Durfee v. Dorr

• Decision Date: 19 November 1917
• Docket Number: 247
• Citation: 199 S.W. 376,131 Ark. 369
• Parties: DURFEE v. DORR
• Court: Arkansas Supreme Court

199 S.W. 376

131 Ark. 369

DURFEE v. DORR

No. 247

Supreme Court of Arkansas

November 19, 1917

Appeal from Independence Circuit Court; Dene H. Coleman, Judge reversed.

Judgment reversed.

Hal L Norwood and Richardson & Ruddell, for appellant.

1. There was error refusing and modifying the instructions asked by plaintiff. No 1 was taken from the decision of this court on the former appeal. 123 Ark. 542-7. The court erred in adding the words "and if a cause is alleged and proven." 80 S.E. 918; 8 N.C. C. A. 369, 384.

No. 3 should have been given as asked. 79 Ark. 490. No. 3 is a correct statement of the law. 79 Ark 490, 498; 116 Id. 82; 105 Id. 161; Ann. Cas. 1915, D 342; 64 L. R. A. (N. S.) 370.

2. There was error in giving instructions requested by defendants. Nos. 5, 6, 7, 8 and 9. Cases supra; 98 Ark. 352; 91 Id. 343; 116 Id. 82; 103 Id 81; 123 Ark. 542-7.

3. It was error to admit expert testimony of Drs. Snodgrass and Merriwether as to what attention, in their opinion, it was necessary to give the patient. 62 Ark. 70, 55 Id. 593; Ib. 65; 66 Id. 494.

Joe McCaleb, Jno. B. McCaleb and Lyman F. Reeder, for appellees.

1. The law of this case was settled in 123 Ark. 546, 7-8. Defendants were bound only to the degree of care proportionate to the danger to be apprehended, judged by the condition of affairs before the happening of the accident. 14 N.Y.S. 881; 148 N.W. 575; Ib. 582; 17 L. R. A. (N. S.) 1167; 14 Id. 784; 174 S.W. 409; 63 W.Va. 84; 59 S.E. 943.

2. The facts are undisputed and no fall was proven. The verdict is right, for no liability was shown, and this court will not reverse for possible errors in the instructions, not prejudicial. 126 Ark. 469; 123 Id. 549; 97 Id. 564; 88 Id. 236; 120 Id. 236.

3. The jury could not arbitrarily disregard the undisputed evidence. 118 Ark. 349; 96 Id. 37.

SMITH, J. McCULLOCH, C. J., dissenting.

OPINION

SMITH, J.

A statement of the facts upon which appellant predicates his cause of action will be found in the opinion rendered upon a former appeal (Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62), and we refer to that opinion for a statement of the case, and we will set out here only such portions of the evidence as are necessary to an understanding of the questions raised on this appeal. At the conclusion of the trial from which the former appeal was prosecuted, the court directed the jury to return a verdict in favor of the defendants, and we reversed the judgment pronounced upon that verdict because, as we there stated, the undisputed proof did not show that the keepers of the sanitarium had discharged their duty to their patient. Upon the remand of the cause and its trial anew, the cause was fully developed upon both sides, and a verdict was returned by the jury for the defendants, and this appeal has been prosecuted to reverse the judgment of the court pronounced thereon.

The opinion on the former appeal is the law of the case, and we undertook there to define the duty owing to appellant's intestate by appellees in the operation of their sanitarium. Appellees say that the instructions given the jury conformed to the law as announced in the former opinion. They say also that, whether this be true or not, the case has now been fully developed, and that the undisputed evidence shows that there can be no liability on their part, and that a judgment against them could not be permitted to stand, and that it is therefore unnecessary to consider whether the instructions correctly declared the law or not. We will consider these instructions in the order stated.

Instruction No. 5, given over the objection of appellant, contained a recital of the findings which the jury must make before their verdict could be for the plaintiff, the third paragraph of which was "that Dolph Durfee fell from the porch of the sanitarium to the ground below."

Specific objection was made to this instruction as follows: "Because it is not incumbent upon plaintiff to prove exactly how such injury occurred, * * * and because the instruction does not follow the allegations of the complaint."

It will be borne in mind that it was the theory of the appellant that the sanitarium was in darkness, because the city lighting plant, which furnished light to the sanitarium, had been put out of commission by the unprecedented flood in the White River, on which Batesville is located; that only a few days prior thereto an operation for an abscess on the liver had been performed on appellant's son, Dolph Durfee, and that the young man was very desperately ill. Dolph Durfee was found lying on a pile of weeds, and his night shirt was damp, although the moon was shining brightly. Young Durfee was conscious when he was found by a Mr. Hardy, whose attention was attracted by Durfee's call for help. Durfee could give no explanation of his presence on the ground, although he gave the men who carried him upstairs the information which enabled them to find his room and return him to his bed. Two theories are advanced. The first is, that Durfee fell from the porch of the sanitarium to the ground below. The other is that he fell down the stairs up which he was carried when he was returned to his room. No one knows in which manner the injury occurred. Yet the third paragraph of the instruction set out above tells the jury there could be no recovery unless the testimony shows "that Dolph Durfee fell from the porch of the sanitarium to the ground below." If appellees owed the patient a duty which they did not perform, and as a result of their failure to discharge that duty to him he was allowed to leave his bed and room and roam about as his fever, or pain, or delirium carried him, it could make no difference whether he fell from the porch or down the stairs. The complaint alleged that "said Durfee walked out of said room and out of the upstairs door upon a small platform, and fell from the banister or down the steps." He could have gotten from his room to the ground where he was found in either manner, and the court should not have made it a condition precedent to recovery that the jury find affirmatively that he reached the ground in one manner to the exclusion of the other. If appellees are otherwise liable for their lack of care to the patient, it must be immaterial whether the patient fell off the platform to the ground or fell down the steps to the ground.

Instruction No. 6, given over appellant's objection, reads as follows: "You are instructed that negligence can not and will not be presumed from the circumstances of Dolph Durfee's death, but it is incumbent upon the plaintiff to prove such acts of negligence and carelessness on the part of the defendants as are alleged in his complaint."

Specific objection was made to this instruction "because the plaintiff's proof consisted of a series of circumstances, and this instruction, in effect, tells the jury that they could not consider the circumstances."

Counsel for appellees concede, of course, that it was proper for the jury to consider the circumstances that were proven in connection with the injury and death of the deceased in determining whether appellees were negligent; but this instruction is now defended upon the ground that it is, in effect, a declaration that the doctrine of res ipsa loquitur does not apply. We can not so consider it, in view of the specific objection made to it. All doubt on the subject appears to be removed when we consider that the court refused, at appellant's request, to modify the instruction by adding the following qualification: "In determining whether plaintiff has proved that the defendants were negligent as alleged, you are authorized to take into consideration all of the circumstances that have been proved in connection with the injury and death of the deceased."

Instruction No. 8, given over appellant's objection, reads as follows: "If you believe from the evidence in this case that deceased, Dolph Durfee, may have died on account of natural causes, or that his death may have been due to other causes than the acts of carelessness and negligence complained of by the plaintiff herein, then the plaintiff has not satisfied the burden of proof devolving upon him, and your verdict should be for the defendants."

Specific objection to this instruction was made because it told the jury that the plaintiff could not recover unless he had proven that Durfee died as the result of carelessness and negligence complained of, when plaintiff has the right to recover, as administrator, for the pain and suffering endured by Durfee, although his death may not have been caused by the injury received from the negligence of the defendants,...