The material allegations of appellants' complaint are that the appellants are the surviving husband and all of the heirs-at-law of Ruth T. Hall, deceased. That Bannock County is the owner and operator of the Bannock Memorial Hospital and the other respondents are employees of the hospital. That decedent Ruth T. Hall entered the hospital on July 9, 1956 and on July 10, 1956 underwent major surgery at the hands of Dr. O. F. Call. That following the surgery said decedent remained in the recovery room for a short time following which she was, by the respondents Parisot and Larson, transferred to her hospital room. Decedent was about fifty-eight years of age and weighed in excess of 200 pounds. That during the transfer of decedent from the transfer cot to her bed the respondent nurses carelessly and negligently raised her up and let her fall on the bed or cot in such manner as to cause injury to the said Ruth T. Hall as a result of which she died approximately twenty-four hours later. That the negligence of the respondent hospital consisted of failing to supply and furnish sufficient help and assistance to properly and safely transfer the decedent from the recovery room to her hospital bed and the negligence of the respondent nurses consisted in permitting the decedent to fall during the transfer. Respondents' answer denies all of the allegations of negligence and damage. The case was tried to a jury and judgment entered upon a verdict in
Respondents urge that appellants are not entitled to be heard upon their attempted appeal from the judgment entered for the reason that their notice of appeal was not filed within the time provided by law. The judgment herein was entered June 19, 1957. The motion for a new trial was filed June 27, 1957. Notice of appeal and appeal bond were filed December 11, 1957. Sec. 13-201 I.C. was amended by chapter 105 of the Idaho Session Laws of 1957, which amendment became effective September 2, 1957. The amended statute provides in part as follows:
Said amending chapter 105 further provides:
The filing of the motion for a new trial having stayed the running of the time for appeal from the judgment and the order denying the motion for a new trial having been entered after the effective date of the amendment, the appeal time was governed by the said act amending Sec. 13-201 I.C. under which an appeal from both the judgment and the order refusing the new trial may be taken within sixty days of the entry of such order.
Therefore the appeals from the judgment and the order denying motion for new trial will be considered.
Appellants' first assignment claims error for the reason that the trial court sustained an objection to the following question addressed to Dr. O. F. Call under cross-examination:
Appellants argue that the question was asked for the purpose of showing interest and bias on the part of the witness. Immediately following the court's said ruling counsel for appellants further inquired of the witness as follows:
No further attempt was made by appellants to inquire into the interest or bias of the witness. This Court has repeatedly held that the scope or extent of cross-examination tending to show interest or bias rests largely in the sound discretion of the trial court. Curtis v. Ficken, 52 Idaho 426, 16 P.2d 977; State v. Cofer, 73 Idaho 181, 249 P.2d 197. The answer sought only remotely tended to show bias. Although it would have been proper to permit the witness to answer the question we do not consider the
Assignment No. 2 refers to a question propounded to the appellant C. H. Hall during his direct examination. Mr. Hall had testified in substance that shortly after the death of Mrs. Hall Dr. Call made a request of him. The court sustained an objection to a question propounded by attorney for appellants as to what the request was. Counsel was granted permission to make offer of proof later. The offer of proof is as follows:
Objection to the offer was sustained. Appellants argue that the offered evidence was important to their case showing "that Doctor O. F. Call asked that he be permitted to perform an autopsy to find out what the cause of death was." Obviously the offer or proof does not support appellants' said contention. The ruling was not error.
Assignment No. 3 involves a ruling of the court sustaining an objection, upon the ground of hearsay, to an offer by appellants concerning a statement made by Dr. Call to one of the appellants following his examination of decedent shortly after she had been transferred to her hospital bed. The offer was that Dr. Call then stated "that Mrs. Hall was fine and that all she needed was a little blood". This offer was made prior to any examination of or testimony given by Dr. Call and notwithstanding the fact that Dr. Call later testified at length in the case he was not interrogated concerning such statement. No proper foundation was laid for the introduction of the subject of the offer and the ruling of the court was correct.
