Belisle v. Wilson

• Decision Date: 14 April 1958
• Docket Number: No. 2,No. 46265,46265,2
• Parties: J. W. BELISLE, Administrator of the Estate of Gertie Belisle, Deceased, and J. W. Belisle, Respondents, v. Dr. Loys C. WILSON, doing business as Presnell Hospital, Appellant
• Court: Missouri Supreme Court

Page 11

313 S.W.2d 11

J. W. BELISLE, Administrator of the Estate of Gertie Belisle, Deceased, and J. W. Belisle, Respondents, v. Dr. Loys C. WILSON, doing business as Presnell Hospital, Appellant.

No. 46265.

Supreme Court of Missouri, Division No. 2.

April 14, 1958.

Rehearing Denied May 12, 1958.

Robert H. Jones, Kennett, Jones & Jones, Kennett, for appellant.

McHaney & McHaney, Kennett, for respondents.

STOCKARD, Commissioner.

Gertie Belisle and her husband, J. W. Belisle, filed suit against Dr. Loys C. Wilson, doing business as the Presnell Hospital and obtained judgment totaling $8,000. By the petition, which was in one count, Mrs. Belisle sought damages for personal injuries received when she fell out of a bed in the hospital where she was a patient, and J. W. Belisle sought damages for medical expenses and loss of services of his wife. No objection was made to the form of the petition.

Dr. Wilson is the sole owner of the Presnell Hospital located at Kennett, Missouri, which is a private hospital operated for profit. On March 24, 1956, Gertie Belisle, then 60 years old, was admitted to the hospital as a patient of Dr. James Fuzzell. She was not then and had never been a patient of Dr. Wilson. The tentative diagnosis of Dr. Fuzzell was osteoarthritis of the left hip with the possibility of cancer. There were no orders for any special nursing care.

Mrs. Belisle walked into the hospital and to the room assigned to her which was located on the second floor of the building. She also walked from her room to the elevator, and after being taken to the basement, walked to the therapy room. She returned to her room in the same manner. The bathroom was located across the hall from her room, and she got up from the bed and walked to and from the bathroom whenever necessary.

On Sunday evening, March 25, pursuant to her doctor's orders Mrs. Belisle was given a laxative and a 'sleeping capsule' by the nurse's aid then on duty. Mrs. Belisle testified that the laxative consisted of 'cascara and milk of magnesia,' but the person who administered it stated that it was a 'dose' of 'milk of magnesia.'

Mrs. Belisle was the only occupant of a 'semi-private room.' Although this was the principal disputed factual issue, there was substantial evidence from which the jury could find that there was no 'call button' with which Mrs. Belisle could summon the nurse or other person whose duty is was to tend to her needs as a patient. The room was equipped for such a device, and there was a receptable located in the wall near the bed, but Mrs. Belisle and the witnesses for plaintiffs testified that there was no 'signal cord' plugged into this receptacle. Defendant's evidence was to the effect that the call button was properly inserted in the receptacle at all times. The room was also equipped with a ceiling light which was operated by a switch located near the door and which could not be reached by Mrs. Belisle from her bed. There was also a floor lamp located near the head of the bed, but she testified unequivocally that she could not reach this lamp. A nurse's aid testified that on Sunday night she adjusted this lamp for Mrs. Belisle to use in reading, and that she moved it next to the bed so that Mrs. Belisle could turn it on or off.

Mrs. Belisle awakened about three or three-thirty o'clock Monday morning. The room was then 'dark' and, in her words, 'I woke up in the morning, and felt like my kidneys wanted to act, and I seen that I had had a bowel movement, and I started to get up and fell out of bed.' She further testified that when she fell she 'was trying to get up,' and that 'well, I just started to get up and I missed that stool' that was at the side of the bed. As the result of the fall Mrs. Belisle sustained a fractured hip. Two attendants of the hospital were in the hall 'at the desk.' They heard the sound of Mrs. Belisle falling and went immediately to her aid.

Appellant's first point is that 'The court erred in overruling Defendant's Motions for a directed verdict offered at the close of plaintiff's evidence and renewed at the close of all the evidence offered in the case.' This point does not set forth 'why it is contended the court was wrong,' and does not comply with Supreme Court Rule 1.08(d), 42 V.A.M.S. Gurley v. St. Louis Public Service Co., Mo.Sup., 256 S.W.2d 755; Lomax v. Sawtell, Mo.App., 286 S.W.2d 40; State ex rel. P. W. Finger Roofing Company v. Koch, Mo.App., 272 S.W.2d 22. However, in view of our discussion of the next point in appellant's brief, particularly in reference to the alleged charge of negligence pertaining to the failure of defendant to furnish a call button, we deem it advisable to examine and rule on the one any only issue presented in the argument portion of the brief in support of this first point.

