George v. Phoenix Assurance Company

328 F.2d 430 Robert J. GEORGE, Individually and for the Use and Benefit of his minor children, Robert J. George, Jr., Louis Sanford George, II and Janice Marie George, Appellants, v. PHOENIX ASSURANCE COMPANY, Appellee. No. 20778. United States Court of Appeals Fifth Circuit. February 17, 1964. Rehearing Denied March 24, 1964. Arthur Cobb, Baton Rouge, La., for appellants. G. T. Owen, Jr., Baton Rouge, La., Borron, Owen, Borron & Delahaye, Baton Rouge, La., of counsel, for appellee. Before CAMERON, WISDOM, and GEWIN, Circuit Judges. PER CURIAM. [1] This is a malpractice action against one of the defendant's insureds, a practicing physician in Baton Rouge, Louisiana. The plaintiff alleged that his wife died as a result of the insured's negligence and malpractice. At the close of the plaintiff's case, the district court dismissed the action, under Rule 41(b), for failure to show a right to relief. The district court found: [2] "Here the plaintiff has failed to prove by any evidence the degree or standard of care required of a physician in such a case as here involved, and has failed to prove by any evidence whatsoever that [the physician] either deviated from an accepted standard, or was in any way negligent in his treatment of Ora Lee George. This record, at the close of plaintiff's case, was completely void of any such evidence." [3] After a careful study of the record, including a number of depositions, we cannot say that the holding of the district court was clearly erroneous. [4] The judgment is affirmed.