Penlano v. French Brd. Hosp. Inc

• Decision Date: 20 August 1930
• Docket Number: No. 559.,559.
• Citation: 154 S.E. 308
• Parties: PENLANO et al. v. FRENCH BROAD HOSPITAL, Inc.
• Court: North Carolina Supreme Court

154 S.E. 308

(199 N. C. 314)

PENLANO et al.

v.FRENCH BROAD HOSPITAL, Inc.

No. 559.

Supreme Court of North Carolina.

Aug. 20, 1930.

C. S. § 567, provides that, when plaintiff has introduced his evidence and rested, defendant may move to dismiss action or for judgment as in case of nonsuit.

Evidence disclosed that plaintiff, on advice of her physician, was removed to defendant hospital, where operation for appendicitis was performed by surgeon selected and employed for that purpose, with plaintiff's consent, by her physician. There was evidence that gauze or packing was allowed to remain in wound, with serious effects, but there was no evidence that surgeon was employed or paid by defendant hospital, which undertook only to provide facilities for operation. Any practicing physician in city was qualified to become member of staff of hospital.

[154 S.E. 407]

Appeal from Superior Court, Yancey County; Harding, Judge.

Separate actions by Bessie Penland and by her husband, J. L. Penland, against the French Broad Hospital, Inc. The cases by consent were consolidated for trial, and, from a judgment in favor of each plaintiff, defendant appeals.

New trial.

Two actions, one by the plaintiff Bessie Penland, and the other by her husband, the plaintiff J. L. Penland, against the defendant, French Broad Hospital, Inc., a corporation organized under the laws of this state, pending in the superior court of Yancey county, were by consent consolidated for trial, and tried together at January special term, 1930, of said court.

The actions were begun by the plaintiffs therein to recover damages sustained by them, respectively, resulting from a surgical operation performed on the plaintiff Bessie Penland by which her appendix was removed. The said operation was performed in the hospital owned and maintained by the defendant corporation, in the city of Asheville, N. C.

In the complaint in the action begun by the plaintiff Bessie Penland, she alleges:

"3. That prior to the late summer or early Fall of 1927, the plaintiff, who was then 23 years of age, and the mother of three healthy children, was in most excellent health and physical condition, until along about such time she became stricken with appendicitis, and after conferences with her husband, and her local physician, she was removed to the hospital of the defendant, in the City of Asheville, North Carolina, for an operation to remove the appendix, and for the treatment involved in such removal operation.

"4. That she was so removed to the hospital of said defendant and arrangements made with the proper officials and authorities in control thereof for the purpose of obtaining said operation and treatment, and placed entirely in the custody of the officials of said corporation who agreed to take the responsibility therefor, and to perform an operation for such purpose and to properly treat the plaintiff in relation thereto.

"5. That the plaintiff submitted herself to the custody and attention of said corporation, through its physicians and officials, and was operated upon by a physician or surgeon, or by physicians and surgeons furnished by the said corporation for such purpose, and after said operation and treatment, for a term of three weeks, she remained in said hospital under the direction and sole care of its physicians and surgeons, officers and attendants."

"9. That in the performance of the operation for appendicitis, the defendant, with gross and almost criminal negligence, as the plaintiff is informed and believes, neglected to remove packing which had been placed by the operatives of the defendant in the wounds created by them, and continued to allow the same to remain, notwithstanding the plaintiff's repeated returns to its hospital for treatment, and said packing continued to remain for a period covering seven months after its placing therein."

In the complaint filed in the action begun by the plaintiff J. L. Penland, he alleges:

"3. That in the year 1927, the plaintiff, being temporarily engaged in labor near Asheville, North Carolina, found that his wife, who was at her home in Yancey County, was ill with appendicitis and upon the advice of a physician, brought his wife, Bessie Penland, to the hospital of the defendant, in Asheville, North Carolina, for an operation for appendicitis.

