This action has been before us heretofore on appeal from a judgment of dismissal following the sustaining of a demurrer to the complaint (Henderson v. Twin Falls County, 56 Idaho 124,50 P.2d 597, 101 A.L.R. 1151). The judgment was reversed and the cause remanded for further proceedings. Answer was filed and a trial resulted in a judgment for plaintiff, from which defendant has appealed.
The record shows respondent was a patient in appellant's hospital, where she had undergone an operation for appendicitis; that her father paid the superintendent of the hospital for her hospitalization therein; that shortly after the operation, her surgeon directed her special nurse (not an employee of appellant) to give her a hypodermic injection of normal saline solution; that the special nurse applied for the saline solution to a nurse employed by appellant and in charge of solutions used in its hospital; that in response to this application appellant's employee furnished the special nurse, not saline solution which had been applied for, but boric acid solution, which she, the special nurse, injected into respondent's *Page 100 thighs, causing her very serious injury. This action is for damages resulting from negligence of appellant's employee, the nurse who furnished the boric acid solution in response to the request for normal saline solution.
A physician who treated respondent after her injury was called as a witness in her behalf and testified, on direct examination, as to the nature, character and probable lasting effect on her health of the injection of the boric acid solution. He exhibited to the jury the scars on respondent's limbs caused by the injection of the acid and explained the effect thereof. His direct examination was concluded late in the afternoon and the court was adjourned until the next morning. During the night the witness died.
Appellant moved the court to declare a mistrial on the ground that it had, without fault on its part, been deprived of its right to cross-examine the witness. The motion was denied, whereupon appellant moved that all the testimony of the witness be stricken. The motion to strike the testimony was granted and the judge very carefully instructed the jury not to consider it. Appellant insists the testimony of the doctor was of such a nature that its rights could not be protected by striking his testimony and by the instruction that it be disregarded.
Although it has not been universally followed, the correct rule seems to be that when, as in this case, the cross-examination of a witness has become impossible, by no fault of either party, the litigant against whom such witness is produced is entitled to have his testimony, given on direct examination, stricken. (Curtice v. West, 50 Hun, 47, 2 N. Y. Supp. 507; Wray v. State, 154 Ala. 36, 45 So. 697, 129 Am. St. 18, 16 Ann. Cas. 362, 15 L.R.A., N.S., 493, and note.)
In such a case it is a general rule that whether a mistrial should be declared is within the sound discretion of the trial judge and his action, declaring a mistrial or refusing to do so, will not be reversed unless an abuse of judicial discretion clearly appears. (5 C. J. S. 499, sec. 1603, and note 64 on page 500.) In Aderhold v. Stewart, 172 Okl. 72,46 P.2d 340, the Supreme Court of Oklahoma said on page 345: *Page 101
"Under such circumstances, the trial judge, who is in a position to observe this conduct of the plaintiff, as well as the attitude of the jury and to estimate what amount, if any, prejudice is created by such conduct, is in a better position than the appellate court to estimate and appraise the effect of such a happening, and where the trial court exercises a sound discretion in passing on a question of mistrial, his findings will not be disturbed in the absence of any evidence of abuse of this discretion."
See, also, Prinkey v. Dunbar Tp., 105 Pa. Super. 326,161 A. 640; Sallee v. St. Louis-San Francisco Ry. Co.,321 Mo. 798, 12 S.W. (2d) 476.
It was the duty of the judge who presided at the trial to, and there is no doubt he did, listen carefully to the direct examination of the doctor, and to observe the attention given his testimony by the jurors, and its apparent effect on their minds. After the doctor died, and when the question was presented as to the effect of his direct examination on the jury, the trial judge knew, as well as anyone could know, whether or not appellant's rights would be protected by striking the testimony, and by admonishing the jury to disregard it. All we know about it is what we can learn by reading a typewritten transcript of the proceedings. We did not see the witness when he testified, nor the jury, nor did we have an opportunity to observe the effect on the jurors of the testimony, nor of the judge's order that it be stricken, nor of his instruction that it be disregarded. There is not a suggestion in the record of abuse by Judge Barclay of the judicial discretion which he was required to exercise in deciding whether to declare a mistrial. We have no reason to do otherwise than to place our stamp of approval on his action in striking the direct examination of the doctor and directing the jurors to disregard it and in refusing to enter an order declaring a mistrial.
The superintendent of the Pocatello General Hospital, and of its nurses, was called as a witness by appellant and testified relative to the practice pursued, in accredited hospitals, of labeling bottles in which solutions and medicines are kept. She was cross-examined with respect to that *Page 102 matter, after which the court recessed. On reconvening, counsel for respondent asked that the witness be recalled for one further question. The question was as to whether the Pocatello General Hospital carried liability insurance. It was objected to and the objection was sustained. In the discussion as to the admissibility of the evidence, counsel for respondent stated:
"For the purpose of the record we desire to state the purpose of this question was not to show or to intimate that the Twin Falls general county hospital carries insurance of any kind. We admit for the purpose of the record that it does not."
