APPEAL from the Circuit Court of Lake County; the Hon. JOHN L.
HUGHES, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 22, 1978.
The plaintiff in this case appeals from a directed verdict for the defendant in an action brought by plaintiff for injuries she received from burns while she was a patient in the defendant hospital. The complaint is in two counts, count I being based strictly on negligence in that the hospital negligently allowed the plaintiff, while under heavy sedation, to obtain smoking materials and use them while unsupervised, resulting in her being painfully burned. Count II is based on the theory of res ipsa loquitur in that the hospital had exclusive control of the plaintiff while under its care and was exclusively responsible for any injury that occurred to her. In its answer the defendant hospital denied it was in any way negligent and asserted that the plaintiff was not at the time of the injury complained of in the exercise of due care for her own safety.
The plaintiff, Betty Seymour, was admitted to Victory Memorial Hospital on October 16, 1972. She was quite overweight and was being treated for a painful back condition. Because of her constant pain, sedative drugs such as Demerol and Valium were prescribed and one of the side effects of such drugs is drowsiness. The plaintiff was an addictive cigarette smoker, smoking about two packs of cigarettes a day, if she could obtain them. The nurse on duty, when she learned of this, told the head nurse that she thought the plaintiff should not be allowed to smoke unless a nurse or visitor, such as her husband, was present to see that she did not fall asleep while smoking. Accordingly, her cigarettes and lighter were taken away and she was told that they would be kept at the nurses' station on her floor. The plaintiff was instructed by her nurse that when she wanted to smoke, she could call for a nurse and a cigarette would be brought to her, and the nurse would stand by while she smoked it.
The plaintiff did not protest this arrangement. However, her demands for cigarettes 15 to 20 a day put a strain on the nurses' time. Apparently they did not always have the time to bring her a cigarette when she had the craving for one and so she attempted to, and sometimes did, obtain cigarettes from other sources such as by "bumming" them from persons passing by in the hall. There was some testimony that at least on one occasion she had obtained a cigarette from the "cleaning lady" (though there was no testimony linking this incident to the fire).
In any event, on October 19, 1972, about three days after she was admitted to the hospital, and after she had been instructed as to smoking procedure by her nurse, the plaintiff attempted to light a cigarette without the nurse being present. She inadvertently dropped the match, before it was fully extinguished, and she suffered the burns complained of before the nurse could come to her aid and extinguish the flames. The source of the match and cigarettes was a matter of contention in the trial of the case.
The nurse on duty, Betty Nerroth, testified she daily checked the drawers in the stand at the plaintiff's bed and took away any cigarettes she found. Nurse Nerroth testified that on the morning of the day when the plaintiff was burned she found cigarettes in the plaintiff's drawer and took them away. The time sequence is not entirely clear from the testimony, but apparently this was around 8:30 a.m. and was somewhat before a Mrs. Fowles made her appearance at the plaintiff's room. Mrs. Fowles was a volunteer worker in the hospital who brought a cart to all of the five hospital floors every day and stopped at every room to see if the patients wanted anything from the cart, which contained toilet articles, snacks, candy and cigarettes. Mrs. Fowles testified at the trial that she sold cigarettes the morning of the fire to one of the patients on the fifth floor who, she was told later, was burned while lighting a cigarette. However, Mrs. Fowles did not actually identify the patient she sold the cigarettes to as being the plaintiff. The plaintiff was in a two-bed room, her roommate being Mildred Camp. Whether Mrs. Fowles sold the cigarettes in question to the plaintiff, or to Mildred Camp, was not directly established by Mrs. Fowles' testimony. She daily delivered her wares from the cart to patients on five floors of the hospital and it is not strange that she could not later positively identify the person to whom she sold a particular pack of cigarettes, in a certain room, on one of the five floors.
It is the theory of the plaintiff's case that the cigarettes and the match which accompanied them, and which the plaintiff was attempting to light the cigarette with, were sold to the plaintiff on the fateful morning by Mrs. Fowles, and that this constituted negligence on the hospital's part, therefore, the identification of the plaintiff as the person to whom Mrs. Fowles sold the cigarettes was of critical importance to the plaintiff's case. We believe, however, that such identification was not established by Mrs. Fowles' testimony, which was as follows:
"Q. Now, would you tell us what occurred when you took your cart to the room on that morning to her?
A. Well, I just did the usual thing, knocked on the door and said, `Good morning. Does anybody want anything from the shopper's cart?'. And a woman lying in one of the beds said, `Yes, I would like some cigarettes'. And I believe they were in a green package. So, I assume they were Kool cigarettes. * * *
Q. This woman that you spoke with, is this the woman that was later burned?
A. I guess she was, from what I hear, yes.
Q. Now, is there anything else that makes you recall this specific sale to her that morning? Is there anything that she said to you that
A. Not at that particular time, sir, no." (Emphasis added.)
This was all of Ruth Fowles' testimony that was pertinent to the identity of the plaintiff, Betty Seymour, on her direct examination. On cross-examination, in answer to the question, "Mrs. Fowles, this lady by the way, do you recognize Mrs. Seymour as being the ," she interrupted, answering "I really don't know, sir, I don't."
It is quite obvious from this testimony as indeed it would be from the range of her activities over five floors of the hospital that Mrs. Fowles did not and could not identify the plaintiff as the person to whom she sold a particular pack of cigarettes on the day in question.
It is the defendant hospital's contention that the match which burned the plaintiff was not received by her from Mrs. Fowles but that the plaintiff's roommate, Mildred Camp, bought the cigarettes and the book of matches which accompanied them, this contention being based upon the plaintiff's own testimony.
It would be supposed that the testimony of Mildred Camp, plaintiff's roommate, would be decisive on this point. However, her testimony at trial was quite unclear, due to her preoccupation on the day of her testimony caused by her intense concern over her mother, whom Mildred Camp had just been informed had suffered a heart attack in another State. Mildred Camp, as a consequence, was on the point of leaving to go to her mother in Arizona, when she was called to testify. After she had begun her testimony there was an objection by defense counsel as to leading questions, as the result of which there was a conference in chambers. In that conference plaintiff's attorney, to justify his leading questions, said:
"The offer of proof would be, Mrs. Camp told me her mother had a heart attack, she is quite upset, she came and she has pains around her own heart, she feels dizzy and has headaches, and I am trying to get her testimony so she can go.
Obviously she is in a state that she's excited and can't remember. I think I should have leniency or latitude to lead her a little bit." (Emphasis added.)
The trial court then permitted the examination with considerable latitude as to leading questions. However, it was obvious that the witness was not in a condition to have a very clear and satisfactory recollection (in 1976) as to the events of October 19, 1972. In any event, Mildred Camp did not testify that the plaintiff herself bought the cigarettes in question. She testified generally that the plaintiff was her roommate, that she was "always sleeping," that she had no conversation with her, but in answer to a leading question, she recalled the plaintiff at one time sitting up in bed and saying she thought she was going to fall out of bed, and that once a cleaning lady (not Mrs. Fowles) ...