"4. That the plaintiff placed his said wife in the hospital of the defendant, under its complete care and direction, and trusted the said defendant to provide skilled operatives to remove the appendix of his wife, which operation the plaintiff is advised, was comparatively simple, when properly performed, and that an early recovery should follow and there should be no serious danger, harm or suffering.

"5. That the defendant undertook said operation and reported the same as having been completely performed, and without complications or injury to his wife, and discharged his said wife from said hospital after three weeks.

"6. That the defendant, with gross negligence and carelessness, unnaturally mutilated the wife of the plaintiff, cutting or allowing the instrument to penetrate and injure some of the most important or vital organs of his said wife, and with gross negligence and carelessness allowed packing to remain in her wounds, so that for a period of seven months the packing was not found, and was allowed to remain in her, causing repeated openings, wounds, unnatural means of bringing about evacuation, and action of the kidneys and bowels, and causing permanent injury and complete destruction of her health."

Both plaintiffs allege that, as the result of the negligence of the defendant, as alleged in their respective complaints, each sustained damages in a large sum, for which each demands judgment against the defendant.

[154 S.E. 408]

The defendant, in its answer to the complaint in each of said actions, denied all the material allegations therein, and prayed judgment that the plaintiff take nothing by said action, and that it recover its costs.

The issues submitted to the jury at the trial were answered as follows:

"1. Was the plaintiff, Bessie Penland, injured and damaged by the negligence of the French Broad Hospital, Inc., as alleged in the complaint? Answer, Yes.

"2. Was the plaintiff, J. L. Penland, injured and damaged by the negligence of the French Broad Hospital, Inc., as alleged in the complaint? Answer, Yes.

"3. What damages, if any, is the plaintiff, Bessie Penland, entitled to recover of the defendant, the French Broad Hospital, Inc.? Answer, $10,000.00.

"4. What damages, if any, is the plaintiff, J. L. Penland, entitled to recover of the defendant, the French Broad Hospital, Inc.? Answer, $70.00."

From judgments on the verdict, that plaintiff Bessie Penland recover of the defendant the sum of $10,000, and that the plaintiff J. L. Penland recover of the defendant the sum of $70, the defendant appealed to the Supreme Court.

Thomas S. Rollins, and Harkins & Van AVinkle, all of Asheville, for appellant.

G. D. Bailey, of Burnsville, and Pless & Pless, of Asheville, for appellees.

CONNOR, J.

The case on appeal, settled by the judge upon disagreement of counsel, and certified to this court on defendant's appeal, C. S. § 644, does not show that at the close of the evidence for the plaintiffs, defendant moved for judgment dismissing the action as of nonsuit, C. S. § 567. When plaintiffs rested their case, defendant introduced evidence, and, at the close of this evidence, plaintiffs introduced evidence in rebuttal. At the close of all the evidence, as shown by the case on appeal, defendant moved for judgment dismissing the action as of nonsuit "upon the ground that in no view of the evidence, if believed, are the plaintiffs, or either of them entitled to recover in this action." This motion was denied, and defendant excepted. The assignment of error based on this exception cannot be considered by this court. It is expressly provided by the statute, C. S. § 567, that, when the plaintiff has introduced his evidence, and rested his case, the defendant may move to dismiss the action or for judgment as in case of nonsuit. It is only when this motion has been overruled, and defendant has excepted, and thereafter introduced evidence, that he may at the close of all the evidence again move to dismiss the action. If this mo tion is denied, and defendant excepts, he has the benefit of this exception on his appeal to this court. In the absence of a motion to dismiss at the close of the evidence for the plaintiff, and an exception to the denial of such motion, an exception to the denial of a motion by the defendant, who has thereafter introduced evidence, at the close of all the evidence, is not sufficient to present to this court, on defendant's appeal, the question as to whether, upon all the evidence, the plaintiff is entitled to recover. The power of the superior court to grant an involuntary...