Baker v. United States, 17652.

• Decision Date: 05 April 1965
• Docket Number: No. 17652.,17652.
• Citation: 343 F.2d 222
• Parties: Mrs. Kenneth BAKER as Legal Guardian of Kenneth Baker, and Mrs. Kenneth Baker, individually, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

343 F.2d 222 (1965)

Mrs. Kenneth BAKER as Legal Guardian of Kenneth Baker, and Mrs. Kenneth Baker, individually, Appellants, v. UNITED STATES of America, Appellee.

No. 17652.

United States Court of Appeals Eighth Circuit.

April 5, 1965.

D. C. Nolan, Iowa City, Iowa, and E. A. Hicklin, Wapella, Iowa, made argument for appellants and filed brief with John T. Nolan and Elizabeth Nolan, Iowa City, Iowa.

Robert V. Zener, Atty., Dept. of Justice, Washington, D. C., made argument for appellee and filed brief with John W. Douglas, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., and Donald A. Wine, U. S. Atty., Des Moines, Iowa.

Before MATTHES, BLACKMUN and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

Appellant, as legal guardian of Kenneth Baker, an incompetent, commenced this action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), to recover damages totaling $100,000.00, because of injuries suffered by her ward when he attempted to commit suicide by jumping over a fence and into a window-well on the grounds of the Veterans Administration Hospital (V.A. Hospital), at Iowa City, Iowa. Appellant, by separate count, individually sought damages in the amount of $25,000.00 for loss of consortium because of the above incident. From adverse judgments rendered on both claims, appellant prosecutes this appeal.

The facts giving rise to this litigation and the issues flowing therefrom are not substantially in dispute; they are accurately, with clarity and with keen legal acumen stated in the memorandum opinion of Chief Judge Stephenson, at 226 F.Supp. 129. From our consideration of the record, exhibits, and that opinion, we surmise affirmance of the judgment in this case could be made by merely noting that fact, without more, were it not for appellant's assignment of error and argument — to the effect that error exists in the record of this case because the Court below premised its judgment on an "adopted * * * theory of `calculated risk' as (the) proper standard of care" to be applied to the facts here.

In the light of the foregoing, we think it suffices to say, we have thoroughly considered appellant's contentions raised in this appeal — that "(t)he lower court's opinion was based on incompetent testimony"; that the Court "erred in holding that the doctrine of res ipsa loquitur does not apply" to the facts here; and that Iowa law "was not properly applied" — and can find no merit therein, either factually or legally. As a consequence, we see no useful purpose to be served by our making any restatement in respect to those matters. Therefore, as to the issues raised by appellant in this appeal in relation to the above specific assignments of error, we note affirmance thereof on the facts and law as found and declared by Judge Stephenson in his opinion, ante.

This leaves for consideration appellant's assignment of error that Judge Stephenson erred in his "finding that Dr. Kennedy exercised the proper standard of care required under the (factual) circumstances" established in this case. The primary contention made in respect thereto is that "the lower court adopted the theory of `calculated risk' as a proper standard of care" when it came to factually consider appellee's liability under Iowa law.

To bring the latter matter into proper focus, the first thing that must be pointed up is that Judge Stephenson, by his opinion ante, at l. c. 132 of 226 F.Supp., declared that the only area in which negligence could possibly exist in the factual premise of this case was in relation to the "diagnosis" made by Dr. Kennedy, the psychiatrist who examined Baker upon admittance of the latter to the V.A. Hospital facilities, ante; and that Doctor's "assignment of Baker to an open ward" in that hospital. From the briefs filed before us, it does not appear that appellant makes any contention that the charge of negligence here made could be, or was, otherwise factually premised — except as to Judge Stephenson's finding that the maintenance of the window-well into which Baker jumped, though maintained without a covering thereover, being guarded by a three-foot, heavy wire-meshed fence, did not itself constitute a negligent condition existing on the premises of the hospital. The latter finding is questioned by appellant in this appeal, but the contention made in respect thereto is no more than an extension of the primary issue raised as to the duty and care owed by a hospital to a patient under Iowa law. In our opinion, Judge Stephenson properly resolved that issue by his opinion, ante, at l. c. 132 of 226 F.Supp.

The second matter to be pointed up is, since the decision rendered in this case was by a court sitting without a jury, it is the rule of this Court that it will only be disturbed on review if found to be clearly erroneous. The "clearly erroneous standard applies to reasonable inferences to be drawn from stipulated or undisputed facts and that it is for the trial court rather than this court to draw legitimate and permissible inferences" therefrom. Cole v. Neaf, 334 F. 2d 326, 329 (8 Cir. 1964).

Resolution of the issues in this case primarily involved the consideration and weighing of expert testimony which a priori demands the consideration of matter related to the credibility and weight of testimony given in resolution thereof. Cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (1949). In cases tried before a court without a jury, where that issue appears on appeal, it is the rule of this Court that:

"* * * We will not attempt to substitute our judgment, based upon the cold record, for that of the trial court in determining credibility of witnesses and disputed fact issues. * * * Upon appeal the evidence, including such inferences as may be reasonably drawn therefrom, is to be viewed in the light most favorable to the prevailing party." Geer-Melkus Construction Company v. United States, etc., 302 F.2d 181 (8 Cir. 1962).

With the above thoughts in mind, it is apparent this case in principle differs in no respect from other Federal Tort Claims Act cases brought under 28 U.S.C.A. § 1346(b), in which this Court has been called upon to review factual questions in relation to applicable controlling law; which in the case at bar is that of the state of Iowa, "the place where the act or omission occurred." Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128, 77 S. Ct. 186, 1 L.Ed.2d 189 (1956); Olson v. United States, 175 F.2d 510 (8 Cir. 1949). Hence in our disposition of this appeal, we only consider "not whether (Judge Stephenson) has reached a correct conclusion but whether it he has reached a permissible one" within the ambit of Iowa law on the facts and issues here joined. Homolla v. Gluck, 248 F.2d 731-734 (8 Cir. 1957).

From the opinion of Judge Stephenson, ante, it clearly appears after giving due and mature consideration to the facts and applicable Iowa law, he ruled that a hospital in that State is only required to render such care to a patient admitted for treatment therein as it knew, or in the exercise of reasonable care should have known, the patient's condition required; and that such "duty" is measured by the degree of care, skill and diligence customarily exercised by hospitals generally in the community; citing Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 107 N.W.2d 85 (1961); Bradshaw v. Iowa...