Birmingham Baptist Hospital, Inc. v. Blackwell

• Decision Date: 15 May 1930
• Docket Number: 6 Div. 286.
• Citation: 221 Ala. 225,128 So. 389
• Parties: BIRMINGHAM BAPTIST HOSPITAL, INC., v. BLACKWELL.
• Court: Alabama Supreme Court

128 So. 389

221 Ala. 225

BIRMINGHAM BAPTIST HOSPITAL, INC., v. BLACKWELL.

6 Div. 286.

Supreme Court of Alabama

May 15, 1930

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by Mrs. Florrie Blackwell against the Birmingham Baptist Hospital, Inc. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Harris Burns, B. F. Smith, and R. H. Scrivner, all of Birmingham for appellant.

Altman & Koenig, of Birmingham, for appellee.

GARDNER J.

Plaintiff became a patient at the defendant's hospital while undergoing an operation performed by her physician. Immediately following the operation (as to which there was no complaint), she fell into such a state of collapse as to require resort to restorative methods. Plaintiff insists that, in thus treating her for restoration, the nurses at the hospital applied a hot water bottle to the lower part of her abdomen, with the water too warm, and without sufficient protection to her body, so as to produce a burn thereon which proved of a serious character. That plaintiff was badly burned on the abdomen, requiring a subsequent skin-grafting operation, was not a matter of controversy.

The origin of the burn, however, was sharply disputed; defendant insisting that it was the result of the application of hot towels to plaintiff's abdomen by her husband and a lady friend at her home in an effort to relieve the pain on the night before she became a patient at the hospital. The evidence was in sharp conflict upon this disputed issue of fact.

The burn was a serious one, and, after leaving defendant hospital, plaintiff went to another and by a different physician had the skin-grafting operation performed which proved successful and the wound healed, leaving a scarred place on her abdomen which plaintiff insists is tender and gives occasioned discomfort in certain positions. Plaintiff resumed her former position at the expiration of six months from her first sickness.

The complaint rested for recovery upon averments of simple negligence consisting of the conduct of the nurses in producing the burn as above indicated. The jury returned a verdict in favor of the plaintiff in the sum of $30,000, and from the judgment following, defendant prosecutes this appeal.

A few days after she had returned to her home following the skin-grafting operation, and prior to the healing of the wound, plaintiff, at the suggestion of her counsel, and evidently preparatory to this litigation, had three photographs taken, which were submitted in evidence to the jury and here presented in the record for inspection. Exhibit B is a picture of the wound only, and embraces that portion of the body necessary for its inspection and no more. Plaintiff's testimony tends to show it correctly represents a condition of the wound at that time. The serious nature of the burn was a proper matter for consideration of the jury in determining the amount of damages to be awarded in the event plaintiff should recover. But, more than this, it disclosed the shape of the wound and left room for argument that it bore indications the burn was produced by a hot water bottle as plaintiff contended. The introduction of Exhibit B, therefore, served a legitimate purpose in the suit, and defendant's objection thereto was properly overruled. This photograph gave a well-defined and vivid view of the burn and surrounding part of the abdomen, and its inspection here is quite convincing that it served all legitimate ends and needed not to be supplemented.

