author: Mr. Justice Gridley

text:
    Lena Rogers, Administratrix of the Estate of Leonard Ingstrom, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 36,270.

      Opinion filed May 23, 1933.
    Hoyne, O’Connor & Rubinkam, for appellant.
    David S. Chesrow and Samuel L. Golan, for appellee ; Samuel L. Golan, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On February 4, 1932, Lena Rogers commenced a first class action in assumpsit against defendant, based upon its insurance policy insuring the life of Leonard Ingstrom and providing for a double indemnity in case of his accidental death. She commenced the action in her own name on the theory that Ingstrom, having during his lifetime delivered a certain writing to defendant, had made her the beneficiary of the policy subject to its terms and conditions. On June 30, 1932, however, the court gave her “leave to amend by changing plaintiff from Lena Rogers to Lena Rogers, administratrix of the estate of Leonard Ingstrom,” and by further leave she, on July 8, 1932, filed an amended statement of claim, to which defendant filed an affidavit of merits. On July 18, 1932, after a trial without a jury, at which oral and documentary evidence was introduced by each party, the court found the issues against defendant, assessed plaintiff’s damages at $2,856, and entered judgment in that sum against defendant. The present appeal followed.

In plaintiff’s amended statement of claim (to which is attached and made a part a copy of the policy) she alleged that on July 20, 1931, defendant, in consideration of the payment of a weekly premium of 85 cents by the insured, issued to Leonard Ingstrom its policy of insurance No. 87074961, dated July 20, 1931, insuring the life of Ingstrom in the amount of $1,428; that by one of the provisions of the policy as to “Accidental Death Benefit” it is provided (italics ours):

“Upon receipt of due proof that the Insured after 1 attainment of age 15 and prior to the attainment of age 70, has sustained bodily injury, solely through external, violent and accidental mea/i'is, occurring after the date of this Policy and resulting in the death of the insured within ninety days from the date of such bodily injury while this Policy is in force, and while there is no default in the payment of premiums, the Company will pay in addition to any other sums due under this Policy and subject to the provisions of this Policy an Accidental Death Benefit equal to the face amount of insurance stated in this Policy less the amount of any disability benefit which has become payable under this Policy on account of the same bodily injury, except as provided below.”

That subsequent to the issuance of the policy and while it was in full force and effect — all premiums having been paid — to wit, “sometime subsequent to August 22, 1931, and prior to September 2, 1931,” Ingstrom came to his death, “as a result of bodily injury solely through external, violent and accidental means” within 90 days from the date of the bodily injury; that at the time of such violent and accidental death Ingstrom was approximately 27 years of age; that plaintiff has been appointed administratrix of his estate and all moneys due under the policy are payable to her as such administratrix; that the total amount due is $2,856; and that defendant, although often requested, has refused to pay such amount to her or any part thereof, wherefore she brings suit, etc.

On the first page of the policy, in addition to the date and number as above mentioned, are the following paragraphs among others (italics ours):

“The Prudential Insurance Company of America, in consideration of the payment of the weekly premium herein specified, on or before each and every Monday during the continuance of this Policy or until the anniversary date of the Policy immediately preceding the seventieth anniversary of the birth of the Insured, will pay at its Home Office, Newark, New Jersey, immediately upon receipt of due proof of the death of the Insured during the continuance of this policy, the amount of insurance herein specified, to the executors or administrators of the Insured,, unless payment be made under the provisions of the next succeeding paragraph; subject to the ‘General Provisions’ on the second page hereof,_ which are hereby made part of this contract.

“Schedule

“Name of Insured Age next Amount of Weekly Birthday Insurance Premium

“Leonard Ingstrom 27 $1428 85 cts.”

Among the “General Provisions” on the second page of the policy are provisions as to “Accidental Death Benefit” (as above quoted in plaintiff’s declaration), but immediately under the quoted provisions are mentioned “Exceptions,” as follows:

“Exceptions. (1) If the bodily injuries referred to above shall be sustained by the Insured while engaged in employment in or on the premises of any open pit or underground mine, or shall be sustained by the Insured while on or about the premises or rig’ht of way of any railroad company while the Insured is following the occupation of gang, track or roadway laborer; track walker; yard, freight or mixed train brakeman or flagman, the additional Accidental Death Benefit referred to in the first paragraph hereof shall be one-half of the face amount of insurance stated in this Policy, less the amount of any disability benefit which has become payable under this Policy on account of the same bodily injury. (2) No Accidental Death Benefit will be paid if the death of the Insured resulted from suicide or from having been engaged in submarine or diving operations, or in aviation as a passenger or otherwise, or from military or naval service in time of war.”

In defendant’s affidavit of merits to plaintiff’s amended statement of claim its defenses are stated to be (a) that “the insurance sued upon in this suit was a speculative adventure by the parties in interest in said litigation, and, therefore, said insurance is void and of no force and effect, and defendant hereby tenders the return of the premiums paid in full satisfaction of all claims against defendant”; (b) that “the alleged insured’s death was not the result of external, violent and accidental means as alleged”; (c) that defendant “has no knowledge as to when, where and how the alleged insured met his death and of this it demands strict proof”; and (d) “no proofs of death have been supplied to the Company as required by the policy.” As to defense “ (a),” no evidence was introduced by defendant to substantiate it and it may be disregarded.

Defendant’s main contention here is, in substance, that the judgment should be reversed because plaintiff’s evidence did not sufficiently disclose that Ingstrom’s death was caused “solely through external, violent and accidental means.” To maintain her case plaintiff testified.in her own behalf and she called as witnesses Doctor Paul A. Isherwood (coroner of Du-Page county, Illinois, and a physician and surgeon); Theodore Schwer (a partner in business with Ingstrom prior to August 22,1931); Allen A. Myers (an investigator employed in the office of the State’s attorney and the coroner of DuPage county); Jerry C. Miller (a friend of Ingstrom for several years); and Francis K. Wilton and William McDonald, agents of defendant in Chicago or vicinity. From the testimony of these witnesses the following facts appeared: On and prior to August 22,1931, Ingstrom, a bachelor about 27 years of age, was a partner of Schwer in a small business. He was then and had been for several years a roomer in a rooming house, managed by Lena Bogers, at 219 South Throop street, Chicago. On Saturday evening, August 22, 1931, in apparent good health, he left his residence but did not return that evening or on Sunday. On Monday morning Lena Bogers, becoming alarmed over his continued absence, notified the Chicago police an'd the State’s attorney’s office and a search for him was made. On September 2, 1931, the body of a deceased man was found lying in an open field alongside a graveled road or street, just inside the fence, in DuPage county, and Lena Bogers and Schwer were notified.

