author: Mr. Presiding Justice Wolfe

text:
    Peter McGoorty, Appellant, v. Harold G. Benhart, Appellee.
    Gen. No. 9,515.

      Heard in this court at the February term, 1940.
    Opinion filed May 15, 1940.
    A. B. Manion, of Chicago, and Harry G. Weaver, of Wheaton, for appellant.
    Sears, O’Brien & Streit, of Aurora, and Rathje & Woodward, of Wheaton, for appellee; Barnabas F. Sears and John S. Woodward, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On the evening of June 25, 1938, Peter MeGoorty, the plaintiff in this suit, together with a number of others, met at the home of Mrs. Bousser at 2448 North Dakin street in the city of Chicago with the intention of attending a sorority dance at the Itasca Country Club. Mr. MeGoorty and five others left the Bousser home at about 9 P. M. in Mr. Clarence H. Paeglow’s car. It was raining at the time, and Mr. Paeglow was driving. The party drove west on Irving Park boulevard until they had crossed an intersecting road known as Medinah corners. Mr. Paeglow drove the car a short distance west of this intersection and off of the pavement of Irving Park boulevard, intending to turn and go east, and then north on Medinah road. In making the turn, while his car was facing in a general southerly direction, the engine died, and the car came to a complete stop. Mr. Paeglow, in attempting to start the engine, stepped on the starter, but got no response. Mr. Paeglow, Arnold Dahlman and Peter McGoorty got out to push the car in order to get the engine started. Mrs. Paeglow got behind the driver’s wheel and guided the car. The three men pushed the car onto the pavement into the eastbound lane of traffic on Irving Park boulevard, and on the south side of the center line, proceeding eastward. The Paeglow car was equipped with headlights and taillights, which it is claimed were burning at the time. As the car was being pushed in an easterly direction on Irving Park boulevard, a car driven by Harold C. Benhart approached the same from the west and ran into and collided with the Paeglow car, slightly damaging the car and injuring Peter MeG-oorty.

Peter MeG-oorty started suit in the circuit court of Du Page county, to recover damages he claims he sustained because of the negligence and the wilful and wanton misconduct of the defendant, which caused this accident.

The complaint contained two counts. The first one charges that the defendant carelessly and negligently did all of the following acts, and as a direct and proximate result of which plaintiff, who was then and there in the exercise of due care and caution for his own safety, sustained damages, “(a) Drove his automobile along and upon Irving Park Boulevard without lights in violation of the Motor Vehicle Law of the State of Illinois, (b) Drove his automobile upon said public highway at a speed greater than was reasonable and proper, having regard to the traffic and the use of the way in violation of the Motor Vehicle Laws of the State of Illinois, (c) Upon approaching the plaintiff who was then and there walking upon said highway, failed to give a reasonable warning of his approach in violation of the Motor Vehicle Laws of the State of Hlinois. (d) While overtaking and passing another vehicle proceeding in the same direction failed to pass to the left thereof at a safe distance, thereby striking the plaintiff, (e) Drove his automobile upon said public highway without keeping a proper lookout for plaintiff or for other pedestrians or vehicles lawfully upon said highway.”

The second count is based on the wilful, wanton and malicious conduct of the defendant, which caused the injuries to the plaintiff. The acts of negligence, as charged in, the first count of the complaint, are the same in the second count, but charge the same were done wilfully and wantonly. Both counts set forth that the plaintiff was severely injured and asks damages in the amount of $50,000.

The defendant filed his answer in which he denies any negligence on his part was the proximate cause of the plaintiff’s injuries. He denies that the plaintiff was in the exercise of ordinary care and caution for his own safety. He denies that he was guilty of any wilful and wanton misconduct that was the proximate cause of the plaintiff’s injuries. He charges in his answer that the plaintiff was guilty of wilful and wanton misconduct which was the proximate cause of his injuries, and therefore he cannot recover in this suit.

The case was submitted to a jury. In addition to the general instructions read by the court to the jury, the plaintiff presented a special interrogatory for the jury to answer, which is as follows: “Was the defendant, Harold G. Benhart, guilty of wilful and wanton driving at and immediately before the time of the collision of his car with the plaintiff, Peter McG-oorty?” The jury answered this interrogatory, “No.” They found the issues in favor of the defendant. The plaintiff entered a motion for a judgment notwithstanding the verdict, which was overruled by the court, and then entered a motion for a new trial, which was also overruled by the court. Judgment was entered on the verdict in favor of the defendant, and the suit dismissed at the costs of the plaintiff. It is from this judgment that the appeal is prosecuted.

It is first insisted that the verdict of the jury is contrary to the weight of the evidence, and therefore, the verdict should be set aside. It is undisputed that the plaintiff and two other men were pushing the Paeglow car on the pavement of a hard-surfaced road on a much traveled public highway; that the defendant, Harold G-. Benhart, was driving his car in the same direction, ■ and did not see the Paeglow car or the plaintiff, until he was within a short distance from them; that as the defendant approached the car, he attempted to stop; that he saw he couldn’t stop his car, and then turned to the right towards the ditch in an effort to avoid striking the people pushing the car; that as he turned to the south, the plaintiff also saw the car approaching and started in the same direction; that the defendant attempted to turn his car back in order to avoid striking the plaintiff, and his car skidded and turned around; that the two cars came together, but neither car was seriously damaged, but the plaintiff was injured. The plaintiff was found lying at the rear of the defendant’s car.

The speed at which the defendant was driving and whether the headlights of his car were burning, were disputed questions of fact. Some of the plaintiff’s witnesses claimed the car was coming at an excessive rate of speed, and that the headlights were not burning. The defendant’s evidence tended to show that his headlights were burning, and that he was not driving at an excessive rate of speed; that it was a very dark night with a misty rain falling; that he could see no lights on the Paeglow car and did not see the car until he was a short distance from it, and after he discovered the car, he did all that he could to avoid the accident.

In a jury trial, controverted questions of fact are for the jury to decide, and after they have decided such facts, a court of review will not set aside their verdict, unless they can say that the verdict of the jury is against the manifest weight of the evidence. From a review of the evidence in this case, it is our conclusion that the verdict of the jury is not against the weight of the evidence, but is sustained by it.

The appellant contends that the trial court erred in submitting to the jury the question, as to whether or not the plaintiff was guilty of wilful and wanton misconduct. The case was tried on the theory that the defendant was guilty of wilful and wanton misconduct, as charged in the second count of plaintiff’s petition, which was the cause of the plaintiff’s injuries. If the plaintiff was guilty of wilful and wanton misconduct that proximately caused his injuries, this would be a bar to his recovery. It is undisputed that the plaintiff and two other men were pushing the Paeglow car. Three men pushing the car, in all probability, prevented the defendant from seeing the taillights of the Paeglow car, if burning. It was for the jury to consider as to whether the plaintiff was guilty of wilful and wanton misconduct in helping push a car down a main-traveled paved highway on a misty, dark night. The plaintiff tendered instructions, which the court gave to the jury upon the theory that the defendant was guilty of wilful and wanton misconduct. He also tendered a special interrogatory as to whether the defendant was guilty of such conduct, so under the facts and circumstances, as presented in this record, it was not error to submit the question of the plaintiff’s wilful and wanton misconduct to the jury. The court properly gave defendant’s Instructions Nos. 9 and 17.

Objection is made to the defendant’s Instructions Nos. 18,19 and 20. Under the facts and circumstances appearing in the record of this case, we think it was not error to give these three instructions.

It is also insisted by the appellant that the court erred in refusing to give plaintiff’s tendered instructions set out on pages 124,125 and 126 of the abstract, which are copied in his printed brief and argument. The appellant does not point out in what particular, if any, the court erred by refusing to give these instructions. Under the rules of this court, an error assigned, but not argued, is considered waived, so we are not considering the merits of these refused instructions.

The defendant called as a witness, Frederick A. Hurst who testified that his business was taking moving pictures; that he took moving pictures commercially for use in court and other places; that he had been engaged in the business for 15 years; that he took moving pictures of the plaintiff, Peter McG-oorty, on Tuesday, June 20; Wednesday, June 21; on Friday, June 23: and on Sunday, June 25, all in 1939; that the pictures were taken with a Bell and Howell camera; that the camera was in first-class working order. The film used in the camera was good quality; that as he took the pictures he could see the objects all the time the camera was in motion; that he used three rolls of films in taking the pictures; that he delivered the three rolls of films to the Eastman Kodak Company for the purpose of having them developed; that the films wereu developed and returned to him; that he projected the films upon a screen and they correctly portray the conditions and objects, as he saw them through the use of his naked eye at the time he was photographing them.

Mr. Hurst testified and described in detail how he took the pictures; that he would run his camera for a few seconds and then change his position and follow the plaintiff to some other place; that in taking the pictures, it took about four minutes to take 100 feet of pictures; that there was 300 feet of film used in all of the pictures; that there has been no cutting, erasing, or tampering with the films, but they are in the same condition as they were when they were taken out of the camera. Mr. Hurst further testified that he was employed by Mr. Stein of the Stein Detective Agency, and had been so employed for quite a number of years; that he did not know the young lady who appears in the pictures with Peter MeGoorty, but he does know that she was not connected with Mr. Stein’s Detective Agency; that all he knew about the parties is that Mr. Stein pointed out Peter MeGoorty to him and gave him instructions about taking the pictures.

Mr. Michael D. Francis testified that he was in charge of the Service Department of the Eastman Kodak Company; that he had seen the films referred to by the witness, Hurst, and that he personally put the films on a developing machine to have them developed; that they were developed in the usual and customary manner used in the development of moving camera films; that he returned the developed films to Mr. Hurst and that they were, at the time of the trial, in the same condition as they were when he delivered them to Mr. Hurst.

