Hall v. Bannock County

• Decision Date: 09 June 1959
• Docket Number: No. 8645,8645
• Citation: 340 P.2d 855,81 Idaho 256
• Parties: C. H. HALL, Clarence T. Hall, William H. Hall, Mrs. Vivian Hartman and Gordon A Hall, Plaintiffs-Appellants, v. BANNOCK COUNTY, Polly Ann Parisot and Ruth E. Larson, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 855

340 P.2d 855

81 Idaho 256

C. H. HALL, Clarence T. Hall, William H. Hall, Mrs. Vivian Hartman and Gordon A Hall, Plaintiffs-Appellants, v. BANNOCK COUNTY, Polly Ann Parisot and Ruth E. Larson, Defendants-Respondents.

No. 8645.

Supreme Court of Idaho.

June 9, 1959.

Anderson & Anderson, Pocatello, for appellants.

Merrill & Merrill, Hugh C. Maguire, Pocatello, for respondents.

KNUDSON, Justice.

The material allegations of appellants' complaint are that the appellants are the surviving husband and all of the heirs-at-law of Ruth T. Hall, deceased. That Bannock County is the owner and operator of the Bannock Memorial Hospital and the other respondents are employees of the hospital. That decedent Ruth T. Hall entered the hospital on July 9, 1956 and on July 10, 1956 underwent major surgery at the hands of Dr. O. F. Call. That following the surgery said decedent remained in the recovery room for a short time following which she was, by the respondents Parisot and Larson, transferred to her hospital room. Decedent was about fifty-eight years of age and weighed in excess of 200 pounds. That during the transfer of decedent from the transfer cot to her bed the respondent nurses carelessly and negligently raised her up and let her fall on the bed or cot in such manner as to cause injury to the said Ruth T. Hall as a result of which she died approximately twenty-four hours later. That the negligence of the respondent hospital consisted of failing to supply and furnish sufficient help and assistance to properly and safely transfer the decedent from the recovery room to her hospital bed and the negligence of the respondent nurses consisted in permitting the decedent to fall during the transfer. Respondents' answer denies all of the allegations of negligence and damage. The case was tried to a jury and judgment entered upon a verdict in favor of respondents. Appellants' motion for a new trial was denied and this appeal is from the judgment and the order denying appellants' motion for a new trial.

Respondents urge that appellants are not entitled to be heard upon their attempted appeal from the judgment entered for the reason that their notice of appeal was not filed within the time provided by law. The judgment herein was entered June 19, 1957. The motion for a new trial was filed June 27, 1957. Notice of appeal and appeal bond were filed December 11, 1957. Sec. 13-201 I.C. was amended by chapter 105 of the Idaho Session Laws of 1957, which amendment became effective September 2, 1957. The amended statute provides in part as follows:

'An appeal may be taken to the Supreme Court from a district court.

'1. From a final judgment in an action or special proceeding commenced in * * * a district court * * *; * * * within * * * sixty days after the entry of such judgment; Provided, however, that the running of the time for appeal is terminated by a timely motion for a new trial; * * *'

Said amending chapter 105 further provides:

'Section 2. This Act shall take effect on September 2, 1957, and shall govern the taking of appeals from judgments entered on and after its effective date; and shall govern the taking of appeals from orders and interlocutory judgments made and entered on the minutes of the court, or filed with the clerk after its effective date. Appeals from judgments theretofore entered and from orders and interlocutory judgments thereafter made and entered on the minutes of the court, or filed with the clerk, shall be taken under the provisions of law in force at the time the judgment was entered or the order or interlocutory judgment was entered on the minutes of the court, or filed with the clerk.'

The filing of the motion for a new trial having stayed the running of the time for appeal from the judgment and the order denying the motion for a new trial having been entered after the effective date of the amendment, the appeal time was governed by the said act amending Sec. 13-201 I.C. under which an appeal from both the judgment and the order refusing the new trial may be taken within sixty days of the entry of such order.

Therefore the appeals from the judgment and the order denying motion for new trial will be considered.

Appellants' first assignment claims error for the reason that the trial court sustained an objection to the following question addressed to Dr. O. F. Call under cross-examination:

'Q. Doctor, in this regard at the time this action was commenced you were a party to the original action, is that right?'