Doctor Isherwood, the coroner, testified on direct examination that on that day he with other persons went to the place; that they found “the body fully clothed — both hands being tied behind the back with a necktie”; that “the wrists were crossed and tied together with a double knot at his back”; that the deceased “could not have tied his own hands behind his back”; that the body was “removed to the undertaking establishment of Ruchty Brothers in Hinsdale, Illinois”; that the deceased was “about 5 feet, 6 or 7 inches, in height, and would weigh about 130 or 140 pounds”; that “I searched his clothing and found numerous papers and cards, and he wore a leather belt with a white metal buckle with the initials ‘L. I.’ on it”; that later in the day Theodore Schwer came to Hinsdale and “examined the clothing- and effects on the body, and the belt, buckle and other things, which were shown to Schwer, were all found on the body of the man”; that based upon the witness’ experience as coroner for about seven years and as a physician for about 20 years, he had' an opinion as to how the man came to his death, and as to how long he had been dead, and that in the witness’ opinion he came to his death “presumably by violence,” and that he had been dead “about a week or more.” On cross-examination Dr. Isherwood testified that he found the body “in an extreme state of putrefaction”; that the man’s clothes “were quite odoriferous,” and “everything was soaked into the clothes”; that it was quite hot in August and September, 1931.

Theodore Schwer testified that on September 2, 1931, after receiving notice, he went to Hinsdale, met the coroner (Isherwood), and the State’s attorney’s investigator (Myers), visited the undertaker’s (Ruchty) place and saw the body “in a box”; that he also saw “a suit of clothes” of the man; that he recognized the suit as the one that “Ingstrom had been wearing for the last year or so”; that he also saw a straw hat and a leather belt, with the initials “L. I.” on it, both of which he recognized as being Ingstrom’s; that he also saw certain papers, including some of their partnership “literature”; that he also found a ‘‘pocketbook or leather fold” which belonged to Ing’strom, and also a “bank book on the Mid-City Bank,” which he did not recognize but which had the name “Leonard Ingstrom” on it; and that Ingstrom was “about 5 feet, 7 inches, tall,” and in August, 1931, weighed about 135 pounds.

Allen A. Myers testified in substance that on September 2, 1931, in company with the coroner and State’s attorney, and also a deputy sheriff, of DuPage county, he saw the body of the man lying alongside 79th street in DuPage county; that he was about 5 feet and seven and one-half to eight inches in height; was rather slight, and weighed, probably, 135 to 140 pounds; that he could not tell his age “as the body was in such shape”; that the man was fully clothed and was “lying on his face with his hands tied, in hack of him with a necktie”; that from cards in the man’s clothing he learned about his business connection with Schwer and caused Schwer to be notified; that after the body had been taken to the undertaker’s, Schwer came and he there was shown the body, the clothing, the cards and papers, and the belt buckle with the initials “L. I.” on it; that these cards and papers were found in an inside coat pocket; that the body at the undertaker’s was “in very bad condition, maggots, in terrible shape”; and that “the features and face were badly decomposed and could not be recognized.”

. jerry C. Miller, a friend of Ingstrom for several years, and who saw him frequently, testified that Ing’strom was not over 5 feet, seven and one-half inches, tall, and was not “five foot ten” as claimed by defendant.

Plaintiff’s evidence as above outlined was not contradicted by any of defendant’s evidence, except as to the height and weight of Ingstrom. It appeared from the written application (introduced by defendant and dated July 16,1931) for the insurance in question, that the answer as to “height and weight” is filled in as “5 ft. 10 in. 152 lbs.”; but it also appears from the testimony of defendant’s agent, McDonald, that he (McDonald) wrote in the particular answers from what he understood Ingstrom to say in reply to the questions, and that he (McDonald), while he noticed Ingstrom was shorter than he was, “didn’t make any particular point of his height.” We are of the opinion that it clearly appears from all the evidence that the body which was found in said field on September 2, 1931, and which before burial was taken to said undertaker’s place in Hinsdale, was that of the insured, Ingstrom. And considering the evidence, as well as the authorities hereinafter mentioned, we are further of the opinion that it sufficiently appears that Ingstrom’s death was caused “solely through external, violent and accidental means.”

The word “accidental” is defined in the Century Dictionary as “happening by chance or accident or unexpectedly; taking place not according to the usual course of things; casual, fortuitous; unintentional.” In 1 Bouvier’s Law Dictionary (Bawle’s 3rd Bevision) p. 101, the word “accident” is defined as “an event which, under the circumstances, is unusual or unexpected; an event the real cause of which cannot be traced, or is at least not apparent.” In 1 C. J., sec. 72, pp. 425, 426, in the article on “Accident Insurance” it is said:

“The terms ‘accident’ and ‘accidental,’ as used in insurance policies covering accidental death . . . , are presumed to be employed in their ordinary and popular sense, as meaning happening by chance; . . . not according to the usual course of things; ... an event which takes place -without the foresight or expectation of the person acted upon or affected by the event; ... if happening through human agency, an event which, under the circumstances, is unusual and not expected to the person to whom it happens; . . . ”

In 2 Bouvier’s Law Dictionary, p. 1625, it is said:

“Accident insurance is intended to furnish indemnity against accidents and death caused by accidental-means, and the language of the policy must be construed with reference to that proposition. In case of doubt the construction should be liberal in favor of the insured.”' (Citing Healey v. Mutual Accident Ass’n, 133 Ill. 556, 561.)

In 1 C. J., sec. 77, p. 431, under the heading “Intentional Injuries Inflicted by Third Persons,” it is said: “Injuries inflicted by a third person without fault of insured have been held within accident policies. ’ ’ (Citing numerous cases in a note.)

