author: Mr. Presiding Justice Sullivan

text:
    People of the State of Illinois ex rel. William D. Cazel, Appellee, v. Board of Trustees of Policemen’s Pension Fund of the Village of Winnetka et al., Appellants.
    Gen. No. 41,606.

      Opinion filed March 2, 1943.
    Dickinson, Sprowl, Norville & James, of Chicago, for appellants; Frederick Dickinson and Edward J. Wendrow, both of Chicago, of counsel.
    Carl E. Buddenbaum, of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

A petition for a writ of mandamus was filed to compel the defendants, Board of Trustees of Policemen’s Pension Fund of the Village of Winnetka and Lamson H. Date, George W. Gordon and Harry C. Enault, trustees thereof (hereinafter sometimes referred to collectively as the Police Pension Board), to place upon the pension roll of said fund relator William D. Cazel, a former policeman of the Village of Winnetka, and to pay him therefrom $90 a month, same being half of his monthly salary while he was a member of the Winnetka police force.

The legal sufficiency of the petition was raised by various motions filed by defendants. After several amendments to the petition were filed, the motion of defendants to dismiss said petition as amended was denied and defendants filed their answer. Harve H. Page and John F. Manierre, having become trustees of the police pension fund, were substituted as defendants in place of Lamson H. Date and George W. Gordon.

On September 17, 1940 a judgment order was .entered by the trial court which directed that a peremptory writ of mandamus issue commanding defendants “to forthwith enroll the Relator herein, William D. Cazel, as one of the beneficiaries of the said Policemen’s Pension Fund of the Village of Winnetka, from and as of the first day of July, 1936; and they and each of them are hereby ordered and directed to pay to the said Relator a monthly pension equal to one-half of the amount of salary of $180 a month, attached to the rank of Patrolman, Second Class, which he held in the said Police Department of the Village of Winnetka on July 1, 1936.” Defendants appeal from this judgment order.

Upon the trial of this cause a report of the Police Pension Board as to the facts submitted to it on the relator’s application for pension, its conclusions relative thereto and its decision denying such application was offered and received in evidence. This report is as follows:

“Record of an adjourned meeting of the Whmetka Police Pension Board, held in the Committee room in the Village Hall, on September 30th, 1936 at eight o ’clock P. M.
“There were present: Lamson H. Date, Chairman; George W. Gordon and Harry C. Enault.
“The matter of the application of William D. Cazel for pension was considered, and George W. Gordon presented the following statement of facts, and conclusions of the Board, to-wit:
‘ ‘ Statement of Facts.
“The applicant, William D. Cazel, became a.member of the Winnetka Police Force in June, 1925. Previously he had been engaged in farming in Southern Illinois, where he had lived the usual outdoor life incident to such occupation.
“According to records of the Winnetka Police Department, the applicant was born November 8, 1880. His height is 5 feet, 8V2 inches. His present weight (taken from report of June 26, 1936) is 206 pounds. In 1925 when he came on the Winnetka Force, his weight was approximately 185 pounds.
“On or about June 30, 1936, the applicant was notified by Chief of Police Peterson that he was released or discharged from the Police Department on account ■of his physical condition and inability to perform the duties of his office, his dismissal to be effective July 1, 1936.
“This Board has had several meetings at which the Cazel application has been considered. The following witnesses appeared personally before the Board and gave testimony: The applicant, William D. Cazel, Chief of Police W. M. Peterson, Clarence Minnema, M. D., H. A. Orvis, M. D., Village Health Officer. The following documentary evidence was submitted and considered :
“1. Letter of applicant to Police Pension Board, dated July 14, 1936, making application for pension:
“2. Written statement of applicant in form of letter to Police Pension Board dated September 23,1936;
“3. Statement of John H. Gormley, M. D.,'dated May 30,1932 ;
“4. Report dated June 25, 1934, to Dr. Orvis, Village Health Officer, made by Byron Francis, M. D. Department of Medicine, the University of Chicago;
“5. Letter of Samuel J. Lang, M. D., to Dr. Clarence Minnema, dated April 9, 1936;
“6. Letter of Samuel J. Lang, M. D., to Lamson H. Date, Chairman, Police Pension Board, dated July 28, 1936;
“7. Letter of Jay M. Garner, M. D. to Mr. Lamson H. Date, Chairman, Police Pension Board, dated August 13, 1936;
“8. Report of medical examination of employees made by Clarence Minnema, M. D., covering medical examination of applicant and dated June 26, 1936;
“9. Report of Dr. H. A. Orvis, Village Health Officer, dated August 6, 1936;
“10. Undated written statement signed by applicant entitled, ‘Report of my case of Feb.’; and,
“11. Letter of C. Minnema, M. D. to Pension Board, dated September 25, 1936.
“There was also submitted to this Board the records of the Police Department of the Village of Winnetlca covering applicant’s original application for employment by the Police Department and said Department’s records covering applicant’s sick absences from duty. Such absences thus shown by Police Department records from January 1,1931 to June 30, 1936, are as follows:
“The duties of the applicant as a police officer required the officer to do patrol duty on foot, the hours of such patrol frequently including night duties and a beat, or assignment, of eight hours of such service. It was stated to the Board by the Chief of Police, and also stated by Captain Enault of the Board, that officers on patrol duty on foot were not required to be continually on their feet during* any particular beat. The officer is merely required to cover a certain territory and turn in certain signal or station reports. The duties of the officer also include patrol work in the police cars, and this also may require night service.
“This Board is satisfied from the evidence submitted that the applicant at the time of his dismissal from the Winnetlca Police Department had become and was physically incapacitated for the performance of the duties of a police officer and that such disability still continues and did incapacitate the applicant for the duties of a police officer.
“The applicant, ih answers to questions from the Board, cited only two specific instances of possible causes of Ms present disability. These were (1) the fact that during the years 1928, 1929, 1930 and 1931, his work was mostly riding the squad cars which were unheated, and the fact that his prescribed uniform required the wearing of breeches with puttees, which the applicant claimed so bound his legs as to cause poor circulation in his feet. He stated that his doctor advised him to quit wearing puttees and to do more walking, which Chief Peterson permitted him to do; that thereafter he got along very well for a while, but having to do night work nearly all the time, he got very little sunshine and began having more trouble; and (2) in February, 1936, on a day when the temperature was about 20 degrees below zero, witness states that he was doing traffic duty in the Hubbard Woods section of Winnetka, and in so doing, froze his feet and legs, which caused him to be unable to work after February 19, 1936.
“Assuming, on the evidence submitted to the Board, that the applicant has become disabled for the performance of the duties required of him on the Police Force, the question for our decision becomes (to quote from the rules of the Statutes governing eligibility to pension” on account of disability) whether the applicant has become, ‘ physically disabled while in and in consequence of the performance of his duty as such a policeman to such an extent as to necessitate the suspending of performance of his duty on such police force or retirement from the police force.’ It is further the opinion of this Board that the determination of the above question becomes largely a medical question, and that the answer must chiefly depend upon the medical reports and statement of physicians who have examined the applicant during the period of his disability and ailments. The first medical report is that of Dr. Gormley, dated May 30,1932, in which he states that the applicant was then suffering from acute articular rheumatism. The medical report of Dr. Francis of the Department of Medicine, The University of Chicago, dated June 25, 1934, reports on an examination of Mr. Cazel in the University of Chicago Clinics on June 12, 1934. This report states that on the basis of the history and physical findings, a tentative diagnosis of gout was made. The report further states that X-rays of the affected portions of the feet are compatible with the clinical diagnosis of gout. The patient was by this report advised to submit to a reduction of diet, and the statement is made that, ‘in view of the fact that he is evidently suffering from a recurrence of gout, a low Purine intake was also advised.’ Treatment recommended by this report was largely dietary, with the suggestion that if symptoms of gout became acute again, the drug Colchicum might be given, which drug the patient’s physician had previously prescribed.
“According to the statements of Dr. Lang, and particularly those in his letter of July 28, 1936, to Mr. Date, Chairman of this Board, Dr. Lang stated that he had seen Mr. Cazel in March or April, 1936, at his home and later at the Evanston Hospital; that the principal factor was hypertrophic arthritis of the weight-bearing joints, which he states means a wear- and-tear effect from excess weight and an occupation requiring constant hammering from hard pavements; that infection has little or no part to play in the picture. Dr. Lang’s letter continues by stating that gout was considered because of pain in the great toe, and may have had something to do with that portion of the patient’s trouble. In this letter Dr. Lang states that, ‘In evaluating the case, our Pension Board should consider the effects of hard pavements, exposure and the condition of the applicant when he entered the service. Obesity markedly accentuates and accelerates such a process, and unless the department has provisions against overweight, I should think its effect could not be considered in arriving at a conclusion. ’
“Dr. Garner’s statement in his letter of August 13, 1936, recites that he attended Mr. Cazel in 1928 and 1929 for an acute gall stone attack, and in July of 1932 for an acute gout of both great. toes. Dr. Garner states, ‘I am unable to state definitely that the police duties were the etiological factor, but walking his beat certainly aggravated the condition at that time. ’
“In his verbal statements when he appeared before the Board, Dr. Minnema'stated that he attributed Mr. Cazel’s condition of disability chiefly to a gouty condition and the patient’s failure to carry out proper and prescribed diet and care.
‘ ‘ The applicant, in addition to the statements in his letter of September 23, 1936, and in his undated report of his case of February, had verbally stated to the Board that on said occasion in February, 1936, he had frozen his feet or legs, and that such exposure and freezing had caused his disability, and that it was upon said exposure, while in the performance of his duties, that he based his claim and right to a pension. The applicant referred the Board to Dr. C. Minnema who, the applicant stated, had been consulted by the applicant at the time of or shortly following said exposure and freezing. Dr. C. Minnema, in his letter of September 25, 1936 to this Board, reported that the attack of arthritis which the applicant had the latter part of February, 1936, and for which he attended the applicant was, he believed, aggravated by the applicant’s work during the preceding spell of cold weather. Dr. Minnema, however, stated verbally to the Board that, in his opinion, the witness did not freeze his feet at the time mentioned by the applicant and that he regarded the applicant’s subsequent disability as aggravated rather than caused by such exposure.
“Dr. Orvis, in his report dated August 6, 1936, recited that he had been called upon to arrange for a complete physical examination for Mr. Cazel in June, 1934, and that he had arranged for The University of Chicago Clinic’s examination, which is mentioned above. Dr. Orvis analyzed said report as giving a diagnosis of gout. He states that he finds nothing recorded in the several medical reports submitted, as above recited, to indicate any injury either to the feet or other part of the body. He states, ‘The disability of the feet, especially the right, in my opinion is due to gouty deposits and changes of the bones of the feet which will be chronic. The cause of this condition is an inherited tendency, together with excessive eating and perhaps the use of alcohol (even though it be conservatively used). ’ Dr. Orvis ’ written statement concludes as follows: ‘Whereas activity on his feet may have aggravated the discomfort in his feet, I do not believe it to be the primary cause of this trouble.’
‘ ‘ Conclusions.
“Based upon the evidence submitted to and considered by this Board, as hereinbefore set forth, it is the opinion and conclusion of this Board (1) that the applicant is now physically incapacitated to perform the duties of a police officer and that he became physically disabled while a member of the Police Force of the Village of Winnetka; (2) that although the applicant had become so physically disabled while a member of said Police Force he did not become so physically disabled ‘in consequence of the performance of his duty as such policeman. ’
“Inasmuch as the Statute of the State of Illinois governing the rights of members of the Police Force of the Village of Winnetka to a pension from the Winnetka Police Pension Fund requires both that the applicant shall have become disabled while a member of the Police Force and that his disability must have been incurred in the performance of his duty as a policeman, the application of the applicant, William D. Cazel, for a pension must be denied.
(sgd.) Harry C. Enault,
(sgd.) George W. Gordon,
(sgd.) Lamson H. Date,
Chairman.
“Dated: September 30, 1936.
On motion of Harry C. Enault, seconded by George W. Gordon, said statement and report were unanimously adopted.”

