17 Wn.2d 631, MORRIS JANKELSON et al., Respondents, v. SISTERS OF CHARITY OF THE HOUSE OF PROVIDENCE, Appellant
[No. 28864. En Banc. Supreme Court April 30, 1943.]
MORRIS JANKELSON et al., Respondents, v. SISTERS OF
CHARITY OF THE HOUSE OF PROVIDENCE, Appellant.«1»

[1] EVIDENCE - OPINION EVIDENCE - PROBATIVE VALUE. In an action by a patient against a charitable hospital for burns received from an electric pad, the testimony of an electrician, called as an expert witness by the plaintiff, that thermostats in electric pads frequently get out of order and cause excessive heat, has no probative value with respect to the issue of whether the burns suffered by the plaintiff were caused by a defective pad, where it appears that the whole experience of the electrician had been with fabric-covered pads and that he knew nothing of the method of operation of the rubber pads used by the hospital, one of which was applied to the plaintiff and caused the burns.

[2] CHARITIES - HOSPITALS - ACTIONS FOR INJURIES - EVIDENCE -CAUSE OF INJURY - DEFECTIVE EQUIPMENT. In an action by a patient against a charitable hospital for burns received from an electric pad, held that the evidence failed to establish that the burns were caused by a defective pad.

[3] NEGLIGENCE - ACTIONS - EVIDENCE - PROXIMATE CAUSE OF INJURY - SPECULATION OR CONJECTURE. Liability for injuries cannot be predicated upon speculation or conjecture but must be based upon actual proof both of negligence and of a causal connection between that negligence and the injury sustained.

GRADY, MILLARD, and BLAKE, JJ., dissent.

Appeal from a judgment of the superior court for King county, Jones, J., entered June 13, 1942, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries. Reversed.

J. Speed Smith and Henry Elliott, Jr., for appellant.

Kennett & Benton, for respondents.

ROBINSON, J. -

The Sisters of Charity of the House of Providence in the Territory of Washington, a

«1» Reported in 136 P. (2d) 720.

[2] See 133 A. L. R. 821; 10 Am. Jur. 687.

632 JANKELSON v. SISTERS OF CHARITY.
Opinion Per ROBINSON, J. [17 Wn. (2d)

corporation, appeals from a judgment entered upon a jury verdict in favor of the respondents Jankelson and wife with respect to burns received by Mrs. Jankelson while she was a patient in its Seattle hospital.

The complaint in the action alleged that Mrs. Jankelson entered the hospital on September 27, 1941, for an operation on her right knee. A hot, moist pack was ordered as preoperative treatment. An electric pad was used by the nurses for the purpose of maintaining the temperature of the pack. In some way, the calf of Mrs. Jankelson's right leg was blistered and burned. The theory of she action is shown in paragraph III of the complaint, which reads as follows:

"That the foregoing injuries alleged to have been received by the plaintiff, Sophia Jankelson, were the sole, direct and proximate result of the administrative negligence of the defendants which consisted solely of the failure of defendants to furnish proper equipment for the purpose of warming plaintiff's leg under a regulated heat so that the said application of the electrical appliance would not result in injury such as alleged to have been sustained by the said plaintiff."

It will be noted that the complaint presented a very narrow issue. The issue was in no way enlarged during the trial in giving instruction No. 4, to which no exception was taken by either party, after telling the jury that recovery could not be awarded on a mere finding that Mrs. Jankelson was burned while a patient, or even if such burns were received by reason of the negligence of its employees (the hospital being a charitable corporation), the trial judge further said:

". . . but before the plaintiffs can recover they must prove by a fair preponderance of the evidence that Mrs. Jankelson received burns as the proximate result of being treated with a defective or unsafe electrical heating pad, . . ."

JANKELSON v. SISTERS OF CHARITY. 633
Apr. 1943] Opinion Per ROBINSON, J.

