56 Ga. App. 634 | Ga. Ct. App. | 1937
Lead Opinion
Charles A. Stansfield brought suit against W. A. Gardner for damages on account of injuries which he sustained because of alleged negligence of the defendant at a time when the plaintiff was a patient in the private hospital operated by the defendant. The defendant denied the material allegations of the petition, and specially pleaded that the plaintiff was placed in the hospital by his parents under an original agreement that the defendant was to be paid $50 as an admission fee, $35 per week for room and board, and $25 per week for a special attendant for the patient; that in January, 1935, the father requested the defendant to dispense with the special attendant, and it was agreed between the father and the defendant that the defendant would not furnish the patient with a special attendant at all times, but would furnish such an attendant only when the patient was out of the hospital building for walks, exercise, etc.; and that thereafter the total charges for all services rendered to the patient, including room and board, were reduced to $50 per week, including the services of a special attendant while the patient was outside of the hospital building. The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds and on several special grounds which are hereinafter referred to. The exception is to the judgment overruling the motion for new trial.
The material evidence on the trial of the case was substantially
As the case involves the question of what care and attention the plaintiff was entitled to receive as a patient, it is pertinent to set out here certain correspondence between the father of the plaintiff and the defendant. On January 28, 1935, the father wrote to the defendant as follows: “It is the financial circumstances under which I am laboring prompts me to write you this letter. Yet bear in mind I do not wish To be penny wise and pound foolish’ in the matter; therefore I am leaving it entirely up to your judgment, and will abide entirely by what you say. I am wondering if we could reduce Mr. Gillman’s [the attendant’s] services, say one half, or give Chas, half a day, or every other day, and thus reduce my bill $12.50 a week or $50 per month. Say from Feb.1st for two weeks. As time goes on you know my indebtedness to you is increasing every week. This I regret, and circumstances are so I see no chance to better them.' Also ] have thought that after a trial as suggested above, that if he still improves and becomes more and more normal, that we might try dispensing with Mr. Gillman’s services and throwing him entirely on his own man, restricting him as to territory, and time to come back to report, for meals, and keeping him in after supper until retirement time. Of course, this is to be taken into consideration, that his mind had improved to the extent that you can have a heart-to-heart talk with him. If he is back to anywhere near normal, and he will give you his word to comply in every respect to your wishes, he will in no way violate it. If you wish, you might state to him this was a request from me. Also, at the same time, if you say so, I will write him this is my wish. Now frankly just what do you think of the above? Is it worth while trying out? Again, Doctor, please bear in mind I am not dictating or telling you how to run this case, but a suggestion for your judgment to decide.
On February 27 or 28, 1935, the exact date not being clear from the evidence, the plaintiff was in the lobby on the second floor, accompanied by an attendant. During a brief absence of the attendant in a toilet near by, the plaintiff after reaching a landing on the steps from the second floor to the first floor, fell or jumped, while leaning over the banisters or railing, to the first floor, receiving injuries for which he sued. There was no witness to the occurrence. The circumstances were related by the plaintiff as follows: “When I had the fall it was before Dr. Gardner went to the Base Hospital 48. I would say between nine and ten o’clock. I am sure I had had breakfast before I had the fall. . . All of these things [certain facts and circumstances which he said depressed him] along with my being there at the sanitarium caused me to feel very weak physically; and consequently when the attendant went to the bathroom or toilet I was left alone. There wasn’t any one there, and I was inclined to end it all before that. I was on the second floor, and I had a tendency to stand on the railing and jump down. Once I had a tendency to jump off of Stone Mountain when the attendant, Dawson Gillman, had left a young man by the name of Charles with me. I had gotten as far from, him as from here to the middle of the court-room, to the edge of the precipice, but he was with me and restrained me from doing so, but I had looked around and examined the mountain to jump off. [The plaintiff then detailed certain facts as to supervision and solicitude towards him which he said depressed him.] So it happened when this attendant went to the bathroom one morning after I had breakfast, I felt my mental condition to be nothing at all. I remember running down to the landing between the first and second floors. . . Just before I fell I looked down. . . I didn’t feel I would kill myself falling from this first to the second floor. I didn’t know. I was dizzy, and I only tried to do as Dr. Gardner said, and I didn’t know how to do, being attended all the time like a mere child, and it pressed upon my mind. I did not know what to do, and I felt like hitting something hard to bring me out of this or to bring me from under it; and as I looked over the rail, I do not think I jumped,.! think
