This case was here on appeal from a judgment sustaining 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 was remanded for further proceedings. The defendant answered in the lower court and the case went to trial which resulted in a judgment in favor of plaintiff, from which the defendant has appealed.
The assignments of error involve the action of the court in the following respects: (1) The ruling of the court in denying motion for an order declaring a mistrial; (2) the action of plaintiff's attorney in asking a witness on cross-examination concerning the practice in regard to carrying insurance; (3) ruling of the court in sustaining demurrer to the third and fourth affirmative defenses and rejecting evidence in support thereof; (4) as to the alleged unconstitutionality of the law authorizing county hospitals to accept pay patients in such hospitals; and (5) the sufficiency of the evidence to sustain the verdict.
I agree with the majority opinion that it was not error for the trial court to withdraw the testimony of Dr. Morgan from the consideration of the jury.
It seems to be the general holding of the courts, that it is error to deprive a party of the right to cross-examine an adverse witness. (State v. McNinch, 12 S.C. 89; State v.Bigham, 133 S.C. 491, 131 S.E. 603, 608; Galindez v. UnitedStates, 19 Fed. (2d) 352, 353; Resurrection Gold Min. Co. v.Fortune Gold Min. Co., 129 Fed. 668, 674; Sperry v. Estate ofMoore, 42 Mich. 353, 4 N.W. 13.)
It is also held that, where a party has been deprived of the right to cross-examine an adverse witness, without any fault of his, the testimony given in chief should be stricken and the jury should be admonished not to consider it. (Chicago, *Page 109 M. St. P. Ry. Co. v. Newsome, 174 Fed. 394; Templeton v.Charleston W. C. Ry. Co., 117 S.C. 44, 108 S.E. 363; JamesStewart Co. v. Newby, 266 Fed. 287; Sperry v. Estate ofMoore, supra; Curtice v. West, 50 Hun, 47, 2 N. Y. Supp. 507, 509.)
In some cases it has been held that, if the cross-examination was prevented by the death of the witness (and without fault of the adverse party), the cross-examination in such case was rendered impossible by act of God and the testimony should not be stricken but should be allowed to go to the jury. (St.Charles Sav. Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Sturmv. Atlantic Mut. Ins. Co., 63 N.Y. 77, 87; Curtice v. West,supra.) The great weight of authority, and the better reasoning, is that in such case the testimony given in chief should be stricken and withdrawn from the jury. (Wray v. State,154 Ala. 36, 45 So. 697, 129 Am. St. 18, 16 Ann. Cas. 362, 15 L.R.A., N.S., 493, 496, 497, notes; State v. Bigham, supra;State v. McNinch, supra.) Examination of the foregoing citations will disclose that some of the cases have rested the ruling on particular constitutional provisions guaranteeing an accused person the right to cross-examine all witnesses produced against him, or upon the guarantee that he shall have a right to be confronted by the witnesses against him. (SeeState v. Bigham, supra.)
There is a line of authority, to the effect that, "If it appears that the impression made by the evidence on the jury is so strong or of such a character that it probably remains, notwithstanding the direction of the court," a mistrial should be granted. (James Stewart Co. v. Newby, supra; Oates v.United States, 233 Fed. 201, 204; Foster v. Shepherd, 258 Ill. 164,101 N.E. 411, Ann. Cas. 1914B, 572, 45 L.R.A., N.S., 167, 175; Chicago, M. St. P. Ry. Co. v. Newsome, supra;Templeton v. Charleston W. C. Ry. Co., supra; Throckmorton v.Holt, 180 U.S. 552, 21 Sup. Ct. 474, 45 L. ed. 663, 671; 48 L.R.A. 432, notes.)
In view of the fact that the majority of the court are affirming the judgment herein, I refrain from expressing any opinion as to whether or not it was error on the part of the trial court to refuse to declare a mistrial on account of the *Page 110 occurrence in the matter of the introduction of Dr. Morgan's testimony in chief and his death prior to his cross-examination.
I also agree that there was no reversible error committed by counsel in asking the question of Miss Rasmussen concerning the carrying of insurance, since the court sustained objection thereto.