In 1 C. J., sec. 78, pp. 432, 433, under the heading “External, Violent and Accidental Means,” it is said: “It is a very usual provision of an accident policy that it shall apply only to death or injury through ‘external, violent, and accidental means,’ in which case the policy embraces only cases where the elements of force and accident concur in effecting an injury. But if the cause of the injury or death can be shown to be due to accidental or unnatural means this imports that such injury or death is due to external and violent means, and the nature and character of the injury may also be sufficient to establish that it was inflicted by external and violent means. . . . The word ‘external’ in such a clause refers' to the means which cause the injury, and not to the injury itself, . . . ”

In 1 C. J., sec. 278, p. 495, under the heading “Presumptions as to Cause of Death or Injury,” it is said: “Where, however, it is apparent that the injury to or death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident, within the meaning of the policy, or to some cause excepted by the policy, the presumption is in favor of accident and against the existence of facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person, lack of due care and diligence, self-inflicted injuries, and suicide. These presumptions may, however, be overcome by facts and circumstances establishing the contrary.”

In the policy sued upon in-the present case, the “exceptions” are above set out in full. While it there appears that death by suicide prevents the payment of any “Accidental Death Benefit,” there is no exception if the death be caused by injuries intentionally inflicted by some person other than the insured, as was the case in Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, and numerous similar cases. Nor does it appear from the evidence in the present case that any of the “exceptions” in the policy were relied upon as a defense. And there was no evidence even tending to show that Ingstrom had committed suicide. Indeed, there was strong evidence to the contrary. While the burden of proof was upon the plaintiff to show that Ingstrom’s injuries were accidental and not self-inflicted, it was not necessary for plaintiff to show by an eyewitness that the injuries which caused the death were accidental. That fact could be and was sufficiently established by circumstantial evidence. (See Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205, 211.) 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 the defendant to show that said death resulted from a cause excepted in the policy. (Nalty v. Federal Casualty Co., 245 Ill. App. 180, 185; 14 R. C. L. p. 1437, sec. 599.)

The following adjudicated cases in other jurisdictions may be cited as supporting plaintiff’s contention that Ingstrom’s death was caused “solely through external, violent and accidental means ’ ’ and as also supporting the finding and judgment of the trial court for the full amount of plaintiff’s claim: Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, 336, 337; Travelers’ Ins. Co. v. Wyness, 107 Ga. 584, 589, 590; Gaynor v. Travelers’ Ins. Co. (Ga. App.), 77 S. E. 1072, 1073; Hutchcraft’s Ex’r v. Travelers’ Ins. Co., 87 Ky. 300, 303; Lovelace v. Travelers’ Protective Ass’n, 126 Mo. 104, 116, 117; Collins v. Fidelity & Casualty Co., 63 Mo. App. 253, 256, 257; Richards v. Travelers’ Ins. Co., 89 Cal. 170, 175, 176; Phoenix Accident & Sick Benefit Ass’n v. Stiver, 42 Ind. App. 636, 639, 640; Robinson v. United States Mut. Acc. Ass’n, 68 Fed. 825, 826, 827.

Defendant’s counsel also contend that the judgment should be reversed because no “proper” proofs of Ingstrom’s death were made to defendant. It is not urged that the proofs were not promptly made, but it is argued (1) that such proofs should have been made in plaintiff’s name as administratrix instead of in her individual name at a time when she believed she was the beneficiary, and (2) that the proofs did not sufficiently show a claim for the “accidental death benefit.” We do not think there is any substantial merit in the contention or argument, especially as the evidence discloses that about two days after Ingstrom’s body was found, agents of defendant were advised of the facts and the “claimant’s certificate,” on a form furnished by defendant and dated September 4, 1931, was filled out by one of its agents and signed by plaintiff as directed, and that in the certificate, in answer to certain questions, it is stated that the insured met an “accidental death,” and that he did not die at home or in a hospital but “was found in a ditch.”

' Our conclusion is that the judgment of the municipal court should be affirmed, and it is so ordered.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Anna Stilo, Appellee, v. James Stilo and H. Kramer & Company, Defendants. Appeal of H. Kramer & Company, Appellant.
    Gen. No. 36,279.

      Opinion filed May 23, 1933.
    McKenna & Harris, for appellant; James J. Mc-Kenna and Abraham W. Brussell, of counsel.
    Alfred M. Loeser, for appellee; George Yellen, of coun'sel.
   Mr. Justice Gridley

delivered the opinion of the court.

On November 10, 1931, Anna Stilo filed in the circuit court her petition, based upon section 11 of the Husband and Wife Act, Cahill’s St. ch. 68, Ü 11, against her husband, James Stilo, as sole defendant. After setting forth her marriage to him on June 18, 1919, the birth of three children still of tender years and her residence in Chicago, she alleged that about November 8, 1930, he deserted and abandoned her and the children and left the country, and is now living in Italy as she is informed and believes; that she has no property; that what she has earned has not been sufficient for the children’s proper support and she is in a “necessitous condition”; that about April 1, 1929, Stilo sustained “an accidental injury to his right leg and chest,” while working for his employer (H. Kramer & Co.), and for a considerable time thereafter was unable to perform any work or labor; that he filed a petition with the Illinois Industrial Commission, case No. 152314, entitled James Stilo v. H. Kramer & Co.; that after a hearing an award of an arbitrator was made on November 25, 1929, under section 19 (b) of the Illinois Workmen’s Compensation Act, Cahill’s St. ch. 48, 1i 219, which award stated that “the period of temporary total disability still existed at the date of the award”; that under the provisions of the section H. Kramer & Co. was required to pay to James Stilo certain moneys for the permanent as well as for the temporary disability to his leg; that after the making of said award of November 25, 1929, and during the period of disability, “negotiations were conducted,” and Stilo’s claim against H. Kramer & Co. “was settled” by its duly authorized agents for the sum of $1,500, but that pending a final settlement, Stilo abandoned petitioner and the children, left the country and has not since returned; that the claim or right of action of Stilo, or the settlement, is a “property right”; and that the proceedings before the industrial commission “are still pending.” The prayer of the petition, in addition that Stilo answer it, but not under oath, is: “That this court authorize petitioner to manage, control, sell and encumber the property of James Stilo as shall be necessary, in the judgment of the court, for the support and maintenance of his family and for the-purpose of paying the debts contracted for the support of the family and paying the debts of said Stilo; that the costs and expenses in this behalf (including her solicitor’s fees) be paid out of said property; . . . and that petitioner may have such other and further relief as equity may require.”

On December 14, 1931, on petitioner’s motion, the court ordered that H. Kramer & Co. be made an-additional party defendant to the petition; that it be amended by adding a new allegation (viz., “that H. Kramer & Co. now holds and is the custodian of said settlement moneys for this complainant”). Thereafter II. Kramer & Co. (hereinafter called Kramer & Co.) appeared and filed a demurrer to the petition, and upon it being overruled Kramer & Co. filed an answer to the petition. Service was had on James Stilo by publication but he did not appear, and the petition was taken as confessed as to him.