It was contended that the defendant was negligent in not having X-rays made until March 1, 1935, a day or two after the injuries, and in not having made a certain plaster cast until March 3, 1935. As to that the defendant testified: "When the young man fell I was in my office, looking over my mail, about ten o’clock in the morning. I did not see him when he fell. I heard it and went to him. . . I naturally gave him first aid. . . In the afternoon he had cleared up and was conscious. I examined him to see if he had any bones broken. In the afternoon T did not find anything but the swelling in his right foot. . . Of course, we continued to keep him comfortable, kept him in bed and bandaged up his foot. Early that night we discovered that he was not able to pass water, and I catheterized him and had to use that several days. In the course of two or more days he was all right. I called Dr. William E. Lake, in the Medical Arts Building, who has an X-ray laboratory and supposed to be the finest in the city, for an appointment to have Mr. Stansfield X-rayed, to see whether
1. The contention of the plaintiff is that his injuries were due to the negligence of the defendant in permitting him to go about the institution without an attendant, and in not rendering him prompt attention and service after he fell or jumped, permitting him to. lie with a broken back and foot until March 1, 1935, a day or two after his injury, and to remain without prompt attention and without having his body placed in a plaster cast until March 3, 1935. From a careful examination of all the evidence we are of the opinion that a jury question was presented; and that the evidence, though conflicting, was sufficient to authorize the jury to return a verdict in favor of the defendant. The general rule as to the duty owed by a private hospital to a patient is well stated in Emory University v. Shadburn, 47 Ga. App. 643 (171 S. E. 192) : “A private hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require. This duty extends to safeguarding and protecting the patient from any known or reasonably apprehended danger from himself which may be due
We think that a reasonable construction of the letter is that the father was not requiring a two-weeks trial and a report as to what subsequent procedure might be advisable, but was saying, in effect: “I want to reduce the expense if Charles’s condition will permit. I would like to so arrange that I will have to pay only about $12.50 a week for extra supervision [which would make his total cost $47.50 per week], but go ahead and use your own judgment about these matters. I put myself in your hands as to what you think should be done for him in the way of a special attendant, and I do not wish to be penny wise and pound foolish.” Instead of accepting the proposed $47.50 per week for total expenses, the judgment of the defendant was that it should be $45 per week, and his judgment as to the supervision of the patient was as above stated. Certainly, under the construction we have placed on this correspondence, the father would be estopped from complaining that, under any special agreement, no attendant was constantly at the side of the patient; and this being true, the son could not complain of any lack of extra supervision. The son would not, however, be deprived of the right to avail himself of the protection otherwise afforded by the law generally as to the care and diligence due to him, as a patient, by the defendant. Thus the case turns on the question whether or not, under the evidence and the law, the defendant is liable. It would make no difference, on the question of liability, whether the fall of the plaintiff was voluntary or involuntary, if his condition, known to the defendant, was such at the time as to require an attendant at the instant of his fall. As to his condition about that time the evidence is in conflict, but the jury was authorized to believe from the testimony of the nurse, the attendants, the defendant, and the general circumstances of the case that such a fall could not reasonably have been apprehended at the time. They were authorized to believe that he had not shown any disposition to destroy himself previously and that he would not attempt to do so on that occasion. The case is distinguishable from the Shadburn case which involved a delirious patient, and where this court held that it was a jury question whether or not in her condition her act of jumping out of the window should, in the exercise of proper care on the part of the
2. The first special ground of the motion for new trial complains that the court erred in admitting in evidence the correspondence between the plaintiff’s father and the defendant, as to a reduction of special supervision; contending that the letters did not constitute a contract. For the reasons given in the first division of this opinion, we think that they were admissible to show the father’s acquiescence in the degree of supervision of the patient after February 1, 1935, and that the defendant was not under a duty, as respects any agreement with the father, to constantly provide an attendant for the son. Apart from any special contract, however, it was for the jury to determine whether or not, under the general rule, the condition of the patient, known to the defendant, required that an attendant, should have been with the patient at the instant of the fall.
