Opinion
7 Div. 228.
April 19, 1923.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Stokely, Scrivner Dominick, of Birmingham, and Dortch, Allen Dortch, of Gadsden, for appellant.
Other instances or similar occurrences are not admissible in evidence, unless they occur under the same circumstances, conditions, and surroundings. Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137; Decatur Car Wheel Mfg. Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; Ala. Lbr. Co. v. Keel, 125 Ala. 603, 28 So. 204, 82 Am. St. Rep. 265. Nonexpert witnesses cannot diagnose disease, or testify as to what disease a person is suffering with. 3 Chamberlayne on Evi. § 1996; McLean v. State, 16 Ala. 672; Dominick v. Randolph, 124 Ala. 557, 27 So. 481; B. A. Ry. v. Campbell, 203 Ala. 298, 82 So. 546; Jones v. Sisters of Charity (Tex.Civ.App.) 173 S.W. 639; Adams v. Corona C. I. Co., 183 Ala. 127, 62 So. 536. The burden was on plaintiff to show defendant was guilty of negligence, and the mere possibility that defendant was guilty of negligence is not sufficient. Hamilton v. B. R., L. P. Co., 198 Ala. 630, 73 So. 950; Laswon v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; Am. C. I. P. Co. v. Landrum, 183 Ala. 132, 62 So. 757; L. N. R. Co. v. Binion, 98 Ala. 570, 14 So. 619; Looney v. Metropolitan R. Co., 200 U.S. 480, 26 Sup. Ct. 303, 50 L.Ed. 564; Koger v. Roden Coal Co., 197 Ala. 474, 73 So. 33; Mobile L. R. Co. v. Roberts, 192 Ala. 486, 68 So. 815; Carlisle v. A. G. S., 183 Ala. 195, 62 So. 759; Stowers v. Dwight Co., 202 Ala. 252, 80 So. 90. Defendant's employees were under no duty to guard against risks which, by conjecture, might be conceived as barely possible, nor under any duty to suspect the doctors would make a mistake in diagnosis. Sou. Ry. v. Carter, 164 Ala. 103, 51 So. 148; Going v. Sou. Ry., 192 Ala. 665, 69 So. 73; Wheeler v. Standard Steel Co., 196 Ala. 634, 72 So. 254; Hillyer v. St. Bartholomew's Hospital, 9 British Rul. Cas. 1; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23. One inference cannot be based upon another. So. Bell T. T. Co. v. Miller, 192 Ala. 346, 68 So. 184; Manning v. John Hancock, etc., Co., 100 U.S. 693, 25 L.Ed. 761; Smith v. P. R. R. Co., 239 Fed. 103, 151 C.C.A. 277.
W. J. Boykin and Hood Murphree, all of Gadsden, for appellee.
The jury were authorized to conclude that defendant knew there was a case of smallpox in the hospital and negligently permitted exposure to it. W. U. Tel. Co. v. Brazier, 10 Ala. App. 308, 65 So. 95; So. Ry. v. Gullatt, 158 Ala. 502, 48 So. 472.
In order to recover under the complaint in this case, the essential facts therein alleged must be established: (1) That plaintiff's intestate died of smallpox; (2) that he contracted the disease while he was a patient in the defendant hospital; (3) that this resulted from infection communicated to him from another patient who was in the hospital during the intestate's presence there; (4) that defendant's nurses, agents, or servants who controlled or managed the hospital knew that such other patient was afflicted with smallpox; and (5) that they so negligently handled said patient that they negligently exposed the intestate to infection from him.
That the intestate died of smallpox is not disputed. Defendant's contention, however, is that the evidence is not sufficient to support either of the two essential findings of fact, (1) that there was, during the interstate's presence in the hospital, another patient in the hospital who was afflicted with smallpox, and (2) that the employés of the hospital, who had the care and control of such afflicted person, knew that he was thus afflicted.
Conceding, for the argument, that the jury were justified in finding, as an inference of fact, that the intestate contracted smallpox while in the hospital from some source of infection to which he was therein exposed, we can find no rational basis for a finding that there was any case of smallpox in the hospital during the intestate's presence there.
The bumpy or scabby faced man, whose presence in a room or in the hallway, was noted by the three witnesses for plaintiff, was undoubtedly identical with Dr. Guice's patient, Weathers. To diagnose his case, from the mere description given of his bumpy, scabby, or scaly face, could not, under the evidence, be more than the sheerest conjecture. If expert physicians, accustomed to seeing and treating smallpox in all of its stages, are unable to make a reliable diagnosis of the disease from such an appearance alone, without continued observation — and that is their testimony — we are at a loss to understand how a jury of laymen can do so, in view of its baffling resemblance to several other common diseases of the skin, such as chickenpox, acne, and syphilis. The most that can be said is that such an appearance may possibly be the result of smallpox.
The testimony of Drs. Guice, Morgan, and Savage, if credible — and there is nothing to indicate that they are not entirely worthy of belief — clearly negatives the presence of any case of smallpox on the first floor of the hospital, and there is nothing that has the slightest tendency to show that it existed in any other part of the building.
Nor do we think the conclusion can be supported that any of the employes of the hospital, including the nurses, knew of the existence of any case of smallpox in the hospital. If the existence of such a case had been established by direct evidence, instead of by conjectural inference merely, it may be that the jury could have reasonably inferred knowledge of its existence on the part of the employés, dependent, of course, upon the circumstances of its discovery and notoriety. But to ground a verdict first upon an inference that a case of smallpox existed, and then, cumulatively, upon the further inference that employés knew of its presence merely and solely because of its conjectural existence, is to violate a well-settled principle of law that an inference cannot be grounded upon an inference — that is, one fact cannot be inferred from another fact which itself is but an inference.
"Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed." United States v. Ross, 92 U.S. 281, 23 L.Ed. 707.
And, as observed in C. of G. Ry. Co. v. Teasley, 187 Ala. 610, 616, 65 So. 981, 983:
"When the existence of a fact is sought to be established by proving another fact, the fact so proven must be a fact from which the existence of the fact sought to be proven can be naturally * * * inferred or presumed. * * * A remote, speculative, and uncertain connection between the fact and the one sought to be inferred is insufficient."
There was no substantial evidence upon which to base a verdict for the plaintiff, and we hold that the motion for a new trial should have been granted, and was erroneously denied.
The testimony of Dr. Guice, that his patient Zara Ashley developed smallpox after leaving the hospital, should have been excluded as irrelevant, for the obvious reason that it was not made to appear that she developed the disease within such a period after her presence in the hospital as to permit the inference that she got the infection there. In overruling defendant's motion to exclude it, the trial court committed error which was prejudicial.
In our view of the case, it is unnecessary to determine whether, in the trial judge's oral charge to the jury, he improperly extended the duty of nurses in a hospital of this character, by the assumption that they might discover that the physician in charge of any patient had erroneously diagnosed the case as noninfectious; and by the requirement that, upon such supposed discovery, they should, in disregard of the physician's opinion, treat the case as infectious. We therefore pretermit consideration of that instruction.
For the errors noted, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.