The only other evidence presented upon the trial of this cause in the circuit court was the testimony of three physicians. Two of these physicians testified to substantially the same effect as they had before the Police Pension Board and the testimony of the third physician was in accord with the evidence submitted by the other physicians as shown by the report of the Police Pension Board. There is no controversy as to the facts found in said report.

Section 4 of the Police Pension Act (par. 895, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.260]), under which this action was brought, is as follows:

“4. Whenever any policeman, while serving as such, in any such city, village or incorporated town, shall become physically disabled while in and in consequence of the performance of his duty as such policeman, to such an extent as to necessitate the suspending of performance of his duty on such police force, or retirement from the police force, said board shall order and direct that he be paid from said fund a pension of one-half (Vz) of the salary attached to the rank he may have held on said police force for one year immediately prior to the time of his so suspending performance of his duty or retirement; Provided, that whenever such disability shall cease and said policeman shall resume the performance of his duty on said police force such pension shall cease.” (Italics ours.)

The principal question presented for determination is whether the trial court erred in its interpretation of that provision of section 4 of the Police Pension Act which reads: “Whenever any policeman, while serving as such, . . . shall become physically disabled while in and in consequence of the performance of his duty as such policeman, to such an extent as to necessitate the suspending of performance of his duty on such police force, . . . said board shall order and direct that he be paid from said fund a pension of one-half (%) of the salary attached to the rank he may have held on said police force for one year immediately prior to the time of his so suspending performance of his duty. . . .” (Italics ours.) There is no question but that Cazel was physically incapacitated to perform the duties of a police officer at the time of his discharge or when he filed his application for pension or that he became physically incapacitated while a member of the police force of the Village of Winnetka to the extent that he was no longer able to perform his police duties. The real controversy here is whether he became physically disabled “in consequence of the performance of his duty as such policeman. ’ ’

The evidence adduced upon the trial discloses that Cazel was afflicted with arthritis when he became a member of the police force in 1925. While he continued to be so afflicted his ailment did not entirely impair his ability to perform his police duties. From 1931 on his arthritic condition became progressively worse and he also developed a “gouty condition.” His weight increased to 206 pounds. The treatment prescribed for his ailments and his obesity by the various physicians who attended him during the period from 1931 to July 1,1936, when he was discharged from the police force, was chiefly dietary and excluded the use of alcohol. Cazel failed to cooperate with his physicians in the matter of his diet. It is undisputed in the record that the arthritic condition of Cazel’s weight bearing joints and his gout were aggravated by the necessity of his walking on hard pavements in the performance of his police duties. It is also undisputed that his arthritis and gout were likewise aggravated by his obesity. After his.extended absence from duty for 144 days in 1936, because of his physical inability to work, Cazel was discharged from the Winnetka police force on July 1, 1936, as heretofore shown. Since the Winnetka Police Force was not under Civil Service, Cazel could have been discharged either with or without cause at any time but there is no question involved herein concerning the propriety of his discharge.

The Police Pension Board found that Cazel did not “become physically disabled in consequence of the performance of his duty as such policeman, to such an extent as to necessitate” his discharge from the pqlice force. The trial judge found that plaintiff’s maladies were not brought about “in consequence” of the performance of his duty as a policeman but he then went on to find that the language “to such an extent as to necessitate the suspending of performance of his duty on such police force,” in the section of the statute in question made it necessary to construe this section of the statute. The trial' judge then found that because of the use of the language last above quoted the section of the statute under consideration could only have been intended by the legislature to mean that although plaintiff’s ailments were admittedly not brought about in consequence of his police duties, the aggravation of his ailments did result in consequence of the performance of such duties and that since it was the aggravation of his ailments rather than the ailments themselves, which caused his physical disability, Cazel was entitled to the allowance of "the pension applied for.

We do not think that any language contained in section 4 of the Pension Act, heretofore set forth, is susceptible of any such interpretation. In our opinion the language of the statute is clear, plain and unambiguous and it contemplated that only those who became physically disabled to such an exent as to require their discharge or retirement by reason of disease or injuries suffered while they were members of the police force and in consequence or as a result of the performance of their police duties, were entitled to receive the disability pension the statute provided for. The words “to such an extent as to necessitate” suspension or retirement, upon which the trial court based its construction of the statute, merely qualify the words “physically disabled” and were only intended to indicate the degree of physical incapacity that required “the suspending1 of performance of his duty” of a member of the Winnetka police force.

