
    Bartolas, Admr., v. Coleman.
    (Decided July 26, 1927.)
    
      
      Messrs, Stafford & O’Donnell, for plaintiff in error.
    
      Messrs. Bowers & Bowers, for defendant in error.
   Houck, J.

Counsel for plaintiff below, Byron Bartolas, administrator, base their claim for recovery upon the neglect of the defendant, who is a practising physician and surgeon, to properly care for his patient, the decedent, and for alleged abandonment of him, as a result of which plaintiff prays in his petition for a judgment against defendant for damages in the amount of $20,000. The jury returned a verdict for defendant.

On or about June 8,1925, plaintiff’s decedent was taken seriously ill, and the defendant, who is a practising physician and surgeon, was employed to perform an operation upon him, and to take charge of the case. The patient was a little boy, aged six years. A surgical operation was performed at the Union Hospital by the defendant in error, removing the appendix from the decedent.

The record discloses that it was a very serious case; a large amount of pus having gathered in the abdominal cavity, and peritonitis having already set in prior to the operation. The record shows that the boy, while in a critical condition, was holding his own, and that the defendant visited him every morning regularly, and sometimes oftener, until the morning of the 16th of June, 1925, when defendant went to the hospital, saw the patient, and found that he was still holding his own although not out of danger.

About 10 o ’clock the same day the defendant went to the city of Cleveland, intending to return that evening, hut met with an accident to his car, and was compelled to have it hauled to the garage, being assured by the man in charge that the car would be ready by 6 o’clock that evening. He went back to the garage at 6 o’clock, and found that the car had not been repaired, and that he would be unable to return in his car. He then called his wife by phone, who lived in New Philadelphia, Ohio, and arranged with her that, if word came that the patient was worse, or there was any change for the worse, she should call Dr. Shaweker at once, and have him take charge of the case. He later mounted a street ear, intending to get home by midnight, but found, after he was on the way, that the car would go no farther than Akron, and that it would be difficult, if possible at all, to get to New Philadelphia, Ohio, until well on to the next morning. He returned to the city of Cleveland, and the next morning drove his car home. During his absence, the boy had departed this life.

The errors relied upon for a reversal of the judgment in the common pleas court are as follows:

(a) Refusal to permit plaintiff to examine the defendant and other witnesses, before the jury was called, to ascertain whether the defendant or some insurance company was the actual party in interest.

(b) Error in the admission of testimony on behalf of defendant.

(c) Refusal to give, in charge before argument, special request' No. 1 which was in writing.

(d) Error in the general charge.

The first claimed error does not appeal to us as sound in reason or law. What greater right did plaintiff have to obtain in this more than in any other case advance information as to how to make inquiries of the qualifications of prospective jurors ? Counsel say they had this right, for the reason that they wanted to ascertain from the defendant, and possibly other witnesses, if any of the jurors' were interested in such insurance, or in any manner related to the local agent in the county.

In Sections 11437,11438, and 11439, General Code, may be found the legislative rules for the impaneling of a jury and testing the qualifications, or lack of qualifications, of persons for duty on same. The proper place to make inquiry of a prospective juror is on his voir dire examination, and the mode of his examination or the questions to be propounded to him cannot be based on a previous inquest had before the trial judge prior to, and in advance of, the examination off the juror on his .voir dire.

It must be remembered that courts are inclined to, and do, give much latitude in determining the qualifications of jurors as to their interest, as stockholders, policyholders, or otherwise, in liability insurance companies. Yet such in no wise extends the rule to the degree insisted on by the plaintiff here.

We do not agree with plaintiff in error that any prejudicial error intervened in the impaneling of the jury or in the refusal of the court to permit counsel to examine defendant prior to the impaneling of the jury, as requested by them.

We have very carefully read the testimony on behalf of defendant, which plaintiff insists was erroneously admitted. This testimony is in support of the claim of the defendant that he did not abandon his patient, and that he was not guilty of any actionable negligence on his part. This evidence was clearly pertinent to the issues raised by the pleadings, and was properly submitted to the jury for its consideration.

Did the court err in refusing to,give the following written request before • argument:

“Ladies and gentlemen of the jury, I charge you as a matter of law that a physician has the right to leave temporarily his practice, if he makes provision for the attendance of a competent physician upon his patients. If he notifies a patient that he is going away, and indicates who will attend him in his stead, no neglect can be imputed to him, but a physician who leaves a patient in a critical stage of the disease without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of culpable dereliction of duty, and is liable to respond in damages. ”

This needs little or no comment from the court, because it is so well known by judge and lawyer that a' written request of law must be given by the trial judge, before argument, if it contains the law pertinent to the issuable facts and the proof. The charge under consideration was properly refused for the following reasons:

(a) While sound as to a particular state of facts, yet an examination of the proven facts clearly indicates that in several respects it is foreign to them.

(b) Several of the facts stated in the charge were not set forth in the pleadings, and no proof offered to establish same.

(c) The law as contained therein is not applicable to the case made in the record.

(d) The charge is not responsive either to the facts or law of the instant ease.

Did the court below, in its general charge, err? It is urged that error has intervened with respect to the charge as to “proximate cause,” “negligence,” and “measure of damages.” The general charge fully and completely covers each and every issue raised by the pleadings and the evidence adduced. The issues were stated in a clear and plain language; the law as to proximate cause, negligence, and the damages recoverable by the plaintiff, if the jury so found, were fully, adequately, and in concise language given to the jury. There is no room for complaint against the learned judge who sat in the trial, if the record is to be taken as our guide.

We are inclined to believe that it is not necessary for us to say more in this opinion. The facts presented to the jury for its solution were two in number :

First. Was the defendant, Coleman, negligent in any or all of the particulars set out in the petition?

Second. If' negligent, was such the proximate cause of the injuries and damages to plaintiff, as claimed in his petition?

The jury returned a general verdict for the defendant. This court finds that under the facts, as contained in the bill of exceptions, the jury reached, the proper conclusion. We have made, thus far, no citations of law. Nevertheless, we have examined many authorities in this and other states, and a number of them have been helpful to us in arriving at a judgment. It may be as refreshing to counsel as it was to the court to examine and read the following authorities: Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639; Palmer v. Humiston, 87 Ohio St., 401, 101 N. E., 283, 45 L. R. A. (N. S.), 640; Hier v. Stites, 91 Ohio St., 127, 110 N. E., 252; Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238; Manley v. Coleman, 19 Ohio App., 284; McAllister v. Hartzell, 60 Ohio St., 69, 53 N. E., 715; and Ochsner v. Cincinnati Traction Co., 107 Ohio St., 33, 140 N. E., 644.

This court, under the record, is bound to affirm the judgment of the lower court.

Judgment affirmed.

Shields and Lemert, JJ., concur.  