Summary
addressing the plaintiff's claim that a private sanitarium owed her mother heightened duties based on the admission contract
Summary of this case from Singing River Health Sys. v. VermilyeaOpinion
No. 41657.
January 23, 1961.
1. Negligence — private sanitarium — degree of care exacted towards patient in absence of contrary contractual provisions.
Fact that employees at private sanitarium knew that they should watch particular patient a little more closely, did not, in absence of contrary contractual provisions, increase the care due to that patient above the reasonable care and attention that her condition, when known, may have required.
2. Negligence — private sanitarium — res ipsa loquitur — doctrine not applicable in action against sanitarium for negligently failing to prevent death of patient, who drowned in lake near sanitarium.
Doctrine of res ipsa loquitur did not apply to action against sanitarium for allegedly negligently failing to prevent death of patient, who drowned in lake near sanitarium, where both sides offered evidence, and case was submitted to jury on conflicting evidence, and therefore refusal to charge with respect to res ipsa loquitur was not error.
3. Negligence — private sanitarium — negligent failure to prevent death of patient — jury issue.
Evidence with respect to alleged negligence of sanitarium in failing to prevent death of patient who drowned in lake near sanitarium, raised question for jury, and jury, in finding for defendant did not exhibit passion and prejudice.
4. Trial — misconduct of counsel — latitude of court with reference to.
The Court has considerable latitude in its action with reference to the conduct of attorneys during trial of a case, and it is only when their conduct is so reprehensible as to become prejudicial to a litigant that court may be charged with error for failing to promptly instruct the jury.
5. Appeal — trial — misconduct of counsel — court's action — preserving objection.
Trial judge may of his own motion interfere with improper prejudicial statements of attorneys, but it is also duty of counsel to object and preserve his objection, and promptly make a motion for new trial.
6. Appeal — trial — misconduct of counsel — failure to preserve objection — appellate review.
Reviewing court would not reverse judgment because of allegedly prejudicial statement of attorney in the presence of the jury, where appellant did not preserve his objection.
Headnotes as approved by Rodgers, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, Judge.
Travis McKee, Jackson, for appellants.
I. The duty owed to a patient admitted to a hospital conducted for private gain is that he receive such reasonable care and attention for his safety as his mental and physical condition, if known, may require. Arlington Heights Sanitarium v. Deaderick (Texas), 272 S.W. 497; Bennett v. Punton Sanitarium Assn., 213 Mo. App. 363, 249 S.W. 666; Emory University v. Shadburn, 47 Ga. App. 643, 180 Ga. 595, 171 S.E. 192, 180 S.E. 137; Fetzer v. Aberdeen Clinic, 204 N.W. 364; Hawthorne v. Blythewood, 118 Conn. 617, 174 A. 81; Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365; Maxie v. Laurel General Hospital, 130 Miss. 246, 93 So. 817; Meridian Sanitarium v. Scruggs, 121 Miss. 330, 83 So. 532; Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582; Paramount-Richards Threaters v. Price, 211 Miss. 879, 53 So.2d 21; Richardson v. Dumas, 106 Miss. 664, 64 So. 459; Smith v. Simpson, 221 Mo. App. 550, 288 S.W. 69; Tate v. McCall, 57 Ga. App. 824, 196 S.E. 906; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349.
II. In considering the propriety of a directed verdict, the evidence in favor of the party against whom such a verdict is given must be treated as proving every material fact which it either proved directly or by reasonable inference. Maxie v. Laurel General Hospital, supra.