Appellants argue that the question was asked for the purpose of showing interest and bias on the part of the witness. Immediately following the court's said ruling counsel for appellants further inquired of the witness as follows:

'Q. Dr. Call, do you have any more interest in this case than any other individual? A. No, as doctors we have an extreme interest in all our patients, and I don't know why one would have any more interest in one than any other; we have an interest in everything we do, we have a profound interest in every case.'

No further attempt was made by appellants to inquire into the interest or bias of the witness. This Court has repeatedly held that the scope or extent of cross-examination tending to show interest or bias rests largely in the sound discretion of the trial court. Curtis v. Ficken, 52 Idaho 426, 16 P.2d 977; State v. Cofer, 73 Idaho 181, 249 P.2d 197. The answer sought only remotely tended to show bias. Although it would have been proper to permit the witness to answer the question we do not consider the ruling an abuse of discretion or prejudicial error.

Assignment No. 2 refers to a question propounded to the appellant C. H. Hall during his direct examination. Mr. Hall had testified in substance that shortly after the death of Mrs. Hall Dr. Call made a request of him. The court sustained an objection to a question propounded by attorney for appellants as to what the request was. Counsel was granted permission to make offer of proof later. The offer of proof is as follows:

'Come now the plaintiffs and having heretofore reserved this offer of evidence now makes the offer of evidence with relationship to the testimony of Mr. C. H. Hall at the time shortly after the death of Ruth Hall Doctor O. F. Call motioned Mr. Hall into the hallway and stated to him and requested of him can we have an autopsy on your wife. Whereupon, Mr. Hall replied is it necessary for the purpose of making a death certificate to which Doctor Call replied no, not at all, certainly not but we would like to do it for the advancement of medical science, and whereupon Mr. Hall said no, if that is the case she has suffered enough already, and we now make the offer of this evidence and at the time Mr. Hall was present, Mr. Lloyd Call was present, and Doctor O. F. Call was present, Trainer Hall was present, and I think also Mr. Bill Hall, and we again offer this evidence.'

Objection to the offer was sustained. Appellants argue that the offered evidence was important to their case showing 'that Doctor O. F. Call asked that he be permitted to perform an autopsy to find out what the cause of death was.' Obviously the offer or proof does not support appellants' said contention. The ruling was not error.

Assignment No. 3 involves a ruling of the court sustaining an objection, upon the ground of hearsay, to an offer by appellants concerning a statement made by Dr. Call to one of the appellants following his examination of decedent shortly after she had been transferred to her hospital bed. The offer was that Dr. Call then stated 'that Mrs. Hall was fine and that all she needed was a little blood'. This offer was made prior to any examination of or testimony given by Dr. Call and notwithstanding the fact that Dr. Call later testified at length in the case he was not interrogated concerning such statement. No proper foundation was laid for the introduction of the subject of the offer and the ruling of the court was correct.

It is contended under appellants' 4th assignment that the court erred in sustaining an objection to another question propounded to the witness Dr. O. F. Call during his cross-examination. The questions and answers leading up to and including the ruling are as follows:

'Q. Even though the organs have been handled roughly and there has been a large amount of cutting, that doesn't cause a shock? A. Organs are not handled roughly in the hands of a good surgeon.

'Q. I know, doctor, but I'm asking you to assume this to be true that I'm stating to you? A. I wouldn't accept it to be true.

'Q. You refuse even the assumption? A. I refuse the assumption because surgeons are not rough in the handling of tissue.

'Q. You refuse to even assume the fact to be true?

'Mr. Merrill. We object to that on the ground it is not within the issues and there is no evidence whatsoever to support the hypothesis.

'The Court. We will sustain the objection.'

Since there was no allegation or proof that rough handling of decedent's organs during surgery had contributed in any respect to decedent's death the objection was well taken and the ruling proper.

Assignments Nos. 5 and 6 relate to instructions dealing with 'proximate cause' and will be considered together. Since the only allegation of negligence relied upon by appellants is the action of the respondent nurses while transferring decedent from the transfer cot to a bed there can be no question that the giving of instruction No. 3 ¹ was proper. It will be noted that the instruction provides that if the death was proximately caused by postoperative or anesthetic shock the defendants would not be liable. Under the issues involved in this case the instruction is correct. Appellants' contention that instruction No. 16A ² defining 'proximate cause' is ambiguous and confusing cannot be sustained. This Court has long approved similar instructions. Pilmer v. Boise Traction Co., Ltd., 14 Idaho 327, 94 P. 432, 15 L.R.A.,N.S., 254; Linder v. City of...