Lester v. Aetna Casualty & Surety Company
| Decision Date | 01 March 1957 |
| Docket Number | No. 16154.,16154. |
| Citation | 240 F.2d 676 |
| Parties | Harlan F. LESTER, Appellant, v. ÆTNA CASUALTY & SURETY COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas M. Comegys, Jr., Shreveport, La., for appellant.
Richard H. Switzer, Shreveport, La., Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, La., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.
Brought against defendant-appellee as the insurer of Dr. Edith W. Rigsby, a physician specializing in the practice of psychiatry, the suit was for malpractice and for the damage alleged to have resulted therefrom.
After a lengthy trial at which many witnesses testified, the cause was submitted to a jury upon a full and comprehensive general charge to which plaintiff took only three exceptions.1
There was a verdict and judgment for defendant, and plaintiff has appealed. Filing a statement of points2 under Rule 75(d) Fed.Rules Civ.Proc., limiting the appeal to a single question thus stated in his brief:
"Under the law of Louisiana, considered in the light of the provisions of that state\'s constitution and of the parallel provisions of the Federal Constitution, can an adult human being be deprived of his full freedom to contract and therefore of his liberty without due process of law?"
he filed a correspondingly limited designation of contents of the record on appeal.3
The defendant, in its turn, designated the entire remaining record not designated by plaintiff, including more than 1200 pages of testimony.
Here, confining himself to the points designated and insisting that "the charge of the court on the question of consent is erroneous and prejudicial as matter of law, under any conceivable circumstances or set of facts", and "the evidence in the case is utterly unrelated to the question of law raised by plaintiff's objections to the charge of the court on the question of consent or to the court's failure to charge on that question as urged by plaintiff in his requested charges". Appellant urges upon us that the giving of the instruction objected to and the refusal of the instructions requested was patent errors requiring a reversal.
In further emphasis of this insistence, appellant, stating in his brief that, for the reasons above stated, "we have deliberately foregone the very tempting luxury of quoting from or even referring to the evidence in this case," and moving under Rule 75(e) Fed.Rules Civ. Proc. to impose upon defendant-appellee the costs of including in the record unessential matter, urges upon us that under the statement of points made, and relied upon by him, on the appeal, neither the evidence nor any part of the record is necessary to a proper determination of the question of law propounded by him other than the portion of the record which he designated.
Appellee, citing and strongly relying on Hall v. United States, D.C., 136 F. Supp. 187, a malpractice case, affirmed Per Curiam, 5 Cir., 334 F.2d 811, insists that its designation of the whole of the evidence and the record was reasonable and proper in order to show to this court that the facts in this case are the same as, or comparable to the facts in the Hall case, and that the action of the court in giving and refusing the charges complained of here was in accord with the action of the trial court before which the Hall case was tried without a jury.
In view of appellant's claim that the action he complains of was erroneous "under any conceivable circumstances or set of facts and the evidence in the case is utterly unrelated to the question of law" he raises, that, in short, for the purpose of this appeal this court may, indeed must, assume the existence of facts most unfavorable to plaintiff, we agree with its contention that defendant's designation in this case was a manifest violation of the invoked rule. Appellant's motion to tax against appellee the whole cost of compiling the record, except the portion designated by plaintiff, is therefore granted.
This is so because, under his statement of points and his designation of contents of record4 on appeal, the only matter appellant has brought here for our review is his claim that under any conceivable state of facts or circumstances most unfavorable to him, which of course would include an assumed state as unfavorable as, or more unfavorable than, that actually shown by the evidence, the complained of action of the court, in giving the charges objected to, and in refusing those requested, on the issue of consent was prejudicial error.
As appellant correctly points out in his brief, his specifications of error upon the refusal of requested instructions are not intended to add to or enlarge upon his primary specifications 1, 2, and 3, dealing with the complained of error in the general charge. They are put forward to point up and emphasize by their particularization the error generally relied on, and it will not be necessary for us to, we will not, deal separately with them. It will be sufficient to say of them that the determination in favor of, or against, appellant of his primary grounds of error necessarily determined against him these subordinate and illustrative grounds.
Coming then to a consideration of appellant's claim of error on the record brought up by him in support, we are constrained to hold, for the reasons hereafter briefly stated, that no showing of prejudicial error is made and that the judgment must be affirmed.
Assuming, as we must in support of the verdict and judgment, that plaintiff's condition was such as to require neuro-psychiatric treatment and, in the judgment of his physician and his wife, to make it unsafe and unwise to require him to undergo the strain and shock of discussing and considering the possible, though not probable, hazards involved in, and making a decision as to, whether in view thereof the electro-convulsive or electro-shock treatments prescribed for, should be administered to, him; that, in the judgment of his physician and his family it was desirable, indeed necessary that they be administered; and that his wife, being advised of and fully comprehending the situation, added to his consent already given her consent to the administration of the treatments, we are bound to hold that if further consent than that already given by plaintiff to their administration was needed, the wife could and did give sufficient legal consent, and that giving the complained of charge and refusing the requested charges was not prejudicial error. Any other conclusion would, we think, be contrary not only to human experience and sound reason but to the teachings of our case of Wall v. Brim, 5 Cir., 138 F.2d 478 and the cases cited in it.
Appellant, himself...
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