Respondent contended in the trial court, and appears to take the same position here, that, in order for the county to avoid liability, the burden rested upon it to show that the plaintiff was an indigent patient. I cannot agree to this theory of the case. The burden was on the plaintiff to make out her case and in order to do so it was necessary for her to show that she was a patient in this hospital; and that she was received by consent or under the regulations of the board and the terms of the statute as a pay patient. (Sec. 30-3303, I. C. A.) Plaintiff was prosecuting her action against a political subdivision of the state engaged in the discharge of governmental duties. Under the statute, and in accordance with our previous decisions in this case, she could recover only on the theory that she was a pay patient and that, as to the treatment of her while such patient, the county was occupied in "the performance of proprietary or business engagements." The duty, therefore, devolved upon plaintiff to bring herself within the class of persons to whom the county owed the duty of exercising such care and diligence, as a private institution would be required to observe, in the treatment of such a patient. In other words, if plaintiff entered the hospital and received care and treatment as a county charge or non-pay patient, she cannot, after receiving an injury, change her status to that of a pay patient and recover on that theory, even though, in truth and fact, she was not "an indigent sick or otherwise dependent poor" patient.
As to whether the hospital was operated at a profit or loss, was immaterial in this case. It was rather an issue as to whether the respondent was admitted and treated as a pay patient; and whether it was at a profit or loss to the county, was outside the issue. *Page 111
When this case was here before, it stood on demurrer to the complaint, for which purpose we had to consider all the material allegations thereof as if admitted to be true. That complaint alleged:
"III "That after the erection and acquiring of said hospital, hospital grounds and equipment therefor, the Board of County Commissioners of Twin Falls County, Idaho, and particularly at the times hereinafter alleged, the then Board of County Commissioners of Twin Falls County, Idaho, in accordance with Section 30-3303, I. C. A., 1932, undertook to cause said Twin Falls County General Hospital to suitably provide for and accept patients other than the indigent sick or otherwise dependent poor of said county and to charge and accept payment from such of its patients as are able to make payments for services rendered and care given therein, and undertook to make suitable rules and regulations for its management and operation.
"IV "That on or about the 14th day of April, 1933, plaintiff entered said Twin Falls County General Hospital for the purpose of receiving surgical attention therein, to-wit: an operation for appendicitis; that she entered said hospital as a pay patient and in reliance upon the duty of the County Commissioners of Twin Falls County, Idaho, to suitably provide for and accept plaintiff as a patient in said hospital and to charge and accept payment from her for the services rendered and care given or to be rendered and to be given to her by said hospital."
Upon these allegations, accepted as true, in considering the demurrer thereto, we held, that the county would be liable for negligence in the care and treatment of plaintiff. The decision on that appeal is the law of the case, in so far as it deals with any question presented by this appeal. (Hall v. Blackman,9 Idaho 555, 75 P. 608; Mathers v. Mathers, 42 Idaho 821,248 P. 468; Vinyard v. North Side Canal Co., 47 Idaho 272,274 P. 1069; Crockett v. Jones, 47 Idaho 497, 277 P. 550;Village of Heyburn v. Security S. T. Co., 55 Idaho 732,49 P.2d 258.) When the case went back *Page 112 for trial, however, and after defendant answered, it became incumbent on plaintiff to prove the allegations which were denied by the answer. The defendant was also entitled, under its answer, to introduce evidence to contradict plaintiff's allegations and proofs and establish the truth of its denials.
Plaintiff introduced her proofs and at the conclusion of her case defendant offered in evidence certified copies of the minutes of the proceedings of the board of county commissioners, as exhibits 2, 3 and 4. These proposed exhibits were certified copies of the minute entries of the board (a) authorizing and directing a representative of the local physicians and the architect to go to Pocatello and inspect the county hospital and secure data as to the construction, plans, etc., maintenance and operation as would be beneficial for a hospital in Twin Falls county; (b) minutes of the board declaring a necessity for erection and maintenance of a county hospital and authorizing the preparation of plans and specifications and advertisement for bids for the construction of a county hospital; and (c) copy of minutes awarding contract for the construction of the hospital.
Objection was made to the introduction of these proposed exhibits on the grounds that they were incompetent and immaterial and would constitute no defense to the plaintiff's cause of action. In the course of argument which ensued, Judge Bothwell of counsel for appellant stated:
"We are offering these exhibits for the purpose of laying the foundation to offer proof to show that this hospital is not operated for profit. There is an issue in this case — it is directly alleged the hospital is operated for profit, and that is denied. We also allege we exercised reasonable care in the selection of our employees. That raises the question whether or not the hospital is operated as a charitable institution, and in connection with our denial that it is operated for profit — those two raise the question. This evidence is offered now for the purpose of laying the foundation of the defendant's case upon that issue."