The single factual issue is further emphasized by the final sentence of that instruction:

"On the other hand, if you fail to find that the particular pad used upon the plaintiff was defective, or find that the burns were caused through the negligence of employees of the defendant in improperly applying the pad, then your verdict should be for the defendant."

The appellant's principal contention is that there was no evidence that the pad was in any way defective; hence, the case should not have gone to the jury, and that it should be entitled to judgment despite the jury's verdict:

The respondents' theory, in substance, is, as follows: It is admitted that the patient was burned as a result of heat generated by the pad. This could only have occurred in one of two ways, either through the negligence of the nurses employed by the hospital or because the pad itself was defective. We have shown that the hospital employees were not negligent; hence, the pad must have been defective. At all events, we made it more probable that defective thermostats were the real cause of the accident than any other; hence, we were entitled to go to the jury within the rule of the case of St. Germain v. Potlatch Lbr. Co., 76 Wash. 102, 135 Pac. 804. The rule of law invoked by the respondents has been repeatedly approved in later cases and is as follows:

"It is sufficient if his evidence [the plaintiff's] affords room for men of reasonable minds to conclude that there is a greater probability that the accident causing the injury happened in such a way as to fix liability upon the person charged with such liability, than it is that it happened in a way for which the person so charged would not be liable."

More specifically, it was respondents' theory that the thermostats controlling the amount of heat had

634 JANKELSON v. SISTERS OF CHARITY.
Opinion Per ROBINSON, J. [17 Wn. (2d)

become so ineffective through continued use that they failed to keep the pad at a safe temperature, and that the hospital was negligent in not periodically inspecting and testing its heating pads.

The appellant contends that there is no evidence whatever that the thermostats were defective, and that the evidence relied upon to so show does not even warrant a fair inference that they may have been; while, on the other hand, there is persuasive evidence that the pad was so applied that it slipped out of position, or was so displaced by the patient herself that, although it was applied on top of her knee, it got under and burned the calf of her leg. We are, therefore, required to make a complete analysis of the evidence.

The pad is a flat piece of rubber, about nine by thirteen inches in size, made by The Seamless Rubber Company of New Haven, Connecticut, and has been standard equipment in Providence, Swedish, Virginia Mason, St. Luke's, and Maynard hospitals in Seattle for eight or nine years. The trade name of the pad is "Electro-Sheet." Some forty wires are molded in the rubber sheet. The pad is activated by plugging into a light circuit and manipulating a three-way switch designed to deliver, at low, 110x Fahrenheit, at medium, 125x, and, at high, 135x. In each pad there are two built-in thermostats, one near each end of the pad and about eight inches apart. They are molded into the rubber and cannot be.seen, inspected, or examined without cutting into and destroying the pad. When the pad is in operation, the hottest spot in the pad is midway between the two thermostats.

[1] Mr. Overacker, an electrician called as an expert by the plaintiffs, testified that thermostats are bars of metal made up by welding together two metals, one having a higher expansion than the other. The bar will, therefore, bend when heat is applied. It is

JANKELSON v. SISTERS OF CHARITY. 635
Apr. 1943] Opinion Per ROBINSON, J.

adjusted so that it will bend far enough to break the circuit when the heat reaches a predetermined point. After a period of use, the expansion coefficient of one of the metals changes, the bar does not bend as readily, and the circuit is not broken at the predetermined temperature. Excess heat results.

We must give considerable attention to the testimony of this witness because the respondents place great reliance upon it, although, as we see it, it can, at the most, establish but one thing, that thermostats used in certain types of heating pads, as the witness said, frequently get out of order. That is no evidence that the thermostats in the pad involved in this case had done so. In fact, the testimony given by Mr. Overacker does not even relate to the type of thermostats used in the heating pad involved in this action. The witness testified, in part, as follows:

"My experience with heating pad thermostats has been with the fabric-covered pads, and I know that after they had apparently been in use for some time, they would be sent into the shop because they were too hot; and in many of the pads we were able to open them and unscrew a set screw, thereby moving the point further back and correcting the difficulty of having them overheat." (Italics ours.)