That Cazel did not base his claim of right to the pension upon the aggravation of his ailments by his walking on hard pavements is clearly indicated by the following portion of the report of the Police Pension Board:

“The applicant, in answers to questions from the Board, cited only two specific' instances. of possible causes of his present disability. These were (1) the fact that during the years 1928, 1929, 1930 and 1931, his work was mostly riding the squad cars which were unheated, and the fact that his prescribed uniform required the wearing of breeches with puttees, which the applicant claimed so bound his legs as to cause poor circulation in his feet. He stated that his doctor advised him to quit wearing puttees and to do more walking, which Chief Peterson permitted him to do; that hereafter he got along very well for a while, but having to do night work nearly all the time, he got very little sunshine and began having more trouble; and, (2) in February, 1936, on a day when the temperature was about 20 degrees below zero, witness states that he was doing traffic duty in the Hubbard Woods section of Winnetka, and in so doing froze his feet and legs, which caused him to be unable to work after February 19,1936.”

Cazel never returned to work after February 19, 1936. It will be noted that he testified before the Police Pension Board that on that date his feet and legs were frozen as a result of performing traffic duty in subzero weather. The physician who attended him at that time stated that his feet and legs had not been frozen on that occasion but that the extreme cold weather aggravated his arthritis and gout. It is clear from the foregoing portion of said report that the chief of police of Winnetka would have been warranted in discharging Cazel as far back as 1931 and even prior thereto because of his disabling ailments but every consideration was shown him. After he had been assigned to duty riding in a police car for a number of years, Cazel couldn’t stand that. While on that duty he sat down most of the time in the police car but he complained that the breeches and puttees which he was required to wear as part of the regulation police uniform interfered with the circulation of blood in his feet. He complained to the chief of police concerning said breeches and puttees and he was thereafter excused from wearing* same. While he was assigned to duty in the police car one of his physicians advised him that it would be beneficial if he walked more. At his request he was given an assignment traveling “beat” but it then appears that he could not walk on the hard pavements without aggravating his maladies. As has been already indicated his diseased condition prevented him from performing his police duties in extreme cold weather. He stated himself that because “he got very little sunshine” he “began having more trouble.” So it is that his ailments precluded him from properly performing any ordinary police duties. It appears conclusively that his physical disability was caused by his diseased condition and that, since it is admitted that his diseased condition was not brought about in consequence of the performance of his duties as a policeman, the Police Pension Board was justified in deciding that he was not entitled to a disability pension under the statute. There was no abuse of discretion on the part of the Police Pension Board in regard to the conclusion reached by it. Plaintiff was afforded a full and fair hearing and the evidence adduced before said board amply sustained its findings and conclusions.

Other points are urged for reversal but in the view we take of this case we deem it unnecessary to discuss them.

The judgment of the circuit court of Cook county ordering that a writ of mandamus issue is reversed.

Judgment reversed.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth Edwards and James Edwards, Appellants, v. Jay Morse Ely, Appellee.
    Gen. No. 41,835.

      Opinion filed March 2, 1943.
    Winston, Strawn & Shaw, of Chicago, for appellants ; George B. Christensen and Douglas C. Moir, both of Chicago, of counsel.
    Stanley L. Shetler, of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This is a tort action brought by plaintiffs Elizabeth Edwards and James Edwards, against defendant, Jay Morse Ely, for personal injuries alleged to have been sustained by Elizabeth Edwards and for property damages alleged to have been sustained by James Edwards when the defendant ran his automobile into plaintiffs’ car while the latter was standing still, waiting for a traffic light to change. The jury returned a verdict of not guilty upon which judgment was entered in favor of defendant and against plaintiffs. Plaintiffs appeal.

During the course of the trial defendant admitted his liability and the cause proceeded with the introduction of evidence pertaining to the injuries claimed to have been sustained by plaintiffs, the most serious injury claimed being that Elizabeth Edwards suffered a miscarriage as the result of the accident.

Plaintiffs contend that “the defendant having admitted liability on the trial and questioning only the extent of the damages, it was erroneous for the court, by instructions and forms of verdict, to permit the jury to return a ‘Not Guilty’ verdict.”

Defendant’s theory as stated in his brief is that “the defendant in this case frankly took the position before the jury, as we do here, that the occurrence in question was the fault of the defendant but claimed that the plaintiffs were not injured or damaged in person or property. Further, that this action brought by the plaintiffs was based on simple negligence and that no damages were presumed but it was incumbent upon the plaintiffs to establish by a preponderance of the evidence that they were not only injured and damaged but that such injuries and damages were proximately caused by the defendant’s negligence.”

Thus plaintiffs’ position is that defendant, having admitted his liability, their cause of action was established ; and that the only issue left in the case was the extent of their damages and that they were entitled in any event to an award of nominal damages. Defendant’s position is that proof of damages was an essential element of plaintiffs’ case and that plaintiffs having failed to prove any actual damages the trial court properly submitted to the jury the instructions and forms of verdict complained of. In other words defendant insists that, even though he did admit liability, he was still entitled to a verdict of “not guilty,” since plaintiffs failed to prove that they suffered any actual damages.

Notwithstanding that defendant’s liability was admitted, the trial judge gave the jury at defendant’s request an instruction on the question of damages which concluded as follows:

“The jury are not to understand from this instruction that the court intends to intimate that the plaintiffs have or had such ailment or damages as is claimed or that the defendant is or is not in any manner liable, or to intimate any opinion upon that or any other question of fact in this case.” (Italics ours.)

This instruction was also given to the jury at defendant’s request:

“The court instructs the jury that the fact that the court has given you instructions on the subject of plaintiffs’ damages, if any, or that defendant’s counsel has discussed such subject is not to be taken by you as any intimation on the part of the court, or any admission on the part of the defendant that the defendant is liable for the loss or damage complained of by the plaintiffs.” (Italics ours.)

These instructions were clearly erroneous since they in effect submitted to the jury the issue of defendant’s liability, when he had already admitted same. At the conclusion of the trial there was no issue left for submission to the jury except the extent of plaintiffs’ damages.

Plaintiffs also claim that the following forms of verdict were erroneously submitted to the jury:

“We, the jury, find the defendant not guilty as to the plaintiff, Elizabeth Edwards.”
“We, the jury, find the defendant not guilty as to the plaintiff, James Edwards.”
“We, the jury, find the defendant not guilty.”

The court erred in submitting these forms of verdict to the jury since liability was admitted and plaintiffs were entitled to at least nominal damages for the invasion of their rights. In addition, although the jury resolved Elizabeth Edward’s claim that her miscarriage resulted from the accident involved herein against her, there is undisputed evidence in the record that she suffered at least slight injuries that entitled her to the allowance of some damages.

It is of course true that damages, beyond nominal damages, cannot be presumed but must be proved.

We think it is also true that proof of actual damages was not essential to maintain the cause of action in the instant case. In defining the elements of a cause of action for negligence it is said in the Restatement of the Law of Torts:

“Sec. 281. Statement of the Elements of a cause of Action for Negligence.
‘ ‘ The actor is liable for an invasion of an interest of another, if:
“(a) the interest invaded is protected against unintentional invasion, and
“(b) the conduct of the actor is negligent with respect to such interest or any other similar interest of the other which is protected against unintentional invasion, and
“ (c) the actor’s conduct is a legal cause of the invasion, and
“(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.” (Restatement, Torts, vol. 2, p. 734.)

It will be noted that the foregoing definition does not include proof of actual damages as a necessary element in a cause of action for negligence. Applying this definition to the situation presented here it will be seen that plaintiffs had a legal right to be secure in their persons and property against invasion by the defendant. Defendant admits that he negligently drove his automobile in such a manner that it bumped into the rear of plaintiffs ’ car and it is uncontradicted that Elizabeth- Edwards was knocked from the seat thereof to the floor. His negligent conduct in this regard constituted an invasion of plaintiffs’ rights, there being not even a suggestion that either of the plaintiffs was guilty of contributory negligence.

