Nelson v. Angelus Hospital Ass'n

THE COURT. Plaintiff herein brought action against the several defendants, to recover a judgment for damages which were asserted to have been sustained by her because of the alleged negligence of the defendant hospital and the defendant clinic, in the omission by each of such institutions or agencies to timely perform certain acts or to render to plaintiff certain services that assertedly should have been performed by each of them respectively in behalf of plaintiff while she was a medical patient in said hospital. Damages were further asserted to have been sustained, as far as concerned each of the other defendants (who was either a doctor, a nurse or a manager employed by, and who rendered services as such respective employee in, said hospital or clinic at and during said time), because of his alleged negligent act or conduct committed by him in connection with the care and treatment of plaintiff as such patient.

A verdict was rendered by the jury in favor of said plaintiff and against defendants R. B. Jenkins, Incorporated, R. B. Jenkins, and A. M. Dodd, and against plaintiff and in favor of defendants George Nador and H. Grace Franklin.

In pursuance of a motion which was made by defendants R. B. Jenkins, Incorporated, R. B. Jenkins, and A. M. Dodd, to the effect that as to them the trial court order that said judgment be vacated and that they be granted a new trial, the trial court made its. order by which the verdict and the [73]judgment entered thereon in favor of plaintiff and against said defendants were “set aside and vacated ... on the grounds that: (a) the evidence is insufficient to justify the verdict, and said verdict and judgment is against the law . . . ”. With reference to plaintiff’s motion to the effect that the judgment that was rendered in favor of defendants Nador and Franklin be vacated and set aside, the trial court made its order “that the motion of plaintiff to vacate and set aside the verdict herein and the judgment entered thereon . . . in favor of defendants George Nador and H. Grace Franklin and against plaintiff, and for a new trial as to defendants Nador and Franklin only, be, and the same is hereby denied”. It is from that order and judgment that the instant appeal is prosecuted.

Appellant complains that although by the terms of the order as to certain of the defendants the judgment was vacated, the order contained no direction that a new trial be had as to them, and that because of that fact the trial court exceeded its power or jurisdiction,—with the result that the entire order was a nullity. But it is clear that such contention is untenable. Undoubtedly the trial court had jurisdiction of the parties, the cause, and of the particular motion that was presented to it. In such circumstances, the trial court was authorized to make its order,—whether, from a legal standpoint, correct or incorrect; and even though the latter condition could be legally established, the conclusive effect would be that mere error had been committed. Judging from the pleadings in the action and the evidence that was adduced on its trial, the trial court might have been persuaded that should a new trial be granted in no event could the plaintiff succeed on a retrial of the action. In such an assumed situation, it might have been possible that as to certain defendants the trial court intentionally omitted to order that a new trial should be had. But that such was not the intention of the judge of the trial court is made obvious from a consideration of the fact that a later “nunc pro tunc” order was made by the trial court (which order, although not properly a part of the record herein, nevertheless admittedly was made), and which order included a direction that as to the affected defendants a new trial was granted to plaintiff. Besides, throughout respondents’ brief, in effect, the fact is repeatedly conceded that considering the language of the motion, the failure of the trial court to