Distad v. Cubin

• Decision Date: 01 September 1981
• Docket Number: No. 5414,5414
• Citation: 633 P.2d 167
• Parties: Ralph L. DISTAD, Administrator of the Estate of Mary J. Poulin, Deceased, Appellant (Plaintiff), v. Frederick W. CUBIN, M. D., and Memorial Hospital of Natrona County, Casper, Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 167

633 P.2d 167

Ralph L. DISTAD, Administrator of the Estate of Mary J. Poulin, Deceased, Appellant (Plaintiff), v. Frederick W. CUBIN, M. D., and Memorial Hospital of Natrona County, Casper, Wyoming, Appellees (Defendants).

No. 5414.

Supreme Court of Wyoming.

Sept. 1, 1981.

P. Richard Meyer, and Robert N. Williams, Spence, Moriarity & Schuster, Jackson, signed the brief on behalf of appellant; and P. Richard Meyer, Jackson, appeared in oral argument.

J. E. Vlastos, Vlastos, Reeves & Murdock, Casper, signed the brief on behalf of appellee Cubin. R. R. Bostwick, Murane & Bostwick, Casper, signed the brief on behalf of Memorial Hospital. J. E. Vlastos and R. R. Bostwick Casper appeared in oral argument.

Before RAPER, THOMAS, ROONEY and BROWN, JJ., and JOHNSON, District Judge.

RAPER, Justice.

Appellant, as administrator, filed this wrongful death action against appellees contending that they had been negligent in their medical treatment of Mary Poulin, deceased. On appeal, he raises four issues. First, he contends the district court erred in allowing each defendant three peremptory challenges to the jury. His position is that the defendants together should have had only three such challenges. Second, appellant claims that if a defendant is shown to have failed to comply with state and federal regulations, then he/she/it should be held to have been negligent per se. Thus, appellant insists that the district court erred in refusing to so instruct the jury. Third, appellant asserts that the uncontradicted evidence demonstrated that there was a violation of public health regulations and thus the jury's failure to ascribe any negligence to the defendants is as a matter of law erroneous. Finally, he argues that it was error in this case for the trial judge to refuse to grant a new trial where there was evidence that a juror had some contact with a prospective witness.

We will affirm.

I

Ralph L. Distad (appellant) as the administrator of the estate of Mary J. Poulin, filed suit against Frederick Cubin, M.D. (Dr. Cubin) and Memorial Hospital of Natrona County (Hospital) appellees on December 16, 1974. In his first cause of action appellant charged that Dr. Cubin had been negligent in treating Mary Poulin and that said negligence was a proximate cause of her death. In his second cause of action appellant accused the Hospital of negligently treating Ms. Poulin and that the Hospital's negligence through its servants was also a proximate cause of her death.

The suit's underlying event occurred on June 11, 1973. On that day at about 6:55 p. m. Ms. Poulin entered the Hospital's emergency room. The complaint was made that she had been trying to get a doctor to treat her, but since she was on welfare, all the doctors had refused. When asked what specifically was wrong, Ms. Poulin indicated that she was overweight and had been not only unable to reduce but was in fact gaining. Ms. Poulin, who stood approximately five feet tall, told the nurse on duty that she weighed 268 pounds. Dr. Cubin, who was taking the emergency room's calls that evening, was advised by the nurse of the presence of Ms. Poulin in the emergency room as well as the nature of her complaint. When Dr. Cubin was reassured that the woman's only complaint was obesity, he arranged to see Ms. Poulin the next morning. Shortly thereafter Ms. Poulin left the hospital; during the night she died of pulmonary edema congestive heart failure which was a product of her obesity.

The case went to trial on June 2, 1980. The jury returned a verdict on June 18, 1980, finding both defendants free of any negligence whatsoever. ¹

II

The first issue we will address concerns peremptory challenges to prospective jurors. In this case, prior to the commencement of the voir dire examination of the prospective jurors, the court met in chambers with the parties' counsel. It was decided there that Dr. Cubin, the Hospital, and appellant, would each have three peremptory challenges to the jury panel. Appellant's first expression of dissatisfaction with this ruling, which appears on the record, occurred during the noon recess after voir dire had begun. He further objected when it was apparent the court was permitting three peremptories for each defendant. A final objection was made when the panel of jurors not selected was excused. Now on appeal, appellant again asserts that it was error for the defendants to have six peremptory challenges between them while he was allowed only three. We must disagree.