After this preliminary proof the films, which were designated as defendant’s Exhibits 7, 8, and 9, were offered in evidence. To this offer, the plaintiff made the following objection. “The plaintiff objects to the introduction of the films on the ground that they do not impeach, or. tend to impeach any testimony offered by the plaintiff, or on behalf of the plaintiff, that the pictures do not show a continuity of action, that they are misleading as showing only a few seconds exposure and taken at different times to make one connected reel; they are inadmissible because there was present in court a man who could testify as to what he saw. The pictures would be only secondary evidence and prejudicial.” The objections to the offer of the exhibits were overruled and the same admitted in evidence. After they were admitted in evidence, leave was given the defendant to show the moving pictures on a screen to the jury.

A projector and standard daylight screen were brought into the court room and the same exhibited to the jury. The evidence shows that the screen was about 3 feet from the floor and approximately 15 feet from the projector; that the machine was operated at a normal speed.

The films have been certified to this court, and on the insistence and request of the appellant, a screen and standard projector were brought into the court room and the pictures shown to the judges of this court. The first picture shows the plaintiff at a golf course, what is commonly called a driving range. He and his lady friend are using a bucket of balls and the plaintiff especially, is driving the balls out into the field. The plaintiff stoops over to take a ball out of the bucket or basket, places it on a tee and strikes the ball with splendid form and carry through. The plaintiff is next seen tossing a basketball. Next he is seen throwing baseballs at a doll rack, or some similar device. Next he is rowing a boat. He is next seen at the lake front preparatory to going swimming. He had his swimming trunks on under his clothes, and the camera discloses that he undressed at the beach, but was not wearing his leather jacket. He and his blonde lady friend go in swimming, and he is shown teaching her how to swim, and lifting her almost out of the water, and as the picture ends it is as though he were rescuing her from drowning, with his left arm under her chin and supporting her and swimming around with his right arm.

It is first insisted that the introduction of these films was error on the part of the trial court because they do not impeach, or tend to impeach any testimony offered by the plaintiff, or on behalf of the plaintiff. An examination of the record discloses that the plaintiff testified that he was unable to take any kind of exercise, unless he wore his brace. Counsel for appellant argues that Peter McGoorty misunderstood this question. It seems to us that when the plaintiff answered this question that he could not be mislead in any manner as to what the meaning of the question was, that is, that he didn’t take any kind of exercise without wearing the brace. The plaintiff, in rebuttal, testified that on the day that he was playing golf with the “blonde woman,” that he was not wearing the brace and the pictures show that he was not wearing it a few days later when he went swimming. Doctor Horace E. Turner who had treated the plaintiff for his injuries testified in part as follows: “While he, (the plaintiff) was in the hospital I saw him daily and sometimes twice or three times a day. I saw him last about a week ago. He was in my office at that time. His walking was rather stiff, what I would call a stilted manner. I had him stoop down and bend down. He was able to stoop over, but he couldn’t touch the floor. He could get about to his knees. ’ ’ The plaintiff claimed that he was seriously and permanently injured, and is suing for the sum of $50,000, damages. These pictures successfully impeached the doctor’s testimony that the defendant could not stoop lower than to his knees and could not touch the floor. The picture of him playing golf shows him picking up the ball, and placing it on the tee, which are both on the ground. The one showing him using the basketball as a football shows him stooping over and putting the ball upon the ground and then passing it between his legs in the same manner as. a football is passed in a regular game. Certainly this evidence tended to show that the plaintiff was not as badly injured as he claimed he was.

It is next insisted that the pictures do not show a continuity of action, therefore they are misleading, as showing only a few seconds exposure, and taken at different times to make it one connected reel. We see no merit in this contention, because the operator of the moving camera explained in detail how the pictures were taken; that he had to move his camera around from place to place, and only making a few seconds exposure, at each place; that his purpose was to follow the plaintiff and get as many action pictures as it was possible to do so. It is a well-known fact that any moving picture that we go to see, that perhaps is shown in one hour, it may take them six months, or perhaps a year to make the picture. We do not see how the jury could be mislead because of this objection.

The next objection is that the pictures are inadmissible because there was present in court a man who could testify as to what he saw. The man who took the pictures could have testified to what he saw the plaintiff doing, but he could not describe in detail just how the plaintiff was doing it, as was done by the use of the camera.

It is next insisted that “the pictures would be only secondary evidence and were prejudicial.” It has long been the law that photographs correctly portraying the scene of an accident are admissible in evidence, although many people may be present and see the accident and describe the surroundings where the accident occurred. Photographs taken after the accident either of the position of the cars, if it is an automobile accident, the level of the street or road, the buildings, if any, at the corners of the intersection, a railroad crossing, if the accident happened at a railroad crossing, in fact all conceivable places where an accident may happen, have been admitted in evidence and never questioned, provided the proper foundation is laid for the admission of the photographs.

The appellant has cited several cases where moving pictures have, been rejected as evidence, but an examination of nearly all of these cases discloses that at the time the pictures were offered in evidence, there was some preliminary proof lacking, as to how the pictures were taken. Neither our Supreme or Appellate Court have had occasion to pass upon this question, but courts from other States have had the same thing presented to them and held that they are admissible. In the case of Boyarsky v. G. A. Zimmerman Corp., 240 App. Div. 361, 270 N. Y. Supp. 134, the plaintiff was injured and claimed he was totally disabled and unable to work. The court, in its opinion, review several of the cases cited by the appellant, and state wherein the offer to admit the moving pictures in evidence was proper. In passing upon the merits of this case, they use this language: “Several cases have been cited where evidence of moving pictures has been properly rejected. In these cases the purpose was shown to be merely sensational. Where there is no need of such pictures, as in several of the cases adverted to, the trial court is within its right in rejecting such testimony.

“In the present case the defendant, appellant, properly points out that the pictures taken of the plaintiff, who contends that he received very severe injuries, will show that he went to live in another city and there evidently conducted himself as a perfectly well man instead of the invalid which he claimed to be. It is argued that these moving pictures should be shown to the jury so that it may intelligently pass upon the question whether the condition claimed to exist is real or feigned.

“The well-known progress being made in the moving picture world has resulted in great accuracy in depicting the true conditions sought to be shown. The mechanical means of perfecting such pictures has become so general that it may be necessary in the near future to frequently permit their introduction in evh dence. In many cases the pictures may not only have a bearing upon the facts but may be absolutely decisive of the issues involved in the action. Their remarkable accuracy is now generally acknowledged through their constant use as a means of recording and publishing news items of interest to the public, and for that purpose they are featured daily in many of the moving pictures theaters of the world.”

The court then reviews the cases of Massachusetts Bonding & Insurance Co. v. Worthy (Tex. Civ. App.), 9 S. W. (2d) 388; State to Use of Chima v. United Rys. & Elec. Co., 162 Md. 404, 159 Atl. 916; Field v. Gowdy, 199 Mass. 568, 85 N. E. 884; Everson v. Casualty Co. of America, 208 Mass. 214, 94 N. E. 459, and then quotes from Wigmore on Evidence (2d Ed.), sec. 798: “No general rule can be laid down as to the kinds of occurrences, artificially reconstructed, in which the moving picture would have a special risk of misleading.

“(b) But where the moving picture is taken without artificial reconstruction, i. e., at the time and place of the original event (a possibility not infrequent), it lacks the above element of weakness and is entitled to be admitted on the same principles as still photographs. The only circumstance then to be considered is that in a few matters, such as speed and direction of human movement, or relative size in the focus, the multiple nature of the films requires special allowances of error to be made; but these allowances are no different in kind from the elements of error inherent under certain conditions in still photographs.” The court then concludes, “based on the rule there stated, it seems to us that the moving picture which the defendant sought to introduce in the present ease was admissible providing the requisite precautions were followed by the justice presiding at the trial.”

In the case of Heiman v. Market St. Ry. Co., 21 Cal. App. (2d) 311, 69 P. (2d) 178, the Supreme Court of California was considering the admissibility of moving pictures in evidence in a personal injury suit. The court in passing upon the admissibility of the evidence, have this to say: “After Mrs. Heiman became convalescent, she went to Palo Alto for the purpose of rest and to further recuperate. During the period she was at Palo Alto she claimed to have been so debilitated, sick, sore, and nervous, as to be a confirmed invalid. As a part of its case, the defendant introduced a set of moving pictures. They purported to show Mrs. Herman’s movements in Palo Alto; to show her driving an automobile in and out of heavy traffic; and to show her shopping, walking, stooping, and bending without assistance from any one. They also showed her carrying grocery bundles. The testimony showed that the pictures were taken in August, about two and a half months after the injury occurred. The plaintiffs contend no foundation was laid, but they do not show in what respect it was not laid. The plaintiffs go further and contend that in no instance should moving pictures be received in evidence. This contention is based on the fact that numerous ‘pranks and tricks’ may be developed on the screen. The same contention can be made regarding many classes of evidence. The record before us does not disclose that the reels were examined and it was disclosed they had not been altered in any respect. But when, as here, testimony is introduced to the effect that the picture is a true representation of the scene as witnessed by the photographer, the objections mentioned are without foundation. That photographs may be admitted in evidence will hardly be questioned (10 Cal. Jur. 896); that moving pictures are but a series of single pictures is known to every one. If single pictures may properly be received in evidence, it is difficult to see any reason why moving-pictures may not be, and at the present time the general rule is that they may be. Boyarsky v. G. A. Zimmerman Corp., 240 App. Div. 361, 270 N. Y. S. 134, 137; Wigmore’s 1934 Supplement to his work on Evidence, p. 339. It has been held that under certain circumstances moving pictures should not be received in evidence. State of Maryland for Use of Chima v. United Rys. & Elec. Co., 162 Md. 404, 159 A. 916, 83 A. L. R. 1307. In that case and cases there cited, it will be noted that under the facts a still pictures would not have been admitted in evidence. However, in 162 Md. at page 418,159 A. at page 921, 83 A. L. R. at page 1315, the Supreme Court of Maryland said: ‘When moving pictures might and might not be used advantageously and properly in placing the facts before juries is a question the answer to which must vary with one case and another, and we think the decision in each case must be left largely to the judgment and discretion of the presiding judge, without any restricting general formula laid down to control him.’ In the instant case we think it is clear that the trial court did not abuse its discretion in allowing the moving pictures to be exhibited to the jury. ”

The appellant claims that the court erred in refusing to permit him to show the facts surrounding the taking of the moving pictures. In the trial court, the plaintiff made an avowal that he could show that the lady that appears in the pictures with the plaintiff was an employee of either the defendant, or someone interested in the result of the suit, and it was at this girl’s solicitation that the plaintiff engaged in the activities that are shown by the pictures. We do not think it is material what part this girl took in persuading the plaintiff to do what the pictures disclose he did do. The pictures speak for themselves and show that the defendant could do things that he claimed at the trial he could not do. There is no merit in this contention.