There is some diversity of opinion and apparent confusion in the numerous authorities cited on the question as to whether, liability having been admitted by a defendant in an action for negligence, it is also necessary for the plaintiff therein to prove that he suffered actual damages before he is entitled to a verdict in his favor. We think that such diversity of opinion and confusion results primarily from the use of the word damage not in the sense of legal compensation but rather as synonymous with the term legal injury. In our opinion the true rule applicable to the question as to whether plaintiffs in this case were entitled to recover at least nominal damages, even in the absence of proof of actual damages, is stated as follows in 1 C. J. S., p. 986:

“While it has been expressly stated that damage is not of itself a cause of action, there are decisions to the effect that the damage sustained is an essential element, in connection with the delict, of the cause of action; but, as stated hereafter in Sec. 15, unless the word ‘damage’ is used in the sense of ‘injury,’ which is technically inaccurate, this is not in accordance with the general rule that every injury, that is, every violation of a legal right, imports damage and authorizes the maintenance of an action and the recovery of at least nominal damages, regardless of whether any actual damage has been sustained. It has accordingly been held that the cause of action is, as stated above in Sec. Id (6), the breach of duty, and not the consequential damages resulting therefrom.” (Italics ours.)

In support of his position that proof of actual damages is an essential element in a cause of action for negligence and that, even though liability is admitted, a defendant is entitled to a verdict of “not guilty” in the absence of proof of actual damages, defendant cites McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, and quotes therefrom as follows at page 96:

“This court has stated, in harmony with the authorities on the question, that ‘the essential elements of a cause of action for negligence are: (1) The existence of a duty on the part of the person charged to protect the complaining party from the injury received; (2) a failure to perform that duty; and (3) an injury resulting from such failure.’ ”

It will be noted that the Supreme Court indicated that the third element of the cause of action was “an injury resulting from such failure” and not proof of damages. We think that the words “an injury” were not intended to mean physical injury but rather a legal injury, vis: an invasion of a right. Defendant also cites Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, to sustain his position. This case in defining the three essential elements in actionable negligence used almost the identical language that was used by the court in the McClure case. As to the third essential element of such a cause of action it used the words “consequent injury.” What we have heretofore said in relation to the McClure case is equally applicable to the Oswald case.

In Covenant Club of Chicago v. Thompson, 247 Ill. App. 122, where an action of trespass on the case was brought against certain defendants for negligently allowing a flow of seepage and water onto another’s land and the jury was instructed to find for the defendants because damages had not been specially proved in an exact amount, this court in reversing and remanding the cause said at page 127:

“It is a sufficient answer to this contention to say that in any event if the plaintiff made out a prima facie case of negligence against the defendant John E. Thompson it would have been entitled to nominal damages as to him.”

The result of the trial of this case is obviously inequitable. Although defendant was admittedly liable and guilty of an invasion of plaintiffs’ right to be secure in their persons and property, there has been inflicted upon them a judgment to pay the costs of this suit. On principal and authority we are impelled to hold that plaintiffs were entitled to verdicts and judgments in their favor for at least nominal damages.

In the event that this case is retried and defendant again admits liability, no instruction should be submitted to the jury that carries a suggestion that it is within the province of the jury to even consider the question of liability and no forms of verdict should be submitted except those whereby defendant must be found guilty, leaving to the jury only the issue as to the extent of plaintiffs’ damages, which in any event must be at least nominal damages.

For the reasons stated herein the judgment of the superior court is reversed and remanded.

Reversed and remanded.

Friend and Scanlan, JJ., concur.


text:
    Elizabeth Sproehnle Wright, Appellee, v. Kenneth M. Wright, Appellant.
    Gen. No. 41,856.
    Opinion filed March 2, 1943.
    Elbridge Bancroft Pierce, of Chicago, for appellant.
    Josef L. Hektoen and William H. Sloan, both of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

On June 4, 1938 plaintiff, Elizabeth Sproehnle Wright, secured a final decree of divorce from defendant, Kenneth M.' Wright. The decree included an agreement that defendant would pay plaintiff $4,000 alimony in monthly instalments over a period of 33 months. There was an accumulated delinquency of $1,455 in his alimony payments, which defendant paid prior to the expiration of the aforesaid period. Although Wright was in arrears in his alimony practically from the date of the entry of the divorce decree, plaintiff did not at any time resort to appropriate court proceedings to compel him to comply with the provisions of said decree concerning his monthly alimony payments. After her alimony had been fully paid, plaintiff filed a petition for the allowance of fees for services alleged to have been theretofore rendered by her attorney in endeavoring to induce defendant to make his alimony payments as ordered by the decree, but none of said services were performed in connection with any court proceeding to compel payment. Defendant filed an answer denying that plaintiff was entitled to an allowance of attorney’s fees for such alleged services. The trial court ordered: “That defendant pay plaintiff the sum of $500 as and for additional attorney’s fees.” Defendant appeals.

The decree provided that defendant pay plaintiff $4,000 in alimony in the following manner: $500 in monthly instalments of $125 to October 1,1938, $150 a month for the next year and $100 a month for 17 months thereafter. Defendant’s payments were so-made that he was in arrears $150 on October 1, 1938, $1,005 on October 1, 1939 and $1,455 on February 15, 1941. As already stated this latter amount was paid in full.

The services which plaintiff claims were rendered in her behalf by her attorney consisted principally of conferences between her and her attorney and routine telephone reminders to defendant or his secretary that his alimony payments were due or past due. Plaintiff seeks to charge defendant in this proceeding for 46% hours services rendered by her attorney at the rate of $10 an hour and in addition for his services in preparing, filing and presenting her petition herein.

When the decree of divorce was entered defendant’s salary was $750 a month. During the period when the alimony payments were to be made defendant was ill and confined to a hospital for eight or nine months which entailed an expense of $400 a month for his medical care and treatment and also during such period he suffered a salary reduction to $500 a month for 12 or 15 months. In addition he was obligated under a prior decree of divorce to pay premiums on a $21,000 life insurance policy and to pay for the support of his son by a previous marriage. It also appeared that he was obligated to many creditors who were pressing him for payment. These matters are not recited by way of justification for defendant’s failure to pay plaintiff’s alimony as ordered by the decree of divorce but rather • because we think they throw some light on plaintiff’s apparent acquiescence in the method and manner in which defendant made his alimony payments. It is difficult to reconcile plaintiff’s employment of an attorney from the date the decree was entered to compel defendant to pay her alimony as ordered with the utter failure of either herself or her attorney in her behalf to seek legal redress from him. This is especially true in view of the fact that defendant’s arrearages in his alimony payments were constantly increasing. Her attorney did serve defendant with a notice that plaintiff was going to apply for a rule against him to show cause just previous to the expiration of the alimony payment period, but defendant then paid in full the balance due on his alimony and the rule to show cause was not presented in court.

No case has been called to our attention and we have been unable to find one where attorney’s fees have been allowed under circumstances such as are shown here.

To sustain the order of the trial court allowing her attorney’s fees plaintiff cites Slezak v. Slezak, 293 Ill. App. 489, and quotes therefrom as follows (p. 491):

“In order to compel the defendant to comply with the orders of the court, as we have stated before, it became necessary for the plaintiff to employ an attorney, and the attorney’s fees incurred, being proximately attributable to defendant’s default, should as a matter of course be taxed against the defendant as a penalty for failure to perform the duty required of him by the findings of the court in its decree.”

In the Slesak case it was also said at pages 490 and 491:

“It further appears from the decree filed in this case that after the entry of the decree, although continuously earning upwards of $200 per month, the defendant wilfully failed to make payments as they became due, and then only paid as a last resort after the plaintiff had sought to compel the enforcement of the decree by petitions for rules to show cause and the repeated entries of the necessary rules and orders thereon. To so enforce the decree the procedure became repeatedly necessary to secure these alimony payments. In the presentation of the several petitions and the ruling of the court thereon it became necessary for the plaintiff to employ counsel to enforce the decree of the court.
“In order that the defendant may be forced to make payments of alimony provided for in the decree, citations may be issued by the court after the proper service of notices, petitions for rules to show cause why defendant should not be held in contempt, hearings on the return of the rules, attachments upon nonappearance of the defendant and finally commitment in cases of persistence in the refusal to comply.”