The number of peremptory challenges allowed in a civil suit in Wyoming is governed by § 1-11-202, W.S.1977. This statute provides:

"In the trial of civil cases in the district courts of this state, each side is allowed three (3) peremptory challenges."

The question arises from this statute as to what is meant by the term "side." There is no Wyoming case law to guide us in construing that term. Accordingly, we will consider the law of sister states.

The courts of Texas have been faced with a similar question which required the same considerations to be made in resolving it as must be made here.

"Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit tried in district court shall be entitled to six peremptory challenges. In Retail Credit Co. v. Hyman, Tex.Civ.App., 316 S.W.2d 769 (writ ref.), it was pointed out that the 'word "party", as used in the rule, does not mean the same thing as the word "person ". Hargrave v. Vaughn, 82 Tex. 347, 18 S.W. 695. The mere fact that there may be multiple parties-defendant does not entitle each person to six peremptory challenges. Whether such defendants are parties within the meaning of Rule 233, so as to be entitled to separate peremptory challenges, depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with.'

"Parties on the same side of the docket may be entitled to separate peremptory challenges even though no affirmative relief is sought by one against the other. * * * " Tamburello v. Welch, Tex., 392 S.W.2d 114 (1965).

Further guidance may be found in a recent medical malpractice case from the Court of Appeals of Kentucky. There the plaintiff complained that the trial court had erred in giving the defendants nine peremptory challenges while she got only three. The court held:

"Multiple defendants are entitled to additional peremptory challenges under KRS 29.290 if their interests are antagonistic. At the time the trial commenced on February 20, 1976, cross-claims had been asserted between Drs. Grise and Blackburn on the one hand and Drs. Kirby and Scott on the other. Even more important, the physicians were charged with independent acts of negligence. As the court stated in Roberts v. Taylor, Ky., 339 S.W.2d 653, 656 (1960):

" 'Where the defendants in a personal injury action are charged with independent acts of negligence * * * the interests of the defendants are most always antagonistic, because each may escape liability or reduce his liability by convincing the jury that the other was solely or primarily responsible. The assertion of cross-claims for indemnity or contribution will merely formalize the antagonism of interest in this regard.' " Mackey v. Greenview Hospital, Inc., Ky.App., 587 S.W.2d 249 (1979).

See also, Johnson v. Superior Court of California, In and For County of Los Angeles, 50 Cal.2d 693, 329 P.2d 5, 9-10 (1958).

We agree with the reasoning of these decisions. We hold that in determining whether multiple defendants constitute one side, consideration must be given the nature of the claim against them and whether the defendants' interests are or may be antagonistic.

In this case, appellant sued both defendants on a negligence theory. Separate acts of negligence were attributed to each defendant in the complaint. The hospital's alleged negligence was independent of the doctor's, while the doctor's was independent of the hospital's. Under Wyoming's comparative negligence scheme, the independent negligence of each of the actors as a party is used to reduce the other actor-party's responsibility for the damages. See Board of County Commissioners of County of Campbell v. Ridenour, Wyo., 623 P.2d 1174 (1981). Thus, in this case the more negligent the decedent and the hospital were shown to be, the less the doctor's liability could be. The hospital in turn could reduce its liability by showing how much more negligent the decedent and the doctor were. The result of Wyoming's comparative negligence design is that very seldom will multiple defendants not have antagonistic interests. There is here a triangle of parties as actors.

Our use of the term "antagonistic" does not mean that parties must express as between them dislike, hatred, unfriendliness, ill-will, or spite; it should be read in accord with our adversary system. The fact that Dr. Cubin and the Hospital were not openly antagonistic during the trial does not change the fact that their interests were conflicting. It only shows that they believed strategically the best way to handle the matter was to show how weak the appellant's case was. Accordingly, we must rule against him and in favor of the district court's action. In deciding who gets peremptory challenges, we will look to see whether the parties' interests are by their nature antagonistic.

III

This court has said rather recently that the duty of care is a question of law to be determined by the court. Medlock v. Van Wagner, Wyo., 625 P.2d 207 (1981). It is a standard-fixing function which the judiciary must perform in order to give the jury a direction to decide whether a defendant's conduct in a particular case is justifiable or should be condemned and that if the conduct is found to be at variance with the standard, money is to be taken from the defendant to repair the plaintiff's damage. What are the means by which a court determines a standard of conduct? The Restatement, Torts 2d, § 285 summarizes the...