Gregory v. Robinson

• Decision Date: 11 July 1960
• Docket Number: No. 47325,47325
• Citation: 338 S.W.2d 88
• Parties: Frank Edwin GREGORY, Appellant, v. Paul S. ROBINSON, Executor of the Estate of G. Wilse Robinson, M.D., G. Wilse Robinson, Jr., M.D., and Paul Hines, M.D., Respondents
• Court: Missouri Supreme Court

Page 88

338 S.W.2d 88

Frank Edwin GREGORY, Appellant, v. Paul S. ROBINSON, Executor of the Estate of G. Wilse Robinson, M.D., G. Wilse Robinson, Jr., M.D., and Paul Hines, M.D., Respondents.

No. 47325.

Supreme Court of Missouri, En Banc,

July 11, 1960.

Rehearing Denied Sept. 12, 1960.

Filbert Munoz and William C. Partin, Kansas City, for appellant.

William H. Sanders, and Caldwell, Blackwell, Oliver & Sanders, and Walter A. Raymond, Kansas City, for respondents.

EAGER, Judge.

This case was first submitted in Division, and an opinion adopted; upon a dissent the case was transferred to the Court in Banc. The suit is one for damages against two physicians and the executor of a third, as partners operating the Neurological Hospital in Kansas City for the care and treatment of mental and nervous diseases. Plaintiff escaped from the hospital on September 22, 1955, by jumping or dropping from a window, and was seriously injured. A jury returned a verdict for him in the sum of $40,000. The trial court set aside the verdict, entered judgment for defendants and in the alternative sustained defendants' motion for a new trial.

Plaintiff had been working at Bendix Aviation Corporation in Kansas City. He became depressed and worried, and was taken to a hospital about September 15, 1955; there he was seen by Dr. Harold Meyers, a consultant psychiatrist, who found him severely depressed and felt that he had a potential for suicide. Upon his recommendation plaintiff was admitted to the Neurological Hospital on September 18, 1955. Dr. Meyers talked to defendant Hines. Plaintiff was placed on the third floor where the acutely mentally ill patients were kept; the windows there were adequately protected; there were only two exits, one through a locked elevator door, the other through a locked stairway door. The patients were, however, allowed the freedom of the floor (or of the appropriate part of it), passing in and out of their rooms into the hallways, and using one or more lounging and recreation areas. The doctors and nurses circulated freely among them. It is conceded that the primary and accepted treatment for plaintiff's condition was electro-shock. Three of these treatments were administered, beginning soon after the time of his admittance. It is wholly unnecessary to describe here the mechanics of the treatment. Plaintiff had showed improvement, but was still somewhat "mixed up," and a cure had definitely not yet been effected. The doctors did not assume that his potential for suicide, generally present in depressed patients, was gone.

In the late afternoon of September 22, Dr. Hines was at the nurses' station on the third floor writing orders. He was the physician in charge at that time, with a tour of duty extending until 8:30 the next morning. Plaintiff then came to him, said that he was feeling a lot better and that he thought it was time for him to go home; he asked permission to call his wife and have her come for him. Dr. Hines testified: that he explained to plaintiff that he had not yet had enough treatment, that he should have more treatments and stay quite a while longer, and that he could not be permitted to use the phone; that plaintiff seemed a little unhappy at this, but that he walked on out, apparently without protest. The foregoing was offered as part of plaintiff's case, from the doctor's deposition. Plaintiff testified that Dr. Hines did not answer his "questions." When Dr. Hines completed his work there he went into the hall, intending to go to the second floor where his tour would be concluded. The elevator and stairway exits were both protected by heavy, double doors; these doors had glass panes, but wire mesh was encased in the glass. One side of each door was fixed; the other could be unlocked with a key which the doctor carried, and thus opened. Inside the stairway door was a stair landing or entryway; from this the stairs led up to the left and down to the right; upon going down about ten or twelve steps there was another landing, between the third and second floors. On that landing there was a radiator against the wall, and above the radiator was a window. At this time the lower sash of this window was raised, with no screen on the window. Since the suit is not against the hospital, we are not concerned with the maintenance of the physical equipment.