III. The lower court erred in granting the following instruction for the defendant: "The Court instructs the jury for the defendant, Oscar Johnson, that under the law and under the facts in this case, the defendant, Oscar Johnson, did not guarantee that patients of the Sanitarium would not leave the Sanitarium without permission, or would not be injured or die while patients at the Sanitarium. The law only required the defendant, Oscar Johnson, to use ordinary care for the safety of the patients of the Sanitarium operated by the defendant, and if you believe from the evidence in this case that the defendant, Oscar Johnson, used ordinary care for the safety of Mrs. Nordlie while she was a patient at the Sanitarium, then it is your sworn duty to return a verdict for the defendant, Oscar Johnson.". Alabama V.R. Co. v. Phillips, 70 Miss. 14, 11 So. 602; American Cent. Ins. Co. v. Antrim, 88 Miss. 518, 41 So. 257; Baldwin v. Alabama V.R. Co., 96 Miss. 52, 52 So. 358; Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Collins v. Union Farmers' Bank, 110 Miss. 506, 70 So. 581; Cumberland Tel. Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; French v. Sale, 63 Miss. 386; Hooks v. Mills, 101 Miss. 91, 57 So. 545; J.J. Newman Lumber Co. v. Dantzler, 107 Miss. 31, 64 So. 931; McLeod Lumber Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274; New Orleans N.E.R. Co. v. Williams, 96 Miss. 373, 53 So. 619; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Western Union Tel. Co. v. Robertson, 109 Miss. 775, 69 So. 680; Yazoo M.V.R. Co. v. Aden, 106 Miss. 860, 64 So. 790; Yazoo M.V.R. Co. v. Dyer, 102 Miss. 870, 59 So. 937; Sec. 1530, Code 1942; 53 Am. Jur., Sec. 584 pp. 461, 462.
IV. The Court erred in granting Instruction No. 6 for the defendant which instruction instructed the jury that negligence on the part of the defendant could not be presumed merely because there was a departure of the said Mrs. Nordlie from the Sanitarium. This instruction tended to negate any presumption or inference arising from Mrs. Nordlie's departure from the Westhaven Sanitarium.
V. The Court erred in refusing an instruction for the plaintiffs which would have instructed the jury concerning the doctrine of res ipsa loquitur. Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228; Palmer v. Clarksdale Hospital, supra; Richardson v. Dumas, supra; Ybarra v. Spankard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258.
VI. The verdict of the jury is contrary to the great and overwhelming weight of the evidence and is contrary to the law applicable to the facts of the case as developed by the record, and the verdict of the jury evinces bias, passion and prejudice on the part of the jury as against the appellants.
VII. The comment made by counsel for the appellee during the course of the trial upon the occasion of appellants' invoking of the privilege of communication between physician and patient was improper and impugned the motives of the appellants and implied to the jury that appellants were guilty of suppressing evidence; which comment and its natural implications were prejudicial to the appellants and which comment materially affected the verdict of the jury. That the comment is prejudicial error; the comment abolished the protection granted by the privileged communication statute Section 1697, Mississippi Code Annotated (1942) Recompiled. Beard v. Williams, 172 Miss. 880, 161 So. 750; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Anno. 116 A.L.R. 1170; Sec. 1697, Code 1942. Satterfield, Shell, Williams Buford, Jerome B. Steen, Jackson, for appellee.
I. The owner or proprietor of a private hospital or sanitarium is under the duty to exercise ordinary and reasonable care for the safety of its patients, as the physical and mental condition of those patients may require. Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365; Maxie v. Laurel General Hospital, 130 Miss. 246, 93 So. 817; Meridian Sanitarium v. Scruggs, 121 Miss. 330, 83 So. 532; Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582; Richardson v. Dumas, 106 Miss. 664, 64 So. 459.
II. The verdict of the jury was fairly and reasonably responsive to the believable evidence, untinged by bias and prejudice and in accordance with the acceptable legal standards involved. American Creosote Works v. Harp, 215 Miss. 5, 60 So.2d 515; Bell v. Southern R. Co. 87 Miss. 234, 30 So. 821; Falkner v. Middleton, 186 Miss. 355, 190 So. 910; Gow Co., Inc. v. Hunter, 175 Miss. 986, 168 So. 264; Haynes v. Graves, 215 Miss. 353, 60 So.2d 812; Irving v. Bedford, 224 F.2d 452; Kirkpatrick v. Love, 220 Miss. 174, 70 So.2d 321; City of Jackson v. Reed, 233 Miss. 280, 102 So.2d 342; Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438; White's Lumber Supply Co. v. Collins, 186 Miss. 659, 192 So. 312; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Sec. 1455, Code 1942.