That case, far from supporting plaintiff’s position that attorney’s fees were properly allowed her by the trial court, holds in effect that in order to entitle a divorced wife to attorney’s fees from her former husband for his failure to make, alimony payments as ordered it must appear that his failure to make the prescribed alimony payments in the amounts and at the times provided in the decree was wilful and that it was necessary for her to institute court proceedings and to secure court process to force him to make said alimony payments. It will be noted that in the Slesak case the defendant wilfully refused to make the required payments and that the plaintiff therein repeatedly resorted to the court to compel him to pay. There plaintiff was clearly entitled to an allowance of attorney’s fees for the services rendered by her attorney in connection with the various court proceedings which it became necessary to institute to compel the payment of the alimony due her.

Where, as here, the defendant was delinquent in his payments almost from the date the decree was entered, his arrearages constantly increased over the 33 month period during which the monthly payments of alimony were to be made and not once during that entire period did plaintiff seek the aid of the court to compel payment, it is reasonable to conclude that she did not consider defendant’s failure to comply with the terms of the decree concerning her alimony payments as wilful and that she acquiesced in the manner in which the alimony was paid.

The superior court of Cook county in which her decree was entered was at all times available to compel defendant to pay his delinquent alimony, if his failure to pay same was wilful. It would be inequitable to permit plaintiff to stand by in the face of defendant’s amounting arrearages without availing herself of the power of the court to grant her relief and then allow her attorney’s fees after her alimony was paid in full. The legal services involved herein were performed almost entirely in plaintiff’s attorney’s office and were directed solely toward inducing or persuading the defendant to pay his alimony when due. Both plaintiff and her attorney were apparently satisfied with the results achieved since they did not see fit to institute court proceedings to compel defendant to pay his arrearages. It may well be that if resort was had to the court in the early stages of defendant’s default it would have been unnecessary for plaintiff to employ an attorney thereafter.

It would establish a dangerous precedent to hold that plaintiff was entitled to an allowance of fees for such services as she claims her attorney rendered. If fees were allowable for services of this character, it would be difficult to control or limit the amount of attorney’s fees that might be charged up against any defendant similarly situated without his knowledge. Where resort is had to the court to compel payment of past due alimony, an entirely different situation is presented. Then a defendant is chargeable with notice of the likelihood of attorney’s fees being assessed against him if the court finds that his failure or refusal to pay alimony as ordered has been wilful.

While, in so far as we have been able to ascertain, the precise question involved herein has not heretofore been presented to or determined by any court of review in this or any other jurisdiction, in our opinion it is the generally understood rule in this State that a divorced wife who is desirous of forcing her former husband to pay delinquent alimony, which he has wilfully refused or failed to pay, is entitled to an allowance of attorney’s fees only if she institutes appropriate legal proceedings through her attorney to compel the payment of such alimony and then she may be allowed reasonable fees based on the nature and extent of the services performed by her attorney incident to said proceedings.

For the reasons stated hérein the order of the superior court of Cook county is reversed.

Order reversed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Stella Patznsky, Administratrix of Estate of Thomas Patznsky, Deceased, Appellee, v. Frank O. Lowden et al., Trustees, Appellants.
    Gen. No. 42,199.

      Opinion filed March 2, 1943.
    Milton V. Thompson, of Chicago, for appellants; Milton V. Thompson, Erwin W. Roemer and Charles T. Shanner, all of Chicago, of counsel.
    Ryan, Sinnott & Miller, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Stella Patznsky, as administratrix of the estate of Thomas Patznsky, deceased, brought suit against the trustees of the Chicago, Rock Island & Pacific Railway Company, under the Federal Employers ’ Liability Act, to recover damages for the wrongful death of her intestate, who died as the result of injuries sustained in the defendants’ railroad yard in Chicago, while engaged in interstate commerce. The jury returned a verdict in her favor for $22,500, and after overruling defendants’ motions for judgment non obstante vere dicto and for a new trial, the court entered the judgment from which defendants appeal.

As the principal ground for reversal it is urged that plaintiff’s evidence was insufficient in law to sustain her burden of proving (1) that defendants were negligent, and (2) that such negligence was the proximate cause of the accident. The facts disclose that Thomas Patznsky, aged 45, a conductor in charge of a switching crew, came to his death shortly after 4 a. m. March 31, 1939, a cool clear morning, through injuries received underneath a caboose on the south end of track 15 in defendants ’ Burr Oak yard, Chicago. It is conceded that he was engaged in interstate commerce. There were no eyewitnesses to the accident, but he was discovered, either then dying or dead, between the rails and under the brake beam of the rear and south end of a caboose which was attached to a string of 55 cars standing on the track. His electric lantern was lighted and lying a short distance from him and to the north of his body, and his train list was near-by. When found, he was described as being in a crouched position, with his feet toward the north and his head in the angle of the brake hanger, three or four feet north of the south end of the caboose. There was no evidence óf marks on the ties or ground to indicate that he had been dragged or pushed in either direction. It is undisputed that he was in good health on the morning in question and appeared normal in every respect, and the evidence all indicates that he was an experienced railroad man, habitually careful for his own safety.

The- Burr Oak yard contained water tanks, a roundhouse, a machine shop, freight houses, yard offices, about 50 railroad tracks, all on the ground level, running parallel and in a general northerly and southerly direction to two or three leads on each end, and was in all respects a typical railroad yard. The tracks were numbered from west to east. During the night the yard was illuminated artificially by flood lights, and visibility was good. Near Burr Oak avenue, which did not intersect the tracks but passed over them by means of an overpass, and about 200 feet to the west of track 15, a yard office was located, where the men customarily reported to.work and where conductors received their train lists and other instructions.

Track 15 was generally known as the Clearing track because a train was- made up on that track each night for Clearing, Illinois. From the north lead to the south lead, track 15 held approximately 45 cars, the average length of each being approximately 45 feet.

The manner of making up a train was described by witnesses as follows: All cars in the yard are marked with chalk to designate their destination. The conductor, Patznsky in this case, is furnished a list showing specifically the cars to go into the train. Switching crews engage in shunting or pushing the proper cars from the different tracks onto the track holding the train being made up. They are shunted singly, or in groups of two or more, from both ends of the track, until the train of cars is completed. An inspector then walks along one side of the train to see that all cars are coupled and to connect the air hose between each car. After the locomotive is attached to the head end, air is pumped from the engine through the 'entire string, until it reaches a pressure of about 70 pounds. For the accomplishment of this operation it is necessary to close the air cock of the end car or caboose, and in this instance it was done. The inspector thereupon walks along the train again, this time from the head end, to test the air in each car and to make an inspection for leaks.

All the witnesses produced at the trial were called by plaintiff. Bight of them were employed by defendants, two others testified as experts on train operations, and several others were called to prove damages.

Deceased was in charge of the crew on the morning of the accident.. Part of the train was made up by another crew, and consisted of 35 cars assembled on track 15. These cars were shunted in on this track, singly or in groups of two or more, from the south lead. One of the witnesses testified that these cars were thrown in loosely, and were subsequently coupled by the engine operating from the south. Later, as part of the operation of making up the train, it became necessary for Patznsky’s crew to go over to track 14, immediately adjacent, and double back with some cars standing on that track. This movement consisted of going in on the north end of track 14, coupling onto a string of cars standing on that track, hauling them off track 14, up the north lead past 14 switch, closing the latter switch, then pushing the cars down the lead and in on track 15 and coupling them onto the cars already standing on that track.