In the answer of Kramer & Co., filed March 15, 1932, it admitted that on the hearing of Stilo’s petition before an arbitrator an award was entered under section 19 (b) of the Compensation Act, Cahill’s St. ch. 48, 219, and it was found that the period of temporary total disability still existed at the date of the award; alleged that the award “stated that Stilo was entitled to receive from Kramer &' Co. $18 per week for a period of 31 weeks (that being the period of temporary total disability) ”; alleged that “the sum of $126 had been paid on account of said injury”; denied that subsequent to the date of the award (November 25, 1929) it settled Stilo’s claim for $1,500; and denied that it holds or is the custodian of the alleged settlement moneys for petitioner.

It is further alleged that subsequent to the date of the award, and some time prior to September 5, 1930, James Stilo filed with the industrial commission, “a Petition for Review, under section 19 (h) of the Workmen’s Compensation Act,” wherein he alleged that the injury to him “had increased subsequent to the entry of the award of November 25, 1929”; that on Septemher 5, 1930, Stilo filed with said commission another petition, under section 19 (b) of said act, wherein he alleged that “his disability did not terminate on the date of the hearing before the arbitrator, to wit, on October 25, 1929, nor did the disability terminate on the date of last payment of compensation, to wit, on November 26, 1929, but has extended beyond these dates and until the present time” (i. e., September 5, 1930), and wherein he further alleged that he “still continues to be disabled and believes he will continue to be disabled for a great length of time and perhaps permanentlyand wherein he prayed that “another hearing may be had under said section 19 (b), and that at that time the arbitrator hear further proof and additional evidence as to the nature and extent of his disability, and make an award in conformance with the statutes in such cases made and provided”; that said last mentioned petition, filed September 5, 1930, has come up for hearing numerous times before the commission, but, because of Stilo’s absence the hearing was each time continued; and that the petition is still pending before the commission and undisposed of.

It is further alleged that on May 1, 1931, Kramer & Co. filed a petition before said commission under section 19 (d) of said act (copy of petition set out in full); that the petition has come up for hearing before the commission at numerous times, but, although defendant has been ready to substantiate its allegations by proof, the hearing has each time been continued because of the absence of Stilo; and that the petition is still pending before the commission and undisposed of. In the petition mentioned Kramer & Co. alleged that in April, 1929, James Stilo, its employee, sustained an accidental injury, arising out of and in the course of the employment; that petitioner has been paying compensation to Stilo at the rate of $18 per week from April 23, 1929, to November 23, 1929 (31 weeks), and in addition thereto has provided necessary medical, surgical and hospital services as required by law; and that Stilo “persists in unsanitary and injurious practices which tend to imperil or retard his recovery, and has refused to submit to such medical, surgical or hospital treatment as is reasonably essential to promote his recovery.” The prayer of the petition is that upon a hearing the “commission determine whether or not the compensation due or to become due said employee shall be reduced or suspended as provided by paragraph (d), section 19 of the Workmen’s Compensation Act. ’ ’

In its answer also Kramer & Co. denied that the claim or right of action of Stilo, or the settlement, is a property right, as stated'in complainant’s petition, and alleged that the same by the provisions of section 21 of the Compensation Act, Cahill’s St. ch. 48, ft 221, cannot be “assigned” by him to complainant; and that this court “has no jurisdiction over the subject matter in the present proceeding, for the reason that the alleged claim, settlement, action or right of action is not a property right within section 11 of the Husband and Wife Act of Illinois.”

During April, 1932, there was a hearing in open court upon the petition and answer, and considerable oral and documentary evidence was introduced by each party. The following facts in substance were disclosed: In April, 1929, James Stilo sustained an accidental injury to his right leg and to his chest, while working as an employee of Kramer & Co., and while both were operating under and by virtue of the Illinois Workmen’s Compensation Act. Kramer & Co. was insured in a certain company against liability for accidental injuries received by any of its employees. To obtain compensation for his injuries, Stilo filed a petition before the Illinois Industrial Commission against Kramer & Co., case No. 152,314; that thereafter a hearing was had before an arbitrator, under section 19 (b) of the Compensation Act, Cahill’s St. ch. 48, jf 219. On that hearing, as well as in subsequent proceedings before the commission, Stilo was represented by attorneys Alfred M. Loeser and Edward A. McCarthy, and Kramer & Co. by attorney George A. Bruegger, who also represented the insurance company. In the arbitrator’s award, filed with the commission on November 25, 1929, he found in part that Stilo’s injuries arose out of and in the course of his employment with Kramer & Co.; that his earnings during the preceding year were $1,560 and his average weekly wage was $30; that he had three children under 16 years of age; that medical, surgical and hospital services had partially been provided by Kramer & Co.; that Stilo is entitled to receive from Kramer & Co. “$18 per week for a period of 31 weeks, — that being the period of temporary total incapacity for work for which compensation is payable”; that “the period of temporary total disability still exists at this date”; that this award is made under section 19 (b) of the Workmen’s Compensation Act; that “the sum of $126 has been paid on account of said injury”; and that Stilo “is now entitled to have and receive from respondent (Kramer & Co.) the sum of $432, — being the amount of compensation that has accmed to November 26, 1929.” Sometime in February, 1930, Stilo, by his said attorneys, filed a petition with the commission, under section 19 (h) of the act, Cahill’s St. ch. 48, 219, alleging an increased disability. Subsequently this petition was dismissed without prejudice, and negotiations were had between Stilo’s said attorneys and Bruegger looking to a settlement of the case (still pending before the commission) by the payment of a certain cash sum by the insurance company, provided the commission would approve of the settlement. While the negotiations were in progress and undetermined, Stilo, by his attorneys, on September 5, 1930, filed another petition before the commission praying that “another hearing may be had under Section 19 (b) of the Compensation Act, and that at that time the Arbitrator hear further proof and additional evidence as to the nature and extent of his disability, and make an award in conformance with the statutes in such cases made and provided.” In said petition, after referring to the former award of the arbitrator of November 25, 1929, Stilo alleged that by said award he is entitled to receive the sum of $432, which sum has not been paid; that his disability did not terminate at the date of said award “but has extended . . . up to the present time”; and that he “continues to be disabled and believes that he will continue to be disabled for a great length of time and perhaps permanently.” No action was taken by the commission on said petition, but the negotiations between said attorneys for a settlement of the case continued. Attorney Loeser (now the attorney for Mrs. Stilo) and attorney McCarthy both testified that in the latter part of September or the first part of October, 1930, attorney Bruegger said that he would settle the case for $1,500, but the testimony of attorney Bruegger, supplemented by certain letters and writings, discloses that, while Bruegger said he would recommend to his clients a settlement at that sum, no settlement at that sum or any other sum ever was agreed to, or ever was submitted to the commission for its approval. Thereafter Stilo’s pending petition before the commission was several times called for hearing, but the hearings were continued because of Stilo’s absence. The cause of Stilo’s non-appearance before the commission was that,-as found by the circuit court in the decree hereinafter mentioned, he, “on or about November 8, 1930,” abandoned his wife, Anna Stilo, and said children, left the State of Illinois and went “to other parts and has so remained,” leaving Mrs. Stilo and the children “in destitute and necessitous circumstances.” On May 1,1931, Kramer & Co. filed its petition with the commission, under section 19 (d) of the act, in which it prayed that the commission “determine whether or not the compensation due or to become due to said employee should be reduced or suspended for his failure to submit to proper treatment and to desist from the unsanitary and injurious practices, which imperil and retard his recovery. ’ ’

