Tulsa Hospital Ass'n v. Juby

• Citation: 175 P. 519,73 Okla. 243,1918 OK 396
• Decision Date: 23 July 1918
• Docket Number: 8979.
• Parties: TULSA HOSPITAL ASS'N v. JUBY.
• Court: Supreme Court of Oklahoma

175 P. 519

73 Okla. 243, 1918 OK 396

TULSA HOSPITAL ASS'N v. JUBY.

No. 8979.

Supreme Court of Oklahoma

July 23, 1918

Rehearing Denied Oct. 22, 1918.

Syllabus by the Court.

Remarks of the trial judge during the trial of the cause will not constitute reversible error, unless it appears that such remarks are prejudicial to the rights of the complainant.

In order to predicate error on the remarks of the trial judge during the trial, exceptions must be taken to the remarks at the time they are made.

The weight to be given the evidence is a matter left to the jury and a verdict based on conflicting evidence will not be disturbed, when the evidence reasonably tends to support the verdict.

A hospital that is conducted for private gain receives patients under an implied obligation that it will exercise ordinary care and attention for their safety, and such degree of care and attention should be in proportion to the physical and mental ailments of the patient, and the question whether or not such requirements have been met presents an issue of fact to be determined by the jury.

Additional Syllabus by Editorial Staff.

In an action against a private hospital by a patient for damages because of pneumonia, alleged to have been caused by a leaking roof, evidence held to sustain a finding that defendant was negligent.

Commissioners' Opinion, Division No. 2. Appeal from District Court, Tulsa County; W. J. Campbell, Special Judge.

Action by Lottie Juby against the Tulsa Hospital Association. Judgment for plaintiff, and defendant appeals. Affirmed.

Dillard Allen & Dillard, of Tulsa, for plaintiff in error.

Robinson & Mieher, of Tulsa, for defendant in error.

DAVIS C.

This cause of action comes here for hearing from the district court of Tulsa county, Okl. We will refer to the respective parties as they appeared in the trial court. The defendant is a private corporation, conducting a hospital in the town of Tulsa, Okl., for private gain. On or about the 15th day of February, 1915, the plaintiff, Mrs. Lottie Juby, was taken to said hospital for the purpose of being operated on for appendicitis. When she arrived at said hospital, she was a short time thereafter operated on by Dr. A. M. Houser. It was discovered during the operation that the patient was suffering from an affected gall bladder, and that in addition to an affected gall bladder that she had an affected appendix, which was removed during said operation.

After the operation the patient was placed in room 43, under the care of a special nurse. On or about the 20th day of February, 1915, a heavy rain fell, and the roof over the room where the patient was located leaked, to the extent that the blankets on the bed where the patient was lying were wet. There is a conflict in the evidence as to the extent that the bed was wet. The evidence on the part of the plaintiff is to the effect that the bed was wet from the foot to a distance of about two-thirds of the length of the bed, and that all the covers on the bed were wet, and also the gown of the plaintiff; that the plaintiff awoke about 5:30 or 6 o'clock in the morning; that she was awakened by the water falling in her face. The evidence shows that the special nurse was sleeping on a cot in the same room with the plaintiff, and that when plaintiff discovered that her bed and clothes were wet that she attempted to wake the nurse and inform her of her condition; that she had considerable difficulty in awakening the nurse, but that when said nurse was awakened that she secured some dry blankets and changed them for those that were on the bed, but the nightgown in which plaintiff was sleeping and also the sheets on the bed were not changed until 8:30 or 9 o'clock on the same morning. There is a conflict in the testimony with reference to this question. The plaintiff testified that she requested that a change be made in her clothes, and also that the sheets be changed, and that the nurse neglected to make said change until the regular time, which was some two hours after the blankets had been changed. The evidence on the part of the plaintiff shows that she became chilled from said wet bedding, and that her condition grew worse, and that about five days thereafter pneumonia developed; that she suffered for a long time from pneumonia, and incurred large expenses by reason thereof.