But plaintiff was not content with its introduction alone, but offered, over defendant's objection the two other photographs taken at the same time. They were evidently taken at greater range than the other, and disclose the body and face of plaintiff reclining in bed. In one of them (Exhibit C) the burn was left exposed, but its view was not so plain and vivid as that of Exhibit B. The photograph, Exhibit A, however, first to be offered in evidence did not have the burn exposed, but covered with cloths. To the introduction of this photograph defendant interposed the additional ground that the wound was not exposed and it was descriptive of nothing, representing only a "woman lying in bed." As an excuse for Exhibit A, plaintiff argues it shows she was still having the wound treated, but this was not a controverted issue in the case, and to permit its introduction for such a purpose would but serve to encourage self-serving evidence upon an uncontroverted fact. "It is a cardinal rule in the law of evidence that facts and circumstances which, if proved, are incapable of affording a just, reasonable inference or presumption in relation to a material fact involved in the issue on which the jury are to pass, are irrelevant and inadmissible. Testimony, to be admissible, must relate to and be connected with the transaction it is intended to elucidate, and the connection with it must not be remote, or a forced, strained, or mere conjectural conclusion. It must have a reasonable tendency to prove or disprove a material fact in issue." Karr v. State, 106 Ala. 1, 17 So. 328, 330. As said in the quotation from Starkie found in the Karr Case, supra, irrelevant evidence is "at least useless, and may be mischievous, and may tend to distract the attention of the jury, and frequently to prejudice and mislead them." We think the language most pertinent here. So far as elucidating any material fact in issue, this photograph was "at least useless." Plaintiff is a young woman, and, judging from the photograph before us, possesses an attractive face. There is no occasion here for any detailed description of this photograph of plaintiff as she reclined in bed. The scene is better imagined than described. Suffice it to say, the photograph bears some evidence that the matter of feminine charm was not overlooked, and an appeal to sympathy was not to be ignored. The stage effect was not wanting. As said in the quotation above, this irrelevant evidence "may be mischievous," and that it has a tendency to "distract the attention of the jury" we think is quite clear.

What has been said relates particularly to Exhibit A. It is likewise applicable to Exhibit C, though in the latter the exposed wound offers more reasonable excuse for its introduction, which, however, as to this feature, would be merely cumulative to Exhibit B. Whether the court should be held in error under these circumstances, for its introduction, we need not stop to determine, as we are clear to the view that error was committed in overruling objection to the introduction of Exhibit A above discussed. Whether, standing alone, the prejudicial effect of its introduction would justify a reversal of the cause or be considered as reflected in the amount only of the verdict rendered, it is likewise unnecessary to determine in view of subsequent developments in the trial of cumulative prejudicial character.

We have noted that the issue presented by the pleadings related only to the negligence of the nurses in producing the burn upon plaintiff's abdomen. But counsel for plaintiff, over defendant's objections and the favorable rulings of the court thereon, persistently insisted, in the examination of witnesses, upon the injection of another issue, to the effect that plaintiff's arm was also negligently injured by hypodermic injections and allowed to become infected.

Mrs Powell, sister of plaintiff, and the first witness to be examined, was asked on her direct examination concerning the infected condition of the arm, and defendant's objection thereto, upon the ground that it was not embraced within the issues of the complaint, was sustained. On redirect examination, the same witness was again asked if she knew "what brought about or caused that condition of her arm." The objection was sustained, and the ruling thereon immediately followed by the question, "Did you see any nurse in the hospital put any hypodermic needle in the place that was afterwards infected or abscessed?" Objection was again sustained. The next witness was plaintiff's mother, Mrs. Webb, and on her direct examination she also was asked as to the treatment of plaintiff's arm, and in fact answered as to hypodermic, and added: "I suppose she still suffers from that until today." Defendant interposed objection upon the ground it was not within the issue, which was sustained, and its motion to exclude the answer likewise sustained, which ruling was immediately followed by another question pertaining to plaintiff's arm, and objection again sustained. This witness was followed by plaintiff's husband, who also on direct examination was asked, "Do you know whether her arm was infected by a hypodermic or otherwise?" Objection interposed. The record discloses: "The court sustained the objection." Dr. Stephens who performed the skin-grafting operation, on redirect examination, was asked three times in regard to the infected condition of plaintiff's arm, and at last the witness replied he did not remember, but stated: "I am sure that there was, but I handle lots of people and I don't know." Counsel for plaintiff then agreed for this reply to be excluded. In connection with the testimony of this witness, we may note in passing another question propounded, illustrative of the method pursued. Dr. Stephens was asked whether or not he had heard of other people getting burned at defendant hospital. The objection was sustained, and the ruling immediately followed by the question, "Have you or have you not?" Objection again sustained, and the witness was then asked whether or not he had heard of a particular person, one Coe, getting burned at what is "now known as the Birmingham...