This cause of action was brought by Mrs. Laurence Lyle and Miss Doris J. Nordlie, the daughters and only heirs of Mrs. Mary Nordlie, deceased, against Oscar R. Johnson, the owner of Westhaven Sanitarium. It is a suit for damages based upon the alleged negligence of the defendants in failing to prevent the death of Mrs. Mary Nordlie while she was a patient in Westhaven Sanitarium.
It appears from the record that Mrs. Nordlie was discovered floating in a lake near the Sanitarium on the morning of June 5, 1958. It was later determined by autopsy that she had drowned. Mrs. Nordlie was an incompetent. She had been committed to an institution in North Dakota where she had remained for a few months. She was later discharged from the institution and came to Mississippi to make her home with her daughter, Mrs. Lyle. It became apparent to Mrs. Lyle that she should consult a doctor with reference to the condition of her mother, and she called Dr. Lloyd G. Berrong, who had been recommended to her by her family physician. Dr. Berrong arranged for Mrs. Nordlie to have certain "shock treatments" at the Baptist Hospital in Jackson, Mississippi. She was then taken to the Westhaven Sanitarium. Mrs. Nordlie left the Sanitarium about May 10, 1958, and was not heard from for a period of seven days. She later came to the home of her daughter, Mrs. Lyle, and was then reconveyed to the Westhaven Sanitarium.
On the night before she was discovered floating in "White's Lake" the next morning, the attendants at the Sanitarium had seen her at about nine o'clock P.M. She seemed to be in a cheerful frame of mind and was given medication. A note was found in her room after her death, from which an inference could be drawn that she had intended to commit suicide. This case was tried in the circuit court of the First Judicial District of Hinds County, and during the trial, two of the defendants, Victor Mentzel and Mrs. Corrine Nixon, were released by order of the court. The case was submitted to the jury and the jury returned a verdict for the defendant, Oscar R. Johnson.
The appellants here, plaintiffs below, have assigned nine grounds of errors alleged to have been committed in the lower court. All of these grounds, however, may be grouped into three categories: (1) The trial judge erred in his rulings during the trial and the instructions granted to the defendant as to the degree of care exacted of a private sanitarium towards their patients; (2) that the jury, because of its passion and prejudice, disregarded the overwhelming weight of the evidence and returned a verdict contrary to the law applicable to the facts in evidence, and (3) the attorney for the defendant, Oscar R. Johnson, is alleged to have made a prejudicial statement in the presence of the jury which is said to be so prejudicial as to require a reversal of this case.
Taking these alleged errors in the order above set out, we are confronted in the outset with a question as to what duty was owed to the patient, Mrs. Mary Nordlie, by the Westhaven Sanitarium. In passing upon actions for damages cases of negligence are grounded upon a wrong and consist in the breach of a duty on the part of one person to protect another against injury, the proximate result of which is an injury to the person to whom the duty is owed. 38 Am. Jur. 651. It is perhaps said more frequently that negligence is the failure to observe a legal duty. 38 Am. Jur. 654. The suit here under consideration is based upon an alleged duty to take care of Mrs. Nordlie. The appellants use the words "custodial care." This duty was based upon a contract entered into on behalf of Mrs. Nordlie by her daughter, Mrs. Lyle, with the manager of the Westhaven Sanitarium, in consideration of a certain monthly payment to be paid by the guardian of Mrs. Nordlie. The appellants assert that the care imposed by the contract was, under the circumstances, more than "ordinary care", since it was known to the manager of the Westhaven Sanitarium that Mrs. Nordlie was an incompetent. The appellants claim that she should have either been kept inside the Sanitarium, or that she should have been watched at all times to prevent her from wandering away from Westhaven. They do not claim that Mrs. Nordlie should have been kept under "lock and key." Appellants claim that she should have been under the watchful eye of the agents of the Westhaven Sanitarium at all times when she was permitted outside the confines of the building.
