Henderson v. Twin Falls County

• Citation: 80 P.2d 801,59 Idaho 97
• Decision Date: 28 March 1938
• Docket Number: 6371
• Parties: MARIE HENDERSON, Respondent, v. TWIN FALLS COUNTY, STATE OF IDAHO, Appellant
• Court: United States State Supreme Court of Idaho

80 P.2d 801

59 Idaho 97

MARIE HENDERSON, Respondent, v. TWIN FALLS COUNTY, STATE OF IDAHO, Appellant

No. 6371

Supreme Court of Idaho

March 28, 1938

TRIAL - DEATH OF WITNESS BEFORE CROSS-EXAMINATION - CONSTITUTIONAL LAW-STATUTES-WHO MAY QUESTION VALIDITY-COUNTY HOSPITAL-LIABILITY TO PAYING PATIENT.

1. When the cross-examination of a witness has become impossible, by no fault of either party, the litigant against whom such witness is produced is entitled to have his testimony, given on direct examination, stricken.

2. Whether a mistrial should be declared in such a case is within the sound judicial discretion of the trial judge.

3. In action against county for injuries sustained by patient in its hospital, due to negligence of its employee, a question was propounded by plaintiff's attorney as to whether county carried liability insurance. The question called for evidence which was immaterial and objection to it was sustained. Propounding it did not prejudice any right of defendant.

4. A paying patient in a county hospital, who suffers injuries caused by the negligence of a nurse employed by the county may recover damages sustained as a result thereof.

ON PETITION FOR REHEARING.

5. A litigant who invokes the benefits of a statute is estopped from questioning the validity thereof.

6. A county, being a municipal subdivision of the state, cannot be heard to urge that its laws violate the due process clause of the Constitution of the United States.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Adam B. Barclay, Judge.

Action for damage for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Edward Babcock, James R. Bothwell and Harry Povey, for Appellant.

A mistrial should be ordered to prevent injustice, whenever an error has intervened which is not curable at the trial, or where incidents tending to mislead or prejudice the jury have occurred. (64 C. J. 509, sec. 459.)

Where facts justify it, a mistrial should be granted even though no one is to blame for the circumstances. (Glendenning v Canary, 5 Daly, 489; Miller v. Metzger, 16 Ill. 390; note, 48 L. R. A. 432.)

Intentional improper suggestions of liability insurance by counsel for respondent and refusal of court to instruct the jury to disregard or to grant mistrial constitutes reversible error. (Crossler v. Safeway Stores, Inc., 51 Idaho 413, 6 P.2d 151, 80 A. L. R. 463; Curtis v. Ficken, 52 Idaho 426, 16 P.2d 977; Patterson v. Surpless, 107 N.J.L. 305, 151 A. 754, 74 A. L. R. 841.)

Chapter 30, Title 33, I. C. A., in so far as authorizing operation of county hospitals for profit is unconstitutional. (Sec. 1, Fourteenth Amendment, U. S. Const.; sec. 4, art. 4, U. S. Const.; sec. 7, art. 6, Idaho Const.; Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030, Ann. Cas. 1913B, 946, and cases cited.)

Chapman & Chapman, for Respondent.

Where a witness dies during the course of a trial, or becomes, through no fault of either party, unavailable for cross-examination, the testimony given by said witness on direct examination should not be stricken but should be permitted to stand for what it is worth under the circumstances. (Curtice v. West, 50 Hun, 47, 2 N.Y.S. 507, affirmed without opinion, 121 N.Y. 696, 24 N.E. 1099; Kissam v. Forrest, 7 Hill (N. Y.), 463.)

In Idaho a mistrial should not be granted or declared for bringing the question of liability insurance to the attention of the jury, unless it was done intentionally and with the purpose of influencing the jury. (Crossler v. Safeway Stores, Inc., 51 Idaho 413, 6 P.2d 151, 80 A. L. R. 463; Burns v. Getty, 53 Idaho 347, 24 P.2d 31.)

MORGAN, J. Holden, C. J., and Ailshie, J., concur. BUDGE, J., concurring in the conclusion. AILSHIE, J., Dissenting. GIVENS, J., Concurring in Part and Dissenting in Part. Budge, J., not participating.

OPINION

MORGAN, J.

This action has been before us heretofore on appeal from a judgment of dismissal following the sustaining of a demurrer to the complaint (Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A. L. R. 1151). The judgment was reversed and the cause remanded for further proceedings. Answer was filed and a trial resulted in a judgment for plaintiff, from which defendant has appealed.