Patznsky rode the engine over to the north end of track 14 on this movement and got off there. He evidently did not have a complete list of these cars when the crew pulled in on track 14, and accordingly he went to the yard office, located in the south end of the yard, to get the bills on these cars, and came over from the office to the rear end of the cars on track 15 just before the accident. Although defendants say that Patznsky directed the movement of the cars from track 14 to track 15, the evidence discloses that he had nothing to do with this movement; it was initiated by Thomas J. Keane, who gave the signals and who evidently did not know where Patznsky was at the time. Shortly before this doubling-back process was completed, the other switching crew, who had assembled the 35 cars on track 15, brought two cabooses from another track and pushed them in from the south lead onto track 15 and against the south end of the 35 cars standing on that track. When the northernmost caboose came in contact with the south end of the cut of cars, it was coupled on by switchman Frank L. Heath. The south end of the string of cars was then about three or four car lengths from the south lead. When this coupling was made Patznsky, who had just come over from the yard office with his bills, stood near the south end of his train, within a few feet of Heath, and was talking with him. As soon as the coupling was made, the crew working from the south proceeded to “stretch” the train. This operation was accomplished by pushing north from one half to two car lengths, then stopping the engine, whereupon the cars, in turn, would also stop. The purpose of this operation was to take the slack out of the couplers and to make sure that the cars were all coupled together.

As the cars were pushed slowly toward the north by the crew bringing in the caboose, Patznsky walked north with them, keeping his position at the south end of the rearmost car and the north end of the first caboose. The most southerly caboose was then .uncoupled and moved back away from the other caboose a distance of about one foot. When this had been accomplished Patznsky, in the presence of Heath, went in between the last car of his train and the caboose and coupled up the air hose. He then started to walk alongside the caboose toward the south, while the crew from the south lead was pulling out and going to lunch. This was the last time he was seen alive. Within a half minute after Patznsky started to walk toward the south end of his caboose, the 20 cars from track 14 were shoved against the north end of the 35 cars standing on track 15. The noise of the impact was plainly heard by Heath, who had just walked over to the west side of track 14. There is a conflict in the evidence as to the violence of the impact and the distance which the standing cars were moved during this operation. One of the witnesses, a car inspector, testified that the cars were moved five or six feet south. Racine, a switchman, said that they did not move at all, but he was following the engine near the front of the train and was not in a favorable position to tell whether the cars at the south end moved. The engineer ventured an opinion that he did not move the cars, whereas Keane, who stood at the north end of the 35 cars and made the coupling with the 20 cars being pushed in, testified that the north car was moved six or eight feet, but he did not know whether the whole train was moved or not. The evidence is clear that there were no further movements in either direction, nor was there any movement of the 35 cars after they were “stretched” and prior to the doubling-back movement from track 14. The evidence discloses that the doubling back and the shoving south were done in response to signals given by Keane, who directed the movement. As heretofore indicated, Keane did not know where Patznsky was when the signals were given which resulted in the train being shoved back south.

It is urged by defendants that plaintiff failed to make out a prima facie case because there was no proof as to what Patznsky was doing when he was injured; that since there were no eyewitnesses, the verdict is predicated on surmise and speculation; that “no one knows the manner in which Patznsky met his death, and though plaintiff’s counsel asked almost every witness working in the yard that morning who was called at the trial whether he had any theory as to the cause of the accident, none could even speculate as to the cause of the injury and death”; and they indulge in several theories, .none of which is supported by the evidence, that he may have fallen under the train “by reason of stepping upon some soft area or hole” or that he fell in “attempting to enter the door of the caboose” or that he may have been “struck by a train being operated on either track 14 or track 16 and in some manner thrown under the cars on track 15.” The only plausible explanation of the accident which can be supported by the evidence adduced upon the hearing is that before the 20 cars were pushed against the 35 cars standing on track 15, Patznsky, in the course of his duty, had gone to the rear end of the caboose which had been coupled to the 35 cars, to close the air line on the rear end of the caboose or to place a marker on the rear end of the caboose, without which the train could not leave the yard. This conclusion is supported by the following evidence. - Before the caboose was coupled on the south end of the cars on track 15, the most southerly of these cars was three or four car lengths north of the lead. Two cabooses were placed on the south end of the train and then all the cars were shoved a couple of car lengths northward, so that the last caboose must have then stood where the most southerly car had been, three or four car lengths from the lead. After the train was shoved south by the movement which caused Patznsky’s death, the cabooses stood much closer to the lead, as testified to by Gordon Harris, a switchman, who admitted that the most southerly caboose, when he came back after he had heard that Patznsky was hurt, was about a car length from the lead. Although some of defendants’ employees who had been called as witnesses by plaintiff testified that the cabooses had not been moved southward by the impact of the 20 cars, Harris’s testimony indicates that they had been so moved.

In this connection an explanation of the air-brake system is necessary to an understanding of Patznsky’s movements before the accident. The brakes are controlled by an air line running from a pump or compressor in the engine throughout the entire length of the train. Each car has an air hose on each end, which can be connected up with the corresponding hose on the adjacent car, and there is also an angle cock on each end of the cars. These angle cocks may be turned off, in which event the continuity of the air line will be broken and the brakes on all the following cars become inoperative. However, if the angle cocks are opened with the air hose connected, the brakes can be applied by the engineer. Unless the angle cock on the rear of the last car is closed, no pressure can be kept in the air line.

In the instant case, before the cabooses were switched onto track 15, the angle cock on the most southerly car on that track was closed by the inspector, who then walked north along the east side of the track coupling up the air hose. When the caboose was coupled on, in order to connect up its brakes it became necessary to couple the air hose to. the car on the north and close the angle cock on the south end of the caboose, which had become the rear end of the train. It was indisputably part of Patznsky’s duty to connect up the air in his train. None of the crew were near at hand, all of them being more than 35 car lengths distant, and consequently Patznsky, in the performance of his duty, coupled the air hose at the north end of the caboose. Having done so, he started in the direction of the angle cock at the other end of the caboose, when he was last seen. He was found under the caboose, a few feet to the north of the south end thereof, his feet pointing toward the north end and his body crouched under the brake beam near the south end of the caboose, in a position in which he would undoubtedly have been thrown if the train was moved toward the south while he was closing the angle cock. The evidence discloses that after the accident the angle cock was found closed. There was air pressure in the caboose, and the air line was therefore undoubtedly connected all through the train and closed at the rear. He was walking in the direction of the angle cock when last seen, and shortly thereafter the train was shoved south on a signal given by a switchman who did not know where Patznsky was at the time. After the accident he was found in the position heretofore described, with' his lantern a few feet to the north and his train list near-by, between the rails of the track. We think it was reasonably inferable from these circumstances and the jury evidently found that he came to his death while standing between the rails at the angle cock on the south end of the caboose, as a result of being pushed over by the impact of the 20 cars from the north against the 35 cars standing on track 15, and thus crushed under the brake beam near the south end of the car. In our opinion the proof adduced excludes any other reasonable hypothesis or theory.

It is urged by defendants, however, that the coupling of the 20 cars to the 35 cars standing on track 15 was made in an ordinary manner, that the engine was moving, but at a speed of only two or three miles an hour, and that there was no unreasonable noise running along the train from north to south. As heretofore stated, there was a conflict in the evidence on this phase of the case. Several witnesses who testified that the coupling was made in an ordinary manner, also admitted that if the cars at the south end were pushed six or eight feet, of which there was some evidence, it would indicate that they had been bumped violently, and that such an operation would be extraordinary and unexpected. The record discloses that the entire train was pushed several feet to the south by means of the last movement making up the train, and under the evidence and instructions of the court, we think the jury was warranted in concluding that this movement was extraordinary and unexpected, made without any previous warning to Patznsky whose whereabouts were then unknown, and therefore constituted negligence.

On the question of negligence, defendants complain that the court refused the following instruction tendered by them: “The fact that plaintiff’s intestate was struck and killed by the train in question of the defendants is not in and of itself alone any proof that the defendants were guilty of the negligence charged against them in plaintiff’s complaint, or any paragraph thereof, nor does such fact in and of itself alone create any presumption that defendants are liable to respond in damages in this case, bnt before the plaintiff can recover the burden is upon her to prove by a preponderance or greater weight of the evidence that defendants were guilty of negligence, and that such negligence, if any, proximately contributed to cause the injuries complained of.” However, since all the material parts of this instruction were included in defendants’ instruction 13a, it was not necessary to repeat the charge. The instruction given was stronger in favor of defendants and more comprehensive on the same subject than the one refused, and defendants were not entitled to more than one instruction on the same phase of the case. Doran v. Boston Store of Chicago, 307 Ill. App. 456; Minnis v. Friend, 360 Ill. 328.

