I dissent.
That the evidence supports the verdict, I have grave doubts. If the evidence were overwhelming, or even substantial, the danger of a miscarriage of justice as a result of the error *422complained of by appellants, would have been removed, or at least reduced to a minimum. In the light of the evidence, however, the form of the question complained of and the evidence elicited thereby, become vital. Practically all of the evidence upon which the judgment depends was given in response to the alleged improper question, and the mere asking of the question in the proper form, on one or two occasions, does not appeal to me as a remedy sufficiently effective to counteract the damage, and thus eliminate the prejudice. The question in its improper form, complained of by appellants, called for the determination by plaintiff’s experts of the vital questions presented for the jury’s sole determination. Although competent experts testified for the defense, no invasion of the jury’s prerogatives was attempted by them, and thus the defendants were left to contend, at an embarrassing disadvantage, with plaintiff’s evidence on the subject.
The prevailing opinion concedes that appellants’ position is technically correct, but asserts that no prejudice resulted from the error. I am unable to bring myself to this conclusion. The evidence in response to the alleged improper questions, and by far most of the evidence upon which plaintiff relied was in response to such questions, was incompetent, and I seriously question whether there was any valid evidence at all to support the verdict. .
It is contended by appellants and conceded by respondent that there was no evidence of negligence on the part of defendants in admitting plaintiff’s wife to the hospital, and, as pointed out in the prevailing opinion, if the several acts of negligence had been separately pleaded in separate causes of action, a motion for nonsuit or directed verdict as to this issue would have had to be granted.
The trial court declined to withdraw such issue from the jury, which the prevailing opinion concedes was error, but concludes was harmless. My associates evidently do not regard this error as the possible source of serious consequences— a conclusion which under ordinary circumstances would be warranted. But, in the light of the character of the evidence received, who can say that the jury was not influenced in arriving at its verdict by a consideration of an issue tendered by the pleadings and upon which there was admittedly no proof! Particularly is this true when, by the instructions, the liability of the hospital, under the circumstances, was un*423limited. In other words, the jury was left to consider the question, upon which there was no evidence, in the light of the doctrine that the mere admission of a patient into a hospital would constitute negligence. With such a broad doctrine in mind as a measure of responsibility with respect to that particular charge of negligence, the jury very easily and erroneously could have reasoned on the same basis with respect to the other charges of negligence.
It is to be expected that infectious and contagious diseases are likely to appear in all hospitals, and it is a matter of common knowledge that isolation wards are established for patients afflicted with such diseases. When, under such circumstances, modern, improved and accepted methods are employed to reduce the hazard of contagion to a minimum, it would be a harsh doctrine, indeed, that would nevertheless charge a hospital with responsibility to a patient, who, in spite of such scientific safeguards, might happen to develop a contagious disease.
The issue of the hospital’s responsibility for negligently admitting a patient was submitted to the jury, not only in the absence of evidence on the subject, but also without adequate, or any, instructions on the limit of its liability.
The prevailing opinion does not treat of the above question because, as is quoted therein, respondent admits that “a hospital is not a guarantor against infection. Negligence must be proved beyond a mere possibility.” The subject of guaranty is beside the issue, and respondent’s admission on appeal affords appellants slight comfort as a remedy for the error of which they complain.
A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 22, 1936.