That photographs may be admitted in evidence in the trial of cases, especially personal injury suits, will hardly be questioned. - Moving pictures are but a series of single pictures, known to everyone. Each single picture may be properly received in evidence, and it is difficult to see any reason why moving pictures may not be admitted in evidence also. It is ,our conclusion that the proper foundation for the admission of the moving pictures in evidence was proven, and the court properly admitted the same in evidence.

We find no reversible error in the case, and the judgment of the trial court is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Henry H. Susemiehl, Administrator of Estate of Walter Susemiehl, Deceased, Appellant, v. The Red River Lumber Company and Walter Gehrke, Appellees.
    Gen. No. 9,506.
    Heard in this court at the February term, 1940.
    Opinion filed May 15, 1940.
    Sears, O’Brien & Streit, of Aurora, for appellant; Barnabas F. Sears, William C. O’Brien and Edward F. Street, of counsel.
    Cassels, Potter & Bentley, of Chicago, for appellee Red River Lumber Co.; Ralph F. Potter, Kenneth B. Hawkins and Barry Gilbert, all of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Walter Susemiehl was injured on September 7,1938 in an automobile collision and as a direct and proximate result of those injuries died October 31, 1938. Two suits were thereafter commenced in the circuit court of Kane county by his administrator against appellees, one of which was to recover under the wrongful death statute for the pecuniary loss resulting to decedent’s next of kin and the instant proceeding brought under the survival statute to recover medical and hospital expenses incurred by the deceased and for which his estate would be liable between the date of the accident and the date of his death, also for the pain and suffering he endured during that time, the wages he was deprived of earning and his funeral expenses. To this complaint the defendants filed their separate motions to dismiss, supported by affidavits setting forth that plaintiff’s intestate died as a direct and proximate result of the injuries he sustained in the automobile collision, that there is another action pending for his wrongful death under the injuries act, which act gives to the plaintiff his sole and exclusive right of action. The trial court sustained these motions and the plaintiff, electing to abide his complaint, judgment was rendered in favor of the defendants and against the plaintiff in bar of the action and for costs and plaintiff appeals.

The instant complaint is predicated upon Ill. Rev. Stat. 1939, ch. 3,1f 125 [Jones Ill. Stats. Ann. 110.125], which provides: “In addition to the actions which survive by the common law, the following shall also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.” The statute providing compensation for causing death by wrongful act, neglect or default provides : “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” Ill. Rev. Stat. 1939, ch. 70, sec. 1 [Jones Ill. Stats. Ann. 38.01]. Section 2 of the same act provides that every such action shall be brought by and in the name of the personal representative of the deceased person and the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person and shall be distributed to such widow and next of kin in the proportion pro.vided by law, limits the amount of recovery to a sum not to exceed $10,000 and provides that such action shall be commenced within one year after the death of such person.

The only question presented on this appeal is whether or not an administrator of a person injured by the alleged negligence of another and dying as a direct and proximate result of such injury can maintain two suits as administrator, one on behalf of the next of kin to recover damages occasioned by the wrongful death and another for damages alleged to have been sustained before his death.

Appellees contend that if death results from the injuries sued for, the suit of the injured person or a suit by his personal representative abates and cannot be further prosecuted citing Holton v. Daly, 106 Ill. 131 and many later Illinois decisions, viz: Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586; Crane v. Chicago & W. I. R. Co., 233 Ill. 259; Mooney v. City of Chicago, 239 Ill. 414; Devine v. Healy, 241 Ill. 34; Prouty v. City of Chicago, 250 Ill. 222; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424; Wilcox v. International Harvester Co., 278 Ill. 465; Pease v. Rockford City Traction Co., 279 Ill. 513; Wilcox v. Bierd, 330 Ill. 571 and Little v. Blue Goose Motor Coach Co., 346 Ill. 266.

Counsel for appellant concede that the holding in Holton v. Daly, supra, has been accepted generally by the bench and bar of this state as sustaining the ruling of the trial court but counsel argue that all the court held in the Daly case was that it .was erroneous to give in that case an instruction which advised the jury that if they found the defendant guilty that then in estimating the damages the jury might consider the effect of the injury upon the health of the deceased, his ability after the accident to attend to his affairs, his bodily pain and suffering, necessary medical and nursing expenses and loss of time; that they could not consider the death of plaintiff’s intestate as an element of damage but only all damage sustained by him up to the. time of his death. The facts in that case were that Michael Daly brought a suit against Charles C. Holton to recover for injuries received by him as the result of the bursting of an emery wheel while he was in the employ of the defendant. He recovered a judgment in the trial court which was reversed by the Appellate Court and the cause remanded. Thereafter Daly died and his administratrix was substituted as party plaintiff. Upon the second trial the plaintiff recovered a judgment which was affirmed by the Appellate Court. In reversing those judgments the Supreme Court in the course of its opinion said that the evidence showed that Daly’s death resulted subsequent to the bringing of this suit in consequence of the injury which formed the basis of his suit. “If,” continued the court, “the evidence had shown that the death was the result of causes other than the bursting of the emery wheel, or, rather, that the injuries occasioned by the bursting of the emery wheel, to recover for which alone the suit was originally brought, did not cause the death, it is quite apparent this instruction would be free of objection; but in view of the fact that the evidence showed that the death resulted from the injuries occasioned by the bursting of the emery wheel, a very different question is presented.” The court then said that at com- ■ mon law, personal actions arising ex delicto died with the person and did not survive to the representatives, that the wrongful death statute of February 12, 1853 changed this and that waiving all question as to the sufficiency of " the pleadings, the instruction was erroneous if the object of the plaintiff was to recover under the statute, inasmuch as the only damage for which there may be a recovery under that statute is solely the pecuniary loss which the next of kin has sustained. The court then said that the right of action which, at common law, would have terminated at the death of a party injured is continued for the benefit of the wife and next of kin and its scope enlarged to embrace the injury resulting from the death. The court then took up the question whether under the Act of 1872 (Ill. Rev. Stat. 1939, ch. 3, sec. 125, supra) the giving of this instruction could be sustained and said:

“If a party receiving injuries died from other causes, no action could be maintained under the act of February 12, 1853; but now, under the statute of 1872, the cause of action survives to his personal representatives. It is not to be presumed it was intended there should be two causes of action, in distinct and different rights, by the same party plaintiff, for the same wrongful act, neglect or default. It would, obviously, be impossible to draw a line severing with accuracy the damages resulting from the permanent character of the injury, and its effect upon the capacity of the plaintiff for future usefulness in acquiring property, etc., from the actual loss to the wife, parent or child, in consequence of being deprived of this same capacity, by reason of the same injury resulting in death. Yet if the administrator is entitled to recover for the benefit of the estate, generally, just what the plaintiff could have recovered if he had not died before judgment, it is settled he can recover for permanent injuries impairing future usefulness, and consequent pecuniary loss. (Peoria Bridge Association v. Loomis, 20 Ill. 235.) Nevertheless, as we have seen, it is for precisely this loss, when death results, that the widow, parent or child, or next of kin, is entitled to recover.

“The recognition of the right in the deceased to have controlled this action in his lifetime, leads, logically, to the conclusion that a recovery by him would have been a bar to a recovery by his representative, and this because the cause of action would have been merged in the judgment. (Freeman on Judgments, sec. 241.) But if the action by the administrator, under the act of February 12, 1853, is for something other and different than that for which the deceased could have recovered had he obtained judgment in his lifetime, it is manifest no such merger would have taken place. It is true the measure of recovery in the different cases is not the same, but the cause of action is, viz., the wrongful act, neglect or default.

“We feel, therefore, constrained to hold that the act of 1872 was not intended to apply to cases embraced by the act of February 12,1853. It hence follows, that in this action plaintiff occupies precisely the same position that he would have occupied had it not been begun until after the death, and it had then been begun under the act of February 12,1853.

“The court erred in giving the instruction quoted, and for this error the judgment is reversed, and the cause remanded, with leave to appellee to amend her declaration, if she shall be so advised, and for further proceedings in accordance with this opinion.”

In Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424 the Supreme Court in speaking of the Injuries Act of 1853 said: “This statute was not a survival statute. It did not continue to the personal representative the cause of action that the injured party had under the common law, but it created a new and independent cause of action never before that time recognized as existing in this State. The cause of action brought by the personal representative was not intended to permit the widow and next of kin to recover for the pain and suffering of the deceased or for medical attendance and other expenses incurred in and about being healed of the injury. It was not designed by the legislature to give damages for any injury received by the deceased, but to create a cause of action in the name of the administrator for the pecuniary loss which the widow and next of kin may have sustained by reason of the death of the injured person, and the damages, when collected, were distributed, under the statute, to the widow and next of kin according to the rules for the distribution of personal property of persons dying intestate. The funds arising from this source were not a part of the estate of the deceased person and had never been held to be liable to the claims of creditors. The action is for the sole benefit of the widow and next of kin, and is given to compensate them for the pecuniary loss sustained by the death of the husband or relative. (Chicago and Rock Island Railroad Co. v. Morris, 26 Ill. 400.)” Under the Act of 1872 actions to recover damages for an injury to the person, except slander and libel, survive the death of the person injured but continued the court in the OJmesorge case, supra: “it was held in Holton v. Daly, supra, that the action only survived in cases where the death was from some cause other than the injury. If death resulted from the injury the only action that could be maintained was by the personal representative under the Injuries statute of 1853.”

What the court said in the Daly case was that unless the death of a party injured directly resulted from the injuries he received the Act of 1853 did not apply, that the Act of 1872 was passed to take care of a situation where the injured person recovered from his injuries but later died from another cause, that where death did result directly from the injuries received, the Act of 1872 did not give a cause of action for damages arising during the interval between the date of the injuries and the date of death. This has been the repeated holdings of our courts. In Merrihew v. Chicago City Ry. Co., 92 Ill. App. 346, it was held that if death resulted from the same injury that is declared upon, there can be no recovery by his personal representative on account of damages intermediate the injury and the death. In Young v. Ostrander, 270 Ill. App. 368, the court said that beginning with Holton v. Daly, supra, our Supreme Court has consistently held that where a person dies from the injuries sustained by reason of the alleged wrongful and negligent acts of others, then the suit or cause of action for the pain and suffering or expense incurred abates and is not revived by any statute in this State and if the injured person dies from causes other than the alleged wrongful or other negligent act then the cause of action survives. There cannot be two recoveries for the same wrongful act. Many cases both in our Supreme and Appellate Courts might be cited to the same effect. Wetherell v. Chicago City R. R. Co., 104 Ill. App. 357; Krakowski v. Aurora, E. & C. R. Co., 167 Ill. App. 469; Harkin v. Ferro Concrete Const. Co., 185 Ill. App. 239.

In some jurisdictions there may be two recoveries where death ensues as a result of a wrongful act, one to recover for the conscious suffering, pain and anguish suffered by the injured party, besides his pecuniary loss, as well as medical, hospital and funeral expenses. This action is brought by the personal representative of the deceased and for the benefit of his estate. The other may be brought by the personal representative or the next of kin and is to recover the pecuniary loss which the next of kin sustained by reason of the wrongful death of the injured party. In some of the jurisdictions there are statutes authorizing the personal representative of a decedent to join in one action a count on behalf of decedent’s estate for conscious suffering endured by decedent as a result of the negligent injury and also a count on behalf of the next of kin for decedent’s death caused by the same wrongful act. These cases hold that the action for wrongful death begins where the other action ends and that it is not a double recovery for a single wrongful act but separate and distinct recoveries for a double wrong. Beauvais v. Springfield Institute For Savings, — Mass. —, 20 N. E. (2d) 957,124 A. L. R. 611 and cases referred to in the annotation following the report of that case. See also Koehler v. Waukesha Milk Co., 190 Wis. 52, 208 N. W. 901; Lehmann v. Farwell, 95 Wis. 185; Brown v. Chicago & N. W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 44 L. R. A. 579; Mahoning Valley Ry. Co. v. Van Alstine, 77 Ohio St. 395, 83 N. E. 601; St. Louis & S. F. R. R. Co. v. Goode, 42 Okla. 784, 142 Pac. 1185; Stewart v. United Electric Light & Power Co.. 104 Md. 332, 65 Atl. 49; Needham v. Grand Trunk Ry. Co., 38 Vt. 294; Eureka v. Merrifield, 53 Kan. 794; Subrano v. Atlantic Mills, 19 R. I. 129; Hurst v. Detroit City Ry., 84 Mich. 539; Soden v. Trenton & Mercer County Traction Corp., 101 N. J. L. 393,127 Atl. 558.

In Lehmann v. Farwell, supra, it was held that a cause of action for injury to the person survives to his personal representative in case death ensues therefrom and in Brown v. Chicago & N. W. Ry. Co., 102 Wis. 137, supra, that doctrine was adhered to and a number of decisions from other jurisdictions holding otherwise were referred to. Among them Holton v. Daly, supra. In commenting upon that case the Wisconsin court said that the survival and wrongful death statutes of Wisconsin and Illinois were similar but that our court had decided that the right of action to surviving relatives is exclusive and that the personal injury action that survives does not include those where death ensues from the injury because our court reasoned that there is but one ground of liability, the wrongful act. “The fallacy of that reasoning is easily apparent” says the Wisconsin court in its opinion, “True, in the circumstances named, there is but one wrongful act, but that is not the sole ground of action in the right of the deceased or the survivor. It takes the wrongful act and the loss to make the complete cause of action, and as the loss to the person upon whom the injury is inflicted must be recovered by or in his right, and the loss to the surviving relatives by or in their right, the causes of action are clearly distinct. It does not require, apparently, much clearness of mental perception to discover that if several persons are made to suffer pecuniary loss by one wrongful act, each may very properly have his independent cause of action and remedy for the loss resulting to him, and that, generally, in order to do complete justice, in the absence of some provision for a recovery for the benefit of all and a distribution of the proceeds, separate causes of action must necessarily exist.”

In Soden v. Trenton & Mercer County Traction Corp., 101 N. J. L. 393, 127 Atl. 558, supra, decided in 1925, it appeared that Garret N. Soden received injuries through the negligence of the defendant on May 30,1922 from which he died on November 25,1922. The executor of his estate brought an action by which he sought, in one count, to recover for moneys expended and loss of earnings between the date of the accident and the death of the testator as damages sustained by the estate and in the second count, for the pecuniary loss sustained by the next of kin from the death itself. New Jersey’s wrongful death statute was passed March 3, 1848 and its survival statute on March 17,1855 and it was contended that to sustain the action would be to subject the wrongdoer to double damages — damages to the deceased’s estate and also to those entitled under the Death Act for the same wrong but the court held the two causes of action were separate and distinct, that under the Act of 1848 it is the death of the injured person that creates the right of action, while under the 1855 act it is the expense of care, nursing, medical attendance, hospital and other proper charges incident to an injury, as well as the loss of earnings in the lifetime of the deceased, and which cease at death that give the right of action. Under the Act of 1848 the court said that the limitation runs from the date of the death, while under the Act of 1855 the limitation runs from the time of the infliction of the injury and in answering the contention that the absence of litigation based on the Act of 1855 to recover for injuries to the person strongly indicates the absence of such right of action. The court said that in a doubtful case the apparent novelty of the action would be given great weight but could not be given controlling influence where the language is clear and the meaning not doubtful.

There is much that can be said in support of the conclusions arrived at by the courts of Wisconsin, Massachusetts, New Jersey and the other States which hold contrary to those of our own State and the argument advanced by counsel for appellant in the instant case has much to commend it. However, the construction which our courts first placed on the survival Act of 1872 has been steadfastly adhered to and if the holding of Holton v. Daly, supra, and the other Illinois cases which have followed that decision and the reasoning upon which those decisions rest are to be no longer adhered to, this court is not the court to so determine.

Under the repeated holdings of our Supreme and Appellate Courts the trial court properly sustained appellee’s motion to dismiss and that court did not err in rendering the judgment appealed from and that judgment will therefore be affirmed.

Judgment affirmed.


author: Opinion by Justice Dove.

text:
    People of the State of Illinois et al., Appellees, v. Herbert R. Jones et al., and Columbia Casualty Company et al., Appellants and Coappellants.
    Gen. No. 9,488.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed May 15, 1940.
    Cassels, Potter & Bentley and Snapp, Heise & Snapp, for appellants; Ralph E. Potter, George C. Bunge and William D. Heise, of counsel; Barr & Barr and Elmer H. Bielfeldt, for coappellants; George A. Barr, of counsel; James E. Burke, State’s Attorney, for appellees; James J. Ley, of counsel.
   Opinion by Justice Dove.

“Not to be published in full.”


text:
    Jesse P. Hayden, Appellee, v. Fred H. Bredemeier and Elsie Bredemeier, Appellants.
    Gen. No. 9,511.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed May 15, 1940.
    Eva L. Minor, for appellants; W. H. Dyer and E. P. Harney, for appellee.
   Opinion by Justice Dove.

“Not to be published in full.”


text:
    Risa E. Strawn, Appellee, v. Bradley Polytechnic Institute, Appellant.
    Gen. No. 9,518.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed May 15, 1940.
    Miller, Elliott & Westervelt, for appellant; John D. Thomason, of counsel; Richard H. Radley, for appellee.
   Opinion by Justice Dove.

“Not to be published in full.”


text:
    James J. McCauley, Administrator, Appellee, v. Augusta Peters et al. Walter Haertel, Appellant.
    Gen. No. 9,530.
    (Abstract of Decision.)

      Heard in this court at February term, 1940;
    opinion filed May 15, 1940.
    Marcus J. Sternberg, for appellant; D. T. Smiley, for appellee.
   Opinion by Justice Dove.

