guardian, 152 Ky. 97, owners and in possession of a tract of land 153 S. W. 25; Newman v. Newman, 154 Ky. consisting of about 50 acres and covered by a 300, 157 S. W. 381. patent issued by the commonwealth to Ste [3] While it is true that plaintiffs never phen Owens in the year 1830, Sarah Roberts entered within the interference, the evidence and others, the widow, heirs, and successors considered as a whole clearly shows that in title of Henry T. Roberts, deceased, they entered and took possession of the land brought this suit against John Foster and covered by the Stephen Owens patent prior others to quiet their title. The defendants to the entry by the defendants within the indenied the ownership and possession of plain- terference under their junior patents. That tiffs, and pleaded title to a portion of the being true, the possession of plaintiffs, who land, consisting of about 30 acres, which was were the legal title holders, was actual and described by metes and bounds. On final coextensive with the boundaries of the pathearing the chancellor quieted the title of ent under which they held title, and the subplaintiffs to all of the land in controversy, sequent entry of the defendants under their with the exception of that portion which the junior patents within the interference did defendants held by inclosure. From this not divest plaintiffs of their prior and existjudgment John Foster, one of the defendants, ing possession beyond the actual close of the appeals, and plaintiffs prosecute a cross-ap- defendants. Simon v. Gouge, 12 B. Mon. 156; peal.

Harrison v. McDaniel, 2 Dana, 350; Hopson [1] It appears that a year or two before v. Cunningham et al., 161 Ky. 160, 170 S. W. the suit was brought, Mrs. Roberts, upon no- 522. It therefore follows that the possestice to the Fosters, had her lands procession- sion of plaintiffs, was sufficient to maintain ed, and according to the report of the pro- an action to quiet title. cessioners the line of the Stephen Owens [4] Civil Code of Practice, $ 125, requires patent was so located that it embraced a por- the answer in an action to recover land to tion of the land which the defendants held state whether defendants claim any part of under inferior patents. Since the report of the land, and, if so, to describe that part the processioners made under section 2368, claimed so as to identify it. It is insisted on Ky. Statutes, after notice to the adjoining the cross-appeal that the chancellor erred in owners, was prima facie evidence of the true awarding the defendants the land within location of the line of the Stephen Owens their inclosure, because their answer did not patent (Harrod v. Armstrong et al., 177 Ky. set up the boundaries of the inclosure. It 317, 197 S. W. 816; Crouch v. Wainscott, 122 does appear, however, that the defendants Ky. 107, 91 S. W. 289, 28 Ky. Law Rep. set up claim to, and accurately described in 1026), and as there was no evidence to the their answer, a tract of about 30 acres of contrary, the chancellor did not err in hold- land embracing the inclosure. Though they ing that the location made by the procession- failed to show title to the entire tract thus ers was correct, and that the Stephen Owens described, they did show title to the inclosed patent lapped on the land claimed by the de- land forming a part of the entire tract. fendants.

Under these circumstances the answer was [2] But the point is made that plaintiffs sufficient to authorize a judgment in favor did not prove either title or possession, and of the defendants for the inclosed lands. were not therefore entitled to recover. In Judgment affirmed both on the original this connection it is insisted that the de l and cross-appeal.

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