At the conclusion of the hearing Kramer & Co.’s motion (that the court dismiss Mrs. Stilo’s petition for want of equity) was denied, and on May 2,1932, the decree appealed from was entered. Some of the findings of the decree (in addition to those as to Stilo’s abandonment of his wife and children in November, 1930, leaving them in necessitous circumstances) are:

“1. That the court has jurisdiction of both the subject matter and the parties hereto.

“2. That all of the allegations in complainant’s (Mrs. Stilo) petition as amended are fully proved ... and that the equities of the cause are with complainant.

“7. That by virtue of the injuries sustained by James Stilo, he filed his petition before the Industrial Commission of Illinois; . . . that a hearing was had thereon and an award entered in favor of James Stilo under Section 19 (b) of the Illinois Workmen’s Compensation Act; that at the time said James Stilo left the' State of Illinois the total amount due thereon was the sum of . . . (blank); that subsequently, to-wit, on May 1,1931, defendant, H. Kramer & Co. filed its petition under section 19 (d), at which time there were arrearages of $1374. . . .

“9. That said claim, settlement or cause of action is now the property of said James Stilo; that the said moneys and settlement so effected are now in the possession, custody or control of said H. Kramer & Co.”

And the court in the decree ordered and adjudged:

“That said Anna Stilo be, and she hereby is, appointed as trustee of the Estate of James Stilo, with full power to act in the compromise of the settlement hereinbefore referred to, receipt the same, make out all necessary documents either before the Industrial Commission or any other Body, for the purpose of conserving and obtaining the said funds, in accordance with the statutes in such cases made and provided.

“It is further orderéd that said H. Kramer & Co. pay over to said Anna Stilo the sum of . . . (blank), as and for the property of James Stilo and as money due to James Stilo under and by virtue of the Workmen’s Compensation Act of Illinois, or by virtue of the said settlement arrived at between James Stilo and H. Kramer & Co., as hereinbefore set forth. And it is further ordered that execution issue therefor.”

Notwithstanding that Mrs. Stilo’s petition is based upon section 11 of the Illinois Husband and Wife Act (Cahill’s St. ch. 68, if 11), and notwithstanding that the petition alleged and the evidence disclosed that at the time her husband abandoned her and the children (leaving them in necessitous circumstances) there was pending and undetermined before the Illinois Industrial Commission the husband’s claim for compensation, upon which partial payments had been made but other sums were due and unpaid, counsel for Kramer & Co. contend that the circuit court was without jurisdiction to entertain the petition or to enter the decree appealed from or any decree. And counsels ’ argument is, as we understand it, (a) that James Stilo’s claim, chose in action or rights before the commission are not “property” within the meaning of that word as used in the Husband and Wife Act, and (b) that under a provision contained in section 21 of the Illinois Workmen’s Compensation Act (viz., “No payments, claim, award or decision under this Act shall be assignable,” etc.), James Stilo is the only person who can enforce his said claim, chose in action or rights before the commission. We cannot agree with the contention or argument. Section 11 of the Husband and Wife Act, Cahill’s St. ch. 68, ft 11, is as follows (italics ours):

“In case the husband or wife abandons the other and leaves the State, and is absent therefrom for one year, without providing for the maintenance and support of his or her family, or is imprisoned in the penitentiary, any court of record in the county where the husband or wife so abandoned or not confined resides, may on application by petition, setting forth fully the facts, if the court is satisfied of the necessity by the evidence, authorize him or her to manage, control, sell and incumber the property of the other, as shall be necessary, in the judgment of the court, for the support and maintenance of the family, and for the purpose of paying debts of the other, or debts contracted for the support of the family. Notice of such proceedings shall be given as in ordinary actions, and anything done under or by virtue of the order or decree of the court, shall be valid to the same extent as if the same were done by the party owning* the property. ’ ’

We are of the opinion that the word “property” in this statute should be held to include the said claim, chose in action or rights of James Stilo before the commission. In Stahl v. Webster, 11 Ill. 511, 516, it is said: “The word ‘property’ embraces money, debts, and choses in action of every kind, as well as articles that can be seen and handled.” In Pritchard v. Norton, 106 U. S. 124, 132, it is said that- “a vested right of action is property in the same sense in which tangible things are property. ” (See, also, Halling v. Industrial Commission of Utah, 71 Utah 112, 263 Pac. 78, 81.) We are also of the opinion that the prohibition (as contained in section 21 of the Compensation Act) against the assigning of “payments, claim, award or decision” under the act, should not militate against the further prosecution, before the commission by Mrs. Stilo, the abandoned wife, of James Stilo’s claim or rights against Kramer & Co. or the enforcement, for her benefit and that of the children, of any unpaid award or other award that the commission may properly make. In section 3 of the Husband and Wife Act, Ca-hill’s St. ch.. 68, If 3, it is provided: “When the husband has deserted his family, the wife may prosecute or defend in his name, any action which he might have prosecuted or defended.”