“Not to be published in fuH.’’


author: Opinion by Justice Huffman.

text:
    Hugh G. Parsons, Appellant, v. Parsons Lumber Company, Inc., Appellee. Parsons Lumber Company, Inc., Appellee, v. Hugh G. Parsons, Appellant.
    Gen. No. 9,514.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed May 15, 1940.
   Opinion by Justice Huffman.

“Not to be published in full.”


author: Opinion by Presiding Justice Matchett.

text:
    2063 Lawrence Avenue Building Corporation, Appellant, v. Gus Van Heck et al., Appellees.
    Gen. No. 40,436.
    (Abstract of Decision.)
    O’Connor, J., dissenting.

      Heard in first division, first district, this court at October term, 1938;
    opinion filed May 20, 1940.
    Robert H. Holmes, for appellant; Louis H. Hellert, of counsel; Joseph A. Ricker, for appellees.
   Opinion by Presiding Justice Matchett.

“Not to be published in full.”


text:
    Bond Stores, Inc., Appellee, v. The Chicagoan, Inc. and Hotel Chicagoan Catering Company, Appellants. Albert Martin, Inc.
    Gen. No. 40,953.
    (Abstract of Decision.)
    Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940.
    Adolph J. Sabath, R. P. Perlman and Theodore E. Rein, for appellants; Theodore E. Rein, of counsel; Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; Herbert M. Lautmann, Jesse H. Brown and Isaac E. Ferguson, of counsel.
   Opinion by Presiding Justice Matchett.

“Not to be published in full.”


text:
    Willard L. Lauer, Administrator of Estate of Samuel C. Lauer, Deceased, Appellee, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 41,079.
    (Abstract of Decision.)

      Heard in first division, first district, this court at December term, 1939;
    opinion filed May 20, 1940.
    Knapp, Allen & Cushing, for appellant; Joseph L. Earlywine, Harlan D. Hackbert and R. Newton Rooks, of counsel; Krohn & MacDonald and Charles J. Mueller, for appellee; Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Opinion by Presiding Justice Matchett.

“Not to be published in full.’’


author: Opinion by Justice McSurely.

text:
    Laura S. K. Slocum et al., Appellants, v. First National Bank of Chicago et al., Appellees.
    Gen. No. 40,778.
    (Abstract of Decision.)
    Heard in first division, first district, this court at June term, 1939;
    opinion filed May 20, 1940.
    Shulman, Shulman & Abrams and Leo L. Ginsburg, for appellants; Meyer Abrams, of counsel; Claire W. Hardy, for certain appellee; Levinson, Becker, Peebles & Swiren, for certain other appellee; Max Swiren and Ben W. Heineman, of counsel; Pam, Hurd & Reichmann, for certain other appellee; Louis S. Hardin and Fredric H. Stafford, of counsel; Winston, Strawn & Shaw, for certain other appellee.
   Opinion by Justice McSurely.

“Not to be published in full.”


text:
    Veronica N. Mclnerney, Administratrix of Estate of Michael J. Mclnerney, Deceased, Appellant, v. Boysen Baking Company and Edwin S. Kellogg, Appellees.
    Gen. No. 40,844.
    (Abstract of Decision.)
    O’Connor, J., dissenting.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940;
    rehearing denied June 3, 1940.
    Raymond F. Kelly, for appellant; McKenna & Harris, for appellees; James J. McKenna and Burrell J. Cramer, of counsel.
   Opinion by Justice McSurely.

“ Not to be published in full. ’ ’


text:
    Russell A. M. Anderson, Appellee, v. Dean F. Klarr and Lawrence A. Peterson, Defendants. Appeal of Dean F. Klarr, Appellant.
    Gen. No. 40,861.
    (Abstract of Decision.)
    Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940;
    rehearing denied June 3, 1940.
    Kinne, Seovel, Robson & Murphy, for appellant; Harry C. Kinne, of counsel; Musgrave, Oppenheim, Price & Ewins, for appellee.
   Opinion by Justice McSurely.

“Not to be published in full.”


text:
    Andrew Bednarczyk, Appellee, v. Rozalia Kudla et al., Defendants. Matilda Yoelin, Administratrix, Appellant.
    Gen. No. 40,901.
    (Abstract of Decision.)
    Heard in first division, first district, this court at April term, 1939;
    opinion filed May 20, 1940.
    Estelle M. Wells, for appellant; William M. Zipperman, for appellee; Maurice L. Lewis and Irving S. Abrams, of counsel.
   Opinion by Justice McSurely.

‘ ‘Not to be published in full.”


text:
    People of the State of Illinois ex rel. Auditor of Public Accounts, Appellee, v. West Side Trust and Savings Bank of Chicago, Appellee. Abe Michelson, Appellant.
    Gen. No. 40,934.
    (Abstract of Decision.)
    O’Connor, J., dissenting.

      Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940.
    Schnackenberg, Hansen & Towle and Harry I. Weisbrod, for appellant; Elmer J. Schnackenberg, of counsel; Nash, Ahern, McDermott, McNally & Kiley, for certain appellee; Richard F. Shay and John J. Kennelly, of counsel; Maurice L. Davis, for certain other appellee; Maurice L. Davis, of counsel; Edward Berkson, pro se.

   Opinion by Justice McSurely.

“Not to be published in full.’’


text:
    Clinet Jordan, Minor, by Robert Jordan, His Father and Next Friend, Appellee, v. Railway Express Agency, Inc., Appellant.
    Gen. No. 40,983.
    (Abstract of Decision.)
    Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940.
    John A. Dill, for appellant; Emil Seerup, of counsel; no appearance for appellee.
   Opinion by Justice McSurely.

“Not to be published in full.’’


author: Opinion by Justice O ’Connor.

text:
    Wilbert Olson et al., Appellees, v. Herbert M. Smeby, Individually and as Executor, et al., Appellants.
    Gen. No. 40,865.
    (Abstract of Decision.)

      Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940.
    Elmer J. Tone, for appellants; Clyde C. Fisher, of counsel; Schachner & Siegan and Charles C. and Richard M. Spencer, for appellees.
   Opinion by Justice O ’Connor.

“Not to be published in full.”


author: Opinion by Justice O’Connor.

text:
    June Goodenough and Lydia Goodenough. Lydia Goodenough, Appellee, v. George Oberhardt and Harold. Oberhardt, Minor, by George Oberhardt, His Father and Next Friend. George Oberhardt, Appellant.
    Gen. No. 40,927.
    (Abstract of Decision.)
    Heard in first division, first district, this court at December term, 1939;
    opinion filed May 20, 1940.
    Emerson C. Whitney and John A. Bloomingston, for appellants; C. Helmer Johnson, for appellees; J. F. Van Wakeman, of counsel.
   Opinion by Justice O’Connor.

“Not to be published in full.”


text:
    August Block, Appellant, v. W. W. Kimball Company, Appellee.
    Gen. No. 40,937.
    (Abstract of Decision.)

      Heard in first division, first district, this court at October term, 1939;
    opinion filed May 20, 1940.
    Schachner & Siegan, Charles C. Spencer and Richard M. Spencer, for appellant; Alden, Latham & Young, for appellee; Carl R. Latham and Norman A. Korfist, of counsel.
   Opinion by Justice O’Connor.

“Not to be published in full.”


text:
    Luella F. Root (Substituted for Nora O. Van Desalice, Executrix of Estate of Walter J. Van Desalice, Deceased), Appellant, v. Daniel S. Wentworth, Appellee.
    Gen. No. 40,899.
    (Abstract of Decision.)
    Heard in third division, first district, this court at October term, 1939;
    opinion filed May 22, 1940.
   Opinion by Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    In re Estate of Harriet A. Mitchell, Deceased. Edward Guerin, Appellant, v. Hazel M. Griefen, Appellee.
    Gen. No. 40,941.
    (Abstract of Decision.)
    Heard in third division, first district, this court at October term, 1939;
    opinion filed May 22, 1940;
    rehearing denied June 12, 1940.
    William S. Kleinman and Johntry & FitzGerald, for appellant; Chas. O. Rundall, for appellee.
   Opinion by Presiding Justice Denis E. Sullivan.

“Not to be published in full.’’


text:
    In re Estate of Harriet A. Mitchell, Deceased. George P. Garin, Appellant, v. Hazel M. Griefen, Appellee.
    Gen. No. 40,942.
    (Abstract of Decision.)
    Heard in third division, first district, this court;
    opinion filed May 22, 1940.
    No briefs or abstracts filed for appellant or appellee.
   Opinion by Presiding Justice Denis E. Sullivan.

‘ ‘Not to be published in full.’’


text:
    Edward L. Smith and Emma Olson Smith, Appellees, v. A. Salavitch and Son, Inc., et al., Appellants. Edward L. Smith, Administrator of Estate of E. W. Smith, Deceased, Appellee, v. A. Salavitch and Son, Inc., et al., Appellants.
    Gen. No. 40,988.
    (Abstract of Decision.)
    Heard in third division, first district, this court at October term, 1939;
    opinion filed May 22, 1940;
    rehearing denied June 14, 1940.
    John A. Bloomingston, for appellants; Weinberg, Kjellander & O’Farrell and Finn & Miller, for appellees; Richard G. Finn, of counsel.
   Opinion by Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Lake Valley Farm Products, Inc., Appellant, v. F. C. Lafendo, Appellee.
    Gen. No. 41,012.
    (Abstract of Decision.)
    Heard in third division, first district, this court at December term, 1939;
    opinion filed May 22, 1940.
    Erwin M. Pearl, for appellant; Anton S. Mikula, for appellee.
   Opinion by Presiding Justice Denis E. Sullivan.