The appellants further claim that the mere fact that Mrs. Nordlie was found drowned in "White's Lake" causes the legal principle of res ipsa loquitur to come into play and that the defendant was, therefore, prima facie liable.
The degree of care exacted of a private institution toward their patients is, under the general law, "such reasonable care and attention for their safety as their mental and physical condition, if known, may require." 26 Am. Jur. 595. "While it may be the duty of hospital authorities, under some circumstances, to exercise force to retain patients for the purpose of guarding them from injury, they may, under other circumstances, incur liability for the forceful detention of patients or inmates." 26 Am. Jur. 593.
This Court has had this question presented on several occasions with reference to patients in private institutions. In the case of Maxie v. Laurel General Hospital, 130 Miss. 246, 93 So. 817, this Court said: "The business of a hospital for the sick and afflicted, conducted for private gain, carries with it an implied obligation to give the patients their reasonable care and attention," citing Meridian Sanitorium v. Scruggs, 121 Miss. 330, 83 So. 532. It was said, however, that the question of liability was "one for the jury and not for the court."
In the Meridian Sanitorium case, supra, a nurse put a hot water bottle against an unconscious patient's foot, and there the Court said that a patient is generally admitted to a hospital conducted for private gain under either an expressed or implied obligation that he receive such reasonable care and attention for his safety as his mental and physical condition, if known, may require.
In the case of Richardson v. Dumas, 106 Miss. 664, 64 So. 459, a nineteen year old boy, ill with fever, was taken to a private sanitarium owned and operated for profit in the City of Natchez. There was a contract between the sanitarium and the father of the patient to "give his son all attention required and to furnish him with a trained nurse each night and day." It was said in this case that "under the contract it was the duty of appellee to give the patient all the attention required. The facts presented by the evidence, the very nature of the occurrence, shows a prima facie case of negligence in failing to exercise due care in nursing and looking after the patient." The contract in that case was an agreement "with appellant, for a price named, to give his son all the attention required, and to furnish him with a trained nurse each night and day."
(Hn 1) The appellant claims that the contract in the case at bar was a custodial contract and required constant care and observation, and bases this claim upon the admission of Mr. Mentzel that "we should watch her a little more closely, but as far as lock her up, no." We do not believe that this alleged admission increases the care due Mrs. Nordlie above the reasonable care and attention required of a private sanitarium; because it is evident that the only additional care that could have been given to the deceased was either to put her under "lock and key" or to furnish her with a private nurse or attendant to constantly look after her. Mrs. Lyle did not contract for such a service and she admitted that she did not expect the Sanitarium to keep her mother under "lock and key." The evidence further divulges that it was the custom of the attendants to lock the house at night to prevent intruders from entering the building.
This Court refused to sustain a contention that there should be a "higher degree of care" to the patient in the case of Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365, in which the Court said: "The appellant's criticism of the instructions is that one fails to instruct the jury that a higher degree of care was owed the plaintiff by the defendant than under ordinary circumstances." Another instruction told the jury that "it was the duty of the defendant to use reasonable care for the safety of the plaintiff, consistent with her age and physical condition." . . . . The jury was properly instructed as to the degree of care required to be exercised in the case before them." See Scoggins v. Vicksburg Hospital, 229 Miss. 770, 91 So.2d 837. We, therefore, hold that the degree of care required in the present case is such reasonable care and attention for the safety of the patient as her mental and physical condition, when known, may have required.
