Johnson v. Woman's Hospital

• Decision Date: 12 February 1975
• Citation: 527 S.W.2d 133
• Parties: Ronald Edward JOHNSON and Rita Johnson, Appellees-Appellants, v. WOMAN'S HOSPITAL and William Pallas, M.D., Appellants-Appellees.
• Court: Tennessee Court of Appeals

Page 133

527 S.W.2d 133

Ronald Edward JOHNSON and Rita Johnson, Appellees-Appellants, v. WOMAN'S HOSPITAL and William Pallas, M.D., Appellants-Appellees.

Court of Appeals of Tennessee, Western Section.

Feb. 12, 1975 Certiorari Denied by Supreme Court Aug. 11, 1975.

Strang, Fletcher, Carriger, Walker & Hodge, Chattanooga, for Woman's Hospital, appellant-appellee.

W. A. Moody, Nashville, for William Pallas, M.D., appellant-appellee.

Robert J. Shockey, Chattanooga, for appellees-appellants.

NEARN, Judge.

The plaintiffs filed suit for the recovery of damages, both compensatory and punitive, for breach of contract to bury, and for the alleged outrageous conduct of the defendants. The jury returned a verdict against both defendants in favor of Rita Johnson for the sum of $100,000 compensatory damages and $125,000 punitive damages. Ronald Johnson, the husband of Rita Johnson, was awarded the sum of $75,000 as compensatory damages in his claim for his wife's medical expenses, etc. and consortium.

Motions for a new trial were seasonably made by both defendants. After hearing the motions the Trial Judge suggested a remittitur of $75,000 from the jury award for punitive damages and a remittitur of $50,000 from Mr. Johnson's compensatory award.

The plaintiffs accepted the remittiturs under protest.

The judgment as finally entered below is in the amount of $50,000 for Mrs. Johnson as punitive damages; $100,000 to her as compensatory damages and $25,000 to her husband Ronald Johnson.

Both the defendants and the plaintiffs have appealed. The error assigned by the plaintiffs is confined to the remittitur. The Assignments of Error of the defendants total twenty-nine.

An understanding of our treatment of this appeal requires a comprehension of the nature of the causes of action involved.

The complaint alleged that the relationship of physician-patient existed between Dr. Pallas and Mrs. Johnson as Dr. Pallas was attending her during her pregnancy. The childbirth was expected in September 1972, but sometime prior to June 1, 1972, Mrs. Johnson began having difficulties with her pregnancy and was twice hospitalized primarily for observation and bed rest. On June 1, 1972, she experienced bleeding and was again placed in the defendant hospital. On June 9, 1972, she gave birth to a child which was in the sixth month of term. The premature infant expired shortly after birth. Both a certificate of live birth and a death certificate were issued.

The complaint further alleged that plaintiff

'--had a contractual agreement with defendants for the birth of her baby and for post delivery care. That within the scope of this contract defendants agreed to take the responsibility for the proper and permanent disposition of plaintiffs' child. This included not only a responsibility to fulfill their obligation to the body of the child, but more so a responsibility to see that a young mother grieved by the unfortunate death of her child would have the peace of mind and assurance that her baby's body was put to rest. Plaintiff avers that in failing to timely notify her of defendants' inability to fulfill part of their obligation they mutilated her right to the aforementioned mental security.'

The complaint also alleged that Mrs. Johnson had understood that her baby would be given repose provided by the defendants which would be consistent with common traditions of human dignity. However, when she visited Dr. Pallas for her six weeks checkup she noted a pathologist report which was attached to her medical chart. The report stated that the fetus was past the fifth lunar month in development and hospital rules and State law prohibited disposal of it as a surgical specimen. The complaint alleged that Mrs. Johnson was shocked at the contents of the pathologist report and asked the meaning thereof from Dr. Pallas as she had understood that the body had been disposed of by common traditions of human dignity. Dr. Pallas instructed his nurse to take Mrs. Johnson to the hospital to see a Mrs. Chaney. Mrs. Johnson was taken across the way to the hospital where she

'--was led to a section of the hospital where a freezer was opened and she was handed a gallon jar of formaldehyde with the discolored and shrivelled body of her child floating inside.'

Dr. Pallas denied that he or his nurse took any part in the display of the body in the jar of formaldehyde. The hospital denied that the display took place in the manner alleged. Dr. Pallas also denied the existence of any contract to bury or dispose of the body of the infant between himself and plaintiffs. The hospital denied any contract to bury the infant, but alleged that the hospital had only agreed to dispose of same as a surgical specimen, if possible.

