Maki v. Murray Hospital

• Decision Date: 13 January 1932
• Docket Number: 6830.
• Parties: MAKI v. MURRAY HOSPITAL.
• Court: Montana Supreme Court

7 P.2d 228

91 Mont. 251

MAKI v. MURRAY HOSPITAL.

No. 6830.

Supreme Court of Montana

January 13, 1932

Rehearing Denied Jan. 30, 1932.

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by Jalmar Maki against the Murray Hospital, a corporation. From an order made after judgment in its favor, granting plaintiff new trial, defendant appeals.

Affirmed.

Rehearing denied; CALLAWAY, C.J., and GALEN, J., dissent.

CALLAWAY C.J., dissenting in part, and GALEN, J., dissenting.

On consideration of motion for directed verdict, every fact must be deemed proven which evidence tends to prove.

J. A Poore and Kremer, Sanders & Kremer, all of Butte, for appellant.

F. K. Sullivan and H. A. Tyvand, both of Butte, for respondent.

MATTHEWS J.

The defendant, Murray Hospital, a corporation, has appealed from an order, made after judgment in its favor, granting the plaintiff, Jalmar Maki, a new trial.

Maki brought action against the hospital and Dr. D. K. Worden, of its medical staff, for damages for injuries sustained by him while a patient in the hospital. The complaint filed alleges that on March 20, 1928, Maki was admitted to the hospital, on order of Dr. Worden, for treatment for erysipelas present in his face; that a person so afflicted usually becomes delirious and violent; and that for a period of ten days after his admission to the hospital plaintiff was suffering from "mental derangement" and it became the duty of the defendants to keep him constantly attended by competent nurses and "restrained, guarded and under control and in a safe place," which facts were known, or should have been known, to defendants, but were unknown to plaintiff.

It is then alleged that on March 23, while delirious and violent and unable to care for himself or to know what he did, "through the carelessness and negligence and unskillfulness of the defendants and the *** agents, servants and employees of said corporation, in failing to give to said plaintiff the care and attention which his condition required, and in failing to properly watch, restrain, control, guard and care for him," the defendants "negligently permitted and allowed" him to leave his bed and to fall from the third floor of the building to the ground, by reason of which fall he sustained serious and lasting injuries, described.

The answer admits that Maki was received in the hospital for treatment for erysipelas and placed in a room on the third floor of the hospital, and denies all other allegations mentioned above. Issue being joined, a jury trial was had.

The plaintiff's testimony was brief. Maki testified to his condition before he entered the hospital and that from then on, until he "woke up" ten days later in his battered and broken condition, he was "unconscious"; he showed his condition after his injury and at the time of the trial, but made no attempt to show in what manner he was permitted to fall or jump from the window of the third floor.

Defendant moved for judgment of nonsuit, which motion was denied, and then introduced testimony concerning the care given Maki in the hospital and the circumstances under which he received his injuries, as follows:

On March 20, 1928, Dr. Worden, of the hospital staff, found Maki suffering with a well-defined case of erysipelas manifested in his face. He had his patient taken to the hospital where he was assigned to a private room, as the disease is contagious, and assigned to him a special nurse who was required to be in constant attendance and to sleep in the room. Maki ran a temperature of 104 on the night of the 20th, but it receded somewhat thereafter and, according to the doctor, he remained conscious and ate heartily. Up to the morning of the 23d the patient showed no inclination to leave his bed or to become violent, though he was delirious at times.

Several outside physicians testified that, with such cases, it is not customary to place a guard over the patient, as it is not characteristic of erysipelas that the patient has delusions of persecution, fears of attack, or suicidal mania, and even though they show some signs of delirium they need no special attention, but admitted that a delirious patient might be more apt to jump from a window than one who was not delirious.

