Granite Mountain Rest Home, Inc. v. Schwarz

• Decision Date: 04 February 1963
• Docket Number: No. 5-2840,5-2840
• Citation: 364 S.W.2d 306,236 Ark. 46
• Parties: GRANITE MOUNTAIN REST HOME, INC., Appellant, v. Eugene Jacob SCHWARZ, Administrator of the Estate of Harley Lucian Hall, Sr., Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 306

364 S.W.2d 306

236 Ark. 46

GRANITE MOUNTAIN REST HOME, INC., Appellant, v. Eugene Jacob SCHWARZ, Administrator of the Estate of Harley Lucian Hall, Sr., Deceased, Appellee.

No. 5-2840.

Supreme Court of Arkansas.

Feb. 4, 1963.

Fred A. Newth, Jr., by Marshall N. Carlisle, Little Rock, for appellant.

Pope, Pratt & Shamburger, by Donald S. Ryan, Little Rock, for appellee.

HARRIS, Chief Justice.

This is an appeal by Granite Mountain Rest Home, Inc., from a judgment entered by the Pulaski County Circuit Court following a jury verdict, wherein the rest home was held liable for the death of Harley L. Hall, Sr., a patient at the home at the time of his demise. Hall was admitted to the home, at the age of 89 years, in April, 1959. He was placed there by his children, who paid $50 per month of the charge made ($140 per month), while the State Welfare Department paid the balance of $90 per month. ¹ On July 8, 1960, Hall became violently ill, was removed from the home to Baptist Hospital, and died the next day. Dr. M. D. McClain, a general practitioner of Little Rock, treated Hall, and was of the opinion that the death was due to pneumonia, which was brought on by Hall's consumption of kerosene. Suit was instituted against appellant by the administrator of the estate of Hall, alleging that,

'while the said Harley Lucian Hall, Sr., was in the exclusive care, custody and control of the defendant, the defendant did carelessly and negligently cause or allow the said Harley Lucian Hall, Sr., to consume a large volume of kerosene or similar substance, which resulted in his death on July 9, 1960.'

It was further alleged that Hall suffered horrible pain and mental anguish for a period of approximately 36 hours before his death. Damages were sought for the estate in the amount of $20,000, and the sum of $5,000 was sought for mental anguish by the eight surviving children. After the filing of an answer denying the allegations, and various motions, the cause proceeded to trial. The jury returned a verdict for appellee (for the estate) in the amount of $7,500. From the judgment so entered, appellant brings this appeal. For reversal, appellant relies upon three points, the first being that the court erred in not directing a verdict for the home, and the other two relating to two allegedly erroneous instructions which were given by the court.

We are unable, under our established procedure, to consider the first point for reversal, viz, that the court erred in not directing a verdict for appellant. A motion for directed verdict was made by appellant at the conclusion of plaintiff's (appellee's) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion being overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135, Fort Smith Cotton Oil Co. v. Swift & Co., 197 Ark. 594, 124 S.W.2d 1. This is the only motion that appellant can have reference to, for it did not renew the motion at the conclusion of all the evidence. As stated in Wigmore on Evidence, Volume 9, Third Edition, one 'cannot take advantage of the judge's original erroneous refusal to direct a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close of all the evidence.' The reasoning employed, is, of course, apparent, for if one has waived his original motion, and does not renew same, there is nothing to be passed upon by the court at the conclusion of the evidence. No error could have been committed by the court at this point--for nothing was presented.

There is yet another reason why this point cannot be considered. In Rock-Ola Manufacturing Corp. v. Farr, 226 Ark. 279, 290 S.W.2d 2, this court said,

'Appellant's abstract does not show that any proper motion or objections were presented to the trial court to raise, here, the question of the sufficiency of the evidence to support the jury's verdict.

'No instructions or objections thereto and no motion for an instructed verdict at the close of the testimony were shown. Thus, appellant allowed the issues to be presented to the jury without making any objection. Not only did appellant allow the fact issues to be presented to the jury, but, by reference to the record [not abstracted], we find appellant requested instructions [given by the court] on the questions of fraud and breach of warranty. By such action appellant waived the question of the sufficiency of the evidence.'

In the instant case, as pointed out, no request for directed verdict was made at the conclusion of all the testimony; appellant did request several instructions, and five were given, as...