“Not to be published in full.’’


author: Opinion by Justice Burke.

text:
    Frank Sweeney, Appellee, v. Bismarck Hotel Company et al., Appellants.
    Gen. No. 41,000.
    (Abstract of Decision.)
    Heard in third division, first district, this court at October term, 1939;
    opinion filed May 22, 1940;
    rehearing denied June 12, 1940.
    Castle, Williams & McCarthy, for appellants; Emmett J. McCarthy and Robert R. Hanley, of counsel; Ehrlich & Cohn and Mark T. Barnett, for appellee; Aaron H. Cohn, of counsel.
   Opinion by Justice Burke.

“Not to be published in full.’’


text:
    Rose Hatzenbuehler, Appellee, v. Alfred Miske et al., Appellants.
    Gen. No. 41,018.
    (Abstract of Decision.)
    Heard in third division, first district, this court at December term, 1939;
    opinion filed May 22, 1940.
    Lawrence Lenit, for appellants; Edward M. Platt, for appellee.
   Opinion by Justice Burke.

‘ ‘Not to be published in full.’’


text:
    Chicago Title & Trust Company, Trustee, Appellee, v. Thomas D. Randall et al., Defendants. Louis Susman, Appellant, v. Chicago Title and Trust Company, Trustee, et al., Appellees.
    Gen. No. 41,047.
    (Abstract of Decision.)
    Heard in third division, first district, this court at December term, 1939;
    opinion filed May 22, 1940.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel; Gottlieb & Schwartz, for appellees; Harry E. Smoot, B. W. Friedman and A. Edmund Peterson, of counsel.
   Opinion by Justice Burke.

“Not to be published in full.”


text:
    Charles M. Vito and William H. Katt, Appellees, v. Standard Insurance Company of New York, Appellant.
    Gen. No. 41,120.
    (Abstract of Decision.)
    Heard in third division, first district, this court at February term, 1940;
    opinion filed May 22, 1940;
    rehearing denied June 14, 1940.
    Hinshaw & Culbertson, for appellant; Oswell G. Treadway, of counsel; James Percival Pio, for appellees; James A. Donnelly, of counsel.
   Opinion by Justice Burke.

“Not to be published in full.”


text:
    Marie Vyskocil Dolejs, Assignee of Andrew Dolejs, Appellee, v. Lietuva Building and Loan Association, Formerly Known as Loud Name Lithuanian Building and Loan Association, Appellant.
    Gen. No. 41,140.
    (Abstract of Decision.)
    Heard in third division, first district, this court at February term, 1940;
    opinion filed May 22, 1940;
    rehearing denied June 14, 1940.
    William M. Zipperman; for appellant; Irving S. Abrams, of counsel; Alfred M. Loeser, for appellee; Harold Z. Novak, of counsel.
   Opinion by Justice Burke.

“Not to be published in full.”


text:
    Homer D. McCann, Appellee, v. Woodstock Typewriter Company, Appellant.
    Gen. No. 41,147.
    (Abstract of Decision.)
    Heard in third division, first district, this court at February term, 1940;
    opinion filed May 22, 1940.
    Gardner, Foote, Morrow & Merrick, for appellant; Robert L. Elliott, Jr., of counsel; Albert E. Grammer, for appellee.
   Opinion by Justice Burke.

“Not to be published in full.’’


author: Opinion by Justice Hebel.

text:
    William J. Sandberg and George N. Sandberg, Trustees Under the Last Will and Testament of Nels John Sandberg, Deceased, Appellees, v. John Sandberg, Appellant, and Trust Company of Chicago, Conservator of Estate of Charles A. Sandberg, Insane, Appellee.
    Gen. No. 40,795.
    (Abstract of Decision.)
    Heard in third division, first district, this court at June term, 1939;
    opinion filed May 22, 1940;
    rehearing denied June 14, 1940.
    Maurice Sokoloff, for appellant; Yellen & Grant, of counsel; Gustav E. Beerly, for certain appellees; Joseph Foran, for certain other appellee.
   Opinion by Justice Hebel.

“Not to be published in fuU.’ ’


text:
    Real Packing Company, Appellee, v. Reo Packing Company et al., Appellants.
    Gen. No. 40,804.
    (Abstract of Decision.)

      Heard in third division, first district, this court at October term, 1939;
    opinion filed May 22, 1940;
    rehearing denied June 14, 1940.
    Stanislaus E. Basinski, for appellants; Edward S. Cody and Albert E. Hallett, Jr., of counsel; Edward L. Kowalski, for appellee; Stanley S. Piotrowski, of counsel.
   Opinion by Justice Hebel.

"Not to be published in full.”


text:
    People of the State of Illinois, Appellee, v. Clarence Walker, Appellant.
    Gen. No. 41,070.
    (Abstract of Decision.)
    Heard in third division, first district, this court at December term, 1939,
    opinion filed May 22, 1940.
    Adams & Martin, for appellant; Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Leo F. Poch, Assistant State’s Attorneys, of counsel.
   Opinion by Justice Hebel.

"Not to be published in full.”


text:
    Fred Kemper, Appellee, v. Harry Cohen et al., Defendants. Appeal of Harry Cohen, Appellant.
    Gen. No. 41,200.
    (Abstract of Decision.)
    Heard in third division, first district, this court at April term, 1940;
    opinion filed May 22, 1940,
    Isador Becker and Joseph C. Cowen, for appellant; C. A. Caplow, for appellee.
   Opinion by Justice Hebel.

‘ ‘Not to be published in full.”


author: Mr. Justice Hayes

text:
    George Hatzenbuhler, Plaintiff, v. Modern Woodmen of America, Defendant. Modern Woodmen of America, Cross-Complainant (Appellee), v. Hogan and Farwell, Inc., et al., Cross-Defendants (Appellants).
    Gen. No. 9,224.

      Heard in this court at the October term, 1939.
    Opinion filed April 15, 1940.
    Rehearing denied June 13, 1940.
    Denis E. Sullivan, Jr. and Edmond Sullivan, both of Chicago, and Stone & Taylor, for appellant.
    Carnahan, Slusser & Mitchell, of Chicago, and Branson Wright, of Bloomington, for certain appellee.
    Bracken, Livingston & Murphy, of Bloomington, George G. Perrin, George H. McDonald and Alfred S. Edler, all of Bock Island, for certain other appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

This is an appeal from an order of the circuit court of McLean county entered on the 22nd day of September, A. D. 1939, ordering the issuance of a writ of temporary injunction on the motion of the plaintiff in the cross complaint of the Modern Woodmen of America, against the defendant, Hogan & Farwell, Inc., enjoining and restraining said last-named defendant from further prosecuting* any suit against the Modern Woodmen of America, for the recovery of six thousand five hundred ($6,500.00) dollars.

On the 24th day of June, A. D. 1939, George Hatzenbuhler, a resident of the city of Bloomington, Illinois, brought an action at law in the circuit court of McLean county, against the Modern Woodmen of America, a corporation, to recover a real estate brokerage commission on account of the sale of the Whitfield Apartment Hotel in Chicago, made by the Modern Woodmen of America. A summons was issued and served on the Modern Woodmen June 24, 1939. On July 10, 1939, the Modern Woodmen filed on interpleader suit in the circuit court of Cook county, and named as defendants George Hatzenbuhler, and Hogan & Farwell, Inc., et al., and obtained a temporary injunction, without notice, restraining all the defendants, including George Hatzenbuhler, from prosecuting any suit for the recovery of the commission in question. On August 2, 1939, George Hatzenbuhler, et al., filed a motion in the circuit court of Cook county for the dissolution of said injunction. On August 24, 1939, the defendant Hogan & Farwell, Inc., filed its verified answer in the circuit court of Cook county, asking an affirmative judgment for sixty five hundred dollars. On the 29th day of August, 1939, on motion of George Hatzenbuhler, and the other defendants, except Hogan & Farwell, an order was entered in the circuit court of Cook county, finding that the temporary injunction was improvidently issued, without notice, and without bond. The same was dissolved. On the 8th day of September, A. D. 1939, an order was entered in said proceedings in Cook county, dismissing said suit on motion of the Modern Woodmen of America over the objection of Hogan & Farrell, Inc.,

On the 14th day of September, A. D. 1939, Hogan & Farwell, Inc., filed with the clerk of the Cook county court, its notice of appeal from the order dismissing said cause on motion of the plaintiff over the objection of Hogan & Farwell. The appeal bond was approved, ordered filed, and a praecipe for record on appeal was filed.

On the 13th day of September, A. D. 1939, the Modern Woodmen of America filed an answer and cross complaint in the nature of a bill of interpleader in the suit in which George Hatzenbuhler was plaintiff, in the circuit court of McLean county. Said cross bill contained the same averments as did the complaint of interpleader in the Cook county suit, and made the cross defendants the same as were the defendants in the Cook county suit.

On September 22, 1939, the Modern Woodmen made application to obtain a temporary injunction from the circuit court of McLean county, restraining all of said cross defendants, including Hogan & Farwell, Inc., from prosecuting any other suit at law or in equity against the Modern Woodmen of America. The defendant Hogan & Farwell, Inc., appeared in response to said motion and filed its counter affidavit in opposition to the motion for said temporary injunction setting forth all the facts relating to the proceedings then pending in the Appellate Court of Illinois for the First District, and setting forth that said temporary injunction, if issued as prayed for, would have the effect of preventing Hogan & Farwell, Inc., from filing a record on appeal to the Appellate Court of Illinois, for the First District, within the time prescribed by statute. Hogan & Farwell, at the time of the making of the motion for a temporary injunction in the McLean county suit, presented and filed a verified petition for a stay of proceedings, which averred the pendency of a prior action between the same parties for the same cause, and prayed that any and all further proceedings in this cause might be stayed pending the outcome of the appeal on the Cook county suit.