Counsel for Kramer & Co. also contend, in substance, that some of the finding’s in the decree are not supported by the evidence and that the ordering part of the decree is too broad and against the law. In our opinion there is merit in the contention. The theory of Mrs. Stilo’s petition is that a settlement for $1,500 had been agreed upon, but the evidence does not support the theory and, indeed, the record discloses that during the hearing the theory was abandoned by Mrs. Stilo’s attorney. And the evidence does not disclose what amount was due and unpaid upon the arbitrator’s award at the time in the fall of 1930 when .James Stilo left the State of Illinois; nor does the evidence disclose that on May 1, 1931 (when Kramer & Co. filed its said petition under section 19 (d) of the Compensation Act), there were “arrearages” in the arbitrator’s award “of $1,374.” Furthermore, we do not think that the further theory of Mrs. Stilo (viz., that the arbitrator’s award of November 25, 1929, should be considerpd as a continuing weekly award) is tenable. It is inconsistent with the act of James Stilo, in filing a petition with the commission on September 5, 1930, wherein he prayed that “another hearing be had under section 19 (b),” and that “the arbitrator hear further proof and additional evidence as to nature and extent of his (Stilo’s) disability and make an award.” As to the first paragraph of the ordering* part of the decree (above set forth), we find nothing in section 11 of the Husband and Wife Act warranting the appointment of Mrs. Stilo “as trustee of the estate of'James Stilo.” The prayer of Mrs. Stilo’s petition (above set forth) was in its substance in accord with the language of the statute, viz.-, that she be authorized “to manage, control, sell and encumber the property of James Stilo as shall be necessary, in the judgment of the court, for the support and maintenance of his family,” etc. In our opinion, a decree to that effect, together with giving her the right to appear before the industrial commission to there further prosecute the claim and rights of her husband against Kramer & Co., for her and the children’s use and benefit, would be proper. As to the second paragraph of the ordering part of the decree, we find no warrant in the statute for the attempted entry of a judgment or decree against Kramer & Co., as for “money due to James Stilo under and by virtue of the Workmen’s Compensation Act.” Such portipn of the decree is contrary to the holdings of our Supreme Court in Brand v. Brand, 252 Ill. 134, 140, where in speaking of said section 11 of the Husband and Wife Act, it is said: “The proceeding* contemplated by this section is for the purpose of subjecting property within the jurisdiction of the court to the support and maintenance of the abandoned husband or wife and the family, and not for the recovery of a personal judgment.”

Our conclusions are that the decree of the circuit court of May 2, 1932, should be reversed and the cause remanded with directions to the court to enter a revised decree in favor of Mrs. Stilo and against the defendants herein, in accordance with the statute and not inconsistent with the views herein expressed.

Reversed and remanded with directions.

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


author: Mr. Justice Gtridley

text:
    Chicago Title and Trust Company and Robert Laughlin, Administrators, Appellees, v. John Irwin and First Union Trust and Savings Bank, Executors, Appellants.
    Gen. No. 36,362.
    Opinion filed May 23, 1933.

      Winston, Strawn & Shaw, for appellants; Edward W. Everett and Ceorge T. Evans, of counsel.
    Sims, Stransky, Brewer & Poitst and Elwood Gr. GIodman, for appellees; Franklin J. Stransky and Elwood Gr. GIodman, of counsel.
   Mr. Justice Gtridley

delivered the opinion of the court.

During the lifetime of Henry D. Laughlin this cause was before us on a prior appeal by defendants from a decree of the circuit court, entered April 28,-1930. On May 19,1931, we reversed that decree and remanded the cause with directions to modify the decree in certain particulars (Laughlin v. Irwin, 262 Ill. App. 40, 57.) On July 7, 1932, in compliance with the mandate of this court, the circuit court entered a modified decree, from which defendants have perfected the present appeal.

In the judgment clause of the original decree it was ordered 'and decreed:

(a) “That the complainant, Henry D. Laughlin, have judgment against the First Union Trust and Savings Bank and John Irwin, as executors of the last will and testament of Alexander Irwin, deceased, for the sum of $40,473.80, and for the further sum of $6,773.73, being interest at the rate of 5% per annum on said sum of $40,473.80, from December 22, 1926, to the date of this decree.”

(b) “That fifty per cent of the taxable costs of this suit be assessed against -the defendants and fifty per cent against the complainant.”

(c) “That the complainant is the legal and equitable owner of the certificates relating to and covering said 800 shares of stock in the Northern Hotel Company predicated upon the original 800 shares of stock owned by him and referred to in said loan contracts and is entitled to the possession thereof.”

In the closing paragraph of our opinion (262 Ill. App. 40, 57) we said:

“Our conclusion is that the decree appealed from should be modified to the extent of giving to Irwin’s executors an additional credit of $30,000 for Irwin’s one-half share of the profits on the 800 shares of stock, realized from the sale of the hotel property to Collins in July, 1926. Accordingly, the decree is reversed and the cause remanded, with directions to the circuit court to make modifications therein as follows: In the judgment clause of the decree, wherein the court adjudges that Laughlin have judgment against Irwin’s executors for $40,473.80, these figures should be changed to $10,473.80, and, inasmuch as Irwin before the filing of Laughlin’s bill tendered said last mentioned sum to him, and during the hearing in the circuit court kept the tender good, the circuit court will not charge any interest against Irwin’s executors on said sum of $10,-473.80, and will tax all costs against Laughlin. And the costs in this court will also be taxed against Laughlin. ’ ’

• It will be noticed that the modifications directed to be made in the original decree are limited to (a) and (b) of the judgment clauses (above set forth), and that no change was directed to be made in (c). And the records of this court do not disclose that, after the filing of our opinion and the entry of our judgment, defendants filed a petition for a rehearing. Apparently, they then were satisfied with our opinion and judgment. But Laughlin moved that the mandate of this court be stayed, pending the disposition of his application for the issuance of a writ of certiorari, and the motion was granted. Thereafter Laughlin’s death here was suggested and it was ordered that said administrators, etc., be substituted as appellees in the cause. On October 22, 1931, the Supreme Court refused to issue the writ of certiorari, and on January 22, 1932, the mandate of this Appellate Court, together with a copy of our opinion, was filed in the circuit court. That mandate is in part as follows:

“. . . Therefore, it is considered by the court that . . . the decree of the circuit court ... be reversed, annulled, set aside and wholly for nothing esteemed; and that this cause be remanded to the circuit court ... to modify its decree as follows:” (Then follow the directions in the same words and figures as in the closing paragraph of our opinion, as above stated.)