The appellants complain of several instructions granted to the jury on behalf of the appellee and object to one instruction that was refused the appellants. The instructions granted to the appellee are based on the same "reasonable care" as the instructions granted to the defendant, and state the rule properly. The instruction complained of as having been refused the appellant has therein the following language: "The fact of her death affords reasonable inference in the absence of an explanation by defendant that the death of Mrs. Nordlie arose or was caused by the defendant's lack of reasonable care." This instruction is an effort to get the court to invoke the res ipsa loquitur doctrine. In the case of Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582, the Court quoted with approval from 9 Wigmore on Evidence, 3rd ed., Section 2509, page 382, as follows:
"There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but in accessible to the injured person.'"
The Court further said: "It will be noted . . . . . . that the doctrine of res ipsa loquitur does not in any instance create a case of absolute liability, but simply raises a presumption or makes out a prima facie case of negligence to the extent that the defendant is called upon to meet it with an explanation."
(Hn 2) In the case at bar both sides offered evidence and the case was submitted to a trial jury on conflicting evidence. We, therefore, hold that the doctrine of res ipsa loquitur does not apply in this case, and since the instructions granted to the plaintiff and defendant taken together announce the proper rule, we hold there was no error in submitting this case to the jury on the ruling of the court and the instructions granted to litigants. Scoggins v. Vicksburg Hospital, 229 Miss. 770, 91 So.2d 837.
(Hn 3) The question presented as to whether or not the jury, because of its passion and prejudice, disregarded the overwhelming weight of the evidence and returned a verdict contrary to the law applicable to the facts and evidence has been considered by the Court and the testimony offered carefully reviewed, and the Court is of the opinion that the testimony is in conflict and has presented a question for the jury. The Court cannot, therefore, say that the jury exhibited passion and prejudice in finding for the defendant under the facts in this case.
The appellant has complained to this Court of a statement made by the attorney for the appellee during the course of the trial, in which the attorney stated: "If the court please, of course, they have a right to claim the privilege and seal the lips of the doctor, and we can't. . . ." This statement was made to the judge at the time when an objection was being made to the testimony of Dr. Lloyd Berrong. The appellant claims this is reversible error because it is said to be an inference that the appellant is attempting to conceal the testimony of Dr. Berrong from the jury. The attorney for the appellant made no objection to this statement, nor did he request the trial judge to instruct the jury on the statement, nor did he ask the court for a mistrial on the grounds of an erroneous inference having been presented to the jury. It has been argued to the Court that the court could have granted an instruction with reference to the doctor's testimony under our cases, but we do not find it necessary to pass on this question here.
(Hn 4) The court has considerable latitude in its action with reference to the conduct of attorneys during the trial of a case, and it is only when their conduct is so reprehensible as to become prejudicial to one of the litigants that the court can be charged with error for failing to promptly instruct the jury. (Hn 5) The trial judge may of his own motion interfere with improper and prejudicial statements of attorneys, but it is also the duty of counsel to object and preserve his objection, and promptly make a motion for a new trial.
In the case of Mars v. Hendon, 178 Miss. 157, 171 So. 880, the Court said: "We think it was improper to introduce, before the jury, the fact that Mars, appellant, was under indictment for perjury. . . . . We could not reverse on this ground, because there was no motion for a mistrial. We hold, however, that counsel should have not only objected to the remarks, but when such objection was sustained, should have made a motion, if desired, for a mistrial. It would be unfair to permit a party, in such case, to gamble upon the verdict or decree by taking advantage of a favorable verdict, while setting aside an unfavorable one." See also 3 Am. Jur., Appeal Error, Secs. 1059, 1060; Brush v. Laurendine, 168 Miss. 7, 150 So. 818.
(Hn 6) The Court, therefore, holds that since the appellant did not preserve his objection to the alleged prejudicial error the case will not be reversed on that ground.
Appellants complain that the plaintiff in the court below should have granted a motion for a judgment non obstante verdicto, but we are of the opinion that this case was properly submitted to the jury and the verdict of the jury is binding. We find no reversible error in the trial below and the case is affirmed.
Affirmed.
McGee, C.J., and Lee, Kyle and Gillespie, JJ., concur.