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Brown v. Decatur Memorial Hospital

OPINION FILED AUGUST 3, 1979.

LAWRENCE A. BROWN, PLAINTIFF-APPELLANT,

v.

DECATUR MEMORIAL HOSPITAL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Macon County; the Hon. JAMES N. SHERRICK, Judge, presiding.

PER CURIAM:

Plaintiff Lawrence A. Brown's amended complaint, filed in the circuit court of Macon County, charged defendant Decatur Memorial Hospital with two counts of negligent care. The jury returned a verdict for defendant and judgment was entered thereon. On appeal, plaintiff contends that the trial court erred in giving certain instructions tendered by defendant and refusing the corresponding instructions tendered by plaintiff. Defendant asserts that the evidence supported the trial court's rulings on instructions and that, in any event, plaintiff failed to preserve the claimed errors for review.

Plaintiff's theory of recovery was based upon allegations that (1) he was admitted to the defendant hospital on September 30, 1974, while in a state of intoxication, (2) while there he was given a shot of paraldehyde, (3) as a result of his intoxication separately or in concert with the shot he had been given, he became incapable of caring for himself, (4) defendant permitted him access to matches, and (5) he lit a fire with those matches and burned himself.

Plaintiff filed an original four-count complaint on May 7, 1975. The trial court allowed a motion to dismiss counts III and IV of that complaint. Plaintiff appealed the dismissal of count III to this court. That count had alleged "[t]hat the plaintiff, being helplessly under the influence of alcohol, was as a matter of law incapable of being charged with contributory negligence." We affirmed, holding the quoted language to be insufficient to set forth circumstances which would, as a matter of law, relieve plaintiff from the requirement that he must have been in the exercise of due care at the time of the occurrence in order to recover. Brown v. Decatur Memorial Hospital (1977), 51 Ill. App.3d 1051, 367 N.E.2d 575.

The case was subsequently tried upon an amended complaint, the sufficiency of which is not in issue. The evidence showed that on September 30, 1974, plaintiff was taken from a gasoline service station at Weldon to Decatur Memorial Hospital, some 25 miles away, in an ambulance. He arrived at the hospital at 9 p.m. A witness who accompanied plaintiff to the hospital testified that before plaintiff was placed in the ambulance, he was unable to get up from the floor even with help and appeared intoxicated. He described plaintiff as being alternately aggressive and loving, while at the same time being thick-tongued and not understandable during the ride to the hospital. The physician who admitted plaintiff diagnosed him as suffering from acute and chronic alcoholism. The doctor gave plaintiff a mild dose of paraldehyde to sober him and ordered that a restraining belt be used as needed. The doctor described plaintiff as being rational and coherent and able to walk without staggering at that time. The doctor expressed an opinion that plaintiff was not then "helplessly intoxicated" but admitted that the drug administered could produce delirium in the presence of pain. Plaintiff had complained of abdominal pain although the doctor testified to being unable to find physical evidence of it.

Several nurses or nurse's aides who thereafter attended plaintiff testified that he smelled of drink but did not otherwise exhibit evidence of substantial intoxication. The nurse supervising the area went to plaintiff's room when other nurses stated that he had been leaving the room. The supervisor ordered that plaintiff be put in a safety jacket so that he could be given an intravenous injection. She stated that plaintiff had not been classified as being either physically or mentally irresponsible for his actions. A nurse's aide who helped get plaintiff into a hospital gown testified to seeing him take a book of matches from his pocket and she later put them into a drawer of a bedside table. This witness also said that while in the restraining apparatus plaintiff told her that he would be out of it by morning. Plaintiff apparently got out of the restraining apparatus sufficiently to get to the matches, and after lighting one or more of them, set his bed on fire at about 2 a.m. on October 1, 1974.

Plaintiff's strongest evidence came from his brother and sister-in-law who came to the emergency room after his arrival. She described plaintiff as then being trembly, feeble, and irrational. His brother testified that plaintiff requested a cigarette while in the emergency room and was taken into a hall so that he could smoke. He stated he lit a cigarette for plaintiff and was told by a nurse to watch plaintiff while plaintiff smoked. He said that plaintiff had tried to light up when plaintiff did not have a cigarette in his mouth. Plaintiff himself testified to having no recollection of the occurrence from the time he was taken in an ambulance.

• 1, 2 Defendant's claim that any error in rulings upon instructions was not preserved is based upon plaintiff's failure to abstract his post-trial motion and to specify in that motion his objections to the trial court's rulings on instructions. The error in abstracting was cured by the filing of a supplemental abstract which included the post-trial motion. The question of the sufficiency of the post-trial motion is more complicated and will be discussed in the opinions which follow.

For different reasons explained in their separate concurring opinions, a majority of the court concludes that the judgment appealed should be affirmed. It is so ordered.

Affirmed.

Mr. JUSTICE MILLS, specially concurring:

On procedural grounds, this case should be affirmed.

To my view, plaintiff has not properly preserved his issues for review in this court. And he must first gain admittance before he can be heard. This he failed to do.

In citing alleged errors below, the post-trial motion merely said:

"(5) The Court refused to give Plaintiff's tendered instructions 9, 11 and 16.

(6) The Court gave, over objection of the Plaintiff, Defendant's tendered instructions 2, 3 and 4."

Section 68.1(2) of the Civil Practice Act not only dictates that a post-trial motion "must contain the points relied upon," but further prescribes and mandates more: "* * * particularly specifying the grounds in support thereof, * * *." Defendant argues that such requirement has not been met here and I am persuaded that this is so.

In 1958, this question was ruled upon directly in Tabor v. Tazewell Service Co. (1958), 18 Ill. App.2d 593, 600-01, 153 N.E.2d 98, 102, where the post-trial motion cited as error that the court gave or refused certain instructions, designated as plaintiff's or defendants' and identified by number. The appellate court (for the then third district) ruled,

"We think the above recitals were sufficient to preserve the alleged error in instructing the jury. The attention of the trial court was thereby directed to certain particular instructions which are referred to by their respective numbers. The obvious purpose behind the enactment of Sec. 68.1 is to require the party seeking a new trial to indicate with sufficient particularity in his motion the grounds relied upon thus affording the trial court an opportunity to correct its error. While a post trial motion must specify the errors relied upon, it need not be a brief or argument. [Citations.]" 18 Ill. App.2d 593, 600-01.

More recently, in Crothers v. La Salle Institute (1976), 40 Ill. App.3d 984, 992, 353 N.E.2d 114, 121, this question was again raised. The post-trial motion there stated that the court erred in refusing to give plaintiff's instruction No. 5 and set forth verbatim the instruction complained of. Citing Tabor, the appellate court for the first district ruled that to be sufficient to preserve the error for appeal.

But dictum to the contrary is found in Huff v. Illinois Central R.R. Co. (1972), 4 Ill. App.3d 113, 280 N.E.2d 256, where the appellate court for the fifth district found the entire post-trial motion to be insufficient to preserve errors for appeal. Citing Sny Island Levee Drainage District v. Meyer (1963), 27 Ill.2d 530, 190 N.E.2d 356, among others, the court found the ...


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