Davis v. Springfield Hospital
| Decision Date | 14 January 1920 |
| Citation | 218 S.W. 696,204 Mo.App. 626 |
| Parties | SARAH L. DAVIS, now METCALF, Respondent, v. SPRINGFIELD HOSPITAL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Division One of Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED.
Judgment affirmed.
T. H Douglas and Argus Cox for respondent.
Delaney & Delaney for appellant.
This is a suit by the widow of Nathan D. Davis, since remarried, for damages for the death of her former husband caused as alleged by defendant's negligence. This is the second appeal in this case. [See 196 S.W. 104.] After being remanded another trial was had resulting in a verdict and judgment for plaintiff and defendant again appeals.
The defendant maintains a hospital at Springfield, Missouri, for the care of the sick and injured, charging for such services, and the deceased was at the time of his death what is called a pay patient at such hospital. The defendant is not claimed to have been a charitable institution, but was conducted on the theory of charging and receiving adequate compensation for the services rendered. That it is liable for its negligent acts is not controverted.
The gist of the charge of negligence is that while deceased was a patient in such hospital and was so seriously sick and afflicted as to be delirious, mentally incapable of caring for himself and unconscious of dangers surrounding him, defendant negligently failed to watch and care for him, thereby permitting him to escape from his room and from the building and to fall violently to the ground inflicting injuries from which he died. The negligence consists in failing to give the patient the care and attention which his mental and physical condition demanded for his safety.
At the last trial, now on review, the plaintiff tried the case on the theory that deceased, being delirious and unconscious of his acts and danger, left his room on the third floor of the hospital between twelve and one o'clock at night in the absence of any nurse or attendant and went into the hallway, opened a door leading to a fire escape and fell down the steps of the fire escape to the ground, receiving injuries from which he died a few hours later. About all that was known for certain is that deceased was in bed in his room on the third floor till shortly before the nurse in charge of that floor, returning thereto after a short absence, discovered that he was missing. This was shortly after midnight and on a search being made deceased was found on the ground near the foot of the fire escape. The deceased's room was on the same side of the building and next to this fire escape to that the door leading from the hall to the fire escape was only a short distance from the window in deceased's room. It was first thought, and so the first petition charged, that deceased fell or threw himself from the window in his room. There was some evidence at the first trial that deceased wandered from his room and through the door of this fire escape and fell therefrom while attempting to descend the steps leading from the landing to the ground. Following the ruling of the Supreme Court in Breese v. Railroad, 264 Mo. 258, 174 S.W. 409, we held on the first appeal that if deceased met his death in consequence of throwing himself out of the window of his room, which window was some two or three feet from the floor, then the nurse and those caring for deceased could not be held negligent for failing to anticipate and guard against the suicidal mania of deceased, there being nothing in deceased's previous conduct or mental disorders indicating suicidal mania.
At the last trial the evidence supporting deceased's escape from the hospital through the door of the fire escape and fell therefrom is much stronger than at the first trial. Indeed, while there were external evidences of deceased having received a fall, such evidences, no bones being broken or severe bruises being found, negative so severe a fall as would result from a third story window and corroborate the evidence of a witness, testifying for the first time after the first trial, that she, being in a room on the same floor, heard and saw deceased walking in the hall in his night clothes and after shutting her door to prevent his possible entrance there heard him opening the door of the fire escape followed by a bumping noise as if falling down the steps. This and other evidence supports the theory that deceased in the nurse's absence, being delirious and unconscious of his acts, arose from his bed, went into the hall, walked down same a short distance, turned and walked back till he came to the door opening on the fire escape, opened that door and went onto the landing, fell down the steps to the next landing at the second floor and from there to the ground. This is indicated also by his position when found. Defendant assails this later discovered evidence as unworthy of belief, but it is not contradictory of the physical facts nor inherently incredible. Its credibility was for the jury.
The instructions given clearly required the jury in order to find for plaintiff to find that deceased, Nathan D. Davis, while in defendant's care become delirious and mentally unable to properly care for himself and while in that condition escaped from the room and "wandered from the building onto the fire escape and fell from the fire escape to the ground." At defendant's request this instruction was given: "You are instructed that if on considering all the evidence you are not satisfied by a preponderance of the testimony as to how the death was caused, that is, whether by falling or throwing himself out of the window or attempting to use the fire escape, then the verdict must be for the defendant." Defendant claims that it was entitled to a plain, positive and affirmative instruction telling the jury that if they found that deceased met his death by falling from or throwing himself from the window of his room that plaintiff could not recover. [Stephens v. Eldorado Springs, 185 Mo.App. 464, 471, 171 S.W. 657.] Granting that defendant was so entitled we find it most unfortunate in not asking such a plain and positive declaration. The instruction, of the refusal of which defendant complains, reads: "The court declares the law to be that under the law there is not sufficient evidence to sustain the claim that deceased met his death by falling from or throwing himself from the window of his room." Now, it was defendant who was claiming that deceased "threw himself from the window," thereby committing an act for which defendant was not liable and if there was not "sufficient evidence to sustain the claim" then plaintiff's theory of his escape through the door to the fire escape and fall therefrom was the only theory left. Certainly defendant was not injured by the refusal of this instruction.
It is claimed that plaintiff's petition is fatally defective is not alleging that defendant had previous knowledge of the deceased's delirious condition and inability to know of dangers and take care of himself. Of course defendant cannot be held liable for not guarding against that which it did not know was likely to happen. Averment of such knowledge was therefore necessary to a good petition. [Rogers v. Ins. Co., 186 Mo. 248, 255, 85 S.W. 369; Holwerson v. Railroad, 157 Mo. 216, 243 57 S.W. 770.] It is sufficient, however, if facts constituting or reasonable implying such knowledge are averred. In this case it was alleged in substance that deceased was sick and afflicted when he entered the hospital, February 1, 1916; that he remained there till February 4, 1916, under defendant's care; that while under defendant's care and while so seriously afflicted as to be unable to care for himself or to know what he was doing or to be conscious of dangers and to protect himself therefrom defendant neglected to give deceased the care and attention his condition required and failed to properly watch and care for him while in a delirious condition in consequence of which...
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