The record shows respondent was a patient in appellant's hospital, where she had undergone an operation for appendicitis; that her father paid the superintendent of the hospital for her hospitalization therein; that shortly after the operation, her surgeon directed her special nurse (not an employee of appellant) to give her a hypodermic injection of normal saline solution; that the special nurse applied for the saline solution to a nurse employed by appellant and in charge of solutions used in its hospital; that in response to this application appellant's employee furnished the special nurse, not saline solution which had been applied for, but boric acid solution, which she, the special nurse, injected into respondent's thighs, causing her very serious injury. This action is for damages resulting from negligence of appellant's employee, the nurse who furnished the boric acid solution in response to the request for normal saline solution.

A physician who treated respondent after her injury was called as a witness in her behalf and testified, on direct examination, as to the nature, character and probable lasting effect on her health of the injection of the boric acid solution. He exhibited to the jury the scars on respondent's limbs caused by the injection of the acid and explained the effect thereof. His direct examination was concluded late in the afternoon and the court was adjourned until the next morning. During the night the witness died.

Appellant moved the court to declare a mistrial on the ground that it had, without fault on its part, been deprived of its right to cross-examine the witness. The motion was denied, whereupon appellant moved that all the testimony of the witness be stricken. The motion to strike the testimony was granted and the judge very carefully instructed the jury not to consider it. Appellant insists the testimony of the doctor was of such a nature that its rights could not be protected by striking his testimony and by the instruction that it be disregarded.

Although it has not been universally followed, the correct rule seems to be that when, as in this case, the cross-examination of a witness has become impossible, by no fault of either party, the litigant against whom such witness is produced is entitled to have his testimony, given on direct examination, stricken. (Curtice v. West, 50 Hun 47, 2 N.Y.S. 507; Wray v. State, 154 Ala. 36, 45 So. 697, 129 Am. St. 18, 16 Ann. Cas. 362, 15 L. R. A., N. S., 493, and note.)

In such a case it is a general rule that whether a mistrial should be declared is within the sound discretion of the trial judge and his action, declaring a mistrial or refusing to do so, will not be reversed unless an abuse of judicial discretion clearly appears. (5 C. J. S. 499, sec. 1603, and note 64 on page 500.) In Aderhold v. Stewart, 172 Okla. 72, 46 P.2d 340, the Supreme Court of Oklahoma said on page 345:

"Under such circumstances, the trial judge, who is in a position to observe this conduct of the plaintiff, as well as the attitude of the jury and to estimate what amount, if any, prejudice is created by such conduct, is in a better position than the appellate court to estimate and appraise the effect of such a happening, and where the trial court exercises a sound discretion in passing on a question of mistrial, his findings will not be disturbed in the absence of any evidence of abuse of this discretion."

See, also, Prinkey v. Dunbar Tp., 105 Pa. Super. 326, 161 A. 640; Sallee v. St. Louis-San Francisco Ry. Co., 321 Mo. 798, 12 S.W.2d 476.

It was the duty of the judge who presided at the trial to, and there is no doubt he did, listen carefully to the direct examination of the doctor, and to observe the attention given his testimony by the jurors, and its apparent effect on their minds. After the doctor died, and when the question was presented as to the effect of his direct examination on the jury, the trial judge knew, as well as anyone could know, whether or not appellant's rights would be protected by striking the testimony, and by admonishing the jury to disregard it. All we know about it is what we can learn by reading a typewritten transcript of the proceedings. We did not see the witness when he testified, nor the jury, nor did we have an opportunity to observe the effect on the jurors of the testimony, nor of the judge's order that it be stricken, nor of his instruction that it be disregarded. There is not a suggestion in the record of abuse by Judge Barclay of the judicial discretion which he was required to exercise in deciding whether to declare a mistrial. We have no reason to do otherwise than to place our stamp of approval on his action in striking the direct examination of the doctor and directing the jurors to disregard it and in refusing to enter an order declaring a mistrial.

The superintendent of the Pocatello General Hospital, and of its nurses, was called as a witness by appellant and testified relative to the practice pursued, in accredited hospitals, of labeling bottles in which solutions and medicines are kept. She was cross-examined with respect to that matter, after which the court recessed. On reconvening, counsel for respondent asked that the witness be recalled for one further question. The question was as to whether the Pocatello General Hospital carried liability insurance. It was objected to and the objection was sustained. In the discussion as to the admissibility of...