On cross-examination, he testified:

"Q. Now, on these pads that were brought in to you for repair, they were all the felt kind used in homes, weren't they? A. Yes, they were the fabric-covered pads. Q. You never saw inside of one of these rubber ones? A. No, sir. Q. That are used primarily by hospitals, have you? A. No, sir." (Italics ours.)

Respondents themselves introduced in evidence a statement of the manufacturer of the pad involved in this case, which reads, in part, as follows:

"THERMOSTATS. There was no commercial thermostat available that answered the requirements of

636 JANKELSON v. SISTERS OF CHARITY.
Opinion Per ROBINSON, J. [17 Wn. (2d)

Electro-Sheet, so a special one was developed and patented. All thermostats are calibrated at 132x F. and triple-tested. In several of the ordinary fabric pads the delicacy of the thermostats is a considerable source of trouble. Electro-Sheet is moulded and vulcanized, under hydraulic pressure of ninety tons. If the thermostats were not simple and rugged they could not possibly withstand this moulding pressure. All thermostats are tested before and after moulding." (Italics ours.)

If the pad involved in this case had been a fabric pad (while Mr. Overacker's testimony would not have tended to prove that the pad was actually defective), it would have tended to prove that thermostats in fabric pads lose efficiency as "time passes" and are prone to get out of order. But, since the pad involved in the case at bar was expressly designed to avoid the troubles caused by the thermostats used in fabric pads by incorporating therein a new and different type of thermostat (necessarily new and different since it was patented) and which he had never seen and of the details or operating theory of which he knew nothing, it seems to us that his evidence had no probative value whatsoever with respect to any issue in the case.

The respondents, however, contend that, under the peculiar circumstances of the case, it has probative value. It is rightly said that there is no doubt but that Mrs. Jankelson was burned by heat generated in the pad. We submitted proof that the pad was properly applied; therefore, the jury was warranted in inferring that the pad must have overheated. In fact, it is the only theory upon which the result can be accounted for. The testimony of Overacker has probative value because it shows how the overheating could readily have taken place. This opinion has already dealt with the last contention. Is the theory that the pad overheated because of defective thermostats the only theory

JANKELSON v. SISTERS OF CHARITY. 637
Apr 1943] Opinion Per ROBINSON, J.

upon which Mrs. Jankelson's burns can be accounted for? This question requires further detailed analysis of the evidence.

There is much evidence to the effect that the type of pad used is dangerous when not carefully applied and carefully watched. Sister Berchman, a supervisor who had held that position by day or night' for more than four years, testified: "Q. They will burn people?A. If they are not applied properly, used properly."

Sister Eugenien, superintendent of the hospital, testified: "They are dangerous - they are always dangerous if they are not well applied and if they are not watched carefully."

At another point in her testimony, Sister Eugenien said it was necessary that they be watched because, if they were displaced and came in immediate contact with the skin, burns would result. She also made the point that, due to various causes, the skin of some persons will stand less heat than that of others.

There is evidence also that it is dangerous to apply these pads to an under surface, since the weight of the body will compress the wrappings and increase the surface heat. Nurse Brotherton testified:

"Q. Now, will you tell us whether you are trained to put a pad under any part of the body, that that part of the body may be resting on? Do you put it under the patient? A. Under, never. We use hot water bottles only under any surface. Electric pads are used on the top or on the side."

The plaintiffs introduced in evidence the instructions for the use of the pads sent by the manufacturer with each pad, and showed, by the superintendent of the hospital, that these were supplied to the nurses who used the pads. Under the caption "Instructions for Use with Moist Heat," there is but one. It is printed in large black letters:

638 JANKELSON v. SISTERS OF CHARITY.
Opinion Per ROBINSON, J. [17 Wn. (2d)

"Important. Do not apply this pad to a helpless person (an infant, an invalid or a sleeping or unconscious person) unless carefully attended."

