Dunnagan v. Briggs
| Decision Date | 04 February 1913 |
| Parties | KATIE DUNNAGAN, Appellant, v. WALDO BRIGGS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon Hugo Muench, Judge.
AFFIRMED AND REMANDED.
Henry H. Oberschelp for appellant.
(1) Such words as "promptly" and "properly" and "mitigating" and "aggravating" require no definition. "We must accord the jury at least ordinary intelligence and understanding." Kischman v. Scott, 166 Mo. 214, 228. (2) The words "promptly" and "properly" must not be taken alone. As part of the phrase "neglected promptly and properly to atsend to and treat his said injuries," they were very clearly explained and defined in instruction 2, defining "ordinary care" and "negligence" and determining the required standard in words and phraseology so often used and even more precise than some definitions which have been heartily approved. Wheeler v. Bowles, 163 Mo. 398. (3) There was no need of defining "mitigating and aggravating circumstances" in the instruction on the measure of damages. That instruction, given at the court's own instance, follows the exact language of the statute and is sufficient. Downs v. Telephone Co., 161 Mo.App. 274. (4) Any such alleged error in either instruction amounted to mere nondirection, and in the absence of any more specific instruction requested by defendant was not error. Kirby v. Lower, 139 Mo.App. 677; Sampson v. Railroad, 156 Mo.App. 419; Brown v. Transit Co., 108 Mo.App 310; Kischman v. Scott, 166 Mo. 214.
Jones Hocker, Hawes & Angert and C. Porter Johnson for respondent.
(1) It is error to submit questions of law to the jury, and instruction 1, given by the court on behalf of plaintiff, is erroneous because it leaves it for the jury to determine for themselves what was or was not "prompt and proper treatment." Stevens v. Crane, 37 Mo.App. 487; Miller v. Shoe Co., 26 Mo.App. 57; Lesser v Railroad, 85 Mo.App. 326; Dunn v. Dunnaker, 87 Mo.App. 579; Kendall v. Bain, 46 Mo.App. 581; Jourdan v. Moulding Co., 72 Mo.App. 325; Speak v. Dry Goods Co., 22 Mo.App. 122; Estes v. Fry, 22 Mo.App. 80; Hickey v. Ryan, 15 Mo. 63; Linville v. Welch, 29 Mo. 203; Vogel v Starr, 132 Mo.App. 430; Turner v. Snyder, 139 Mo.App. 656; Fugitt v. Nixon, 44 Mo. 298; Rowen v. Railroad, 82 Mo.App. 24; Miller v. Railroad, 56 Mo.App. 72; Freet v. Railroad, 63 Mo.App. 548; Zimmerman v. Railroad, 71 Mo. 476; Royhourn v. Phillips, 140 S.W. 977; Crofoot v. Railroad, 77 N.Y.S. 389, 75 A.D. 157. (2) In actions brought for the wrongful death of another it is error to permit the jury, in assessing damages, to take into consideration any "aggravating circumstances" attending the death of the deceased, except where punitive or exemplary damages are allowed on account of wilfulness, wantonness, recklessness or conscious negligence. This principle was violated by instruction 3. Boyd v. Railroad, 236 Mo. 54; Barth v. Railroad, 142 Mo. 535; Parsons v. Railroad, 94 Mo. 286; McGowan v. Ore & Steel Co., 109 Mo. 518; Nichols v. Winfrey, 79 Mo. 544; Rains v. Railroad, 71 Mo. 164; Morgan v. Durfree, 69 Mo. 469.
--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, Missouri. 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 into the hospital, he was tied to his bed with sheets, because he imagined that he saw persons at the window of his rooms. 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 twelve 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 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 the 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 $ 2000, and within due time the defendant filed his motion for a new trial, assigning thirty-three 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 suffering from alcoholism, that defendant Waldo Briggs was then a physician and surgeon, and conducted or managed a hospital at Jefferson avenue and Gamble street in this city of St. Louis, Missouri, that as such, said defendant Waldo Briggs, either himself or by his agents and servants, for a valuable consideration received and accepted said Dunnagan as a patient for treatment for alcoholism; that while thus in said charge and care and under said treatment said Charles Dunnagan became and was insane; that said defendant knew; or by the exercise of ordinary care could have known, said insane condition of said Charles Dunnagan, and that by reason thereof he required special guarding or treatment; that notwithstanding such knowledge the defendant Waldo Briggs failed and neglected to exercise ordinary care to guard and watch said patient and to place him so he could not injure himself and so that injury could not happen to him, and that as a direct result of said insane condition of said Charles Dunnagan and of such negligence, if any, of said defendant on September 12, 1910, at said hospital in the city of St. Louis, Missouri, said Charles Dunnagan fell out of and from an upper story window and...
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