As to the main point involved in this case, namely, liability of a county for the negligent operation of its hospital, either to an indigent or a pay patient, when the case was first before this court, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151, I joined in the dissent of Budge, J., to the effect that no such liability exists. While I concede that the majority holding became and is the law of this case, I still adhere to my views and think the record and issues now before us in the present appeal more sharply emphasizes the soundness of my position.
Therefore I concur except as to the examination of Doctor Morgan and lack of opportunity to cross-examine him because *Page 117 of his death. I think there was no error in the trial court's withdrawing his direct examination from the consideration of the jury, but I think by the same reasoning which supports such action, the jury should have been dismissed and a new one chosen because I do not believe, because of the dramatic circumstances of the death of Doctor Morgan, the force, vigor and pertinency of his testimony, that the effect thereof, could be eradicated from the minds of the jury merely by the instruction to disregard it. Under the circumstances of this case the testimony in substance could be given by another physician (i. e., it was not of facts procurable from no other witness), hence since respondent was not entitled to have Doctor Morgan's testimony remain in the record, she could not have been prejudiced by a trial before another jury not subjected to the influence, though unwitting and even guarded against by the jury, of the stricken testimony. On the other hand there looms large a situation prejudicial to appellant; the trial should be fair as between both appellant and respondent, therefore, the cause should be reversed and remanded for a new trial.
ON PETITION FOR REHEARING. (July 2, 1938.)