Elder v. Ralls Sanitarium, Inc.

• Decision Date: 21 March 1929
• Docket Number: 7 Div. 807.
• Citation: 219 Ala. 298,122 So. 41
• Parties: ELDER v. RALLS SANITARIUM, INC., ET AL.
• Court: Alabama Supreme Court

122 So. 41

219 Ala. 298

ELDER v. RALLS SANITARIUM, INC., ET AL.

7 Div. 807.

Supreme Court of Alabama

March 21, 1929

Rehearing Denied May 2, 1929.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action for damages by W. W. Elder against the Ralls Sanitarium Inc., and another. From a judgment for defendants, plaintiff appeals. Affirmed.

The improper sustaining of a demurrer to a count or counts of the complaint is harmless, where plaintiff has benefit of the same matters under other counts.

The following charges were refused to plaintiff:

"N. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the plaintiff suffered bodily and mental pain and was injured by the defendant in removing him from the bed to a chair then you must find for the plaintiff; although you may further find from the evidence that the injury received was not the proximate cause of the plaintiff having his leg amputated.

"O. I charge you, gentlemen of the jury, that it is within your province to accept or reject any or all the testimony of expert witnesses.

"P. I charge you, gentlemen of the jury, when the testimony of any expert witnesses is contrary to your common knowledge that you do not have to accept the statement of the expert witnesses.

"Q. I charge you, gentlemen of the jury, that in this case there has been a number of doctors who have testified as experts. I further charge you, gentlemen of the jury, that you are not bound by the opinion of experts.

"R. I charge you, gentlemen of the jury, if you are reasonably satisfied from the evidence that the plaintiff was damaged by the negligent act of the defendant by pitching or dropping plaintiff into a chair you must find for the plaintiff for the loss of the leg; if you are reasonably satisfied from the evidence that this act of the defendant contributed to the loss of the leg.

"U. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the plaintiff ought to recover in this case you must find for the plaintiff for the loss of the leg; if you believe from the evidence that the defendant's act was the last proximate cause of the loss of the leg.

"V. I charge you, gentlemen of the jury, if you are reasonably satisfied from the evidence that the plaintiff was damaged by the defendant by being pitched, dropped or thrown into a chair you must find for the plaintiff for the loss of the leg, if you further believe from the evidence that the act of the defendant hastened the loss of the leg."

J. M. Miller and E. O. McCord & Son, all of Gadsden, for appellant.

Goodhue & Lusk, of Gadsden, for appellees.

PER CURIAM.

Motion is made to strike the bill of exceptions, based upon the ground it does not disclose a tender by the party supposing himself to be aggrieved. Section 6432, Code of 1923. The concluding paragraph containing the trial judge's approval recited the tender of the bill of exceptions by "defendant"; and movant insists this error is not self-corrective under the authority of Mauney v. Electric Const. Co., 210 Ala. 554, 98 So. 874.

Under original consideration the court was of the opinion the Mauney Case was conclusive to such effect, but upon a reconsideration a contrary conclusion has been reached. Underlying the holding in that case was the principle of disapproval by the court of any change in the record of a cause, however innocently made, which does not here obtain and we conclude also there are points of differentiation in the method of construction and indorsement of the bill of exceptions.

In the instant case there was judgment for defendant, and the bill of exceptions throughout discloses that the exceptions to the rulings of the court were reserved by the plaintiff, and the appeal was prosecuted by the plaintiff. We are therefore of the opinion that it appears upon the face of the bill of exceptions the word "defendant" above noted, as indicating the party tendering the same was intended to have been written "plaintiff," and that this was clerical error and self-correcting. The cases of Bartlett v. Jenkins, 213 Ala. 510, 105 So. 654, and Starr Piano Co. v. Zavelo, 212 Ala. 369, 102 So. 795, by analogy, fully support this conclusion.

If there are expressions in Mauney v. Electric Const. Co., supra, which may be construed as indicating to the contrary, they are here disapproved.

The motion to strike will therefore be overruled, and we proceed to a consideration of the cause upon its merits.

Error is urged in the action of the court sustaining the demurrer interposed to count 5, a wanton count. But the sufficiency of this count is not necessary to be determined, as the court is of the opinion plaintiff received the benefit of this count with no additional burden imposed under count 6 (also a wanton count), as to which issue was joined. If there was error, therefore, as to the ruling on count 5 (a question not here determined), it was without injury. Bradley v. Louisville & N. R. Co., 149 Ala. 545, 42 So. 818; Helms v. Cent. of Ga. R. Co., 188 Ala. 393, 66 So. 470; Whaley v. Sloss-Sheffield S. & I. Co., 164 Ala. 216, 51 So. 419, 20 Ann. Cas. 822; Penry v. Dozier, 161 Ala. 292, 49 So. 909.

Plaintiff suffered a compound fracture of the left leg above the knee, and, on October 2, 1925, was carried to the sanitarium in Gadsden, owned and operated by defendant A. W. Ralls. He was there treated for about five weeks and went home, but in the latter part of November an X-ray picture disclosed that, while the lower break was healing or had healed, there was no union in the upper break, and he returned for further treatment. An operation followed, whereby the bones were held together with a metal plate with six screws. Several days thereafter defendant ordered that plaintiff be carried into the sun parlor. It was necessary that he be placed in a chair to be rolled into the parlor, and plaintiff insists that in removing him from the bed into the chair he was allowed to drop or was pitched into the chair and the metal plate on his leg thus loosened, resulting ultimately in the amputation and loss of the leg.

In count 4 he alleges simple negligence, and in count 6 that this was wantonly done. The cause was tried upon issue joined as to these two counts, resulting in a verdict and judgment for defendant. The court gave the affirmative charge for defendant as to the wanton count, and we think correctly so.

Plaintiff admits that defendant A. W. Ralls had exercised much care for his welfare during his stay at the hospital, but charges wanton conduct on his part in causing him to fall or be thrown into the chair. His proof in this respect shows that defendant

Ralls assisted by two nurses moved plaintiff from the bed to the chair, and that in doing so one of the nurses who held plaintiff at the waist, and who was between the bed and the chair, had to release her hold to get out of the way, and the nurse holding at his head let his shoulder fall or pitched it onto the chair, thus causing the injury. This is plaintiff's version, very briefly summarized, but it will suffice to show, we think, that no wanton conduct on defendant's part, who is directly charged therewith, was made to appear. Nor do we think it adds to plaintiff's theory that he testified defendant, following this occurrence, "looked to be mad," and walked out of the room. This would tend to show irritation at the mishap, but it would not indicate wanton or willful conduct in the act itself. Any conclusion of wantonness on defendant's part, as defined and understood by this court in numerous decisions (10 Michie's Digest pp. 566-569), must rest upon the merest conjecture.

Further discussion of this question we deem unnecessary. There was no error in charging out the wanton...