Louie v. Chinese Hospital Ass'n
| Decision Date | 30 March 1967 |
| Citation | 57 Cal.Rptr. 906,249 Cal.App.2d 774 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gin Non LOUIE, Plaintiff and Respondent, v. CHINESE HOSPITAL ASSOCIATION, a corporation, Defendant and Appellant. Civ. 23185. |
Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, for appellant; Robert A. Seligson, San Francisco, of counsel.
John J. Fahey, James J. Igoe, San Francisco, for respondent.
Defendant, Chinese Hospital Association, a corporation, has appealed from a judgment of $50,000 1 entered upon a jury verdict in favor of plaintiff, Gin Non Louie, in an action in which he sought damages for injuries suffered in a fall from his bed while a patient in that hospital recovering from an operation. 2
The defendant complains that the trial court erred in instructing the jury in the following particulars: (1) by modifying an instruction offered by the defendant, which was designed to preclude the plaintiff's reliance on a presumption of due care, so as to inferentially permit consideration of such presumption without the establishment of proper conditions precedent to its use; (2) by instructing the jurors that they could resort to their common experience and reason in deciding whether the conditions giving rise to the event which occasioned plaintiff's injuries were caused by defendant's negligence; and (3) by giving an instruction on the doctrine of res ipsa loquitur which was erroneous in form.
It is concluded, for the reasons, and in the particulars hereinafter set forth, that there were errors in the instructions, but that under the facts of the case they were not prejudicial. The judgment must therefore be affirmed.
Gin Non Louie, the plaintiff, is a non-English speaking Chinese male, about sixty years old. He has a history of neurosyphilis with consequent deterioration of the body and brain.
On January 30, 1961, plaintiff entered the Chinese Hospital, San Francisco, for treatment of a gastric ulcer. Plaintiff's physician, Dr. Edwin Owyang, called in Dr. Frank J. Choy as surgical consultant. On February 2, 1961, Dr. Choy performed a subtotal gastric resection on Mr. Louie. On February 24, 1961, Dr. Choy performed a second operation to correct a stomal obstruction. On February 27, 1961, at 2:40 a.m., a nurse at the hospital heard a thump, and found Mr. Louie on the floor next to his bed. The siderails were up on plaintiff's bed at the time he fell.
On February 27, 1961, at 7 a.m., Dr. Choy examined plaintiff and diagnosed his injury as a fractured hip. He has since needed extensive hospitalization and convalescent care in connection with his hip injury. Mr. Louie, at the time of trial, was a patient at a convalescent home. His hip will never heal. His ability to walk is very limited, and he needs continuing attention.
The remaining material facts are discussed below.
The testimony of the plaintiff's regular physician, of the surgeon who performed the operation and who was attending him, and of the day nurse on duty, reflects that on the day preceding the accident he was alert enough to talk and answer questions, and was not disoriented or confused. The evening nurse noted at 7 or 8 p.m., 'Patient appears slightly confused at times.' The night supervisor noted at 12:45 a.m. that he 'seems confused.'
The following morning after the accident the day nurse recorded: 'Patient seems to be very clear in mind and responds to conversation,' and the surgeon found him alert and oriented and not confused in any regard. The day nurse acted as interpreter when the surgeon interrogated the patient concerning the accident, and testified that the patient told her then, as he had previously stated when she made her rounds, that he tried to get a glass of water, that he got out through the foot of the bed and fell. Plaintiff's regular physician, who spoke Chinese, also testified that the patient told him that he had tried to get out of bed and fell down.
The latter doctor, who had been treating the plaintiff since 1958, revealed that Mr. Louie had been treated for syphilis since 1943, that the syphilis was a progressive disease which would affect his nervous system and his brain, and that it was possible for him to have been clear and alert on February 27, 1961, the day of the accident, in regard to what happened to him at that time, but unable to remember what did happen to him at the time of trial (April 1965).
At the trial plaintiff testified that his memory gets progressively worse. He remembered that he went to the hospital for stomach trouble and he was operated on, but did not know the dates. He first noticed a pain in his hip while lying in bed. He could not remember falling out of bed, or discussing the fall with his surgeon. He testified that there was a day nurse who was Chinese and with whom he spoke in his native tongue, and that after the accident his leg was suspended or in traction, for quite a long while.
He remembered that his deposition was taken in 1963, but could not remember what he said at that time. The deposition contains testimony which indicates that at that time, 1963, he recalled and admitted conversing with the nurses about the accident, but could not remember what he told them.
On this state of the evidence, plaintiff offered no instruction on due care. (Cf. Code Civ.Proc., § 1963, subd. 4; and Cal. Jury Instns., Civ. (BAJI) (1964 pocket parts to 4th rev.ed.1956) No. 135--B.) 3 Apparently out of an abundance of caution the defendant offered an instruction reading as follows: 'You are instructed from the mere fact, if it is a fact, that the plaintiff in this case claims a lack of memory of the events occurring at the time of the accident there would not be any presumption in favor of the plaintiff concerning his exercise of care at the time in question.'
The trial court, on its own motion, modified this instruction by the addition of the following language: 'Before one is entitled to such a presumption the jury must find by preponderance of the evidence that there was a lack of memory of events just preceding and about the time of the accident.'
Although plaintiff argues to the contrary, it is impossible to escape the conclusion that the court, whether intentionally or inadvertently, ambiguously instructed the jury that although a mere claim of loss of memory would not suffice to give rise to the presumption of due care, such a presumption would arise if the jury found from a preponderance of the evidence that the claimed loss of memory did in fact exist.
As so interpreted the instruction as modified was patently erroneous.
The instruction was not only erroneous for lack of the foregoing qualification, but it also would have been inappropriate to give it, even if in correct form (cf. BAJI (1964) supra, No. 135--B), because of a lack of any evidence to show that the accident resulted in a loss of memory. (Beck v. Kessler, supra, 235 Cal.App.2d at p. 341, 45 Cal.Rptr. 237.)
Plaintiff acknowledges the applicability of the foregoing rules to the instruction in question, but he asserts that the record justifies an inference that the accident was a contributing cause to the progressive loss of memory. (See Hughes v. City and County of San Francisco (1958) 158 Cal.App.2d 419, at pp. 420 and 425, 322 P.2d 623, and comment thereon in Hom v. Clark, supra, 221 Cal.App.2d at p. 656, 35 Cal.Rptr. 11.) There is some evidence to show that plaintiff's loss of memory at the time of trial was occasioned by progressive degeneration from syphilis. There is not, however, a scintilla of evidence to justify a finding, as suggested by plaintiff, that the accident aggravated or in any way contributed to that degenerative process.
Plaintiff further contends that defendant invited the error by offering the instruction in the form proposed. (Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121, 114 P.2d 343, 345; and see Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 207, 30 Cal.Rptr. 253; and Dowd v. Atlas Taxicab & Auto Service Co. (1924) 69 Cal.App. 9, 14, 230 P. 958.)
(Gipson v. Davis Realty Co., supra, 215 Cal.App.2d at p. 208, 30 Cal.Rptr. at p. 263.) In the instant case the court's additions changed a correct instruction into an erroneous instruction. Plaintiff cannot find refuge in the principle that the modification merely corrected the proponent's erroneous instruction. (Cf. People v. Long (1940) 15 Cal.2d 590, 605--606, 103 P.2d 969; and Baker v. Borello (1901) 131 Cal. 615, 616--617, 63 P. 914.)
In Kumelauskas v. Cozzi (1959) 173 Cal.App.2d 541, 343 P.2d 605 the court failed to leave to the jury the question...
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