Hatcher v. Camp

• Decision Date: 10 March 1966
• Docket Number: 7 Div. 673
• Citation: 187 So.2d 232,279 Ala. 475
• Parties: Brady HATCHER, Jr., pro ami, v. C. L. CAMP.
• Court: Alabama Supreme Court

Page 232

187 So.2d 232

279 Ala. 475

Brady HATCHER, Jr., pro ami, v. C. L. CAMP.

7 Div. 673.

Supreme Court of Alabama.

March 10, 1966.

Rehearing Denied June 16, 1966.

John W. Cooper and Roscoe Hogan, Birmingham, for appellant.

McKay & Livingston and Lyndol Bolton, Sylacauga, for appellee.

LAWSON, Justice.

On January 8, 1962, the plaintiff, a boy then fourteen years of age, was accidentally shot in the back with a .410 gauge shotgun by a young hunting companion. He was carried to a hospital in Sylacauga and defendant, a physician of that city, was employed to attend the case. Plaintiff was operated on in the hospital at Sylacauga by a surgeon from Birmingham on January 19, 1962. He was later removed to a hospital in Birmingham, where several other operations were performed on him by the same surgeon. Plaintiff insists that the several operations, the long periods of hospitalization, and his alleged physical and emotional infirmities are all due to negligent diagnosis, treatment and care by the defendant, and instituted this suit by his next friend and father to recover damages therefor.

There was verdict and judgment for the defendant. The plaintiff's motion for new trial being overruled, he has prosecuted this appeal.

The plaintiff did not request the affirmative charge and he does not contend here that the trial court erred in overruling those grounds of his motion for new trial which took the point that the verdict was not sustained by the great preponderance of the evidence. Hence we need not set out the evidence in detail. We will discuss the evidence only to the extent that it may be necessary to a treatment of some of the argued assignments of error.

We will consider the argued assignments of error in the order in which they are treated in the brief filed here on behalf of the appellant, the plaintiff below.

The substance of the first argument for reversal is that the trial court erred in not granting plaintiff a new trial because 'of the incident where the appellee (defendant), his two attorneys and one of the jurors were in a private conversation in the jury room with no one else around.'

At the hearing on the motion for new trial, one of the attorneys for appellant, plaintiff below, made known to the court that during the course of the trial he 'observed in the jury room Mr. Charles McKay, Mr. Lyndol Bolton, the Defendant Dr. Camp, and a juror, whose name I do not recall, but who was definitely one of the jurors in the jury room. After passing the jury room another juror came up and started into the room, and I do not believe this second juror remained in the jury room. There was some conversation taking place; I do not know what was being said. I did not overhear it, nor did I inquire as to the contents of the conversation, but I did call the fact of the occasion and the occurrence to the attention of the Court immediately thereafter. This was during the noon recess and it was called to the Court's attention during the noon recess. That is all.' Mr. McKay and Mr. Bolton were the defendant's attorneys.

Mr. McKay made the following statement in reply:

'* * * I have no independent recollection of the incident which Mr. Hogan mentions. I do know that if any such incident took place that nothing whatsoever was said about medicine or about this case in the presence and hearing of any juror except during the course of the trial in the courtroom when the trial judge was present, by myself, or Mr. Bolton, or by anybody else who might have been present at the time of the alleged incident. I further know that no matter of any personal business or personalities involving any juror was mentioned, if such an incident took place, and that any conversation had at that time in the presence of any juror's hearing, the occasion was wholly foreign to any personal business of that juror or of the matters under consideration.

'It might say further that during the course of the trial the jury was not confined during rest periods and noon-time breaks, that the jurors could, and did circulate freely about Talladega and about the courthouse and that at one time or another during such recesses were in the room and at which time the Defendant was present, or the Plaintiff was present, or all at the same time, and that I know of no impropriety at any time in the presence or hearing of counsel or in the presence or hearing of any jurors at any time during the course of the trial.

'I might further state if such incident such as Mr. Hogan mentioned happened, and I don't remember if it did take place, and I have no recollection of any such conversation, that at all times the door to the jury room was open.

'That concludes my statement.'

In Louisville & N.R. Co. v. Turney, 183 Ala. 398, 62 So. 885, one of the cases relied upon by appellant, it is said in part:

'* * * But casual meetings and the interchange of casual and ordinary civilities between a party and a juror during the recesses of the court, no sinister design being apparent, will not ordinarily suffice to avoid the verdict, if the court can clearly see that it could not have had any effect on the mind or sentiment of the juror. (Authorities cited)'

The court no doubt accepted as true the statement of plaintiff's counsel to the effect that he saw the attorneys for the defendant and the defendant himself conversing with a juror during a recess, for that statement was not unequivocally denied by Mr. McKay. But there was no denial of Mr. McKay's statement to the effect that if such a conversation did take place, it was not concerned with the case or any personal matter in which the juror was concerned.

On questions of this kind, we consider the ruling of the trial court as being presumptively correct and conclude that the court acted within its sound judicial discretion in not granting a new trial on the ground now under consideration. Prestwood v. Ivey, 273 Ala. 281, 138 So.2d 713, and cases cited. See Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867.

The plaintiff insists that the trial court erred to a reversal in giving at the request of the defendant the following written charge:

'6. The Court charges the jury that if they find from the evidence that the defendant exercised such reasonable care, skill and diligence commonly possessed and exercised by other physicians and surgeons engaged in the same line of practice in the general neighborhood and that notwithstanding the exercise of such care, skill and diligence the defendant nevertheless, failed to diagnose the injury to the plaintiff's intestine, then they must find for the defendant.'

This charge could have been refused without error because the predicate for the jury's determination used therein is 'if they (the jury) find from the evidence,' whereas the proper predicate in a civil suit is 'reasonably satisfied from the evidence.' New York Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25, rev. on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. But we will not reverse for the giving of a charge solely because the improper predicate for the jury's determination is used. New York Times Co. v. Sullivan, supra. We will point out, however, that a general charge is not objectionable in form when given with the hypothesis that the jury believes the evidence. Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89.

Charge 6 is in the identical language of Charge 11 held given without error at the request of the defendant doctor in Hester v. Ford, 221 Ala. 592, 130 So. 203, except that in Charge 6 in this case the word 'intestine' is used whereas in Charge 11 in Hester v. Ford, supra, the words 'leg and foot' were used.

But plaintiff asserts in brief that the trial court erred to a reversal in giving Charge 6 in that it 'singles out evidence and omits substantial evidence bearing upon whether or not the appellant (appellee) exercised reasonable care, skill and diligence in diagnosing the many other troubles of appellant.'

The single count in this case, as amended, like...