It is next urged that Patznsky assumed the ordinary risks of his employment, and that under the evidence his injury and death resulted solely and proximately from such risk. This contention is predicated on the theory that the movement by which he was injured was usual and customary. As heretofore stated, the evidence on this question was conflicting, but there was sufficient evidence to justify the inference that the coupling was made in an extraordinary manner, unexpectedly, without warning, and therefore negligently. The cases are generally to the effect that under the circumstances Patznsky did not assume the risk incidental to the negligence of his fellow employees unexpectedly and suddenly arising. Chesapeake & Ohio Ry. Co. v. Proffitt, 241 U. S. 462; Reed v. Director General of Railroads, 258 U. S. 92; and Chicago R. 1. & P. Ry. Co. v. Ward, 252 U. S. 18. Moreover, he was not required to exercise ordinary care to discover a danger due to the negligence of the master’s servants, and failure to exercise ordinary care, which is but another name for contributory negligence, is not a defense to an action under the Federal Employers’ Liability Act. Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94; Chesapeake & Ohio Ry. Co. v. De Atley, 241 U. S. 310. Since the date of this accident, an amendment to the Federal Employers’ Liability Act abrogates the defense of the assumption of risk, thus expressing the public policy to do away with defenses of this character.

The cause was fairly tried. The instructions narrowed the case to a consideration as to whether the backing of the train constituted negligence, and the jury found that it did. Upon the record presented we are of opinion that the verdict is supported by the evidence. The judgment of the superior court is therefore affirmed.

Judgment affirmed.

Sullivan, P. J., and Scanlan, J., concur.


text:
    Sylvia Smith, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,298.

      Opinion filed March 2, 1943.
    Hoyne, O’Connor, Rubinkam & Melaniphy, of Chicago, for appellant; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
    Immenhausen, Banovitz, Balin & Goebel, of Chicago, for appellee; Meyer C. Balin, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff, as beneficiary, brought suit on two industrial life insurance policies issued by defendant upon the life of Hosie Smith, which, in addition to a death benefit of $250 under each policy, provided that double indemnity would be paid if death were caused solely by external, violent and accidental means, and also that no double indemnity would be paid if the death of insured resulted from self-destruction, whether sane or insane. Trial by jury resulted in a verdict and judgment for plaintiff of $500, from which defendant has taken an appeal.

Insured was 35 years old, married and residing with his wife and her daughter by a former marriage on West 64th street, Chicago. From May 1938, until two weeks prior to his death on March 28, 1939, he had been unemployed. For a considerable period before his death he was afflicted with chronic migraine headaches, for which he had received medical treatment. March 16, 1939, he purchased a truck and engaged in sélling eggs from house to house and to stores. There is evidence that on the morning of his death he had breakfast, was cheerful, left home about 9 o’clock to attend to his business, and was apparently well when he left home. Shortly after 12 noon his wife heard the garage service door, which was open, banging back and forth. Upon entering the garage through that door she found insured sitting in the front seat of the truck, back of the steering wheel, asphyxiated from monoxide gas. He was fully dressed in trousers, shirt and two sweaters, with a leather jacket lying on the seat beside him. The motor was still running and he had a distributor part in one of his pockets. The double doors, opening into the alley, through which he had driven into the garage, were closed and barred from the inside. A police officer who arrived shortly thereafter testified that insured’s hands were clean, there was no grease on his person, no tools lying about, and no indication that the truck had been under repair. Dr. Joseph E. Guttman testified that he had attended insured from November 1938, to January 1939, and found severe headaches, constipation and • abdominal pains. He diagnosed chronic appendicitis and severe migraine, secondarily due to an inflamed appendix or bowel around the appendix and prescribed ultra-violet ray treatments and a sedative.

In order to recover under the double-indemnity provisions of the policies it was incumbent upon plaintiff to allege that the insured’s death occurred through external, violent and accidental means. Defendant admitted that he died by carbon monoxide asphyxiation, denied that death resulted through accidental means and averred that his death resulted from suicide, while sane or insane. The only triable issue thus presented was whether Smith died by accidental means or as the result of self-destruction.

In submitting the cause to the jury the court, over defendant’s objection, gave plaintiff’s instruction No. 1, which is: “The court instructs the jury that the defense relied upon by the defendant is suicide. You are instructed that the defendant, Metropolitan Life Insurance Company, must establish its defense by preponderance or greater weight of the evidence.” It is urged as the principal ground for reversal that this instruction constituted reversible error. We recently had occasion in Anders v. Metropolitan Life Ins. Co., 314 Ill. App. 196 (Abst.), to pass upon similar facts arising under the identical provisions of a policy issued by the same company. It was there urged by defendant that in order to justify the judgment it was essential to plaintiff’s right of recovery to prove that Anders’ death was brought about by accidental means. We held that under the state of the pleadings and provisions of the contract the burden was on plaintiff to prove by a preponderance of evidence that insured came to his death as a result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means, and cited the early case of Fidelity & Casualty Co. v. Weise, 182 Ill. 496, as supporting our conclusion. That decision has never been overruled. Nevertheless plaintiff’s counsel argue that defendant, having interposed the defense of suicide, had the burden of proving it, and that the court properly so instructed the jury, and they ask us to re-examine the authorities in the light of this contention.

In the Weise case suit was brought upon an accident policy and the defense interposed was that the insured had committed suicide. The court instructed the jury that defendant had the burden of proving that affirmative defense. In reversing judgment for plaintiff, the Supreme Court held that it was essential to plaintiff’s recovery to prove by a preponderance of the evidence that the assured came to his death through external, violent and accidental means, and that the instruction incorrectly cast the onus probandi upon the defendant; that “The case, upon the facts, demanded the jury should have been accurately advised as to the quantum of evidence required to be produced by the plaintiff,” and the error was therefore reversible in character.

Decisions in this and other States have followed this doctrine. In Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205, the only factual question presented was whether , the injuries which caused the insured’s death were accidental or self-inflicted, and the court held that “The burden of proof was upon plaintiff to show they were accidental and not self-inflicted,” citing Fidelity & Casualty Co. v. Weise. In the recent case of New York Life Ins. Co. v. Gamer, 303 U. S. 161, the company agreed to pay double indemnity upon receipt of due proof that death of the insured resulted, directly and independently, of all other causes, from bodily injury effected solely through external, violent and accidental means, and it was held that ‘ ‘ The burden was on plaintiff to allege and by a preponderance of the evidence to prove that fact. The complaint alleged accident and negatived self-destruction. The answer denied accident and alleged suicide. Plaintiff’s negation of self-destruction taken with defendant’s allega-, tion of suicide served to narrow the possible field of controversy. Only the issue of accidental death vel non remained. The question of fact to be tried was precisely the same as if plaintiff merely alleged accidental death and defendant interposed denial without more.” Citing Travelers’ Ins. Co. v. Wilkes, 76 F. (2d) 701; Fidelity & Casualty Co. of N. Y. v. Driver, 79 F. (2d) 713. In Dimmer v. Mutual Life Ins. Co. of N. Y., 287 Mich. 168, plaintiff brought suit for double indemnity under a policy containing similar provisions, and the sole issue tried was whether death was caused by suicide or by accident. In discussing decisions which appeared to present a conflict the court pointed out the distinction between cases where suit is brought to recover a death indemnity under an ordinary life insurance policy without additional benefits in case of death by accident, and policies such as the one here under consideration, and held that in the former class of cases suicide was an affirmative defense and the burden of proving it was cast upon defendant. “However, when the action is brought upon an accident policy or upon the double indemnity provision of a life policy, it is incumbent upon plaintiff to show that death occurred through accidental means. The burden of proving accidental death and the consequent negativing of suicide is on plaintiff.” Citing New York Life Ins. Co. v. Gamer, supra, and a long list of decisions in other jurisdictions.

