Dunnagan v. Briggs

• Decision Date: 04 February 1913
• Citation: 154 S.W. 428,170 Mo. App. 691
• Parties: DUNNAGAN v. BRIGGS.
• Court: Missouri Court of Appeals

154 S.W. 428

170 Mo. App. 691

DUNNAGAN v. BRIGGS.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

Rehearing Denied March 15, 1913.

1. TRIAL (§ 219) — INSTRUCTIONS — DEFINITION OF TERMS.

In an action against the proprietor of a hospital for negligent failure to guard and watch a patient, who, while temporarily insane, jumped from a window, an instruction to find for plaintiff if the patient died as a result of the injuries thereby sustained, or if defendant neglected promptly and properly to attend to and treat his injuries, and the death resulted from such negligence, without any explanation of what would constitute prompt and proper treatment, should not have been given.

2. DAMAGES (§ 213) — INSTRUCTIONS — AGGRAVATING CIRCUMSTANCES.

In an action against a hospital proprietor for negligent failure to guard and watch a patient, who, while temporarily insane, jumped from a window, an instruction to consider, in determining the amount of damages, the mitigating and aggravating circumstances, if any, attending the wrongful act or neglect was erroneous, since it is error to charge to take aggravating circumstances into consideration, where punitive or exemplary damages are not recoverable.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Katie Dunnagan against Waldo Briggs. From an order granting a new trial after a verdict for plaintiff, she appeals. Affirmed.

Henry H. Oberschelp, of St. Louis, for appellant. Jones, Hocker, Hawes & Angert and C. Porter Johnson, all of St. Louis, for respondent.

ALLEN, J.

This is an action brought by plaintiff for the wrongful death of her husband, Charles Dunnagan. The suit, as originally instituted, was against the respondent and two corporations. Plaintiff suffered nonsuit as to the corporations, and the cause proceeded to trial, verdict, and judgment against the respondent. At the time plaintiff's husband received the injuries which, it is alleged, resulted in his death, defendant was a physician and surgeon, and owned and conducted a hospital on Jefferson avenue and Gamble street, in the city of St. Louis, Mo. On Friday, September 9, 1910, plaintiff's husband was received as a patient at said hospital, and accepted as such by defendant for treatment. At the time that plaintiff's said husband entered the hospital, he was suffering from alcoholism. The next day he became delirious, and during the remainder of the time that he was at the hospital he was suffering from delirium tremens. Upon being received into the hospital, he was placed in a room on the second floor of the building. This room had a window with low sill, and without bars or guard. There was evidence that plaintiff's husband, while in the hospital, was nervous, and would walk about the room and halls, imagined that he saw beer bottles and such things, and that he saw people coming into his room, and that he spoke about the window in his room being a door. It appears from the evidence that on Monday night following his entrance to the hospital he was tied to his bed with sheets, because he imagined that he saw persons at the window of his room. During the absence of the nurse who had him in charge, he freed himself, broke the glass of the window of his room, and leaped from the window, landing upon the pavement some 12 feet below, sustaining injuries, as a result of which, as plaintiff claims, he died a few days later.

The negligence charged in the petition is the failure of defendant to exercise ordinary care, and to guard and watch plaintiff's said husband, "and to place him so that he could not injure himself, and so that injury could not happen to him," and in failing "to promptly and properly attend to and treat his said injuries."

The cause was tried before a court and a jury, and was submitted to the jury under instructions, of which but two need be noticed. There was a verdict for the plaintiff for $2,000, and within due time the defendant filed his motion for a new trial, assigning 33 grounds therefor. Defendant's said motion for a new trial coming on to be heard, the court sustained the same on the twelfth and twenty-eighth grounds thereof, and made an order granting defendant a new trial, from which order plaintiff has appealed to this court.

The two said grounds upon which the court sustained defendant's motion for a new trial were: (1) The giving of instruction No. 1, given at plaintiff's request; and (2) the giving of instruction No. 3 by the court of its own motion.

Instruction No. 1, given at plaintiff's request, is as follows: "The court instructs the jury that if you believe and find from the evidence in this case that at the time in question, to wit, September, 1910, Charles Dunnagan was...