The evidence shows, partly by hospital chart and partly orally, that the pack was applied to Mrs. Jankelson's right knee about eight-thirty Saturday evening, September twenty-seventh. Miss Hanscom, the nurse who applied it, demonstrated the method of application in the court room. It appears that three Turkish towels were dipped in an Epsom salts solution, and wrapped around the patient's right knee. Then a sheet of rubberized material is wrapped around the towels. Then the pad itself is laid across the knee, care being taken that no part of it gets under the leg. After this, a thick sheeting of cotton material is wrapped around the pack. In making up the pack, the end of a rubber tube is ordinarily enclosed in the towels in order that the heated liquid can be poured in to compensate for evaporation without undoing the pack.

Mrs. Jankelson testified that, when she came to the hospital, the pain in her knee was "terrible," and the chart shows that, after the pack was put on, she was given one and a half grains of nembutal to make her oblivious of the pain and induce sleep. There was a shift of nurses at eleven, Nurse McLean succeeding Nurse Hanscom. The chart shows patient sleeping at eleven-thirty, and again at two a.m., but at four-thirty: "Pt. complains that pack is burning. Her skin does not appear burned. No reddened areas. No solution applied." Opposite that marginal entry are the words: "Pack removed," and further down the chart, but still opposite the marginal entry: "Pack reapplied." Opposite six forty-five there is an entry: "Patient removed hot pack. Complains that it hurt her. Skin looks O.K.," and opposite that marginal entry: "Pack reapplied."

JANKELSON v. SISTERS OF CHARITY. 639
Apr. 1943] Opinion Per ROBINSON, J.

At seven, Nurse McLean went off duty and was succeeded by Nurse Brotherton. Sometime between seven and eight, she found the pack again removed and completely disassembled, the pad itself lying upon the bed covers. Nurse Brotherton recorded on the chart at eight a.m.: "Pack removed. Opposite side of calf of leg was a reddened area about 3"x5". Several small blisters. Unguentine applied to dressing and waterproof adhesive applied." There can be no doubt, therefore, that the patient was burned some time between eight-thirty p.m., Saturday night, and eight a.m., Sunday morning, probably some time before that, because it takes some time for blisters to arise. It may have been before four-thirty, since Nurse McLean's oral evidence was to the effect that, when she reapplied the pack at four-thirty, she did not turn on the heat. On the other hand, Mrs. Jankelson tore the pack off some time between six forty-five and eight, because it was burning her.

There is positive testimony that, after Mrs. Jankelson's burns were dressed, about eight on Sunday morning, the wet pack was reapplied, and that the same pad was used, and the low heat turned on. It was so operating when Nurse McLean returned to duty at eleven that night.

Mrs. Jankelson could throw but little light on the matter. She was under the influence of a sedative during the time and remembers but very little. Although the chart and the testimony of the nurses indicate that she twice during the night removed and disassembled the pack, yet she remembers of having done so only once. As to this matter, she testified:

"Q. (By Mr. Kennett) What did you do when you woke up and felt this burning? A. I called the nurse. Q. And what was done then? A. The nurse just looked under the covers and said, `It is all right,' and I laid quite awhile and then I fell asleep. Then I woke

640 JANKELSON v. SISTERS OF CHARITY.
Opinion Per ROBINSON, J. [17 Wn. (2d)

up later and felt the burns and called the nurse. Q. And what happened then, when you called the nurse the second time? A. The nurse came in and I think she said, `It is all right,' and then I fell asleep and I woke up again and - no, I didn't fall asleep. I was laying down; it was just burning me, and then I decided, `Well, I will tear it off - it burns - tear it off, the pack,' and I tore it off."