Most of the cases cited by plaintiff to support her contention that the burden of proving suicide always rests on defendant do not involve actions upon double-indemnity provisions. In several of them there was no dispute as to which party had the burden of proof. The underlying reason for the rule casting upon plaintiff the burden of proving accidental death is in harmony with the fundamental proposition that plaintiff must prove the material allegations of his complaint by a preponderance of evidence. Where suit is brought upon a policy providing for double indemnity in case of death sustained through external, violent and accidental means, it is incumbent upon the plaintiff to allege that the insured died through accidental means ,- otherwise his complaint would not state a cause of action; and having made that allegation, it is incumbent upon him to sustain it by a preponderance of the evidence. The fact that suicide is interposed as a de-' fense in this class of cases does not change the rule with respect to the quantum of evidence. The defense of suicide is but another means of negativing the allegations that the death was accidental, and it narrows the issue before the jury to whether the insured died through accident or suicide. In the first instance plaintiff is required to make a prima facie case showing that the death was accidental. Defendant then has an opportunity to adduce countervailing proof and show, if it can, that death resulted from suicide. This presents an issue of fact for the determination of the jury, but it does not alter the oivws probandi or relieve plaintiff from proving by a preponderance of the evidence the facts which he has alleged in his complaint and upon which he must rely for recovery.

Defendant by its instruction No. 1 asked the court to charge the jury as follows: ‘1 The court instructs the jury as a matter of law that the plaintiff has the burden of proving by a preponderance of the evidence that the insured met his death solely through external, violent and accidental means, directly and independently of all other causes.” That instruction correctly states the rule of law and should have been given.

As further ground for reversal it is urged that the court erred in excluding the testimony of Dr. Meyer Brown as set forth in defendant’s offer of proof. Dr. Brown was a specialist in nervous and mental diseases, associated with Northwestern University Medical School, and acting as consultant in neuropsychology for the United States War Department. He had also been connected with the Behavior Clinic of Cook county for some six years prior to October 1941. The court permitted him to state that on July 26 and 27, 1938, he examined the insured at the county jail on the request of Judge O’Connell of the criminal court, but refused to permit him to testify that in connection with the examination he made observations as to Smith’s conduct, appearance and mood, and elicited from him a history wherein he told Dr. Brown that he had long suffered from severe headaches occurring frequently, which were depressing and caused him to become pessimistic, irritable, unable to concentrate on his work, critical of himself and self-accusatory ; that he had been accustomed to engage in periodic “drinking bouts” for some 15 years, as a form of relief from headache and mental depression, which had become particularly severe in the preceding two years; that the extent and effect of these headaches had upon two occasions caused him to contemplate suicide, once about a year prior to the examination, when he had gone up to a bridge with the intention of jumping off but had not done so because too many people were watching, and again about three months before the examination, when he had purchased a gun with the avowed intention of committing suicide with it. The offer of proof included a statement by Dr. Brown that the attacks of depression were typical in every respect of those seen in the depressed phase of manic-depressive psychosis, and his opinion that a patient so afflicted has a tendency to commit suicide. The court sustained plaintiff’s objection to the offer, and the question presented is whether the court erred in this behalf and whether upon a retrial of the cause testimony of that character should be admitted.

Much space is devoted in the record to a discussion between the court and counsel as to the field of evidence embraced within the offer, and plaintiff’s counsel argue that since the offer embraced evidence, only part of which was admissible, the whole offer was properly rejected. For guidance upon the second trial, it may be stated that under the settled rule “If several facts are included in the offer, some admissible and others inadmissible, then the whole (if properly objected to) is inadmissible; in other words, it is for the proponent to sever the good and the bad parts.” Wigmore on Evidence, vol. 1, sec. 17, p. 320 (3d Ed.).

The objection offered to the substance of Dr. Brown’s proffered testimony is that it was incompetent matter, especially in view of its remoteness with respect to the date of Smith’s death. However, it is conceded by plaintiff that insured suffered from migraine headaches up to his death and for a long time prior thereto. His own attending physician so testified. The purpose of the proffered evidence was to show by Smith’s own statements, as related to Dr. Brown, that these frequently occurring headaches brought on depressive moods, irritability and restlessness, which he sought to alleviate by excessive drinking, and which affected him to such an extent that on two occasions he had contemplated suicide, and thereby lay the foundation for Dr. Brown’s opinion that Smith’s migraine was associated with depressive episodes, typical in phases of manic-depressive psychosis, having a tendency toward suicide by a patient so afflicted.

We think the proffered testimony was relevant to the issue on trial. The evidence as to Smith’s death was entirely circumstantial.. ■ In order to negative suicide and establish death by accidental means, plaintiff was permitted to adduce evidence that he was in good health, happily married, cheerful on the morning of his death, and that he attended to his business during part of that forenoon. Taken with evidence of certain physical facts attending insured’s death, Dr. Brown’s testimony was offered to negative and rebut the circumstances tending to show death by accidental means, and to show subjective ailments as a basis for suicidal intent. Where the defense is death by self-destruction, the authorities hold that a reasonable latitude should be allowed in establishing that defense.

In Falkinburg v. Prudential Ins. Co. of America, 132 Neb. 831, 273 N. W. 478, suicide was the controverted issue. The insured died February 28, 1935, from a gunshot wound. The trial court excluded the testimony of two physicians who had examined the insured' prior to his death. The purpose of the testimony was to show his physical and mental condition in August, October and December 1934, when he was examined by the physicians whose testimony was proffered. The insurance company offered to prove by one, a specialist in mental and nervous diseases, that there were indications of brain tumor and mental deterioration; the other physician found that on December 10, 1934, the insured was apprehensive, worried, easily excited, nervous and suffering from a ‘ ‘manic-depressive psychosis, a form of melancholia,” accompanied by an agitated mental state in which he was much worried, exhibited fear and lost his sense of proportion. In reversing the judgment for plaintiff on the ground that the trial court erred in excluding the testimony offered, the court said that “ ‘Where circumstantial evidence is the only evidence available to a party, and the action must be determined upon the relative strength of probabilities and inferences, great latitude is allowed the parties in the adduction and admission of evidence.’ 2 Jones, Commentaries on Evidence (2d Ed.) sec. 604. The more the jury can know of the surrounding facts and circumstances, the better their judgment is likely to be. The physical and mental health of the insured is a surrounding circumstance which is relevant in this case, and the testimony on this matter was unduly restricted.”

In Bertschinger v. New York Life Ins. Co., 166 Ore. 307, 111 P. (2d) 1016, it was held to be the rule that where suicide vel non is the issue and only circumstantial evidence is available, a wide latitude should be accorded the parties in the admission of facts and circumstances which may shed light upon the state of mind of the alleged suicide or establish a motive for self-destruction. In Prudential Ins. Co. of America v. Morris, 72 F. (2d) 824, the court held that “Any facts making it probable that his death [the insured’s] was the result of suicide are relevant. Along with the other facts surrounding his death, causes which would impel him to take his own life are evidential, indicating a motive, and therefore admissible.” In Sees v. Massachusetts Bonding & Insurance Co., 243 App. Div. 400, 277 N. Y. S. 198, which involved death by monoxide asphyxiation, the court said: “In a case of this character, where the intention of the insured is. in and of itself a distinct and material fact to be ascertained by a chain of circumstances, there should be a liberal opportunity afforded for introducing any evidence which would throw light upon the issue. Facts such as declarations, acts, and disposition tending to show an intent or motive for suicide are relevant and admissible.” (Citing cases.) In Cady v. Fidelity & Casualty Co. of New York, 134 Wis. 322, 113 N. W. 967, it was held that evidence of the state of health of an insured person for a considerable period of time prior to his death, where it is claimed he died by suicide, is proper as bearing on whether the deceased came to his death as the result of suicidal intent.

The time element may be of importance, but we do not think the offered evidence in the case at bar should have been excluded on that ground, because the testimony of the insured’s own physician indicated that he was afflicted with chronic migraine headaches. This condition dated back for a considerable period of time and was not of recent origin. To deny defendant the right to adduce evidence tending to throw light upon the cause of death would deprive it of the defense of suicide as negativing accidental death, especially in view of the fact that plaintiff was allowed, and properly so, to introduce evidence tending to show that death resulted through accidental means.

For the reasons indicated, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Sullivan, P. J., and Scanlan, J., concur.