Mixon v. Riverview Hospital
| Decision Date | 15 September 1967 |
| Citation | 254 Cal.App.2d 364,62 Cal.Rptr. 379 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Viola M. MIXON and B. H. Mixon, Plaintiffs and Appellants, v. RIVERVIEW HOSPITAL and Harry E. De Haven, Jr., M.D., Defendants and Respondents. Civ. 8488. |
Plaintiffs appeal from a judgment in their favor entered on or about February 15, 1966.
Plaintiffs are Viola M. Mixon (Viola) and B. H. Mixon (Mixon), wife and husband. Defendants are Riverview Hospital (Hospital) and Harry E. De Haven, Jr. (De Haven), a medical practitioner.
The complaint was in four causes of action. In the first, Viola alleged damage of $40,000, caused by the negligence of Hospital in failing on September 29, 1963 to keep a correct count of sponges placed in and removed from Viola's abdominal cavity during the course of an operation being performed by De Haven, as a result of which one sponge remained in the abdominal cavity after the incision had been sewed up.
In the second cause of action Viola alleged damages in the same amount based on alleged negligence of De Haven in connection with the same failure to remove the sponge before closing the incision.
A third cause of action by Viola against De Haven was based on alleged neligence on October 19, 1963, in the subsequent treatment of Viola.
The fourth cause of action was by Mixon against both defendants for loss of the services of Viola as a result of all the matters alleged in the first three causes of action.
After a jury trial, four forms of verdict were returned by the jury on December 30, 1965 and accepted by the court without objection or question by either court or counsel. Except for dates and signatures omitted, the forms of verdict were as follows:
'VERDICT FOR THE FIRST CAUSE OF ACTION
'We, the jury in the above entitled action, in the First Cause of Action find in favor of the plaintiff VIOLA MIXON and against the defendant RIVERVIEW HOSPITAL and assess damages in the sum of $12,500.00.
'VERDICT FOR SECOND CAUSE OF ACTION
'We, the jury in the above entitled action, in the Second Cause of Action find in favor of the plaintiff VIOLA MIXON and against the defendant HARRY E. DE HAVEN, JR., M.D., and assess damages in the sum of $12,500.00.
'VERDICT FOR THIRD CAUSE OF ACTION
'We, the jury in the above entitled action, in the Third Cause of Action find in favor of the defendant HARRY E. DE HAVEN, JR., M.D. and against the plaintiff VIOLA MIXON.
'VERDICT FOR FOURTH CAUSE OF ACTION
'We, the jury in the above entitled action, in the Fourth Cause of Action find in favor of plaintiff B. H. MIXON and against defendants RIVERVIEW HOSPITAL and HARRY E. DE HAVEN, HARRY E. DE HAVEN, JR., M.D., and assess the damages to RIVERVIEW HOSPITAL in the sum of $2,500.00 and assess the damages as to HARRY E. DE HAVEN, JR., M.D., in the sum of $2,500.00.'
A photostat of the verdict on the fourth cause of action shows that originally the figures '$5,000.00' had been put in the first of the two spaces finally occupied by the figures '$2,500.00'; that the figures '$5,000.00' had been scored through and the figures '$2,500.00' placed above them.
The clerk, on December 31, 1965, entered judgment that Viola recover from Hospital the sum of $12,500.00; that Viola recover from De Haven the sum of $12,500.00; that Mixon recover from Hospital the sum of $2,500.00; that Mixon recover from De Haven the sum of $2,500.00.
Hospital filed notice of motion for new trial on January 17, 1966. In the statement of counsel in support of the motion, it is said:
Minutes of the court for February 11, 1966 show the following actions taken:
'Judgment entered December 31, 1965 is hereby ordered vacated and set aside. The following judgment is ordered nun pro tunc (sic) as of December 30, 1965: 'Joint and several judgments in favor of plaintiff Viola M. Mixon and against Riverview Hospital, a California corporation and Harry E. De Haven, Jr. in the amount of $12,500.00. Joint and several judgments in favor of plaintiff B. H. Mixon and against Harry E. De Haven, Jr. in the amount of $2,500.00 (sic). * * * Motion for a new trial denied."
There was then entered Nunc pro tunc as of December 30, 1965, and filed on February 14, 1966, a joint and several judgment for $12,500 against both defendants in favor of Viola; and a joint and several judgment for $2,500 against both defendants and in favor of Mixon.
It is urged by defendants that their liability as fixed by the jury's findings was and could only be joint and several. At the time of oral argument plaintiffs' cousel conceded that at the close of evidence it was undisputed that defendants, if both should be held liable, were joint tort-feasors, but plaintiffs claim the unusual consequences of joint and several liability and of non-severability of damages were waived or stipulated away by the actions of counsel for defendants in making certain stipulations and objecting to certain instructions.
Before the jury was instructed, forms of verdict and instructions were discussed in chambers.
Plaintiffs had requested that the following instruction be given:
'If you should find that plaintiff is entitled to recover against (both defendants) (more than one defendant), you must deliver a verdict in one, single sum against (both) (all) defendants (whom you find to be liable).'
It was endorsed by the court 'Refused as covered.'
Plaintiffs claim that Hospital had objected to the giving of the instruction. Counsel for Hospital asked this question during the session in chambers:
'You are not going to give 53-a?'
Such a question cannot fairly be termed an objection. The record does not support the claim that the defendants objected to the instruction requested by plaintiffs.
Plaintiffs' claim is further negated by the fact that defendant Hospital had requested the following instruction:
That requested instruction also was endorsed 'Refused as covered.'
The stipulation referred to by plaintiffs is that expressed in the following passage during the session in chambers:
'THE COURT: * * * Is it stipulated then that these verdicts--
'MR. MC CARTHY (counsel for Hospital): Not those, these over here.
The 'instruction explaining the verdicts' referred to was as follows:
'You are instructed that this law suit purports to allege four separate causes of action and you must return a separate verdict as to each cause of action.
The causes of action are:
'The First Cause of Action asserts a claim by VIOLA MIXON based on alleged negligence of RIVERVIEW HOSPITAL in allowing a surgical sponge to remain within the body of VIOLA MAXON on October 1, 1963, and seeks damages for injuries proximately resulting therefrom;
'The Second Cause of Action asserts a claim by VIOLA MIXON based on alleged negligence of HARRY E. DE HAVEN, JR., M.D., in allowing a surgical sponge to remain within the body of VIOLA MIXON on October 1, 1963, and seeks damages for injuries proximately resulting therefrom;
'The Third Cause of Action asserts a claim by VIOLA MIXON alleging negligence of HARRY E. DE HAVEN, JR., M.D., in connection with claimed unnecessary surgeries, malpractice in the performance of said surgeries and malpractice in failing to take an X-ray during the post-operative treatment and seeks damages for injuries proximately resulting therefrom;
'The Fourth Cause of Action asserts that plaintiff B. H. MIXON is entitled to damages for the pecuniary value of the loss of his wife's services due to the alleged negligence of either defendant or both as above-stated.' 1
The forms of verdict referred to in the stipulation were those actually submitted to the jury, and were 10 in number. In addition to the forms of verdict returned on the first and second causes, there was another as to each of those causes permitting a finding favorable to the defendant named in such cause; a form permitting a finding in favor of Viola on the third cause; and three forms as to the fourth cause, one of which provided for finding against one defendant and in favor of the other, and the second of which reversed the positions of the defendants, while a fourth provided for a finding favorable to both ...
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