He and his associate counsel thereafter made extensive offers of proof, to the effect that the hospital was maintained *Page 113 and operated solely as a charitable institution and was not run for profit, and had never realized any profit from its patients. Among other things, he offered to prove a set of rules adopted by the board in reference to the admission of patients as set forth in the opinion of Justice Morgan. He also offered to prove by two physicians that the nurses employed and on duty were skilled, competent and qualified registered nurses and that the county had used due diligence in employing its nurses and attendants at the hospital. To the latter offers, counsel for plaintiff made the following objection:
"The plaintiff objects to the defendant's offer of proof upon the ground that the same is incompetent, irrelevant and immaterial, and does not state any facts established by the evidence tending to prove or disprove any issue joined by the pleadings herein or constituting any defense of the plaintiff's cause of action."
and thereupon the following proceedings occurred:
"THE COURT: 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: 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.
"THE COURT: Yes."
In course of the subsequent discussion between counsel and the court, the following occurred:
"JUDGE BOTHWELL: 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. *Page 114
"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. What about your demurrers Mr. Marshall Chapman, just what were they?
"Mr. MARSHALL CHAPMAN: The demurrers were interwoven with the offers except the one issue as to which Judge Bothwell has advised the Court.
"THE COURT: At this time they can be overruled.
"Mr. ORR CHAPMAN: The effect of overruling the offer sustains the demurrer.
"THE COURT: Let the record stand that way."
It will be observed from the foregoing that somewhere in the course of these arguments and discussions there originated the idea that a demurrer was either pending or being made to defendant's third and fourth separate defenses, and, as disclosed by the foregoing quotation from the record, these real or imaginary demurrers (none appear in the record) were sustained. Defendant's fourth affirmative defense, to which demurrer was sustained, 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."
It was then too late for plaintiff to demur to the separate defenses except on the ground of failure to state a cause of defense. (Sees. 5-611 and 5-618, I. C. A.) However, the question as to the timeliness of the demurrer is not discussed on this appeal, but the sustaining of the demurrer isassigned as error, on the ground that defendant's fourth affirmative defense as above set out was proper and stated sufficient facts to constitute a defense to plaintiff's case.The demurrer to this defense should have been overruled.
As I have observed, it would have been a complete defense to plaintiff's action had defendant successfully shown *Page 115 the truth of its allegation "that plaintiff . . . . was at all of said times an indigent patient in said hospital." The rules established by the board, governing admission of patients to the hospital, were admissible if actual or constructive knowledge of them was brought home to the plaintiff. They might throw light on the circumstances and conditions under which plaintiff was admitted to the hospital. I think, however, the court correctly excluded defendant's proposed exhibits 2, 3 and 4, as they were wholly immaterial in this case.
It has been suggested that the error committed in sustaining demurrer and also the objection to the proffered evidence was either invited or waived by counsel for defendant, when he stated, "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." That statement, however, was made prior to the court's sustaining the demurrers, and, under the circumstances disclosed by the record, I am not prepared to say that defendant was not prejudiced by the action of the court in this respect. Furthermore, it should be remembered that each party was at the time proceeding with the trial on theories partially right and partially wrong; plaintiff contending that "the care of the indigent sick and otherwise dependent poor is a governmental function, and in the performance of this function, the county is not liable for the negligence of its agents. Before, however, Twin Falls County can invoke this rule, it must prove that within the statutory provisions of this state the plaintiff herein is an indigent and otherwise dependent poor person."
As we shall see later, this is not the correct theory on which plaintiff could recover, but she must rather recover on the affirmative theory, that she was a pay patient. On the other hand, defendant seems to have proceeded on the theory that the hospital was erected, maintained and operated as a charitable institution for the care and maintenance of "indigent sick or otherwise dependent poor" and that at no time did it realize any profit from the operation of the same. As heretofore observed, this theory is equally incorrect because it leaves out of the question the decisive fact as to whether or not plaintiff was a pay patient, the question of realizing a profit from the operation being immaterial. *Page 116
The fact that the statutes may not have been followed in adjudging a patient "indigent" or "dependent," or that an error or mistake may have been made in admitting one as a non-pay patient (if such be the case) would not of itself render the county liable to such patient for negligence in the treatment rendered, or stamp the transaction as a "proprietary or business" transaction under this statute. The test is not whether the patient actually comes within the class designated by the statute as "indigent sick or otherwise dependent poor," but rather was the patient one of the "other patients" whom the county may "accept" and from whom it "may charge and accept . . . payments for services rendered and care given." (Sec. 30-3303, supra.) Clearly the commissioners have power and authority to make and promulgate reasonable rules and regulations governing the admission and classification of patients; provided, always, that such rules and regulations do not conflict with the statutes.
It is true that plaintiff introduced evidence showing that payments were made by her father to apply on her treatment and care, but that does not answer the assignment of error that demurrer was sustained to defendant's answer on this issue and in legal effect excluded evidence on behalf of defendant on that issue.
The judgment should be reversed and a new trial should be ordered.