Appellant argues that by reason of the testimony of Mrs. Belisle pertaining to the circumstances under which she fell out of her bed, the substance of which we have previously quoted, 'she testified herself and her husband out of court and conclusively established that she had no case,' and that 'she has testified hereself that the cause of her injury was an accident, and in no wise caused by any negligence on the part of the appellant.' Appellant relies on the statement in Burris v. Kansas City Public Service Company, Mo.App., 226 S.W.2d 743, which was quoted with approval in Smith v. Siercks, Mo.Sup., 277 S.W.2d 521, 525, to the effect that if a party in full possession of his faculties testifies unequivocally and understandingly to a material fact peculiarly within his own personal knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding. Under the facts of this case, this rule is not applicable. It is true that, standing alone, the testimony of Mrs. Belisle did not disclose facts showing a right to recover or to maintain her cause of action, but that testimony did not negative her right of action based on the charge of negligence that the defendant failed to furnish her a call button to use in summoning aid and to which, as we shall subsequently see, appellant makes no objection.

Appellant's next point is as follows: 'The Court erred in giving Instruction No. 1-P; erred in refusing Defendant's Instruction No. 11-D; erred in refusing Defendant's requested Instruction No. 14-D; and the Court erred in refusing Defendant's Instruction No. 16-D; the Court erred in refusing Defendant's requested Instruction No. 15-D; the Court erred in refusing Instruction 13-D.' Following this are three subparagraphs, each of which pertains solely to instruction 1-P. No cases are cited except in support of the three subparagraphs and the argument portion of the brief under this point pertains only to instruction 1-P. This point presents nothing for review as to any instruction except instruction 1-P, and that only by reason of the subparagraphs which we shall next consider. Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726; State ex rel. State Highway Commission v. Schade, Mo.App., 271 S.W.2d 196; Palmer v. Security Ins. Co. of New Haven, Conn., Mo.App., 263 S.W.2d 210.

By instruction 1-P the jury was told that if it found that Mrs. Belisle was a patient at the Presnell Hospital and (1) was 'so sick and afflicted by reason of disease and medicines to be physically incapable of caring for herself,' and that the defendant's employees at the hospital had knowledge of her condition, or in the exercise of ordinary care, should have had such knowledge, and 'failed to watch and care for her.' and (2) in the exercise of ordinary care for the safety of Mrs. Belisle, the defendant 'failed to provide a call button in the room occupied by the plaintiff, Gertie Belisle, whereby she could call for aid and assistance in getting off the hospital bed where she was located,' and (3) that the defendant 'negligently permitted the lights in the said Gertie Belisle's room to be turned off without informing her how and where the lights could be turned on in the event of need,' and if the jury found that 'all of the above acts were negligent and that as a direct and proximate result thereof' Mrs. Belisle was permitted to and did fall from her hospital bed and was injured, then in such event, the verdict shall be for Mrs. Belisle and against the defendant. By the above inserted numbers we have divided the instruction into what we consider to be the three conjunctively submitted charges of negligence.

Appellant contends that there was no evidence to support the submission that Mrs. Belisle was so afflicted by reason of disease and medicine that she was physically incapable of caring for herself, and he also contends that by the phrase 'failed to watch and care for her' the instruction submitted both general and specific negligence. We should first note that respondent has taken the substance of this first charge of negligence from Davis v. Springfield Hospital, Mo.App., 196 S.W. 104. That case pertained to the duty of a hospital to a patient, who was in a delirious condition, to prevent him from injuring himself. However, the evidence here affirmatively established that there was nothing wrong with the mental condition of Mrs. Belisle, and the mere fact that the substance of theory of the submission was appropriate in the Davis case does not necessarily make it proper in this case.

Appellant attempts to isolate the phrase, 'and failed to watch and care for her,' as a separate conjunctive submission of general negligence, but it was in fact an integral part of the first conjunctive submission, and was predicated upon the contention that Mrs. Belisle was physically unable to care for herself. For that reason the use of the phrase is not subject to the precise criticism registered against it. However, the...