Carson v. City of Beloit

• Decision Date: 07 October 1966
• Citation: 145 N.W.2d 112,32 Wis.2d 282
• Parties: Miriam B. CARSON, individually and as Administratrix of the Estate of Eugene W. Carson, Deceased, Plaintiff-Appellant, v. CITY OF BELOIT, a municipal corporation, Daniel Clark, M.D., and G. C. Matthews, M.D., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 112

145 N.W.2d 112

32 Wis.2d 282

Miriam B. CARSON, individually and as Administratrix of the Estate of Eugene W. Carson, Deceased, Plaintiff-Appellant, v. CITY OF BELOIT, a municipal corporation, Daniel Clark, M.D. and G. C. Matthews, M.D., Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 7, 1966.

Phillips, Hoffman & Phillips, Milwaukee, for appellant.

Nowlan, Mouat, Lovejoy, McGuire & Wood, Janesville, for respondent city of Beloit.

W. L. Jackman, Hart, Kraege, Jackman & Wightman, Madison, for respondents Clark and Matthews.

HALLOWS, Justice.

In submitting the issues to the jury, the court couched the inquiries concerning the acts of the doctors and the hospital in terms of negligence as ultimate-fact questions. The verdict inquired whether the hospital was negligent in its nursing care and whether the doctors were negligent in their professional-medical care and treatment. In its instructions the court correctly defined negligence in terms of the respective duty to use care, judgment and skill required of the doctors and of the hospital, using in respect to the doctors Civil Instruction #1023, Wis.J.I. It is contended the trial court should not have submitted the malpractice issues in terms of negligence, because in such terms the questions are likely to mislead the jury. It is contended such questions should only be framed in terms of standard of care and skill as was done in Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439; (1964), 25 Wis.2d 645, 131 N.W.2d 314.

We think the court did not err in this respect. The form of verdict rests in the discretion of the trial court and the result of the exercise of that discretion will not be rejected unless the inquiry, taken with the applicable instruction, does not fairly present the issue of fact to the jury for determination. Ehlers v. Automobile Liability Co. (1919), 169 Wis. 494, 501, 173 N.W. 325. In Krause v. Veterans of Foreign Wars, Post No. 6498 (1960), 9 Wis.2d 547, 554, 101 N.W.2d 645, this court suggested in negligence cases that trial courts frame the questions relating to all parties in terms of negligence so as to make it easier for the jury to compare the negligence of the parties.

The plaintiff argues the inquiry concerning contributory negligence of Carson should not have been given. This question asked whether Carson was negligent 'with respect to following any instructions given to him.' Under the pleading and the proof, this question could only be applicable to the hospital. There is no evidence Carson failed to follow any instructions of the doctors after his injury, and certainly any negligence of his which caused his fall and injury cannot be compared with any negligence of the doctors which might have caused his death. The evidence showed that before Carson fell a nurse's aide had instructed him to stay in bed, to use the urinal and to put on his light so the nurses could collect each specimen separately. This is the only evidence of any instructions given Carson to stay in bed and it is contended this witness was improperly permitted to testify to this conversation with the deceased. We think not. Objection was made to the testimony on general grounds and not to the witness's competency. To be valid, an objection based on sec. 325.16, Stats., must be addressed not to the evidence as being inadmissible, but to the competency of the witness to testify to such conversation. This rule is of such long standing one wonders why it continues to plague the trial bar. Wells v. Chase (1905), 126 Wis. 202, 105 N.W. 799; Zimdars v. Zimdars (1941), 236 Wis. 484, 295 N.W. 675; Will of Schultz (1948), 253 Wis. 86, 33 N.W.2d 169; Estate of Chmielewski (1962), 17 Wis.2d 486, 117 N.W.2d 601; Estate of Robinson (1963), 20 Wis.2d 626, 123 N.W.2d 515. However, the proper objection would have been of no avail, because the nurse's aide was competent to testify. She had no legal interest in the subject matter of the case. While it might be said she was remotely interested in another sense in the outcome of the litigation because she was an employee of one of the parties, such interest is not sufficient to disqualify her under sec. 325.16, Stats. In re Will of Bruendl (1899), 102 Wis. 45, 49, 78 N.W. 169; Nolan v. Standard Fire Ins. Co. (1943), 243 Wis. 30, 9 N.W.2d 74.

True, the question was too broadly phrased to include the defendant doctors because under the evidence any contributory negligence of Carson could not be set off against any negligence of the doctors. Lekewise, the questions on apportionment of negligence should not have included the doctors. However, this error was not prejudicial in view of the answers to the other inquiries finding the defendants were not negligent.

The dispute in the evidence whether the bed rails were up or down seems to be unimportant on the question of contributory negligence. Bed rails are used to keep patients from falling out of bed. The ones used on Carson's bed would not have prevented him from getting out of bed. This is not a case of a patient who falls out of bed but one who deliberately gets out of bed. We think the question of contributory negligence was properly in the case against the hospital and can be considered surplusage in respect to the doctors in view of the answers in the verdict.

The plaintiff predicates error on the trial court's refusal to submit an instruction on res ipsa loquitur in respect to the inquiry concerning the defendant doctors' failure to correctly diagnose Carson's injury as a skull fracture, especially in view of the complaints of Carson, and their failure to make use of proper tests for diagnosing a skull fracture. Dr. Clark had the story of the fall from the hospital report and also questioned Carson. He made a physical examination of the patient and concluded there was no need to take X rays to determine if there was a skull injury and prescribed bed rest. There is an abundance of testimony, which is conflicting, on what other doctors would have done and what the standard practice in the city of Beloit is in this situation, both by way of diagnosis and treatment. What Dr.s Clark and Matthews did and did nto do is not in doubt.

We think the plaintiff proved too much in the way of negligence to be entitled to an instruction on res ipsa loquitur. In Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439, we stated that a res ipsa loquitur instruction, worded so as to permit the jury to infer negligence, may be given in a malpractice case in which a layman could say, either as a matter of common knowledge or with the aid of expert-medical testimony, that the consequence of the medical treatment was not that which ordinarily results if due care is exercised. In the second Fehrman v. Smirl Case (1964), 25 Wis.2d 645, 653, 131 N.W.2d 314, we again addressed ourselves to when an instruction should be given, and we stated that 'if there has been such substantial proof of negligence as to render superfluous the giving of an instruction on res ipsa loquitur' such instruction need not be given. In the instant case the plaintiff adduced not circumstantial evidence but direct-expert testimony of the negligent conduct on the part of the doctors, and since this direct testimony would be sufficient to sustain a verdict, if accepted by the jury, the instruction would have been superfluous. The purpose of the instruction is to allow a permissive inference from circumstantial evidence which if not permitted would leave the plaintiff's case lacking in sufficient proof to go to the jury. See Beaudoin v. Watertown Memorial Hospital (1966) (decided...