It is contended under appellants' 4th assignment that the court erred in sustaining an objection to another question propounded to the witness Dr. O. F. Call during his cross-examination. The questions and answers leading up to and including the ruling are as follows:
Since there was no allegation or proof that rough handling of decedent's organs during surgery had contributed in any respect to decedent's death the objection was well taken and the ruling proper.
Error is claimed in refusing to give appellant's requested instruction No. 7.
Under assignment No. 8 appellants contend that the court erred in refusing their requested instruction No. 6
Under assignment No. 10 appellants complain of the refusal of the trial court to give their requested instruction No. 3 on the weight to be given the testimony of experts and the jury's right to consider or disregard it. The trial court marked this requested instruction as "covered" and an examination of the instructions given discloses that the subject matter of such requested instruction was fully and properly covered.
Appellants assign as error the trial court's refusal to grant their motion for new trial based upon a contention that two jurors gave false answers to interrogatories during their voir dire examination; also upon the contentions that the trial court erred as claimed in assignments of error 1, 5, 7, 8 and 10. Having hereinbefore considered the last mentioned assignments and finding no error we shall consider the other stated ground for a new trial. The record does not contain a stenographic report of the voir dire proceedings in the trial court. In support of the motion appellants filed two affidavits of Gus Carr Anderson, attorney for appellants, in one of which the affiant states that the following questions were asked of Mrs. Delores Anderson upon her voir dire examination:
That to each of the questions Mrs. Anderson answered in the negative. The affiant states the fact to be that Mrs. Anderson then had two sisters, one a practical nurse and one a registered nurse, and that both were then employed by Bannock County as nurses. In the other affidavit the affiant states that the following question was propounded to the juror Marinus Jensen upon his voir dire examination:
That Mr. Jensen replied that he did not know them, but was only acquainted by reason of the fact that they were county commissioners. The affiant states the fact to be that Mr. Jensen had loaned several thousand dollars to Emmette Spraker, one of the commissioners, and had taken mortgages upon the property of such commissioner. Affiant states that the answers of both jurors were given for the purpose of depriving the appellants of a fair and impartial trial. Attached to each of said affidavits is a list of questions which affiant states was propounded to the respective jurors.
In opposition to the motion are the affidavits of Wesley F. Merrill, one of the attorneys for respondents, wherein the affiant denies that the juror Mrs. Anderson was interrogated as to being related to any registered or practical nurse in Bannock County. He also states that when Mr. Jensen was questioned by appellants regarding his acquaintance and friendship with any county commissioner Mr. Jensen stated that he knew in a casual manner Emmette Spraker, that this acquaintanceship would make no difference and that it would not embarrass or prejudice him in any manner. The affiant states that Mr. Jensen was never questioned as to any business relationship with the commissioner. The affiant states that while Mr. Anderson, attorney for appellants, had prepared a list of questions he did not ask each juror each of the prepared questions.
In affidavits filed by both Mrs. Anderson and Mr. Jensen they denied that they were interrogated as claimed by appellants, that they gave no untrue answers and that they were not in any respect biased or prejudiced. The affidavit of Emmette Spraker states that he is casually acquainted with Mr. Jensen, that between July, 1949 and June, 1955 Mr. Jensen provided the funds in connection with several loans to affiant which were processed through a real estate and insurance exchange. That all of such debts were paid approximately two years prior to the trial of the case.
The affidavits filed in support of the motion do not show that respondents and their attorneys were, prior to the rendition of the verdict, ignorant of the facts constituting the claimed misconduct. As to one of the jurors (Mrs. Anderson) the supporting affidavit and counter-affidavits are entirely in direct dispute while as to the other juror (Mr. Jensen) it is admitted
In Applebaum v. Stanton, 47 Idaho 395, 276 P. 47, 49, the rule is stated as follows:
In Stearns v. Graves, 62 Idaho 312, 111 P.2d 882, 884, this Court said:
The following is an excerpt from Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430, 432:
Under the circumstances we cannot say that there has been a clear abuse of legal discretion vested in the trial court. Having reached a conclusion that no reversible error was committed the judgment is affirmed. Costs to respondents.
TAYLOR and SMITH, JJ., and MARTIN and BURTON, District Judges, concur.
PORTER, C. J., and McQUADE, J., not participating.