The question called for evidence which was immaterial, but we are unable to see that the propounding of it resulted to appellant's disadvantage.
In its answer, as a third affirmative defense, appellant alleged:
"That defendant, acting by and through its board of county commissioners, exercised ordinary care and diligence in the employment of its employee then in charge of the dispensary of solutions and medicines in said hospital by then and there exercising reasonable effort and due care to secure the services of a person in that capacity who possessed and would exercise reasonable care, skill and diligence in performing the work and labor required in the premises, and that defendant thereby discharged its full measure of duty to the plaintiff."
As a fourth affirmative defense, it alleged:
"That in the maintenance, management and operation of said hospital the defendant, acting by and through its board of county commissioners, undertook to and did make suitable rules and regulations whereby provision was made for the acceptance, care, treatment and maintenance of indigent patients without first making application to the Probate Court of Twin Falls County; that plaintiff was one of the class admitted pursuant to said rules and regulations for the care and maintenance of indigent patients and was at all of said times an indigent patient in said hospital;" *Page 103
Appellant has assigned as error the action of the trial judge sustaining a demurrer to its third and fourth affirmative defenses; also his refusal to give certain requested instructions relating to liability of a charitable institution for negligence, and the giving of an instruction to the effect that appellant, in serving afflicted persons, able to pay for services rendered by its hospital, was engaged in a private and proprietary business and that, in supplying hospital care to those able to pay for such services, it was liable to such persons for the negligence of its employees. Appellant also assigns as error the action of the judge in denying its motion for a directed verdict, and asserts in support of said assignment that I. C. A., secs. 30-3301 and 30-3302, so far as they permit county hospitals to be operated for pay and profit, and to incur the liabilities of hospitals of that character, are unconstitutional.
Nearly all these assignments relate to matters fully considered and decided in the former opinion, and opinion on rehearing (Henderson v. Twin Falls County, 56 Idaho 124,50 P.2d 597, 101 A.L.R. 1151.) What is said there is the law of the case. (Hall v. Blackman, 9 Idaho 555, 75 P. 608; Mathersv. Mathers, 42 Idaho 821, 248 P. 468; Phy v. Edgerton, 44 Idaho 530,258 P. 545; Vinyard v. North Side Canal Co., Ltd.,47 Idaho 272, 274 P. 1069; Crockett v. Jones, 47 Idaho 497,277 P. 550; Garvin v. First Nat. Bank, 50 Idaho 491,298 P. 359.) We are bound by it and do not believe any good purpose will be accomplished by attempting to restate it or elaborate it.
Appellant offered in evidence certified copies of the minutes of its board of county commissioners. These exhibits tended to show steps taken by the board leading to the building of the hospital. They were objected to on the ground that they tended to establish no fact which was not admitted by the pleadings. In the course of argument on the objection, counsel for appellant stated the exhibits were offered for the purpose of laying a foundation for proof that the hospital was not operated for profit and that appellant exercised reasonable care in the selection of its employees. Thereupon counsel for respondent further objected to the introduction of the *Page 104 exhibits on the ground that appellant's third and fourth affirmative defenses did not allege facts sufficient to constitute a defense to respondent's cause of action. The lastmentioned objection was thereafter referred to by the trial judge and counsel as a demurrer. An examination of the record fails to disclose any demurrer to these affirmative defenses and we will treat the assignments of error as being directed to the ruling on said objection to the introduction of evidence.
The exhibits offered did not tend to establish any fact in dispute. That appellant built and operated the hospital is alleged in the complaint and admitted in the answer. The steps taken by the board of county commissioners leading to its construction had no bearing on any issue joined. The ruling excluding the exhibits from evidence was correct. Treating the objection as a demurrer, as the trial judge and counsel did, and the ruling excluding the exhibits as an order sustaining the demurrer, it was correct as to the third affirmative defense, which set forth no fact which would be material, in the light of our former decision.
The fourth affirmative defense contains an allegation which, if true, would defeat respondent's cause of action and, had appellant been deprived of the right to prove that allegation, a reversal of the judgment would result. That allegation is, "that plaintiff was one of the class admitted pursuant to said rules and regulations for the care and maintenance of indigent patients and was at all of said times an indigent patient in said hospital."
Appellant offered to prove that the hospital was not operated for profit and that it had never realized a profit from its patients. It also offered to prove the board of county commissioners had adopted rules governing the admission of patients to the hospital, as follows:
"(No. 1.) Indigent patients known as county cases. That the books of the hospital are credited with the charge against the indigent patients at the same rate that is charged for pay patients.
"(No. 2.) The second class of patients are known as emergency patients and consist of patients admitted upon *Page 105 the recommendation of a doctor for emergency operations or following an accident. That the question of whether or not the patient shall be classified as indigent patient or as pay patient is thereafter determined.
