219 F2d 771 McCauly v. E Moran

219 F.2d 771

Gilbert McCAULY, a minor, through Allen McCauly, Father and Next Friend, Appellant,


Robert E. MORAN, Appellee.

No. 12402.

United States Court of Appeals, District of Columbia Circuit.

Argued February 4, 1955.

Decided February 24, 1955.

Mr. William E. Owen, Washington, D. C., with whom Mr. Ralph Stein, Washington, D. C., was on the brief, for appellant.

Mr. John R. Daily, Washington, D. C., with whom Messrs. H. Mason Welch and J. Harry Welch, Washington, D. C., were on the brief, for appellee.

Before PRETTYMAN, DANAHER and BASTIAN, Circuit Judges.


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Appellant (plaintiff) appeals from a judgment of the District Court entered in favor of appellee (defendant), Moran, at the close of plaintiff's case. The action was originally instituted against both Dr. Robert E. Moran and Children's Hospital. At the pretrial, the pretrial judge dismissed the complaint as to Children's Hospital, but allowed it to proceed to trial against Dr. Moran. At the conclusion of plaintiff's case, a motion was made for direction of a verdict in favor of Dr. Moran, and this motion was granted.


We have examined the record and have reached the conclusion that there was no evidence to show that the doctor had failed to exercise that degree of care and skill ordinarily exercised by a surgeon in this locality.1 The trial court had no alternative but to direct a verdict in so far as the doctor was concerned.


Likewise, we see no error on the part of the pretrial judge in dismissing at pretrial the complaint against Children's Hospital.




1. See Stark v. White, 93 U.S.App.D.C. 241, 208 F.2d 848.