On July 7,1932, the circuit court, following the mandate, entered the decree appealed from, in part as follows :

“. . .In accordance with said mandate of the Appellate Court and the specific directions therein contained, the judgment clause of said decree heretofore entered in this cause ... is hereby changed and modified as follows:

“Strike out of said judgment clause the following: (Here are set forth clauses (a) and (b) of the original decree, as above mentioned in this opinion.)

“and insert in lieu thereof the following:

“It is therefore ordered, adjudged and decreed that the complainant, Henry D. Laughlin, have judgment against the First Union Trust and Savings Bank and John Irwin, as executors of the last will and testament of Alexander Irwin, deceased, for the sum of $10,-473.80, without interest.

“It is further ordered, adjudged and decreed that all costs of this court be and the same are hereby taxed and assessed against the complainant.”

Two contentions are made by counsel for defendants as grounds for the reversal of the decree of July 7,1932, appealed from. As we understand one of them it is, that as this court reversed the original circuit court decree of April 28, 1930, before directing modifications thereof, we had no power to direct any modifications, or the circuit court to enter a new or amended decree as directed, because the original decree, having been “annulled” by such reversal and having become “inoperative and void,” there was nothing on which the directed modifications could operate. We find no substantial merit in the contention. We think it is clear from the concluding* paragraph of our opinion, and from our mandate, that our decision and judgment were that the original decree should be modified in the particulars mentioned, and not reversed in toto. In first adjudging a reversal of the decree and a remandment of the cause, we did so in accordance with established practice and in order that the mentioned modifications might be made by the circuit court. In Hunter v. Hatch, 45 Ill. 178, 179, it is said: “Appellee’s counsel misapprehends the practice when he urges that this court (Supreme) can modify a decree without first reversing it. After a decree is reversed, then the court may modify it by a decree in this court, or by remanding it with instructions. But, before it can be modified, the erroneous portion, at least, must be reversed.” In Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30, 34, 35, it is said:

“In cases where a modification of the decree below is deemed necessary, it is discretionary whether this court (Supreme) shall, by an order to be entered on its own records, make the modification, or whether it shall remand the cause to the lower court, with specific directions to that court to make the modification. . . . In either case it is proper that the order of this court (Supreme) be, first, that the decree below be reversed. . . . And since the direction that one part of a decree be modified, is, by necessary inference, an approval of that part omitted from that direction, the substantial rights of the parties to the decree are not perceptibly different from what they would be were it expressly ordered, in the formal entry upon the record, that such omitted part of the decree is affirmed.”

Equally without merit, in our opinion, is counsels’ second contention, which is, in substance, that, notwithstanding our specific directions (as shown in the judg- . ment and mandate), the circuit court erred in not examining certain holdings in our opinion, and, in addition to following our specific directions, in not incorporating in the decree certain other matters which, in counsels’ present opinion, would have been in accord with said holdings. We understand it to be the well-established rule that, where a decree is reversed by a reviewing court and the cause is remanded to the inferior tribunal with certain specific directions, nothing can be done by such inferior tribunal except to carry out such directions, without regard to whether or not those directions may be erroneous, inadequate or inappropriate, and that the judgment and mandate of the reviewing court, and not its opinion, should govern and be the inferior tribunal’s guide. (See Union Nat. Bank v. Hines, 187 Ill. 109, 114; People v. Waite, 243 Ill. 156, 160, 161; Boggs v. Willard, 70 Ill. 315, 316; Trustees of Schools v. Hoyt, 318 Ill. 60, 62; West v. Brashear, 14 Pet. (U. S.) 51, 54.) In Chicago Ry. Equipment Co. v.. National Hollow Brake Beam Co., 239 Ill. 111, 115, it is said: “A decree entered in accordance with the directions of this court (Supreme) cannot be erroneous. This court may err in its directions to an inferior court, but however erroneous the directions given may be, it is the duty of the inferior court to strictly follow the directions contained in the mandate of this court. ’ ’ And an examination of the present record discloses that the circuit court strictly followed the directions contained in the mandate of this court, which was specific and plain in its terms. In Fisher v. Burks, 285 Ill. 290, 293, it is said: ‘ ‘ The mandate is the judgment of this court transmitted to the circuit court. Where the direction contained in it is precise and unambiguous, it is the duty of the trial court to carry it into execution and not to look elsewhere for authority to change its meaning* or directions. (Citing West v. Brashear, supra.) It is the mandate of the court of review, and not its opinion, that governs, when the mandate differs from the opinion or is specific and plain in its terms.”

And in our opinion there are other good reasons why counsels ’ second contention is without merit. Assuming, but not deciding, that our former judgment and directions were not adequate or sufficiently comprehensive, it is to be noticed that defendants made no attempt, by petition for rehearing* or otherwise, to cause the same to be revised or enlarged. In Hough v. Harvey, 84 Ill. 308, 310, it is said: “The circuit court having, so far as we can see from this record, obeyed the mandate of this court, its rulings can not be brought in question again. If appellant suffered any wrong by the decision of this court (Supreme), when the case was before it at a former term, that wrong could be corrected only on application for a rehearing. Having* acquiesced in that decision, the matters then decided can not be drawn in question again upon this, his second appeal.” Furthermore, as said in Hollowbush v. McConnell, 12 Ill. 203, 204: “There must be an end of litigation somewhere, and there would be none if parties were at liberty, after a case had received the final determination of the court of last resort, to litigate the same matter anew, and bring* it again and again before the court for its decision.” This language of our Supreme Court has been quoted with approval in subsequent cases, involving somewhat similar points as here made by counsel on the present appeal. (People v. Militzer, 301 Ill. 284, 287; Tribune Co. v. Emery Motor Livery Co., 338 Ill. 537, 541.)

For the reasons indicated, the decree of the circuit court of July 7, 1932, should be and is affirmed.

Affirmed.

Soanlan, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    Solomon Shayne, Appellee, v. Coliseum Building Corporation et al., Defendants. Appeal of James C. Mullen, Appellant.
    Gen. No. 36,229.

