Hospital Authority of City of St. Marys v. Eason

• Decision Date: 30 March 1966
• Docket Number: No. 3,No. 41452,41452,3
• Citation: 113 Ga.App. 401,148 S.E.2d 499
• Parties: HOSPITAL AUTHORITY OF the CITY OF ST. MARYS v. Jessee EASON, Administrator
• Court: Georgia Court of Appeals

Page 499

148 S.E.2d 499

113 Ga.App. 401

HOSPITAL AUTHORITY OF the CITY OF ST. MARYS v. Jessee EASON, Administrator.

No. 41452.

Court of Appeals of Georgia, Division No. 3.

March 30, 1966.

Syllabus by the Court

1. The petition stated a cause of action.

2. The trial judge did not err in overruling the special demurrers considered in this division of the opinion.

3. No error was committed by the trial judge in denying the defendant's motion for judgment notwithstanding the verdict nor in overruling the general grounds of the motion for new trial.

4. Assuming that certain evidence was inadmissible and, in addition, proper objection or mortion to strike was made, if other evidence of like nature or to the same effect was introduced without objection, error requiring reversal is not shown.

5. The hearsay evidence considered in this division of the opinion was properly excluded.

6. (a) Under the circumstances of this case, the defendant hospital not only had the right to exercise control over the instrumentality causing plaintiff's injury, but it was under the duty to exercise control.

(b) It is enough to meet the requirement of control in res ipsa loquitur cases that the defendant had the right to exercise control over the instrumentality causing the injury and the opportunity to do so.

7. Since the plaintiff is not required to prove a civil case beyond a reasonable doubt in a res ipsa loquitur case, the plaintiff is not required to eliminate all other possible causes or inferences. All that is needed is evidence from which reasonable men can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not. It is enough that the court cannot say the jury could not come to that conclusion.

8. There is no merit in the special ground of the motion for new trial considered in this division of the opinion.

9. Special ground 10 of the motion for new trial objecting in general terms to an extract of the charge has no merit since the portion of the trial judge's charge complained of contains several distinct propositions one or more of which are correct in the abstract.

10, 11. The special grounds considered in these divisions are without merit.

12. The trial judge did not err in failing to include in his instructions to the jury the law governing defenses pleaded by the defendant which were not supported by the evidence.

13. A party is deemed to have waived his right to object to improper remarks of counsel made in argument where no objection was made until after the arguments were concluded, the judge had completed his charge to the jury, and the jury had retired to consider its verdict.

The plaintiff sued the defendant because of injuries sustained in a fire occurring while plaintiff was a paying patient in the hospital operated by defendant. The plaintiff having died during pendency of the case, Jessee Eason, as administrator, was substituted as the party plaintiff. The fact of the fire and the fact that plaintiff was burned are undisputed. The fire occurred in plaintiff's bed in the hospital room.

The case proceeded to trial after which a verdict was rendered in plaintiff's favor.

The defendant excepted to numerous rulings and judgments of the trial court including the overruling of defendant's general and special demurrers, the denial of the motion for judgment notwithstanding the verdict, and the denial of the motion for new trial on the general and seventeen special grounds.

Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, Robert W. Harrison, Jr., St. Marys, for appellant.

Nathan, Hutto & Lee, Jack S. Hutto, Brunswick, for appellee.

BELL, Presiding Judge.

1. The petition stated a cause of action. The trial judge did not err in overruling the defendant's general demurrer.

The amended petition alleges, inter alia, that plaintiff was admitted as a pay patient in defendant's hospital and had a paralyzed condition and a speech impediment. That defendant's agents left the plaintiff alone while the plaintiff was smoking his pipe in bed which in the exercise of ordinary care should not have been done. That the defendant had knowledge that the plaintiff was paralyzed and could not take the pipe safely out of his mouth. The pipe fell from plaintiff's mouth setting fire to the bed causing plaintiff to be burned.

