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Felton v. Coyle

MAY 7, 1968.




Appeal from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding. Judgment affirmed.


Plaintiff, Ernest Felton, Sr., brought an action against the defendant Dr. Joseph Coyle for assault and false imprisonment. After a jury verdict in favor of defendant, plaintiff appeals, contending that the court erred in allowing improper remarks in the opening statement made in behalf of defendant; in failing to direct a verdict in favor of plaintiff on the issue of liability; in refusing a certain tendered plaintiff's instruction and in giving certain defendant's instructions; and finally, in its ruling on the admissibility of certain evidence. The jury also found in favor of the other two defendants, but this court dismissed the appeal as to those parties, and those judgments are not now presented for review.

On April 7, 1959, plaintiff sustained a fracture of the middle third of his right clavicle. He was taken to South Chicago Community Hospital for treatment. The defendant doctor, a staff physician, was assigned to treat plaintiff. He prescribed that plaintiff lie flat on his back and that the arm be immobilized by a sling.

There was evidence of an altercation between plaintiff and an employee of the hospital at noon on April 10. Harriet Mirsch, a nurses' aid, testified that plaintiff refused his breakfast and lunch trays, cursing her both times. Rose Sanchez, another nurses' aid, then took the noon tray to plaintiff. While the two aids were attempting to help plaintiff to a sitting position, he kicked Sanchez in the stomach. Sanchez testified that she then threw tea on the plaintiff and he threw soup at her. Joseph Hamilton, another bed patient in the room, testified that he saw the plaintiff kick the nurses' aid and throw something at her; that she then threw something at plaintiff. As to this incident, plaintiff testified that an aid threw tea and dishes at him, but he had never kicked or struck any nurses' aid.

Evidence on behalf of plaintiff regarding the evening of April 10:

Plaintiff's daughter, Nancy Felton, testified that, when she arrived to visit her father, defendant told her that he wanted the plaintiff out of the hospital in five minutes. After she relayed this message to her father, he went into the hall and talked with defendant. Defendant told both of them that plaintiff would need another doctor. While she was trying to telephone other doctors, her father started to go downstairs to leave the hospital. At this time plaintiff was wearing trousers, shirt, and only one shoe. Defendant grabbed her father by the shoulders and arms, then told him that he was going to call the police, and that plaintiff was going to a "psycho" hospital. Dr. Alice Buckley returned the daughter's telephone call and talked to her father and Dr. Coyle. The daughter accompanied her father to Fairview Sanitarium.

Plaintiff testified that his daughter told him that defendant was going to send him to a mental hospital because he had kicked a nurse. Plaintiff started to dress to leave the hospital, but defendant led him back to bed. Defendant then told him he would have to go to a psychiatric hospital, and that the only way he could leave was to get a different doctor and go to another hospital. While his daughter was trying to contact other doctors, plaintiff again tried to leave the hospital. As he reached the stairway landing, defendant overtook him and directed him forcibly back to his room. Dr. Buckley returned his daughter's telephone call and informed plaintiff that she could get him a bed at Fairview Sanitarium. Defendant called the ambulance and plaintiff was taken to the sanitarium.

Officer Doyle of the Chicago Police Department testified that he was sent to the hospital. Upon his arrival, he was directed by hospital employees to see the plaintiff patient and defendant doctor. Defendant requested that he take the plaintiff to the psychiatric unit of the Cook County Hospital but he refused because plaintiff appeared to be quite sensible and doing nothing out of the ordinary.

Evidence on behalf of defendant regarding the evening of April 10:

Defendant testified that he went to the hospital after receiving a telephone call that the plaintiff could not be controlled. When he arrived, the plaintiff was standing in the doorway of his room partially dressed. When plaintiff said he wanted to go home, defendant told him to stop misbehaving and led him back to his bed. Defendant also told the plaintiff that if he did not wish to follow instructions he should get another doctor and go to a different hospital. Although he did not impose any five-minute limitation on plaintiff, he did believe that plaintiff needed another doctor to treat him. However, he testified that he could not withdraw as doctor without seeing that the patient was under the care of another doctor. Later that evening plaintiff again started to leave the hospital. Defendant overtook the plaintiff and, after taking him by the left arm, led him back to bed, using a degree of force. After consulting with a staff psychiatrist, defendant started to fill out a form for the commitment of plaintiff to the psychiatric unit of the Cook County Hospital, but he did not complete the form and discarded it. Defendant did not call the police nor did he ask the police to take plaintiff away. Defendant called the ambulance service at the request of Dr. Buckley.

Dr. Buckley testified that she made arrangements for a bed for plaintiff at the Fairview Sanitarium after talking to plaintiff and his daughter. She made these arrangements at the request of the plaintiff. She met both plaintiff and his daughter at the sanitarium at which time the daughter executed a form for his admittance. He was released from the sanitarium the following Sunday without Dr. Buckley's knowledge or consent.

Plaintiff first urges that certain remarks made by counsel for defendant in his opening statement were so prejudicial as to require reversal of the judgment. The remarks in question were as follows:

"COUNSEL FOR DEFENDANT: I think the evidence will show numerous incidents that will help in evaluating the situation to the injury. In those subsequent that Dr. Buckley, who had attended members of his family ...

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