The allegations of negligence on which the plaintiff sought to recover are that the defendant was negligent in failing to provide the plaintiff with a suitable and safe place, free from danger, and allowing the roof over the room occupied by said plaintiff to remain in a defective condition, and to permit water from rains to penetrate said roof and fall upon the bed of the plaintiff, and that by reason thereof the negligence of the defendant was a direct and proximate cause of the pneumonia that subsequently developed. It is also alleged that the defendant was negligent in permitting the plaintiff to remain in a wet condition for a period of two hours after the discovery that the roof was leaking. The defendant filed a general denial, and on a trial of the case the plaintiff recovered a judgment in the sum of $3,000. A motion for new trial was overruled, and from the judgment overruling said motion the defendant appeals by petition in error to this court. There are five assignments of error, which are as follows:

"First. Said court erred in overruling the motion of the plaintiff in error for a new trial.

Second. Said court erred because of the abuse of the discretion of the court by the presiding judge, by which the party was prevented from having a fair trial in this: The nurse's chart had been lost, and had not been recovered until a few moments before counsel went into the trial. Counsel for the defendant had never had any means of examining said chart, and every witness who had been associated with the plaintiff while she was a patient at the hospital was antagonistic to the present owners of the hospital, and not knowing the condition of said chart, and not having an opportunity of talking with the witnesses in reference thereto, counsel for the defendant, in the exercise of his best judgment for the protection of his client's interest, felt that he was not in a position to offer said chart without knowing what the contents thereof were; that Dr. A. M. Houser, a witness who had stated to counsel for defendant that he was greatly offended at the treatment he had received at the hands of Dr. J. Herbert Smith, the physician in charge of said hospital, and that he would leave town before he would be forced to testify in said case, in his testimony stated he could not tell whether said plaintiff took pneumonia before or after the date on which she claims to have been wet from the leak in the roof of the said hospital, unless he could see the nurse's chart, and upon being asked, stated that he could not tell whether the plaintiff improved or not after the date she claimed to have been wet, without he could see said chart; and thereupon the court turned to the attorney for the defendant and talked with and at him in the presence of the jury (though he did not call said attorney's name), and stated in substance that the chart was very material in the case, and it ought to be produced for the benefit of the jury, and again, after the case had been closed, the attorney for the defendant asked permission to introduce in evidence a subpoena duces tecum served on him by the attorney for the plaintiff in the case, requiring him to produce on the trial of said cause the said hospital chart. Objection was made by counsel for plaintiff, and counsel for defendant stated that the said subpoena duces tecum was in the possession of his associate counsel the day before, and the fact that it was not offered during the trial was an oversight, because counsel associated in the case had neglected to hand it to counsel who had examined the witness, as he requested him to do so; thereupon the court made the following statement, looking at and talking to the jury, said statement being made in an emphatic tone of voice, to wit: 'Let the record show that the question of the nurse's chart was at various times mentioned in the testimony by the witnesses, and at one time the court suggested that the chart was very material in the case, and notwithstanding the fact that the nurse's chart was in existence, and the fact that the court suggested its materiality, and further fact that it be produced in order that the jury might inspect same, counsel for defendant didn't produce it, and to permit the case to be reopened now for the purpose of introducing the chart, or any evidence with reference to the chart, would, in effect, reopen the whole case, and necessitate going over the ground that was gone over in the testimony yesterday and would unnecessarily delay the trial of this case.' Which statement was excepted to by the defendant. Said statement of the court was clearly prejudicial to the rights of the defendant in the case, because it was, in effect, an order by the court upon counsel for the defendant to produce and exhibit said chart to the jury, taking away from the defendant's counsel the right to offer said chart or not offer the same, as he thought the best interests of his client required. Connected with said statement, the excessive verdict of the jury shows that the minds of the jury were inflamed by the remarks of the court, and the failure of counsel to produce said court induced the jury to return a verdict for the plaintiff for the excessive damages found, in spite of the evidence in the case that plaintiff took pneumonia prior to the date that she says she was wet by the leak, and in spite of the fact that she was suffering and at the point of death from another

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