Chamberlain v. Deaconess Hospital, Inc.

• Citation: 324 N.E.2d 172,163 Ind.App. 324
• Decision Date: 03 March 1975
• Docket Number: No. 1--874A126,1--874A126
• Parties: Audrey CHAMBERLAIN and Martha Chamberlain, Plaintiffs-Appellants, v. DEACONESS HOSPITAL, INC., Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 172

324 N.E.2d 172

163 Ind.App. 324

Audrey CHAMBERLAIN and Martha Chamberlain, Plaintiffs-Appellants, v. DEACONESS HOSPITAL, INC., Defendant-Appellee.

No. 1--874A126.

Court of Appeals of Indiana, First District.

March 3, 1975.

Rehearing Denied April 10, 1975.

Rodney H. Grove, Evansville, for plaintiffs-appellants.

William E. Statham, Clark, Statham, McCray & Gowdy, Evansville, for defendant-appellee.

LOWDERMILK, Judge.

The complaint in this cause of action was filed in two paragraphs. The first paragraph was that of appellant, Audrey Chamberlain, for personal injuries sustained by him through the alleged negligence of the defendant, Deaconess Hospital, Inc. (Hospital), appellee. The second paragraph is the complaint of appellant, Martha Chamberlain, wife of her co-plaintiff, Audrey Chamberlain. In said second count the allegations of the first count are incorporated therein by reference and appellant, Martha Chamberlain, alleges she was damaged by loss of Audrey's services, society, companionship and consortium and for which she sought damages.

Appellant Audrey was admitted to the hospital for treatment for ulcers and his doctor required in his treatment a '24 hour urinalysis test' which required a period of 24 hours during which the patient voids into a urinal and transfers the urine into a gallon plastic jug containing hydrochloric acid. The evidence is in dispute as to whether the nurse properly advised Audrey on how to safely save the urine and pour it into the jug through a funnel.

Audrey, instead of voiding into the urinal, voided directly into the mouth of the jug and immediately the hydrochloric acid reacted, causing severe and painful burning of Audrey's penis, which resulted in a scarring thereof.

Audrey testified that at trial time he suffered pain upon urination or upon sustaining a partial erection, although burns had healed. He also testified that the injury created a psychological problem and caused him to be impotent. Extensive and conflicting expert testimony was presented by one psychologist and two psychiatrists on the cause of Audrey's impotency.

Trial was to a jury which found against plaintiffs on each paragraph of the complaint as amended and judgment was entered accordingly.

Specifications of the motion to correct errors relating to the verdict of the jury being contrary to law and contrary to the evidence were not argued on appeal and are deemed waived.

Appellants vigorously contend that the court erred in giving Hospital's tendered Instruction No. 3, to which appellants specifically objected.

Said tendered Instruction No. 3 is in the words and figures as follows, to-wit:

'The defense of contributory negligence is an issue in this case. Under the law of Indiana, both the plaintiffs and the defendant were under the duty of exercising reasonable care under the circumstances. If you find from a preponderance of the evidence that the plaintiff, Audrey Chamberlain, failed to exercise reasonable care, and that such failure contributed to the proximate cause of the accident, then I instruct you that the plaintiffs cannot recover in this case, even though you also find that the defendant, Deaconess Hospital, Inc., was guilty of negligence contributing to the proximate cause of the accident.

Therefore, if you find from a preponderance of the evidence, that the plaintiff Audrey Chamberlain was given instructions to be followed by him in the collection of his urine for the 24 hour urinalysis that was ordered by his physician, but that he failed to follow said instructions, and that the failure to follow said instructions, constituted negligence which contributed to the proximate cause of his accident complained of in this case, then I instruct you that it would be your duty to return a verdict for the Defendant, Deaconess Hospital, Inc., in this case.'

Chamberlain first contends that this instruction is mandatory in nature and as such must contain all the elements necessary to sustain the defense of contributory negligence. The definition of a mandatory instruction was set out in the case of Perry v. Goss (1970), 253 Ind. 603, 255 N.E.2d 923, as follows:

'A mandatory instruction is one in which there is an attempt to set out certain facts upon which the jury is directed to reach a certain result.'

An examination of Instruction No. 3 discloses that the instruction is mandatory in nature but all of the requisite elements of contributory negligence are sufficiently included. While mandatory instructions are not looked upon with favor it is not per se reversible error to give a mandatory instruction and we find no prejudice in the giving of Instruction No. 3 on this basis. Perry v. Goss, supra.

