National Bank of Commerce (of El Dorado) v. HCA Health Services of Midwest, Inc.

• Decision Date: 03 December 1990
• Docket Number: No. 89-283,89-283
• Citation: 800 S.W.2d 694,304 Ark. 55
• Parties: NATIONAL BANK OF COMMERCE (OF EL DORADO, Arkansas), Guardian of the Estate (only) of James Talley, a Minor, and Shirley Talley Collins and George Talley, Parents, Appellants, v. HCA HEALTH SERVICES OF MIDWEST, INC. d/b/a Doctors Hospital, Hospital Corporation of America, Frances Tully and Brenda Swayze, Appellees.
• Court: Arkansas Supreme Court

Page 694

800 S.W.2d 694

304 Ark. 55

NATIONAL BANK OF COMMERCE (OF EL DORADO, Arkansas), Guardian

of the Estate (only) of James Talley, a Minor, and

Shirley Talley Collins and George

Talley, Parents, Appellants, v. HCA HEALTH SERVICES OF MIDWEST, INC. d/b/a Doctors Hospital,

Hospital Corporation of America, Frances Tully and

Brenda Swayze, Appellees.

No. 89-283.

Supreme Court of Arkansas.

Dec. 3, 1990.

Bernard Whetstone, Bobby Davidson, Little Rock, for appellants.

Buddy Sutton, Laura Henson, Donald Bacon, Little Rock, for appellees.

W. DENT GITCHEL, Special Justice.

James Talley was born in Doctors Hospital on September 7, 1982. He appeared to be a normal, healthy baby. Several hours later, shortly after midnight, nurse Frances Tully discovered that James had stopped breathing and had no heartbeat. He was immediately resuscitated, but showed symptoms of brain damage. James' parents and the guardian of his estate sued HCA Health Services of Midwest, Inc., d/b/a Doctors Hospital (Midwest) and the three nurses who were on duty in the nursery at the time of the incident.

When the case was first tried in 1986, the jury returned a verdict against Midwest, awarding both compensatory and punitive damages. This court reversed and remanded. HCA Health Serv. of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988). The second trial, from which this appeal comes, resulted in a verdict in favor of the defendants. Appellants raise a number of points for reversal. However, we find none of them persuasive and affirm.

1. Absence of the mattress.

Appellants assert that "appellees unwarrantedly failed to produce at the trial the mattress on which James Talley was lying at the time of the occurrence." The "mattress" in question is a plastic-covered, foam rubber bassinet pad about an inch thick. Appellees had introduced the mattress at the first trial, asserting that it was the actual mattress. Appellants objected to its authenticity, contending that the actual mattress was thicker and fluffier. The mattress was filed with the record on the first appeal to this court and was misplaced by the clerk. While preparing for the second trial, appellees attempted to obtain the mattress from the clerk, but were informed that it was lost. Appellants did not attempt to locate the mattress, but the clerk found it after the second trial. Appellants suffered no prejudice from the absence of the appellees' exhibit, the admissibility of which they had steadfastly contested.

2. Summary judgment in favor of Hospital Corporation of America.

Midwest is a wholly owned subsidiary of Health Services Acquisition Corp.; Health Services Acquisition Corp. is a wholly owned subsidiary of HCA, Inc.; and HCA, Inc. is a wholly owned subsidiary of Hospital Corporation of America (Hospital Corporation), a publicly owned corporation. Of these corporations, only Midwest was a party at the time of the first trial.

One basis for this court's reversal on the first appeal was plaintiffs' counsel's references to Hospital Corporation, a non-party, when discussing punitive damages during opening statement and closing argument. On remand, the appellants joined Hospital Corporation as a defendant, and the trial court entered summary judgment in favor of Hospital Corporation. The trial court erred, but the jury's verdict in favor of the appellees rendered the error harmless.

In essence, the appellants' theory of liability was that James Talley's injuries were proximately caused by the nurses leaving him unattended, that the inattention resulted from understaffing in the nursery, that hospital personnel had complained to the manager about the understaffing, and that the manager had failed or refused to provide more nurses. Appellants argue that the manager's allegedly wrongful acts should be imputed not only to Midwest, but also to Hospital Corporation. Appellees argue that no relationship existed between Hospital Corporation and either Midwest or the hospital manager.

Appellants made no allegation, proffered no evidence, and presented no affidavit to the trial court indicating that Hospital Corporation was itself guilty of wrongful conduct. In their briefs and argument the appellants make bare, unsupported statements that Hospital Corporation ordered the manager to cut the nursing staff, but the record contains nothing to support these statements. Although a principal or master may be liable for its own tortious conduct, see RESTATEMENT (SECOND) OF AGENCY § 212 (1958), some factual support for the assertion is necessary. In the absence of any such factual support, summary judgment on the issue of Hospital Corporation's own conduct was proper.

