dissenting:
I dissent.
For the reasons stated by Mr. Justice Trapp, I agree with him that (1) any errors in the trial court’s rulings on instructions were not waived by lack of specificity in plaintiff’s post-trial motion, and (2) the trial court properly refused the instructions in issue tendered by plaintiff. I disagree with his conclusion that no reversible error occurred in the giving, over plaintiff’s objection, of defendant’s instructions 1 and 2.
Mr. Justice Trapp correctly sets forth the rule of Dezort and its predecessors to provide that an injured intoxicated person may recover from a hospital for its negligence which is a proximate cause of his injury even though he failed to exercise ordinary care if (1) he was so intoxicated as to be unable to exercise care, (2) he was in the care of the hospital at the time of the injury, and (3) those in charge of the operation of the hospital knew of his incapacity.
Although the question is a close one, I conclude that the jury could have found plaintiff to have been so intoxicated at the time of the fire as to be unable to exercise ordinary care. If this was so, the jury could obviously have also found that the personnel of the hospital were aware of plaintiff’s condition. Evidence was presented that plaintiff (1) was admitted to the hospital in a state of acute and chronic alcoholism, (2) while in the emergency room attempted to light a cigarette without having one in his mouth, (3) at that time was in such condition that a nurse advised plaintiff’s relatives not to let him smoke without their being present, (4) had been given a dose of a drug which could cause tremens, (5) required restraint in his room to keep him in bed, (6) was in such condition at the time of the fire that a very restrictive apparatus called a safety jacket was necessary in order for nurses to give him an intravenous injection, and (7) was at trial unable to remember the episode.
Moreover, the amended complaint upon which the case was tried contained no allegation that plaintiff was exercising ordinary care, and he made no contention that such was the case. Plaintiff s theory of recovery was the Dezort, Panor exception to the general rule that he must prove his exercise of ordinary care. Had there been insufficient evidence to support this theory, the trial court should have directed a verdict.
As the jury could have determined that plaintiff was entitled to recover under circumstances whereby plaintiff was excused from the exercise of ordinary care because of his intoxication, the court greatly confused the jury by instructing the jury, over plaintiff s objection, that (1) plaintiff had the duty to have been in the exercise of ordinary care, as stated in defendant’s instruction 1 (IPI Civil No. 10.03), and (2) intoxication was no excuse for a failure to exercise ordinary care, as stated in defendant’s instruction 2 (IPI Civil No. 12.01). Although the instructions were not peremptory and correctly stated the general rule, they were incorrect statements of the law as applied to the evidence before the jury. I consider their combined effect to make reversible the error resulting from their being given.
This writer has been a participant in creating the precedent under which this case was tried. Mr. Justice Trapp’s special concurrence makes the first full statement of the rule under which plaintiff might have recovered here. With the benefit of hindsight, it is apparent that Dezort and our prior decision in this case, neither of which concerned a trial on the merits, may have created confusion and made it difficult for court and counsel to have proceeded here. Although the parties here have already been required to undergo an extended journey, I nevertheless conclude that fairness requires the award of a new trial.