The circuit court of McLean county denied the motion to stay the proceedings and ordered the issuance of a temporary injunction.

The law provides that where a party has a specific fund which is claimed by two or more parties, whose claims spring from the same source, and the stakeholder has no interest in the subject matter; and has incurred no independent liability to either of the claimants ; and is a disinterested, impartial stakeholder, he is entitled to file an interpleader suit so as to avoid a multiplicity of suits. A suit of this nature is in equity and the complainant should be free of any collusion with any of the claimants and remain impartial between them.

In the case before us, the Modern Woodmen filed its suit of interpleader in the circuit court of Cook county, and made Hogan & Harwell, a defendant, and improvidently obtained an injunction without notice and without bond restraining Mr. Hatzenbuhler from prosecuting his McLean county suit, and the other defendants from bringing suit for the commission in question, which injunction was dissolved and from which order no appeal was taken. Hogan & Harwell, Inc., were not only a defendant in the interpleader suit, but were for all intents and purposes, a plaintiff in asking an affirmative judgment. The Cook county suit was dismissed over its objections. It prosecuted an appeal, in apt time, to the Appellate Court for the Hirst District, but before it could perfect its appeal, it was restrained by a temporary injunction from the circuit court of McLean county, on motion of the Modern Woodmen. The Modern Woodmen was entitled to file one suit of interpleader,— not two.

The Modern Woodmen chose to file its first suit in the circuit court of Cook county, and it obtained the process of that court in bringing the defendant Hogan & Harwell, Inc., into court. This defendant came in and asked for an affirmative judgment. The Woodmen dismissed its suit. Hogan & Harwell appealed. Before the litigation had terminated, the Woodmen had filed its cross complaint in the Hatzenbuhler suit in McLean county, and had again made Hogan & Harwell, a defendant, and then obtained a temporary injunction preventing Hogan & Harwell from having a review which it was entitled to under the statute, in the Appellate Court for the Hirst District. The propriety of this procedure is very questionable and the results obtained here are contrary to the principles underlying-bills of interpleader. In place of restricting multiplicity of suits, it has in this instance created them. For the complainant in an interpleader to sustain itself, it must show and do equity. The Woodmen, in filing one suit in Cook county and then voluntarily dismissing it after obtaining an injunction, and its filing of the cross complaint in the McLean county suit, before the Cook county suit was finally disposed of, and in obtaining the second temporary injunction, restraining the review of the Cook county suit, does not show equity of the type required of a complainant in a suit in the nature of an interpleader.

It is true Mr. Hatzenbuhler first filed his suit in McLean county, and as between him and the Modern Woodmen, this is the prior suit, but as between Hogan & Farwell, and the Modern Woodmen, the Cook county suit is the prior one. If the Modern Woodmen of America had followed the prescribed rules required of a complainant in interpleaders, the confusion that now appears in this record would not have occurred.

In our judgment, and for the reasons herein set forth, the Modern Woodmen were not entitled to the temporary injunction before trial in the McLean county court restraining Hogan & Farwell from a right to review the Cook county suit in the Appellate Court for the First District, and said injunction should not have been granted by the circuit court of McLean county. The order granting said temporary injunction is hereby reversed, and cause remanded with directions to the circuit court of McLean county to dissolve said injunction. The order of the circuit court of McLean county denying appellant’s petition for stay of proceedings in said court is affirmed, for the reason that Hatzenbuhler filed his suit first, and has done nothing justifying a stay order preventing him from prosecuting his suit.

Affirmed in part, reversed in part, and remanded with directions.


author: Mr. Presiding Justice John J. Sullivan

text:
    Mattie Dietz, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,453.
    Heard in the second division of this court for the first district at the October term, 1938.
    Opinion filed May 28, 1940.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Herbert Gr. Immenhausen and Samuel W. Banovitz, both of Chicago, for appellee; Meyer C. Balin, of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This is an action under the double indemnity provisions of a life insurance policy in the sum of $1,000, issued by defendant on the life of Dorothy Dietz, in which plaintiff, her mother, is named beneficiary. Judgment for $1,000 was entered against defendant upon the verdict of the jury. This appeal followed.

Plaintiff’s complaint alleged the issuance of the policy and that on December 26, 1936, Dorothy Dietz, the assured, died “as a result, directly and independently of all other causes of bodily injuries sustained through external, violent and accidental means, and that said death did not result under any of the exceptions” set forth in the policy; that due proof of death was made ; and that defendant paid the death claim of $1,000 but refused to pay the additional $1,000 due under the double indemnity provisions of the policy. It was alleged in the second count of the complaint that the assured was accidentally drowned.

Defendant’s answer admits the issuance of the policy and the payment of the face amount of same. It denies that the assured came to her death as a result, directly and independently of all other causes of bodily injuries sustained through external, violent and accidental means, and alleges that her death was caused by or contributed to directly or indirectly, or wholly or partly, by disease or bodily or mental infirmity; and that for a period of two years prior to her death Dorothy Dietz “had been subject to dizzy and fainting spells and epileptic fits, which were caused by brain anemia.”

Dorothy Dietz, the assured, was 22 years old at the time of her death on December 26,1936. She had been working that day until 1 p.m. and after spending the afternoon shopping* with her mother reached home about 6 o’clock that evening. About 7 p.m. Dorothy went into the bathroom of her home and ran the water to take a bath. As her mother was going* out about 10 minutes later she called to Dorothy through the closed door of the bathroom and upon receiving* no response, knocked at said door. She then called her husband, who forced the door open, and they found Dorothy sitting* in the bathtub nude and slumped forward with her mouth and nose under the water. The bathtub was “half or over half full” of water and the bathroom was very warm. She was taken from the bathtub and laid on the bedroom floor, where she was given first aid. Her face was rather blue and “water came out of her mouth ... about a cupful, half a cup. ’ ’ A neighbor who was called in turned her over on her face. He was familiar with and used the prone pressure method on her and ‘ ‘water ran out — , ’ ’ which was mopped up. Then “water oozed out of her nose,” which was also mopped up. This neighbor worked on her 8 or 10 minutes until the pulmotor squad arrived. The pulmotor was used on her for about 25 minutes and during that time no water came from her nose or mouth. In his report the lieutenant in charge of the pulmotor squad stated that death was “due to a fainting spell and drowning in the bathtub.” The attempt of the pulmotor squad to revive the assured was without success and she was pronounced dead by a physician upon his arrival. The body was taken to an undertaking establishment, where an inquest was held. There was no autopsy. The verdict of the coroner’s jury was that Dorothy Dietz came to her death “in the bathroom of her home located at 1768 Leland Avenue, due to asphyxiation by drowning, said decedent was suffering from epilepsy fits and was seized with said illness while taking a bath at above mentioned location on December 26, A. D. 1936. We the jury believe said occurrence to be an accident.” Dr. Jacob Goodman, coroner’s physician, testified that he found no cause of death other than drowning. Dr. Christopher S. O’Neill stated in answer to a hypothetical question, “I would conclude that the girl died of drowning.” Police officer Charles J. McCarthy, who arrived at the Dietz home to make an investigation of the assured’s death, after the pulmotor squad had left, testified that while plaintiff, Mattie Dietz, was in the same room “in a pretty hysterical condition . . . she was crying and sobbing” and talking to other people, Mr. Dietz made a statement to Mm. He stated that Dorothy’s father “told me she was a girl subject to fainting spells and dizzy spells . . . she was under the care of Dr. O’Neill for about a year and a half for this same trouble but that he thought she — was getting better for she didn’t get those spells as often as she did when they first started ... he said epileptic or dizzy spells . . . about six months previous to this time she had one of those spells ... of course they happened at home at the time and they got to her right away.” By stipulation the signed statement of Officer McCarthy’s testimony before the coroner’s jury was received in evidence. Such statement discloses that McCarthy testified before said jury that the assured’s father merely told him that ‘ ‘ she was under a doctor’s care for about 1% years and was subject to fainting spells.” McCarthy did not tell the coroner’s jury that Mr. Dietz ever stated to him that Dorothy suffered from epileptic spells.

Dr. Robert A. Lamb testified as an expert witness for defendant. He was asked a hypothetical question which assumed substantially all the facts and circumstances in evidence. The following questions were then asked him and he made the answers indicated: “Mr. Welsh: Q. Well, have you an opinion . . . whether or not the condition she was treated for the two years, together with the fact that she had had epileptic fits, do you think that contributed to her death. A. Absolutely. Q. Now, doctor, the condition which this hypothetical girl was treated for, anemia, low blood pressure and nervousness, is that any indication that she might have fainting spells or fits? A. Yes, it is.”

He further testified that anemia is not a disease but a condition; that low blood pressure is not a disease; that nervousness is also a condition; that nervous people faint, and that a person without epilepsy can faint; that if the head of an unconscious person is immersed in water, such person can ‘ take sufficient water to drown ’ ’; that drowning is asphyxiation — a lack of supply of air to the respiratory system; that any amount of water that gets into the throat and obstructs the breathing will cause asphyxiation, particularly if the person is unconscious ; and that perfectly normal and healthy persons have been known to drown upon entering a tub half full of water.