A principal or master may also be vicariously liable for the tortious acts of its agent or servant within the scope of the agency or employment. See Gleason v. Seaboard Air Line Ry., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415 (1929); Dillard Dept. Stores, Inc. v. Stuckey, 256 Ark. 881, 511 S.W.2d 154 (1974). The record does contain sufficient evidence to raise a genuine question of fact whether a principal-agent or master-servant relationship existed between Hospital Corporation and the manager of Doctors Hospital. This question of fact should have been left for the jury to decide. See B.J. McAdams, Inc. v. Best Refrigerated Exp., Inc., 265 Ark. 519, 579 S.W.2d 608 (1979); Fireman's Fund Ins. Co. v. Leftwich, 192 Ark. 159, 90 S.W.2d 497 (1936). However, the court's error in granting summary judgment was rendered harmless by the jury's verdict in favor of appellees. Where the issue of liability is decided in favor of the agent or servant and against the plaintiff, as it was here, the principal or master cannot be vicariously liable. See New Orleans & N.E. R.R. v. Jopes, 142 U.S. 18, 12 S.Ct. 109, 35 L.Ed. 919 (1891).

Appellants argue two other theories under which they assert that Hospital Corporation could have been held liable, neither of which has merit. First is joint venture. Joint venturers may be held jointly and severally liable for one another's wrongful acts, Myers v. Lillard, 215 Ark. 355, 220 S.W.2d 608 (1949), but a joint venture must have the elements of a partnership. State ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 105 S.W.2d 853 (1937). Hospital Corporation and Midwest were not joint venturers because their relationship did not have the elements of a partnership. Even if they had been joint venturers, the jury's verdict in favor of Midwest also exonerated Hospital Corporation because liability of a joint venturer is vicarious, founded on principles of agency. See Franko v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977); Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564 (1952). Appellants' other theory is "piercing the corporate veil." One who seeks to disregard the corporate entity must show that the corporate form has been abused to the injury of a third person. Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W.2d 1 (1949). There is no evidence to support this theory.

3. The trial court's handling of prospective juror Wheetley.

During voir dire, appellant's counsel was allowed to ask the following question over objection:

Do any of you have a feeling that you would not be able to award as much as ten million dollars or in that neighborhood under any circumstances, no matter what the proof has shown, no matter what the process of law is, does anybody have any hesitation about awarding as much as ten million dollars if you thought the evidence justified? This may be the most important question that I will ask you and I would like to ask you the question individually....

An objection to individual questioning was overruled, and appellants' counsel examined each prospective juror. The following transpired:

Q: Mrs. Linda Wheetley, would you have any hesitation in awarding ten million dollars if you felt it was justified under the evidence and the instructions of the court?

A: As I told you previously, I was on the Guthrie-Alcoa case and this one to me is very similar and I still have the opinion and judgment from that case and that was a large sum of money, and I don't really think I am going into this case with a clear mind.

....

Appellants' counsel next attempted to inquire into Mrs. Wheetley's deliberations in the other case, but an objection was sustained. Then the following transpired:

A: From previous experience I do have feelings that are different now.

Q: Translating that into my question now, and the answer to my question about the ten million dollars, would you have any hesitation about giving as much as ten million dollars if you thought the evidence justified it?

A: I sure would.

Counsel then approached the bench and moved that the juror be struck for cause. The court then asked:

Q: Ms. Wheetley, if you're chosen as a juror in this case, can you lay aside everything, I'm not talking about laying aside your common sense because you have a right and you should exercise that, but can you lay aside everything besides the case and the exercise of your common sense based on the evidence and based on the law and return the verdict that is appropriate whether it be for the defendant, or whether it be for the plaintiff and if the verdict be for the plaintiff return the amount of compensation that you feel is justified under the evidence and the law that you have heard? Can you do that? Forget about the figure of ten million dollars Mr. Whetstone asked you and I'll just ask you can you do that?

A: Yes.

The motion to strike for cause was denied, and the appellants used a peremptory challenge to strike Mrs. Wheetley.

Appellants argue that the trial court's instruction to Mrs. Wheetley to "forget about the figure of ten million dollars Mr. Whetstone asked you ..." was disparaging, belittling and prejudicial. However, appellants made no objection. It has long been the rule in this state that an objection must be made to the trial judge's conduct before...