Dr. Hines looked first for the elevator, but found that it was in use, as it often was at that time of day. He decided to use the stairs and proceeded to that doorway. Plaintiff's room was almost across the hallway from this door; it seems to be conceded that the hallway was nine feet wide. As Dr. Hines arrived at this door and turned toward it he looked in three directions,--to his right, to his left, and behind him. He saw patients to his right and left at the extreme ends of the ward, but none close by. He saw plaintiff sitting on his bed in his room, more or less behind him. It was the right side of the door that opened, as the doctor faced it. At this point we digress to say that plaintiff's counsel referred to a dictated record notation where the doctor had stated that he took "the usual quick glance" to see that no one was around, but the doctor testified that it was a thorough look and that what he meant was that he didn't stand and stare. Having looked, he unlocked the door, continuing to watch plaintiff. In the doctor's own words: " * * * and still I was looking in that direction, to see if he was going to do anything, and then I went quickly out of the door. I put my shoulder to it, with the idea of pushing it to, and just as I was in the process of turning to look behind me I felt this terrific impact on the door, which pushed me aside and then Mr. Gregory went past me." The witness explained that he had thus watched plaintiff to see that he was not going to do anything, until he had started out the door; that there was an automatic closing device on the door, which ordinarily took a matter of seconds to close the door; that as he stepped through, he applied his shoulder to the door to close it, and that he was thus in the process of turning to look again when plaintiff bolted into the door. The impact was so sudden and so violent that it knocked the doctor aside and stunned him somewhat. He called into the hall for assistance, and then ran down the steps after plaintiff; however, plaintiff had leaped on the radiator, jumped or crawled through the window, and was in the act of dropping to the ground. The doctor saw his fingers holding momentarily to the sill, but was unable to reach him in time. Plaintiff suffered very serious injuries and no point is made here on the size of the verdict.

The expert testimony developed the following: that the modern concept of treatment in such cases is to allow patients as much freedom as possible, to treat them as individuals, and to try to "resocialize" them; that therein the physicians knowingly take a calculated risk; that better safeguards could be afforded by strict confinement, but that few patients would be cured; that there is a potential for suicide or for harming others in all acutely depressed mental cases, and that in some patients this may increase when they begin to improve, but certainly not in all; that patients such as plaintiff are being cured regularly by modern treatment; that care in entering and leaving such a ward becomes a sort of automatic reflex. And, specifically, it was shown here that it was a constant procedure for the doctors and attendants in this hospital to be careful on entering or leaving this ward. There was, and could be, no showing as to whether plaintiff's action was performed in an attempt to escape or commit suicide. At the time of trial he had apparently recovered completely from his mental illness and he was working, though at a less remunerative position.

In plaintiff's principal instruction the negligence submitted was (1), that defendant Hines failed to make a reasonably careful inspection of the area before opening the door; and (2), that defendant "in passing through said door and in closing said door failed to exercise reasonable care to determine that no patients were then attempting to follow" him and escape. In ruling on defendants' after-trial motions and in granting judgment for defendants, the trial court obviously ruled that there was no substantial evidence to support either element of negligence thus submitted. In the alternative, the court granted defendants a new trial for errors in two of plaintiff's instructions.

We consider first, of course, the propriety of the trial court's action on defendants' motion for judgment. Little time need be spent on the cited and well-recognized rules that the evidence must be considered in a light favorable to plaintiff, and that the case may not be withdrawn from the jury unless there is no room for reasonable minds to differ on the issues, in the exercise of a fair and impartial judgment. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Brandt v. Thompson, Mo., 252 S.W.2d 339; Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117; Dean v. Safeway Stores, Inc., Mo., 300 S.W.2d 431; Freeman v. Myron Green Cafeterias Co., Mo., 317 S.W.2d 303. On the other hand, a verdict may not rest in speculation and conjecture and it is plaintiff's burden to produce substantial evidence of negligence. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Davidson v. Hennegin, Mo., 304 S.W.2d 836; Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541; Snyder v. St. Louis Public Service Co., Mo., 329 S.W.2d 721. We note at this point that negligence entails the doing of something, or failing to do something, when, as a consequence thereof, the actor should have reasonably anticipated injury to another. Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510; Stutte v. Brodtrick, Mo., 259 S.W.2d 820; Komeshak v. Missouri Petroleum Products Co., Mo.App., 314 S.W.2d 263; Lawson v. Higgins,...