"(No. 3.) That the third class of patients are those that are required to make a deposit before being admitted to the hospital, usually representing about the estimated charges for one week and who are allowed to stay in the hospital until recommended for discharge by their physician, and who do not pay any further amounts on their charges or who do not pay their hospital bills in full. That the unpaid charges against these patients are carried on the books of the hospital and payments received from them from time to time as former patients who are able to pay, and a portion thereof are each year charged off the books of the hospital as it appears that the patients are unable to pay the remainder thereof.
"(No. 4.) That the fourth class of patients are known as pay patients who pay in full the rates fixed, rates charged by the hospital."
Appellant also offered to prove by two physicians, Dr. Coughlin and Dr. Weaver, that the nurses employed and on duty at the time the boric acid solution, instead of normal saline solution, was furnished were skilled, competent and qualified registered nurses, and appellant had used due diligence in employing its nurses and attendants at the hospital. These tenders of proof were objected to and, during the argument of the objection, the judge stated:
"I am not sure about the witnesses Dr. Coughlin and Dr. Weaver. The defendants have not admitted receiving any money from the plaintiff and if they should attempt to gainsay or deny that, then that evidence would have to go to the jury. I am not ready to rule on that phase of the tender yet."
Mr. ORR CHAPMAN (of counsel for respondent): "If I understand your Honor's ruling if the plaintiff is a pay patient then there is this liability which the supreme court has defined. If she is not a pay patient she must be an indigent patient." *Page 106
THE COURT: "Yes."
Mr. ORR CHAPMAN: "Now our objection goes — we object to this offer that the fourth affirmative defense and the offer which relates to it is insufficient to constitute any defense and the evidence offered would be incompetent, irrelevant and immaterial, because it would not constitute a defense in that it does not show or attempt to show that this plaintiff was an indigent within the statutes of this state and the only way they could invoke or perform a governmental function with relation to her."
THE COURT: "My thought is if they took her money then they would be a private institution. Now the question of whether they took pay or not has not been admitted, in fact it is denied."
Mr. ORR CHAPMAN: "That is an issue of fact."
THE COURT: "That is why I hesitate to say they cannot use those two doctors for that purpose; if they deny it it is an issue of fact; if they offer no proof it will stand proved."
JUDGE BOTHWELL (of counsel for appellant): "If your Honor wishes in order to keep the record so it won't perhaps become confusing, if your Honor desires and wishes to overrule the offer on the theory that there will be no proof on the part of the defendant contrary to the proof already gone in so far as pay is concerned you may do so and then if we should offer proof — our present notion here is we will not offer any proof on that question — if we should your Honor can reserve or change your ruling."
THE COURT: "Yes I would change the ruling if the offer is made. Let the record stand that way. The offer is rejected with that understanding. . . . ."
From the foregoing it appears appellant's right, to offer evidence in support of its allegation that respondent was an indigent patient in its hospital, was protected. It offered no such evidence and was in no way prejudiced by the ruling on what is referred to in the record as the demurrer to its third and fourth affirmative defenses.
Appellant assigns as error that the evidence is insufficient to support the verdict and judgment in the following particulars: *Page 107
"a. That there is a total failure of evidence that the hospital operated by appellant was conducted and operated for pay and profit.
"b. That the evidence is insufficient to show that respondent was a pay patient in appellant's hospital."
That respondent was admitted to appellant's hospital as a pay patient is established by the uncontradicted testimony of her father and her brother; that the former paid $40 to appellant for her care therein, by delivering that sum of money to Mr. Patrick, its superintendent. The record also shows the money was paid back by appellant after respondent suffered her injury, due to the negligence of its employee. On that point respondent's brother testified:
"A. Mr. Patrick called me into his office and said 'Mr. Henderson, there has been a grave mistake made here.' He said 'It wasn't my fault.' And he said 'However apologizing doesn't make it right, it doesn't make the patient well again or bring her health back to her.' He said 'We want you to know we want to do what is right about it.' He said 'Now we are going to refund all of the money you have paid us or that your father has paid us.' He said 'We will also take care of all the hospital expenses including special nurses, and she shall have special nurses as long as she needs them, and a private room and we will also take care of the doctors expense; in other words all expense.' "
Neither the testimony as to the payment to the hospital, for respondent's care, nor as to repayment by it of the amount it had received, nor as to the statements of its superintendent, is contradicted although, as above pointed out, the right of appellant to introduce evidence as to respondent's status in its hospital was expressly reserved to it by the trial judge.
The jury found, from ample evidence, respondent suffered grave injuries, which were caused by the negligence of appellant's agent, while she was a pay patient in its hospital.
The judgment is affirmed. Costs are awarded to respondent.
Holden, C.J., concurs. *Page 108