Defendant contends that “plaintiff failed to meet the burden of proof that death was the result of drowning or that death was the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means’’; that “the death was caused by or contributed to by disease and under the terms of the policy there is no liability for double indemnity in such event”; and that “since the plaintiff failed to establish a prima facie case, that the motion of the defendant for a directed verdict should have been allowed. ’ ’

Plaintiff’s theory as stated in her brief is that “the assured came to her death by asphyxiation through drowning; that her death was the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means. ’ ’

The principal question presented is whether plaintiff established prima facie that the death of the assured was caused by drowning. There were no eyewitnesses to her death so that the evidence is entirely circumstantial. It is the law that one who against his will comes to his death by drowning, suffers death by external, violent and accidental means. (Manufacturer’s Acc. Indem. Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945.) In Sturm v. Employers’ Liability Assur. Corp., Ltd., 212 Ill. App. 354 (certiorari denied) the facts are practically identical with the facts here. In that case the evidence showed that assured died in the bathtub of his' home in Chicago, and the issue of fact was whether his death was from accidental drowning or disease. There were no eyewitnesses. The evidence as to the manner of his death was wholly circumstantial. The assured was past 67 years of age, somewhat corpulent and full-blooded. In the 15 months prior to his death he had suffered from two attacks of facial erysipelas but from no other illness. The morning of his death assured went to the bathroom, turned on the water, went out to the hall and got some towels; he then got into the bathtub. His wife went to the bathroom, saw him sitting in the tub, which was half full of water; while the water ran he lathered his face preparatory to shaving; she left, telling him she would get breakfast, which she then prepared, and assured not appearing as soon as expected, she went into the bathroom where she found him dead, the tub being full of water; the body was entirely under water, the knees up and the head leaned forward on his chin; the water was a foot deep over his head; the face was unshaven; the safety razor was at the bottom of the bathtub; there was no hair or soap on the blade. A doctor summoned tried artificial respiration without result; a dark colored liquid came from the mouth and a latherlike sputum from the corners of the mouth. A post mortem disclosed arteriosclerosis of the brain, in the arch of the aorta and of the valve of the heart; there were fatty changes in the liver, the kidneys were diseased with chronic interstitial nephritis, and with cystic degeneration. There was medical opinion to the effect that deceased did not come to his death by drowning and that the cause of death was chronic myocarditis complicated by chronic nephritis. There was also some medical evidence tending to show that the death was by drowning. There the court said at pp. 360-364:

“In the instant case, therefore, the critical question in [is] whether the insured came to his death by involuntary drowning, or from some other cause, such as disease. Where a man, a few minutes after being seen apparently in good health is found under water, dead, and nothing more is known of the cause of death, the immediate conclusion arrived at is that he was drowned. As the result of common sense and common experience, that opinion is formed by the normal processes of almost instant reason, and it may be said that legally such circumstantial evidence makes out a prima facie case of accidental drowning. Trew v. Railway Passengers’ Assur. Co., 6 Hurl. & Norm. 839. Of course, evidence subsequently may be disclosed that conclusively proves the contrary, or, at least, leaves the mind in doubt. Is there such evidence here? As no one saw death take place, the only evidence contradictory of drowning is that of the expert opinions of some of the doctors who physically examined the body of the deceased.
"
‘ ‘ Just what took place which caused the assured to go under water, whether it was his will — though, of course, the presumption is against suicide — or whether it was without design, as, e.g., a syncope, cannot now with absolute certainty be known. One of the diseases from which he suffered, according to the opinion of the experts, may have caused him to become unconscious and' then to slip or fall in and drown. Then, too, assuming the latter to have taken place, it may be that the internal evidence of drowning where one is unconscious, when he falls in, is slightly different from the case where one is conscious at the time. Many doubts arise as to the trustworthiness and scientific value of the experts’ opinions in the present case, and especially is that true when we realize that they involve, first, an assumption that there are certain symptoms which are a constant characteristic of drowning; second, that an examination of the body by three of them, after it had been embalmed, buried, exhumed, disclosed none of the characteristic symptoms of drowning; third, it did disclose certain mortal diseases; fourth, a conclusion that death was caused by disease.
“If any one or more of those inferences is doubtful, the ultimate is doubtful. Of course, an inference from an inference, and then a third and fourth may, under certain circumstances, be admissible (Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96 [14 N. C. C. A. 224]), but the more remote the inference the more enfeebled its probative force. Considering the prima facie case made out by the practically undisputed objective circumstances of the assured’s death, qualified as it may be by the opinions of the experts, it was entirely proper that it should be submitted to the jury; and, as we are of the opinion that there was ample evidence of accidental drowning, the judgment must stand.
"
“. . .Even though the insured were diseased and his abnormal condition led to his falling into the water and being drowned — and so in a sense contributed to his death — it is not the law that that contribution of disease to his death would prevent the plaintiff from recovering. The law distinguishes between so-called successive causes as between successive physical conditions; and the proximate excludes the more remote. If the deceased came to his death by drowning then, legally, that was the sole cause of his death. Bohaker v. Travelers’ Ins. Co., 215 Mass. 32; Manufacturers’ Accident Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945; Lawrence v. Accidental Ins. Co., L. R. 7 Q. B. Div. 216; Winspear v. Accident Ins. Co., L. R. 6 Q.B. Div. 42. ’ ’

Considering the prima facie case made out here by the practically undisputed circumstances of the assured’s death, it was properly submitted to the jury. And where a plaintiff makes out a prima facie case of death of the insured from external, violent and accidental means, the burden is then upon defendant to show that said death resulted from a cause excepted in the policy. (Rogers v. Prudential Ins. Co., 270 Ill. App. 515; Nalty v. Federal Casualty Co., 245 Ill. App. 180,185; 14 R. C. L., p. 1437, sec. 599.)

There is no evidence in the record that the assured suffered from any mental infirmity. Her mother testified that Dorothy had no physical infirmities, that during her infancy and early childhood she had whooping cough, chicken pox and measles and that in 1936 Dr. O’Neill said that she was anemic and nervous and had low blood pressure. Dr. O’Neill, who had been treating the assured intermittently since 1934, testified that he examined her in September, 1936, approximately four months prior to her death, and found that she was normal and not suffering from any disease at that time and that “she was apparently in good health.” The employer of the assured stated that she had worked until 1 p.m. on the day of her death and that she had not been absent from her work a single day during the almost two years of her employment.

It will be noted from the evidence heretofore set forth that not a single witness who testified in defendant’s behalf had any direct knowledge that the assured suffered from any disease or physical impairment at any time prior to her death. The jury apparently deemed the evidence presented by defendant bearing upon the possible diseased condition of the assured to be of insufficient probative force to show that her death was “caused by or contributed to, directly or indirectly, or wholly or partly, by disease or by bodily or mental infirmity. ’ ’

Defendant urges that the receipt of proof that death was solely the result of accidental means is a condition precedent to liability and insists that since the proof of death filed by plaintiff with the defendant company contains as a part thereof “the coroner’s verdict, which in itself shows that the death was caused by or contributed to by epilepsy, which is a disease” there can be no recovery.

Plaintiff testified that she was not present at the coroner’s inquest and that she neither procured the copy of the coroner’s verdict, which was attached to the proof of death, nor did she attach same thereto. In any event, since the assured met with a sudden death, it was necessary that the coroner’s verdict accompany the proof of death and, even if plaintiff had furnished same, the recitals and findings therein concerning the cause of death of the assured were not conclusive upon her.

In Wachtel v. Equitable Life Assur. Society, 266 N. Y. 345, cited by defendant, it was held that an admission in a proof of death is binding unless and until it is corrected or explained. In Ferrero v. National Council Knights & Ladies of Security, 309 Ill. 476, the court held in an action on a benefit certificate that a statement in the proof of death that the assured died by his own hand was admissible but not conclusive as to the manner of death. In Modern Woodmen of America v. Davis, 184 Ill. 236, suit was brought upon a policy which provided that i-t should become void if the assured may “become so far intemperate . . . as to permanently impair his health so to produce delirium tremens. ’ ’ Defendant filed a special plea alleging that the notice and proofs of death of the assured forwarded to the order by the plaintiff stated that the assured had died from acute alcoholism, and that, therefore, there could be no recovery. In discussing the defense offered by the special plea the court said at pp. 237,238:

“. . . Any statement contained in the notice and proofs of death was available to the order as evidence in the nature of admissions made by the plaintiff in the action, but we find nothing in the averments of the plea upon which to base the contention an estoppel arose. That the statement in the proof of loss was made with the intention the order would act upon it, and that the order did act upon it and changed its position to its injury, was at least essential to the creation of an estoppel. But the pleas contained no such averments. The admission referred to in the plea was found in the affidavit of the physician who attended the assured during his last illness. This affidavit was filed in obedience to a rule of the order. Proofs of death, if in compliance with the requirements of the order, form a legal basis for an action on a certificate issued by the order, even though the proof contain matter damaging to the case of the beneficiary. (13 Am. & Eng. Ency. of Law 65.) The real cause of death remained a question of fact, in the elucidation whereof the beneficiary was not restricted to the testimony of the physician. Her right to recover could not be conclusively determined from the affidavit of the physician filed by her, because the rule of the order required it to be filed. Nor was she estopped to combat the truth of the affidavit of the physician. (Bent v. Northwestern Aid Ass’n, 41 N. W. Rep. 1037.) ’ ’

The finding contained in the coroner’s verdict that ‘ ‘ said decedent was suffering from epileptic fits and was seized by said illness while taking a bath” is not in accord with any competent evidence contained in the record and it has been effectually combatted by the prima facie case made by plaintiff that the assured was accidentally drowned.

In our opinion there was ample evidence to justify the verdict in favor of plaintiff and the judgment entered thereon should stand.

For the reasons stated herein the judgment of the circuit court is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.