WOOD v. SAMARITAN INSTITUTION (1945)

Plaintiff commenced this action to recover for injuries which she received when she fell or jumped through a second floor window of the establishment conducted by defendant for the cure of chronic alcoholics. Among the answers presented by defendant it was claimed that plaintiff received her injuries in an attempt to commit suicide. This appeal is by plaintiff from a judgment entered upon a directed verdict.

Plaintiff had for many years been addicted to the excessive use of liquor and on January 5, 1943, she voluntarily entered defendant's sanitarium to submit herself to treatment. Shortly after midnight of the following day she was found lying upon the cement pavement below her second floor window with serious injuries. While she was at the sanitarium she was highly nervous and at times was delusional. She did not recognize her sister when the latter came to visit her. She thought she was in an insane asylum and at one time the nurse discovered her scrubbing the floor of her room thinking that it was her kitchen floor at home.

In her complaint plaintiff charges that defendant was negligent in failing to guard and restrain her and in failing to properly bar her window to prevent her plunging through the window to the ground below.

Defendant was under the obligation to use reasonable care in providing for and in guarding the safety of its patients, the obligation to use the care and take the precaution to prevent danger which a reasonable man would take under the circumstances shown to exist. The circumstances to be considered included the patient's mental and physical condition and that she was likely to do because of her condition; but defendant's obligation was subject to the rule that it was not required to use greater care than a reasonable person under the circumstances would use. Defendant was not required to take measures to avert injury to its patients which circumstances did not indicate to be reasonably likely to occur. Davis v. Springfield Hospital, 204 Mo.App. 626, 218 S.W. 696. Specifically, defendant was not required to restrain its patient or bar its windows unless facts were brought to its attention showing that it was reasonably probable that the patient would do injury to herself or to some other person. Duncan v. St. Luke's Hospital, 113 App.Div. 68, 98 N.Y.S. 867; Mesedahl v. St. Luke's Hospital Ass'n of Duluth, 194 Minn. 198, 259 N.W. 819; Dahlberg v. Jones, 232 Wis. 6, 285 N.W. 841; Hohmann v. Riverlawn Sanatorium, 103 N.J.L. 458, 135 A. 817; Harris v. Woman's Hospital, 27 Abb.N.C. 37, 14 N.Y.S. 881; Breeze v. St. Louis & S. F. Ry. Co., 264 Mo. 258, 174 S.W. 409; Stansfield v. Gardner, 56 Ga.App. 634, 193 S.E. 375. In Papini v. Alexander Sanitarium, Inc., 12 Cal.App.2d 249, 55 P.2d 270, the plaintiffs sought damages resulting from the death of their son, who had been killed by a razor blade wielded by a fellow patient at the defendant's hospital, one Boliva, who had been admitted as an ‘amnesia patient’. In reversing a judgment for the plaintiffs the court held that there was no evidence to show that the defendant knew that Boliva was suffering from a form of insanity known as ‘homicidal mania,’ that unless restrained he might voluntarily attack other patients, that he had attacked other persons on previous occasions or that he was a dangerous patient to be at large unrestrained. Plaintiff relies upon a number of cases in which awards were upheld for damages received by patients in jumping from windows or otherwise. Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62; Emory University v. Shadburn, 47 Ga.App. 643, 171 S.E. 192; Mulliner v. Evangelischer Diakonniessenverein, etc., 144 Minn. 392, 175 N.W. 699; Robertson v. Charles B. Towns Hospital, 178 App.Div. 285, 165 N.Y.S. 17; Tate v. McCall Hospital, 57 Ga.App. 824, 196 S.E. 906; Wetzel v. Omaha Maternity & General Hospital Ass'n, 96 Neb. 636, 148 N.W. 582, Ann.Cas.1915B, 1224. In those cases, however, facts were shown in evidence which indicated to the defendants that the patients involved were likely to inflict injury on themselves or others. No case is cited in which a judgment was affirmed upon proof that the patient was merely delusional or suffering from other mental disease, unaccompanied by acts pointing to violence. We conclude that the evidence in the instant case is insufficient to entitle plaintiff to recover a judgment.

Plaintiff argues that the doctrine of res ipsa loquitur is applicable but, regardless of the view to be taken on this point, she is not in any event in position to invoke this doctrine, for, without alleging general negligence, she alleged the specific acts of negligence upon which she relies. Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 155 P.2d 42.

Plaintiff complains that the motion and order for a directed verdict were made prematurely. All of the plaintiff's evidence being before the court, at the close of the morning session counsel for defendant presented a motion as follows: ‘I now move the court to instruct the jury to find for the defendants. It is being made in the alternative. If it is denied, I move the court to permit me to proceed with further evidence’ (stating grounds of motion). After argument the court stated: ‘Motion granted. I will instruct the jury when they return at 1:45. In view of the fact that I will instruct them, do you desire to be present or not?’ At the afternoon session the jury was directed to return a verdict for defendant. A judgment of nonsuit merely determines that plaintiff has not proven his case and it is not a bar to an action subsequently filed on the same cause of action. A directed verdict is a bar to a subsequent action presented upon the same set of facts and should not, when based upon the insufficiency of the evidence, be entered before both parties rest. Since defendant had presented its evidence and counsel had not announced that he rested, the court should have merely ordered a nonsuit and should not have directed a verdict. But plaintiff is not in position to demand a reversal of the judgment because of the action of the trial court, for no objection whatever was made to the form of the motion. Although counsel had opportunity during the noon recess to give the matter consideration, he did not see fit at the opening of the afternoon session to call the court's attention to the fact that a motion for a directed verdict was being prematurely made and made no objection whatever to the procedure being followed by the court. Appellant will not be heard to urge as grounds for reversal an error which he has waived by a failure to make the proper objection in the trial court. 2 Cal.Jur. 844, § 495, and cases there cited. The point now raised by plaintiff must be included within this rule.

Plaintiff contends that the court erred in refusing to permit an expert witness, Dr. Zumwalt, to give his opinion concerning the general custom and practice in the treatment of alcoholics in well managed institutions in the vicinity of Los Angeles, it not being shown that the witness had had experience in institutions devoted entirely to the treatment of chronic alcoholics. Although it appears that Dr. Zumwalt was in fact qualified to testify as an expert and that the questions should have been permitted, plaintiff was not prejudiced by the ruling of the court, for an examination of the record discloses that the witness ultimately was permitted to testify and give his opinion on the points covered by the rejected questions.

Plaintiff was not prejudiced by the suggestion of the trial judge, of which complaint is made, that the matters in issue should be compromised by the parties. In view of the showing made by plaintiff it is apparent that the suggestion was in her interest.

The judgment is affirmed.

I concur in the judgment but I do not concur in the statement in the majority opinion relative to the time for making a motion for a directed verdict. In my opinion such statement is contrary to the established law and procedure in California. See Bias v. Reed, 169 Cal. 33, at page 37 et seq., 145 P. 516.

W. J. WOOD, Justice.

MOORE, P. J., concurs.