It is apparent, therefore, that in the ordinary course of the disease with which plaintiff was suffering and the even tenor of the conduct of the hospital, ordinary prudence would not dictate that the hospital staff take any unusual steps to guard and protect the patient from injury. However, what happened on the morning of March 23 was this: While the nurse in charge was in the bathroom washing up the dishes from Maki's breakfast tray, the "house painter" mounted a scaffold in the hall outside Maki's room and peered through the transom, whereupon Maki sprang from his bed, rushed into the bathroom, and told the nurse that a man was coming through the transom to shoot him. The nurse tried to quiet him by telling him that it was only the painter and at the same time tried to restrain him, but he struck her on the eye and stomach, broke from restraint, and jumped from the window.

The plaintiff made no attempt to rebut defendants' testimony and, having rested after introducing certain rebuttal testimony, the defendants moved for a directed verdict. This motion was granted as to the individual defendant and denied as to the hospital; whereupon the jury was instructed and retired, and in due time returned a verdict for the defendant upon which judgment was entered.

Plaintiff moved for a new trial, specifying all of the grounds permitted by statute, and, after a hearing on the motion, the court granted a new trial without disclosing the grounds on which the order was made. We must consider the appeal from this order in the light of the following well-established rules:

The granting, or refusal to grant, a motion for a new trial lies within the sound discretion of the trial court, and its order thereon will be reversed only for manifest abuse of that discretion. Stettheimer v. City of Butte, 60 Mont. 111, 198 P. 455; Stephenson v. Home Insurance Co., 67 Mont. 193, 214 P. 954, 955; Gould v. Lynn, 88 Mont. 501, 293 P. 968.

An order, general in its terms, granting a new trial, will be upheld if it can be sustained on any ground stated in the motion therefor, and such an order will not be set aside as readily as an order denying a new trial, since the latter ends the case, whereas the former merely restores the parties to the position they occupied before the trial. Northwestern Electric E. Co. v. Leighton, 66 Mont. 529, 213 P. 1094; Loncar v. National Union Insurance Co., 84 Mont. 141, 274 P. 844.

Among the grounds specified in the notice of motion and recognized by the statute (section 9397, Rev. Codes 1921) is "error in law, occurring at the trial and excepted to" by the plaintiff, which includes error in instructions. Kleinschmidt v. McDermott, 12 Mont. 309, 30 P. 393.

It seems to be conceded that the new trial was granted because the trial judge was persuaded that error was committed in refusing to instruct the jury that "the plaintiff is not required to show particularly what the specific act of negligence was which produced the accident, but is only required to show that the accident is one which would not ordinarily occur had reasonable or ordinary care been employed," and that "when the thing which causes injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of ordinary care," and in narrowing the issues by instructing the jury that "the only negligence relied upon by the plaintiff *** is the alleged negligence *** in failing to so restrain the plaintiff as to prevent his jumping from the window. ***"

Having thus narrowed the issue, as to negligence, the court instructed the jury that the burden rested upon the plaintiff to prove this negligence by a preponderance of the evidence, and emphasized the fact by restatement in at least three instructions, coupled with the positive declaration that "in the absence of proof the presumption of law is that the defendant was not guilty of any negligence and the mere fact that the plaintiff was injured, does not itself create any presumption or inference of any negligence on the part of the defendant."

If this is an ordinary personal injury action and the plaintiff did rely solely upon alleged negligence in failing to restrain him from jumping from the window, the court correctly instructed the jury, and, as the plaintiff was unable to prove any negligence in this regard, the jury could have returned no other verdict than it did.

If the court adopted the correct theory in instructing the jury, it should have applied those rules of law at the close of plaintiff's case and granted defendants' motion for a nonsuit.

It is apparent from the record that plaintiff had no knowledge as to how he received his injuries, or in what manner the defendant hospital was negligent, if at all, in permitting him to reach a stage where he could be so injured, but he knew, as an ordinary reasoning being, that an unconscious patient in a hospital would not ordinarily receive such injuries unless those to whose care he had been committed were, in some manner, negligent. So handicapped by absolute ignorance of the facts which might disclose negligence, he alleged not only that he was permitted to fall from the upper story of the hospital, but to leave his bed theretofore, because, while he was in a condition wherein he was unable to care...