[2] Respondents correctly contend that they were not required to prove their case by direct evidence, but could do so by proving a consistent chain of circumstances from which a legitimate inference can be drawn. The ultimate inference claimed, and it is asserted to be the only possible inference, is that the burns must have been caused by a defective pad. But this so-called inference is not based upon a fact supported by evidence, but is arrived at by a process of elimination. The inference is asserted to be legitimate because (1) the only other possible cause was negligence of the nurses, and (2) they were conclusively shown not to have been negligent. Term (1) of that proposition is manifestly untrue, and (2) is more than doubtful. We say more than doubtful because, if the hospital were accountable for the negligence of its servants, there would be sufficient evidence here to take such a case to the jury on an allegation that they were negligent. We will not discuss this matter at length, but suggest this question: In view of the fact that the pad would burn the patient if it came into direct contact with unprotected skin, and even if, when still protected by its wrappings, it got under some part of her body, and of the further fact that Mrs. Jankelson was asleep, under the influence of a sedative so powerful that she could remember little of what happened during that night, and of the further fact that she tore the pack off and for a considerable period its component parts lay strewn about her bed, was she as

JANKELSON v. SISTERS OF CHARITY. 641
Apr. 1943] Opinion Per ROBINSON, J.

"carefully attended" as the hospital rule, hereinabove quoted, required a sleeping patient to be attended when this type of pad was being used?

That the only possible cause of the burns, the negligence of the nurses being eliminated, was a defective pad, is demonstrably untrue. While we do not suggest that Mrs. Jankelson was contributorily negligent, there is testimony by one of the nurses that she twice took apart and completely disassembled the hot pack. She herself was under the influence of a sedative, but remembered and testified that she tore the pack off at least once, and the nurse who came on the Sunday morning shift at seven o'clock testified that, when, in making her rounds, she arrived at Mrs. Jankelson's room some time before eight, the rubber pad was lying out on the bed covers. In manipulating the pack, she may even have turned the switch on higher. There is no evidence of that, but, in working with the pack, she could easily have flicked the switch. That possibility alone destroys the proposition that, negligence of the nurses being eliminated, the only possible inference is that the burns were caused by a defective pad. The proposition entirely disregards and fails to eliminate the proved and admitted fact that Mrs. Jankelson was herself an actor in this matter.

To our minds, there is no consistent chain of circumstances shown by the evidence by which the cause of Mrs. Jankelson's burns can be determined. Every avenue of approach ends in mere speculation. If we accept Overacker's evidence, and further gratuitously assume, in aid of it, that it applies to the type of thermostats used in the pad involved in this case, we run into well-nigh insuperable difficulties; for, if the pad burned Mrs. Jankelson during Saturday night because one of the metals composing its thermostat or thermostats had, through long use, lost its expansion

642 JANKELSON v. SISTERS OF CHARITY.
Opinion Per ROBINSON, J. [17 Wn. (2d)

coefficient, how did it instantly recover its expansion coefficient on Sunday morning? For the same pad was used on her knee all day Sunday and until at least eleven o'clock that night, and caused no burns. In fact, her knee, that portion of her body to which the pack was applied, was not burned at any time.

The pad was but nine inches in width and thirteen in length. The testimony is that it was laid across the towels on Mrs. Jankelson's knee, care being taken that no part of it cot under her leg. In that position, it would deliver the greatest heat over the kneecap; for, as we have seen, the center of the pad between the thermostats is, when operating, its hottest spot. It remained (supposedly) in that position on Saturday night until Mrs. Jankelson tore it off. Yet, on Sunday morning it was found that the under side of her leg had been burned. Her daughter testified that the cast applied to protect the burned area, as well as the bandage later substituted for the same purpose, extended clear down to her mother's ankle. If the pad, while lying across the knee, burned these remote under surfaces, the heat must have arisen to a terrific height at the kneecap. Yet, the knee was not burned at any time, neither on Saturday night, nor on Sunday when the same pad was again applied to the knee under low heat, just as on Saturday night. This, to our minds, raises an inference, and a very strong one, that, at some time during Saturday night, possibly because the sleeping patient was not carefully attended, or in some other unknown way, perhaps through slippage, the pad became displaced and got under Mrs. Jankelson's lower leg. It will be remembered that the testimony is that a burn would result under such circumstances. Surely, while functioning directly on the kneecap, it could not have burned those remote under surfaces without burning the knee itself. We do not find, as a fact, that