4. The court did not err in refusing to charge the jury, as requested by the plaintiff, that “Proof of an accident to a patient while in the care of a hospital carries with it the presumption of negligence, regardless of whether the injury’was caused by carelessness of the owner thereof.” An “accident” in its strict sense implies the absence of negligence, for which no one would be liable. The requested charge, therefore, did not state a correct principle of law. The ground of the motion that the court refused to charge, as requested, that “If it should appear from the evidence that the capacity of plaintiff to labor and earn money has been permanently diminished by the physical injury in question, and if it should appear from the evidence that said injury was the result of the neglect of the defendant, the plaintiff could recover damages therefor, notwithstanding that there may have been no proof as to what such earnings were before or after the injury; and in this connection the term labor and earn money may include mental labor and occupation,” is without merit. No issue was made as to the earnings of the plaintiff. The court charged the jury that the plaintiff could recover in the event they found the defendant negligent, and did not make recovery dependent on the plaintiff having earned any money. Consequently the plaintiff can not be said to have been harmed. Error is assigned on the refusal of the court to charge, as requested, “that the fact that some one other than the patient pays the hospital expenses will not relieve the hospital from liability, provided the evidence shows that otherwise the hospital would be liable.”. No issue was
5. Another ground complains of the failure of the court, without a request, to charge as to the specific allegation of negligence of the defendant in not rendering prompt service and attention to the plaintiff, and in permitting him to lie with a broken back from the date of the injury until March 1, 1935, without making any effort to ascertain the nature and extent of the injuries; it being contended that such was a substantial and material issue in the case. The issue in the present case was whether or not the defendant was negligent in certain respects. The record shows that the court fully instructed the jury on the law as to the duty of the defendant, and properly defined negligence. In the judge’s charge he stated, which is not denied by the plaintiff in error, that counsel had submitted to them all of the substantial issues; and while the judge did not refer to the specific item of negligence above mentioned, he stated that he did not mean by what he had said elsewhere to limit the contentions of the plaintiff, and that they were referred to in detail in the pleadings which they would have out with them, and the jury could refer to them to see specifically what was set forth, “the particulars in which he charges that the defendant and the defendant’s agents were negligent.” As was held in Livingston v. Taylor, 132 Ga. 1 (63 S. E. 694), “In the summary of the plaintiff’s contentions as made in the petition, the court should not omit any substantial issue -of the plaintiff’s case which finds support in the evidence; but a failure in this regard will not result in a new trial, where it appears that the court, in the charge as a whole, so presented the law in its application to the omitted issues as to warrant a reasonable inference that the jury understood the plaintiff’s full contentions.”. We think a reasonable inference is warranted that the jury in the present case understood the plaintiff’s full contentions. Moreover, there was no special request to charge; and this should have been made if the plaintiff desired specific instructions in addition to the general charge.
7. Another ground complains of a portion of the charge in which the court stated that if the jury believed “the people who had charge of the plaintiff under the care of Dr. Gardner was the agent of Dr. Gardner,” etc., it being contended that the evidence raised no issue of agency, and that the expression “was the agent” was misleading to the jury, that the attendants were in fact “employees,” and the jury was thereby called on to determine an issue not-raised by the pleadings. Without entering into any discussion as to the possible distinction between an “agent” and an “employee,” it is sufficient to say that the jury, under the full charge of the court, could not reasonably be said to have been confused or required to enter upon an inquiry not necessary in determining the liability, if any, of the defendant because of the alleged negligence of any of the attendants, nurses, or others engaged in the service of the defendant.
8. Another ground complains, in effect, that without request the court should have instructed the jury that they might apply the doctrine of res ipsa loquitur. Such a doctrine is not applicable where the causal facts of the injury are known and testified to. The mere fact of injury does not call for the application of the doctrine. In the present ease it was alleged and proved that the fall of the plaintiff, whether «voluntary or involuntary, was the immediate cause of the injury. All the facts were shown by the evidence. The inquiry of the jury was whether or not the plaintiff made out a ease of negligence against the defendant under his obligation to properly care for and protect the patient against the occurrence.
9. Another ground complains that the court erred in stating to the jury that “the defendant alleges and contends that the plaintiff had improved to such an extent that in his opinion he was capable to go about the building alone.” While the defendant did not so allege in his answer, he testified, without objection, to that effect, as against the contention of the plaintiff; and as this was thus made an issue on the trial of the ease, we do not think that the plaintiff can be said to have been harmed.
Judgment affirmed.
Dissenting Opinion
dissenting. I think that the admission in evidence of the correspondence between the -plaintiff’s father and the doctor was exceedingly prejudicial to the plaintiff. The defendant’s answer contained the following allegation: “Further answering, the defendant shows that in the latter part of January, 1935, plaintiff’s father requested the defendant to dispense with a special attendant for the plaintiff, and it was agreed between plaintiff’s father and the defendant that defendant would not furnish plain-' tiff with a special attendant at all times; but would only furnish an attendant for plaintiff when plaintiff was out of the hospital building taking his exercise and walks, etc.” At the time this correspondence was introduced in evidence, to support the above allegations in the answer, the defendant’s counsel stated to the jury: “That is a letter relating to an agreement. Paragraph five in the answer there states that was an agreement. You can make an agreement by letter.” The letter from the plaintiff’s father to the doctor suggested dispensing with the special attendant at certain times, to save money, if in the doctor’s judgment it was wise. The arrangement suggested was not agreed on or adopted. On the contrary the doctor continued to furnish the attendant for a reduced consideration, and undertook to be guided by his best judgment, as he was bound to do from the beginning. The negotiations by correspondence, looking to a reduction of expenses, had nothing to do with the case, and might have easily