The complaint further charged that,

'--defendants' failure to act within the limitations granted them relative to her child and their wanton, willful and inhuman display of the child's body to her afterwards were violations of both her legal rights and common decency and amounted to outrageous human conduct.'

Special issues were submitted to the jury. Among other things the jury was asked if plaintiff was entitled to recover on (a) 'Outrageous conduct theory' or (b) 'Theory based upon agreement to dispose of immature baby's body.'

The jury answered that recovery was based on both of the above theories and held both defendants liable for compensatory and punitive damages.

As now may be seen both from the pleadings and the manner in which the case was submitted to the jury, plaintiffs sought recovery of damages arising out of contract and damages arising out of tort.

We will at this point consider the majority of the 15 Assignments of Error made by the defendant hospital. Those not now treated will be considered along with the Assignments of Error of Dr. Pallas.

As its second Assignment of Error counsel for defendant hospital charges the Trial Court with error in overruling the defendant hospital's motion for a directed verdict made at the conclusion of plaintiffs' proof. This Assignment of Error is overruled. The motion was waived when the defendant hospital elected to adduce its proof after the motion was overruled. Railway and Light Co. v. Henderson (1906) 118 Tenn. 284, 99 S.W. 700.

The fourth Assignment of Error is that the Trial Court erred in overruling the defendant's motion for a separate trial on the issues of outrageous conduct and contract theory. Rule 18 of T.R.C.P. provides for the joinder of contract and tort claims in a single action. We are unable to perceive any valid reason why these two claims should not have been tried together. The Trial Judge did not abuse his discretion and the Assignment of Error is overruled.

The fifth Assignment of Error is that the Trial Judge erred in charging the jury on the theory of outrageous conduct. In support of this Assignment of Error it is argued that there is no such thing as the tort of outrageous conduct in this State and even if there is the proof failed to show such tort and the charge on the subject was meager and insufficient.

The tort of outrageous conduct is recognized by this State. See Medlin v. Allied Investment Co. (1966) 217 Tenn. 469, 398 S.W.2d 270. The remainder of the argument on this Assignment is addressed to the alleged failure of proof, or error in the charge, which are the subject of other Assignments of Error and will be treated in their place. Accordingly, the fifth Assignment of Error is overruled.

By its sixth Assignment of Error the defendant hospital faults the Trial Judge for charging the jury on the contract theory of liability. The argument in support of this Assignment of Error is actually an argument to the effect that there is no evidence of a contract between the defendant hospital and the plaintiff and is in fact a duplication of another Assignment of Error. This argument will be considered with the Assignment of Error which complains that there is no evidence to support a verdict. Accordingly, the sixth Assignment of Error is overruled.

The seventh Assignment of Error faults the Trial Court for failing to charge the legal defenses to a contract which defense had been pleaded by the defendant hospital.

The record reveals that prior to the actual charge being given, the Court and counsel had a general discussion regarding the possible contents of the proposed charge. The attorney for Dr. Pallas requested the Trial Court to charge the essential elements of a contract to which the Trial Judge responded 'Request denied. I've told you what I am going to charge. Now you can make your requests at the end.' At this point counsel for the defendant hospital stated:

'Before we go on, I want for in behalf of Woman's Hospital, and I'd like to have this on the record at this time, since you have advised us of your charge--that we do object on behalf of defendant Woman's Hospital to Any charge on Any grounds sounding in contract.' Emphasis ours.

In view of the foregoing we find it difficult to reason why counsel should not be permitted to cry 'error' for the Trial Court's alleged failure to charge 'the legal defenses' to contract. The reasoning is made even more difficult when the record shows that the defendant hospital did not request in writing, or for that matter orally, any special instruction on the subject of contract, although given ample opportunity.

Therefore we hold the defendant hospital may not now be entitled to complain of the alleged meagerness of the Court's charge on the 'legal defenses' to a contract. However, we have carefully read the Court's charge and we believe it sufficiently instructs the jury as to what must be found as fact by them before there can be liability on the defendant's part on the contract theory.

The seventh Assignment of Error is overruled.

The eighth Assignment of Error faults the Trial Court for charging both the contract theory and outrageous conduct theory of liability. The argument presented with this...