JANKELSON v. SISTERS OF CHARITY. 643
Apr. 1943] Opinion Per ROBINSON, J.

displacement of the pack was the cause of the accident - to do so would be a mere speculation - but we think that it is a more plausible speculation than that the burns were caused by a defective pad.

[3] Paraphrasing the rule of law which respondents invoke, we do not think that the evidence affords room for men of reasonable minds to conclude that the accident causing the injury was caused by defective thermostats in the pad rather than by other causes for which the appellant cannot be held liable. Neither do we think that the members of the jury, or anyone else, could determine the cause of the accident from the evidence adduced. The cause is speculative.

"The cause of an accident may be said to be speculative when, from a consideration of all the facts it is as likely that it happened from one cause as another." Frescoln v. Puget Sound Traction L. & P. Co., 90 Wash. 59, 155 Pac. 395.

"It is an elementary proposition that a liability for injuries cannot be predicated upon conjecture or speculation. It must be based upon actual proof both of negligence and of a causal relation between that negligence and the injury sustained." Read v. School Dist. No. 211 of Lewis Co., 7 Wn. (2d) 502, 507, 110 P. (2d)179.

"And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employe is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs."

644 JANKELSON v. SISTERS OF CHARITY.
Dissenting Opinion Per GRADY, J. [17 Wn. (2d)

Patton v. Texas & Pac. R. Co., 179 U. S. 659, 663, 45 L. Ed. 361, 215 S. Ct. 275.

The judgment is reversed and the cause remanded, with instructions to dismiss the action.

SIMPSON, C. J., BEALS, STEINERT, MALLERY, and JEFFERS, JJ., concur.

GRADY, J. (dissenting) - I am unable to concur in the majority opinion. The factual situation developed in this case is so much like that of the case of Clampett v. Sisters of Charity, post p. 652, 136 P. (2d) 729, I feel it should be governed thereby.

The point of difference between Judge Robinson and the other members of the court who share his views and myself seems to be whether the evidence in the two cases, and any inferences that may be drawn from the same, warrants the conclusion that the electric pads involved were defective, and, by reason thereof, caused the flesh burns of which complaints were made.

In this case, the complaint of respondent is based upon administrative negligence on the part of appellant in furnishing an electric pad which was applied by the nurses to the limb of respondent and, by reason of its alleged defective condition, she was burned. The answer of the appellant denied any negligence on its part and set up affirmatively that it is a charitable institution. There was no claim made in the answer that the respondent was guilty of negligence which contributed to her injuries. During the trial, agents and employees of the appellant testified as to the treatment given the respondent in connection with the use of the electric pad, but it is not claimed that the employees of the appellant were negligent and by reason thereof injuries were sustained by respondent.

The case was tried and submitted to the jury on the theory of administrative negligence, the court specially

JANKELSON v. SISTERS OF CHARITY. 645
Apr. 1943] Dissenting Opinion Per GRADY, J.

instructing the jury that, if the injuries sustained by the respondent were caused by the negligence of the employees of appellant in applying the electric pad to her limb, she could not recover damages.

The electric pad of which the respondent complains was not produced by the appellant, and the respondent never did have access to it or any opportunity to have it examined and tested. The evidence is, to a great extent, circumstantial, supplemented by the acts and conduct of the parties involved, together with the literature issued by the manufacturer of the pad, inferences that may be drawn from the entire evidence, and a sample of the type of pad used.

The jury would have been justified in finding, and evidently from its verdict did find, the following facts: