Cardamon v. Iowa Lutheran Hospital

• Citation: 128 N.W.2d 226,256 Iowa 506
• Decision Date: 05 May 1964
• Docket Number: No. 51211,51211
• Parties: Charles J. CARDAMON, Administrator of the Estate of Lillian Shover McClintock, Deceased, Appellee, v. IOWA LUTHERAN HOSPITAL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 226

128 N.W.2d 226

256 Iowa 506

Charles J. CARDAMON, Administrator of the Estate of Lillian Shover McClintock, Deceased, Appellee, v. IOWA LUTHERAN HOSPITAL, Appellant.

No. 51211.

Supreme Court of Iowa.

May 5, 1964.

John Paul Jones and W. C. Hoffmann, Des Moines, for appellant.

Lex Hawkins, Des Moines, for appellee.

SNELL, Justice.

This case has been before us previously. In this appeal we have some of the same, but also additional, issues.

As originally brought, this was a law action by the then Mrs. Lillian Shover, divorced and unemployed former night-club dancer, photographers' model and night-club waitress of Des Moines, Iowa against Iowa Lutheran Hospital, a nonprofit corporation, also of Des Moines. Plaintiff asked damages for personal injuries allegedly sustained April 29, 1956 while a patient in defendant's hospital. She had left her bed and room, unaccompanied, sometime between midnight and one o'clock in the morning to go to a nearby toilet facility, became dizzy and fell to the floor in the hallway while returning to her room.

Upon appeal from a jury verdict and judgment in favor of plaintiff in the first trial the cause was reversed by this court for lack of support in the evidence as to the extent or probable cost of future medical and hospital expense. See Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 107 N.W.2d 85.

Shortly before the reversal, Mrs. Lillian Shovr McClintock (having in the interim remarried a former husband) died in San Francisco, California, of an overdose of sleeping pills. Charles J. Cardamon, of counsel for the plaintiff in the first trial, was substitued as plaintiff, as the administrator of the deceased plaintiff's estate. Amended and substituted petition in two counts was then filed. Count I was predicated upon the original action, except for the deletion of the claim for future damages. Count II was based upon the California wrongful death statute, claiming that defendant 'did cause a mental condition in, and inflict a psychological trauma on, the plaintiff's decedent, in the State of California' and that because thereof Mrs. Lillian Shover McClintock had committed suicide as the result of an 'uncontrollable impulse.'

Trial to a jury resulted in a verdict for the plaintiff of $64,108.96 on Count I and $15,995.00 on Count II. Motion for new trial was duly filed and overruled. This appeal followed.

I. In Iowa causes of action survive notwithstanding the death of the person entitled or liable to the same. The action may be brought or continued by the legal representative or successor in interest of the deceased. Section 611.20 and Section 611.22, Code of Iowa, I.C.A.

The basic issues contained in Count I of plaintiff's petition, i.e. negligence, proximate cause, freedom from contributory negligence anc damages were involved in the acton started and maintained by plaintiff's decedent in her lifetime. The factual background and the issues determined in the former appeal need not be repeated.

Plaintiff's decedent died before the second trial. No claim for medical and hospital expense, pain, suffering, mental anguish or disability beyond the date of her death was submitted to the jury.

There was evidence from which a jury could find actionable negligence, proximate cause, freedom from contributory negligence and substantial damage. In fact, two juries have so found. On these issues we found no reversible error before and find none here.

The court's instructions on plaintiff's measure of damage under Count I limited recovery to compensable damage sustained by decedent to the date of her death. The measure of damage was correctly stated under Iowa law and we find no error.

II. Defendant alleges error arising from argument of plaintiff's counsel to the jury.

Plaintiff's counsel in a prologue to his analysis of the evidence and argument said:

'Anything I say is not to be considered by you as a fact in this case, only what came from the witness stand. So anything I say in my argument you do not consider as a fact. Any impression that I draw from the evidence is my impression. You are the ones who will ultimately decide, and of course the same applies for Mr. Jones. So as we go through here, these are just my impressions of what the evidence shows, because you are the ones who will ultimately decide this case.'

Beginning his argument on damages counsel said:

'Everything that I say in this argument on damages is my impression of the evidence. These are my estimates. They will be my totals. The Judge will tell you in his instructions that when you get back to that jury room there is no mathematical formula which you can use to ascertain, for example, what pain and suffering and embarrassment is worth. You have to use your own good judgment. But I will tell you how I arrived at the figures that I did, and you can use your own good judgment. These are my estimates.'