A hospital in which patients, for a charge, are placed for treatment, and which undertakes to care for the patients and supervise and look after them, 'is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient's condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require. This duty extends to safeguarding and protecting the patient from any known or reasonably apprehended danger from himself which may be due to his mental incapacity, and to use ordinary and reasonable care to prevent it.' Emory University v. Shadburn, 47 Ga.App. 643(1), 171 S.E. 192, affirmed in Emory University v. Shadburn, 180 Ga. 595, 180 S.E. 137; Hospital Authority of Hall County v. Adams, 110 Ga.App. 848, 852, 140 S.E.2d 139. There can be no question but that the rule applies to a patient's 'physical' incapacity such as that induced by paralysis as well as to a patient's incapacity which is caused by some mental deficiency.

2. Special demurrers 3, 4, 6, 7 and 12 all object to the failure of the petition to allege definitively rather than generally various matters which rest peculiarly within the defendant's knowledge or refer to alleged acts performed by defendant's agents within the scope of their authority the identity of whom the petition asserts is 'unknown to the plaintiff but well known to the defendant.' The trial judge did not err in overruling these special demurrers. Davis v. Homer Lumber Co., 211 Ga. 144(2), 84 S.E.2d 59; American Thread Co. v. Rochester, 82 Ga.App. 873(4), 62 S.E.2d 602.

Special demurrer 8 attacks paragraph 19 of the petition for uncertainty and indefiniteness objecting in substance that there are no allegations in the petition showing why the defendant owed the plaintiff the duty to furnish him with trained personnel to look after him or why, if trained personnel had been furnished, the plaintiff nevertheless would not have suffered his injuries. Special demurrer 9 attacks the same paragraph as alleging a mere conclusion without asserting facts showing why the defendant was required to furnish personnel to look after plaintiff. The paragraph is neither uncertain nor indefinite nor is the allegation a mere conclusion since the petition is replete with allegations sufficient to bring the pleading within the rule stated in the Shadburn case and followed in Adams, supra.

No error was committed in overruling these demurrers or in overruling special demurrers 10 and 11.

3. The evidence supported the verdict. No error is present in the trial court's denial of the defendant's motion for judgment n.o.v. or in the denial of the general grounds of the motion for new trial.

The petition alleged that plaintiff was injured while a patient in the defendant's hospital through the negligence of an employee of the hospital in lighting plaintiff's pipe and then leaving plaintiff alone with the pipe lit knowing the plaintiff was paralyzed and would be in danger if left alone. Evidence of the following facts and circumstances was presented at the trial: The plaintiff was admitted to the hospital two days before the fire occurred. A pipe, tobacco and matches had been on a table beside another bed in the plaintiff's room in a place where the plaintiff could not have reached them because of his paralyzed condition. A person visiting a patient across the hall from the plaintiff's room discovered at about 2:50 p.m. that the plaintiff's bed was burning and called for help. There were at least six nurses and attendants working in that part of the hospital. The hospital attendants knew that plaintiff was paralyzed and could not safely be left alone smoking in bed. One attendant testified that during the morning of the same day plaintiff had smoked his pipe while a visitor was with him; while the visitor was there an attendant went into the room to give the plaintiff a bath and the visitor left; the attendant took the pipe from the plaintiff and put it on the table baside the other bed in the room. Attendants testified that 5 to 10 minutes before the fire was discovered attendants had been in the plaintiff's room and left a pitcher of ice, and that no one else was in the room at that time. Attendants testified that they found the pipe and matches on the floor after the fire. There was no testimony that anyone other than hospital employees had been in the plaintiff's room since the morning visitors left or after the attendants had been in the room. A relative of the plaintiff testified that he arrived when there was smoke coming out of the plaintiff's door and the hospital employees were busy in the room.

From this evidence reasonable minds might draw an inference that plaintiff's allegations of negligence were true, and that the fire resulted from this negligence. See McCann v. Lindsey, 109 Ga.App. 104, 135 S.E.2d 519. Assuming that the evidence would also support a reasonable inference that the cause of the fire was something other than a negligent act or omission of the plaintiff or of the defendant (that there is no evidence of negligence on the part of the plaintiff see division 12 of this opinion), it would be for the jury to determine whether the evidence preponderated toward the inference that the fire was caused by the defendant's alleged negligence, or the inference that it was caused by an event not precipitated by negligence. McCarty v. National Life & Accident Ins. Co., 107 Ga.App. 178, 180-186, 129 S.E.2d 408, cert.Denied, 107 Ga.App. 891; Old Colony Ins. Co. v. Dressel...