MABEN v. J. H. Rankin and Beverly Hills Medical Clinic, a co-partnership, sued as Doe Company, Appellants.*

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District Court of Appeal, Second District, Division 3, California.

Doris Askew MABEN, Plaintiff and Respondent, v. J. H. RANKIN et al., Defendants, J. H. Rankin and Beverly Hills Medical Clinic, a co-partnership, sued as Doe Company, Appellants.*

Civ. 24043.

Decided: May 10, 1960

Callaway, Kirtland & Packard and Henry E. Kappler, Los Angeles, for appellants. Pat A. McCormick, Floyd H. Norris, Los Angeles, for respondent.

The defendant J. H. Rankin, a doctor, was instrumental in having the plaintiff held in a private hospital for fifteen days, where shock treatments were administered to her. The plaintiff, in this action for false imprisonment and assault and battery, was awarded $70,000 by a jury for the false imprisonment plus $8,000 for the treatments. The doctor and the defendant Beverly Hills Medical Clinic, a copartnership, whose fate is tightly linked to his, have appealed from the resulting judgment. We are reversing the judgment because of faulty instructions.

In her complaint plaintiff charged that defendants' action in keeping her in the hospital was without her permission, without legal authority and was taken in bad faith and without probable cause. These allegations were denied by the defendants; no affirmative matters were alleged. As a result of a pre-trial proceeding it was stipulated and ordered that there were three issues to be tried, touching upon the false imprisonment cause of action: (1) whether or not plaintiff's removal to the hospital was without her consent or without legal right; (2) whether or not the defendants acted in bad faith and without probable cause; and (3) whether plaintiff suffered injury because of her experience.

The better to understand the problems presented by the instructions, we should have the broad outline of the picture that was painted to the jury. Were we testing the evidence to see whether it supports the verdict we should, of course, resolve all conflicts in favor of the jury's conclusions and draw all inferences that could, with reason be drawn in support of their verdict. Note cases under 930(1), Appeal and Error, West's Calif. Digest. But when, as now, we are looking at the evidence to see what instructions should have been given, the rule differs. ‘Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof * * *’ (Sills v. Los Angeles Transit Lines, 1953, 40 Cal.2d 630, 633, 255 P.2d 795, 797), and we shall look at the evidence with this rule in mind.

The evidence was not without its conflicts, but was sufficient to justify the jury in coming to the conclusion that these were the facts. For some time before July 31st, the plaintiff had been in a highly disturbed emotional and mental state, caused by real and, probably, fancied grievances against her husband (whose face she effectually scratched). We deem it unnecessary to relate more fully the testimony that was before the jury touching upon plaintiff's mental state. Her family doctor examined her as did another doctor in his absence. Each of these doctors found the problem not to be a medical one, but one for a psychiatrist. The defendant Rankin, a psychiatrist, was called in by plaintiff's husband and the relation of the facts that he received from the two doctors just referred to and that given him by plaintiff's husband, plus his own observations, both before and on the evening when she was conveyed to the hospital, could have caused him, as an experienced doctor in mental diseases, to have come honestly to the conclusion that she needed the hospitalization and treatment that was given her. The evidence was plainly sufficient to support the conclusion that she was sent to the hospital without her consent and against her will, but with her husband's knowledge and consent.

Reverting back to the issues, it is to be noted that neither by the pleadings nor among the issues stipulated to be, and ordered tried by the pre-trial order was a question raised as to the good faith of the husband in calling in the defendant doctor and consenting to his removal of the plaintiff to the hospital. The husband's part in the proceedings was properly before the jury on the issue of the good faith and probable cause for the doctor's action. The doctor's good faith might be doubted if the evidence revealed that he must have suspected, or known, that the husband was acting from ulterior motives or in bad faith. But the jury might well have found that the defendant doctor acted in good faith even though the husband had not, and the advantage to the doctor of having acted in good faith is not to be taken from him by a finding that the husband did not. This is but to say, in another way, that which has been said: in this case, to which the husband is not a party, his good faith was not in issue.

But the instructions made it a pivotal issue. Note these:

‘The defendants have the following burden of proof. * * *

‘That on July 31, 1956 plaintiff was mentally ill to such an extent so as to be incompetent. That is, unable unassisted to properly manage and take care of herself and to make a valid decision for herself so as to be likely to cause injury to herself or others and require care and treatment for such purposes and for such purpose restrained that her husband with whom she was living for her and on her behalf for her benefit in good faith consented and agreed to the care, treatment and for such purpose the restraint as was done herein. * * *

‘Keep in mind, if you will, please, I instruct you that the burden of proof on the part of the plaintiff is to prove no consent on her part insofar as her cause of action is concerned, but as the defendants seek to justify what we call the defenses, they have the burden of proving rightful consent under the circumstances which I shall detail to you on the part of the husband or the emergency. * * *

‘Insofar as involved herein, a physician has no legal right to care for, treat and restrain a person without her consent, expressed or implied, excepting only, however, as I shall instruct you in these instructions. * * *

‘The only, ladies and gentlemen, instruction you go upon, as I told you before, was under the circumstance of consent of the husband. He would have the right of consent, and the emergency. * * *

‘If you shall find that on July 31, 1956 plaintiff was mentally ill and to such an extent so as to be incompetent, that is, unable unassisted to manage and take care of herself, and to make a competent decision and as to be likely to cause injury to herself or others and to require care, treatment and for such purpose restraint, and that she was married to and living with her husband, Mr. Maben, then I instruct you that Mr. Maben was under a legal duty to procure in good faith and provide medical care for her and had the legal right to in good faith procure Dr. Rankin to care for her and to consent and agree to the care, treatment and for such purpose the restraint of the plaintiff, Mrs. Maben, if he did so consent therefor. If you shall find from a preponderance of the evidence that Mrs. Maben was mentally ill to the extent hereinbefore set forth so as to be incompetent and that Mr. Maben did in good faith procure Dr. Rankin to care, treat and for such purpose restrain her and that Mr. Maben did consent to and agree to the care, treatment and for such purpose the restraint of Mrs. Maben as was done herein, and that the care, treatment and restraint as done by Dr. Rankin was done by him in good faith by reason of Mrs. Maben's mental illness for her benefit, if you should so find then your verdict shall be for the defendant. The burden of proof is upon Dr. Rankin to so prove.’

It affirmatively appears that in part these instructions and all the instructions commencing ‘If you shall find’ were given on the court's own motion and the record does not support the contention that any of them were invited by the defendants. We are aware that instructions must be read as a whole, and we have not quoted all that were given. We add, however, that no instruction was given that would cure the impression that must have been made upon the jurors, unless they were too confused to understand what they were being told, to the effect that the husband's consent was no protection to the defendants unless the husband acted in good faith, and that the burden was on the defendants to prove that the husband acted in good faith. We hold that no such burden was on the defendants.

The judgment is reversed.

BISHOP, Justice pro tem.

SHINN, P. J., and VALLEE, J., concur.