Counsel then itemized on a blackboard the medical and hospital bills of decedent from the time of her injury until her death. Continuing his argument counsel said: 'Folks, you cannot take into consideration or place yourself in the position of the plaintiff or the decedent, and I don't want you to. You cannot do that in assessing damages.'

In a speculative vein counsel then hypothesized a person with injuries such as were claimed. He compared the hospital cost per day with the total number of days decedent had been disabled. In discussing pain and suffering counsel at one point said: 'It's easy to speak of pain and say how much would you stand for $2? Would you take $2 for an hour of pain? I am going to impose upon you one hour of pain for $2.'

Defendant's counsel promptly objected to the argument as being in violation of the 'Golden Rule Argument.'

The statement was promptly withdrawn by counsel with an apology and the court mentioned a previous admonishment that the jurors were not to put themselves in that position. The error in the argument was not so serious as to prevent cure. The withdrawal and admonishment make us reluctant to interfere.

White v. Chicago & Northwestern Railway Company, 145 Iowa 408, 416, 124 N.W. 309; Evans v. Roberts, 172 Iowa 653, 666, 154 N.W. 923.

Counsel used various figures multiplied by days and years of disability to explain how the amount of plaintiff's asking was reached.

In addition to counsel's statements that what he might say in argument was not to be considered as evidence, the court repeatedly and properly admonished and instructed the jury.

Various jurisdictions are not in accord as to the use of blackboards, formulas, computations or speculative hypotheses in jury arguments on damages.

We recently considered some of these problems and in Corkery v. Greenberg, 253 Iowa 846, 852 et seq., 114 N.W.2d 327, held there was no prejudicial error in the use of a per diem formula argument as to how plaintiff arrived at the amount asked. We said:

'The task of the lawyer is to assist the jury in reaching a verdict. In doing this a suggestion of the manner in which the lawyer reached the amount asked without more cannot invade the province of the jury. The jury must reach their verdict by reasoning and drawing inferences. The per diem argument is nothing more than a suggestion of a course of reasoning from the evidence of pain and disability to the award.' (253 Iowa loc. cit. 855, 114 N.W.2d loc. cit. 332)

In view of our most recent pronouncement we cannot say that the argument to the jury constituted reversible error.

III. On voir dire examination plaintiff's counsel suggested to the jury that the evidence would show that plaintiff's decedent, because of her injuries, became addicted to alcohol and narcotics. In final argument such a claim was made. These statements were within the inferences that might be drawn from the evidence. The evidence showed the constant use of narcotics and barbiturates. Decedent died after an evening of heavy drinking and from an overdose of tuinal. We find no error in the mention, discussion or inferences drawn from the evidence.

IV. Defendant claims error by the trial court in restricting cross-examination of plaintiff's witness, Dr. Kleinberg and in excluding proffered testimony. The excluded testimony was either brought out otherwise during the trial or related only to the death action as contained in Count II of plaintiff's action. Dr. Kleinberg's diagnosis of decedent's condition when she entered the hospital was fully shown. The substance of the findings and report of the psychiatrist to Dr. Kleinberg was later shown by the testimony of the psychiatrist.

There is no error in excluding evidence of a fact otherwise fully established or where the evidence is subsequently admitted.

This proposition is so well settled as to need no discussion. Mongar v. Barnard, 248 Iowa 899, 906, 82 N.W.2d 765; Jaeger v. Hackert, 241 Iowa 379, 392, 41 N.W.2d 42; Korf v. Fleming, 239 Iowa 501, 513, 32 N.W.2d 85, 3 A.L.R.2d 270.

V. Defendant complains of the display in the courtroom of photographs of decedent. Had plaintiff's decedent been alive and in the courtroom her physical appearance would have been apparent. The admissibility of photographs rests largely in the discretion of the trial judge. We held in the first appeal of this case that there was no error in the admission of photographs of decedent. Shover v. Iowa Lutheran Hospital, supra, 252 Iowa loc. cit. 719-720, 107 N.W.2d 85.

VI. Plaintiff's original specification of negligence 5c read as follows:

'In not providing toilet facilities for the plaintiff's decedent who was confined to her bed and in ordering and permitting the plaintiff's decedent, unattended, to remove herself from her hosptial bed and in failing to aid her in walking to and from said restroom.' (Emphasis supplied.)

Prior to submission of the statement of issues and instructions to the jury defendant attacked this statement. Plaintiff then voluntarily withdrew from the specification any reference to 'o...