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Kluver v. Weatherford Hosp. Authority6/22/1993
h the majority relies.
I note that there may be some question as to whether the issue decided by the majority is one of fact, one of law or a mixed question of law and fact. The majority seems to treat it as one of fact. Nevertheless, if the issue is one of fact, then the Kluvers have confessed it by alleging it in their pleadings and assuming it in their arguments. If the issue is one of law, then the Kluvers have waived it by failing to assert it before the trial court and upon appeal. Either way, this Court should not take an adversarial stance and raise issues which at this time are totally foreign to the case.
Nor can this Court say this case was in the "pipeline", i.e., governed by the ruling in Roberts and its progeny. As hereinbefore set forth, the issues in this case and Roberts are entirely different. This Court, and only this Court, attempts to make the issues related.
I would affirm the trial court's judgment in favor of the Hospital.
I am authorized to state that Vice Chief Justice LAVENDER and Justice HARGRAVE join with me in the views expressed above.
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