Chamberlain also contends that Instruction No. 3 is erroneous by use of the phrase 'proximate cause of the accident.' This phrase is not an element of contributory negligence and Chamberlain contends that the use of the word 'accident' instead of 'injury' is misleading and is in conflict with other instructions which correctly set out the elements of contributory negligence.

In the case of Taylor v. Indiana Bell (1970), 147 Ind.App. 507, 262 N.E.2d 399, this court held that the requisite elements of an action for negligence are a duty, breach of that duty, and injury as a consequence of the breach. These elements are applicable to the defense of contributory negligence as well. Thus, the instruction is technically erroneous when it speaks of the 'proximate cause of the accident.'

No case has been cited to this court in which it has been held to be reversible error to use the phrase in question. Indeed, a similar phrase was used in an instruction discussed in the case of Jessop v. Werner Transportation Co. (1970), 147 Ind.App. 408, 261 N.E.2d 598. Although a different objection was at issue in Jessop, supra, the court held that there was no error in the giving of the instruction. In the case at bar we cannot perceive how the jury was confused or mislead by the reference to the 'accident' rather than the 'injury'. The facts of this case show that the injury and the accident are inseparable in that both happened at exactly the same time as the result of the conduct of Chamberlain. Thus, we can find no prejudice to the appellant by use of the phrase in question and any error in the use of this phrase would certainly be harmless. See also Highshew v. Kushto (1956), 126 Ind.App. 584, 131 N.E.2d 652, 133 N.E.2d 76.

The next objection to Instruction No. 3 is that the instruction uses the phrase 'the proximate cause' which would lead the jury into believing that there was only one or a sole proximate cause of the injury. This alleged defect is based on the premise that the conduct of both parties can contribute to the injury while the phrase 'the proximate cause' imports that there is only one proximate cause.

Appellee contends, and we must agree, that this argument is merely one of semantics. The instruction indicates that it is the failure of one party which contributed to the proximate cause of the accident that will relieve liability, thus the jury was sufficiently informed by the instruction as to the possibility of more than one proximate cause. We can see absolutely no error in the use of the phrase 'the proximate cause'. See, David Johnson Co., Inc. v. Basile (1964), 136 Ind.App. 611, 199 N.E.2d 478.

Chamberlain next contends that the use of the term 'accident' is misleading and confusing to a lay jury and that such use is per se reversible error. Appellant relies on cases involving 'mere accident' instructions to support his argument. These cases are not in point in that Instruction No. 3 is not in any manner a mere accident instruction. Other cases have discussed instructions in which the term 'accident' was used and have found no error. Jessop, supra; Perry, supra.

An examination of Instruction No. 3 does not disclose any prejudice to appellant by use of the term 'accident'.

We must at this point express our opinion on the use of the term 'accident' in an instruction. The term 'accident' is subject to many interpretations, one of which is that there is no fault by either party. While the use of this term is not per se reversible error there are many instances when error can be committed by the use of this term, either by itself or in conjunction with other words (e.g., pure accident instructions). It is our opinion that the use of the term 'accident' will almost always raise some question as to its applicability to the case and that courts will be required to repeatedly discuss the merits of this term on a case by case basis. Parties, lawyers, judges, and juries would certainly benefit from a discontinuance of the use of this term in instructions. There are in most cases other words which are more applicable and more descriptive than the word 'accident' and we would strongly suggest that other words be used in instructions in place of the term 'accident.'

The final objection to Instruction No. 3 is that said instruction failed to negative five of the seven allegations of negligence as alleged in Chamberlain's complaint. Chamberlain relies on the case of Snow v. Sutton (1960), 241 Ind. 364, 170 N.E.2d 816, where it was held to be reversible error to give a mandatory instruction on one specification of negligence which did not negate other such allegations.

It is our opinion that Chamberlain's reliance on Snow, supra, is misplaced. The instruction in Snow was not based on contributory negligence but, rather, concentrated on one of the allegations of negligence in the complaint and instructed the jury that should they find that the facts did not support the one allegation of negligence, then the plaintiff could not recover. The instruction in Snow, in effect, limited the issues in that case to one of the allegations of negligence and eliminated the other three allegations. The court in Snow correctly held that this was improper. In the case at bar we have an instruction...