Robert W. Jackson v. Hartford Accident and Indemnity Company, Marvin Rice, Virgil Erickson and John Fetzer

422 F.2d 1272, 1970 U.S. App. LEXIS 10370

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 10, 1970
• Docket: 19671
• Status: Published

Opinions

MEHAFFY, Circuit Judge.

This appeal is from a judgment adverse to plaintiff-appellant in an action for damages for alleged deprivation of plaintiff’s rights under the Civil Rights Act, 42 U.S.C. § 1983.¹ Defendants-appellees are Marvin Rice, sheriff of Chariton County, Missouri; Virgil Erickson, his deputy; Hartford Accident and Indemnity Company, surety on the officers’ bonds; and Dr. John Fetzer, an osteopathic physician who as county physician treated plaintiff during his incarceration.

The basis of plaintiff’s claims as set forth in Kis amended complaint is that defendants failed to “furnish non-negligent professional medical and surgical attention to plaintiff as was required to fulfill the duty imposed by law.” It is contended that defendants’ failure to fulfill this duty amounted to cruel and unusual punishment in violation of the Eighth Amendment and constituted a lack of due process under the Fourteenth Amendment to the Constitution of the United States.

This case was tried before Chief Judge Becker of the United States District Court for the Western District of Missouri sitting without a jury. Judge Becker held in an unreported but elaborate opinion constituting his findings of fact and conclusions of law that there was no evidence of negligence, and judgment was accordingly entered for defendants. We affirm the judgment of the district court.

Briefly recited, the evidence reflects that on Saturday night, September 11, 1965, plaintiff, who had been drinking for several hours and was drunk, was arrested by a deputy sheriff on a charge of disturbing the peace. The deputy sheriff attempted to place plaintiff in a patrol car but on several tries plaintiff struggled out of control and it finally became necessary for the deputy sheriff to hit plaintiff on the head with his night stick in order to handcuff him and take him to the county jail. After being driven to the jail, plaintiff was able to walk in unassisted. He slept most of the next day, which was Sunday. It is conceded that the arrest was lawful and no claim was made other than failure to furnish proper and non-negligent medical care. On Monday, September 13, 1965, plaintiff was taken before the magistrate’s court and after pleading guilty to the charge of disturbing the peace, he was sentenced to sixty days in jail.

It was not until the following Tuesday, September 14, 1965, that plaintiff asked to see a doctor. The sheriff promptly called Dr. Fetzer, the county physician, who examined plaintiff on this date. Plaintiff complained at that time that he was nervous, could not sleep nor eat and felt shaky. Dr Fetzer examined him and diagnosed his condition as withdrawal from excessive use of alcohol and prescribed aspirin. Dr. Fetzer found plaintiff’s temperature to be normal, his heart beat fast and blood pressure normal. Two days later Dr. Fetzer again examined plaintiff and in his opinion plaintiff had recovered from his drunkenness and would be all right within a few days.

A doctor was at the jail one or two days a week during plaintiff’s incarceration but he did not again ask to see a doctor or ask to be examined until October 4, 1965. On this date Dr. Fetzer was unavailable but Dr. George Quinn was called. He examined plaintiff and observed that he had a broken and abscessed tooth which caused swelling of his left cheek. Dr. Quinn prescribed an antibiotic for treatment of the infected tooth. Dr. Fetzer next visited plaintiff on October 11 and observed the swelling and the abscessed tooth, but saw no evidence of a fracture. He lanced the swelling and administered antibiotics and penicillin. On October 14, Dr. Fetzer again examined plaintiff and found the tooth still infected but an examination on October 25 revealed that the infection had cleared up. On this date, however, plaintiff still complained of pain and Dr. Fetzer recommended that the jaw be x-rayed. He made arrangements for plaintiff to be released from jail some eleven or twelve days prior to the expiration of his sentence for the purpose of going to the University of Missouri Medical Center for x-rays inasmuch as there were no x-ray facilities in Chariton County. The x-ray at the Medical Center revealed that plaintiff had a fractured jaw which required wiring in order to allow it to heal properly, but did not require repositioning. Since there were no facilities at the Medical Center for wiring the jaw, plaintiff was sent to the General Hospital in Kansas City where the wiring operation was performed and the abscessed tooth extracted. If the fracture had been discovered earlier, the proper procedure would nonetheless have been to clear up the infection before wiring the jaw.

Judge Becker found from the evidence that plaintiff was seen a total of fifteen to twenty times by three doctors, including Dr. Fetzer, Dr. Quinn and one Dr. Pressly, while incarcerated for some forty-eight days in the Chariton County jail. Dr. Scott, who testified for plaintiff at the trial, stated that plaintiff’s jaw position was satisfactory. Judge Becker found that under the uncontradicted evidence “defendants Rice and Erickson provided apparently competent practitioners to attend plaintiff each and every time he requested medical service and that there was no other instance of apparent need in which Sheriff Rice or his deputy Erickson refused or neglected to provide an apparently competent practitioner.” The court further found that “Dr. Fetzer appropriately diagnosed and treated the infected tooth, and not untimely, in view of the circumstances, suspected plaintiff’s jaw to be broken, whereupon he took steps to effect plaintiff’s immediate and early release for the purpose of having an x-ray taken.”

It was plaintiff’s testimony that he demanded to see a doctor and have his jaw x-rayed as early as the first Monday he was in jail although this conflicted with his deposition and was against the overwhelming countervailing evidence. In sum, Judge Becker held that under the evidence Dr. Fetzer could not reasonably be found to have accorded plaintiff negligent treatment, much less to have subjected him to cruel and unusual punishment violative of the Eighth and Fourteenth Amendments.

We think that Judge Becker’s findings under the evidence in this ease on its factual aspects are dispositive of the controversy. In cases tried to the court without a jury, we have no right to set aside a finding of the trial court if there is any substantial evidence to sustain it except for the reasons contained in the well-settled rule that we stated in Christensen v. Great Plains Gas. Co., 418 F.2d 995, 998 (8th Cir. 1969), in the following language:

“We have no right to set aside a finding of fact of the trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. St. Louis Testing Laboratories, Inc. v. Mississippi Valley Structural Steel Co., 375 F.2d 565, 567 (8th Cir. 1967).”

Plaintiff contends that certain admissions of Sheriff Rice and Dr. Fetzer constituted judicial admissions establishing that his federal rights under § 1983 were violated. We havb considered this contention and find it has no merit.

Plaintiff also contends that the court erred in not considering and relying on the expert testimony of Dr. Scott. Aside from the fact that this doctor had limited private practice experience, he was asked to answer a hypothetical question which was obviously incomplete for failure to include some necessary facts and improper for other reasons not necessary to relate. Further, his answer was contradicited by all the other doctors. It is the trial court’s function, not ours, to assess the weight to be given such testimony even though it be from an expert. We said in Parke-Davis & Co. v. Stromsodt, 411 F.2d 1390, 1395 (8th Cir. 1969), that “* * * the resolution of conflicting testimony, including that of expert witnesses, is for the trier of fact. (Citing cases.)”

Since the evidence clearly supports Judge Becker’s holding that defendants were guilty of no negligence whatsoever, we do not need to reach the question of application of the federal act. Assuming that it is applicable, there is no evidence justifying a finding that there was any negligence on the part of defendants or any possibility of a violation of the plaintiff’s rights under the Eighth and Fourteenth Amendments to the Constitution of the United States.

The judgment is affirmed.

1 . 42 U.S.C. § 1983 provides :

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”