      Opinion filed May 23, 1933.
    ■Stanley L. Shetler, for appellant.
    Royal W. Irwin, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This is an appeal of the defendant James O. Mullen from a judgment entered in the superior court of Cook county on the jury’s verdict of $3,000 on account of personal injuries alleged to have been sustained by Solomon Shayne, plaintiff, as the result of a fall while attending a boxing exhibition in the Coliseum. The Coliseum Building Corporation was also made a party defendant, but the jury returned a verdict of not guilty as to the Coliseum company at the direction of the trial court.

The plaintiff’s declaration consisted of five counts, but it is indicated by the plaintiff that he relies on the second count which charges, in substance, that March 25, 1929, the plaintiff paid admission to and was in attendance at a boxing exhibition in the Coliseum building, which was promoted and conducted by James C. Mullen (hereinafter called the defendant); that the defendant negligently failed to properly police the affair and to have guards and ushers whose duty it was to stop fights, prevent disorder and protect the spectators from injury; that the defendant failed in his duty to stop a certain fight of spectators so that by reason of the premises the spectators became frightened and panic-stricken; and that by reason thereof there was an uncontrolled rush of people and the plaintiff was shoved off the balcony to1 the floor below and injured.

The evidence disclosed that there was an audience of white and colored people in attendance at the boxing show and that the principals in the main event which went on at 9:30 or 10 p. m. were Jackie Fields, a white boxer, and Jack Thompson, a colored boxer; that two colored men brandishing weapons engaged in an altercation shortly after the beginning of the seventh round of this bout; that some person shouted “fight” which was understood by others as a cry of “fire”; that a stampede of a large number of the patrons of the show ensued either because of the outcry of “fight” or “fire” or because of the altercation; and that the crowding, hurrying mass of people pushed or shoved the plaintiff from his chair and the balcony or platform upon which the chair stood, to the ground below.

It appears that all officials charged with the duty of requiring compliance with the city ordinances governing an exhibition of this sort and the premises in which such an exhibition is held performed their duty, and that after an inspection of the premises on the afternoon of the exhibition by representatives of the city electrical, fire and building departments, the erection and placing of the seats, the location and width of the aisles and the lighting arrangements were approved. The evidence further showed that 25 police officials and patrolmen were detailed in and around the Coliseum and that the defendant employed in addition thereto 10 Pinkerton men and 115 uniformed ushers. There were also 15 city firemen detailed there for that evening*.

It is conceded that the defendant as the promoter of a private boxing exhibition was not an insurer of the safety of his patrons and we believe that the correct rule as to the degree of care required of one so conducting a private boxing exhibition is that he exercise ordinary care to furnish a reasonably safe place for the exhibition and that he exercise ordinary care to protect his patrons from peril.

The burden is upon the plaintiff to show that reasonable notice of the impending danger had been given to the defendant and that it thereby became and was his duty to anticipate such a disturbance as occurred in the seventh round.

There is nothing in the evidence to indicate that the spectators in the section in question or the surrounding seats were in the least perturbed or fearful or in need of protection in the second round, third, fourth or any round up to the seventh because of any conduct of the men who afterward engaged in the altercation in the seventh round. There was nothing in the conduct of the patrons prior to the seventh round that indicated anything* extraordinary in the way of behavior of spectators at boxing* matches. There was no evidence of threats, vile utterances, violence, offers of violence and in fact there was nothing that could be construed as notice or warning that these men were dangerous persons from whom other patrons should be protected.

In the argument of the plaintiff in his brief filed in this case he uses this language: “Appellant has argued Ms case on the theory that there was no evidence of circumstances which wouM put him on notice of the likelihood of trouble. If it were true that there had been no events leading- up to the drawing- of the gun by the colored man and the fight and stampede which immediately resulted from that act, there might be some force to their arguments.”

The plaintiff thus concedes, in effect, that if the drawing- of the gun and the altercation in the seventh round were not preceded by such circumstances and events as would constitute notice or warning of the impending peril the defendant could not be held liable, but he strenuously urges that there were such circumstances and events leading- up to the occurrence in the seventh round and predicates his case on the theory that there was a continuing' altercation from the third to the seventh round that culminated in the drawing- of weapons and the fight in the seventh round, and that no officers or g-uards were stationed at the section where the altercation took place or, if -they had been so stationed, they had removed themselves to other positions, and contends that this continued altercation was or should have been sufficient notice to the defendant and his servants that there was impending danger' and that in the exercise of reasonable care for the protection of his patrons the defendant should haver reasonably anticipated the final altercation of the seventh round attended by the drawing of weapons. His theory that the altercation continued from the third to the seventh round is not supported by the facts in evidence and there is no force to the argument of the plaintiff based on this theory.

We find in this record evidence of laughing, yelling, bantering, talking and noise, which are the usual concomitants of prize fights or boxing matches. Bather than being unusual and extraordinary these are the natural, ordinary incidents of boxing matches. Such incidents surely cannot be held to be notice to the management that those thus engaged are likely to resort to acts which would cause a panic or stampede and it is under no duty nor has it the right to eject patrons on account of such conduct.

Nothing- that occurred prior to the seventh round could be regarded in law as sufficient notice of the drawing of a gun and the altercation which flared up without warning in the seventh round. It may well have been that the officers and ushers could have controlled the situation and subdued and ejected or taken into custody those engaged in the altercation without harm or injury to the plaintiff, or any other person, were it not for the outcry of “fight” or “fire” which immediately followed the display of the gun and knife and the threatened use of same. Whether the panic or stampede which ensued was caused by the outcry or by the altercation, it was caused by the sudden, unexpected act of a third person, over whom the defendant had no control and was an act not reasonably to be anticipated and "with no reasonable opportunity afforded to guard against it.

There is some conflict in the record as to the placement of the officers and ushers and as to whether or not any or all of them remained at their respective stations, or whether or not all or part of them moved from their stations to the ringside or other vantage points for the purpose of viewing the bout, or for some other purpose. The hall was in semidarkness, the principal lighting at the time consisting of the bright flood lights immediately above the ring, and, upon the display of weapons and the ensuant cry of “fig*ht” or “fire,” pandemonium broke loose and the panic was in full swing’. Whether the presence of even a large force of guards and officers in this section, under the circumstances, could have prevented or halted the stampede and saved the plaintiff from injury is problematical.

If we assume that some or all of the officers, ushers and guards assigned to this section left their positions and took vacant seats either in this section or away from it, either prior to, at the beginning of, or during the last or main bout, and that in so doing the defendant through his servants was guilty of negligence, still, unless such negligence was a proximate cause of the injury to the plaintiff, the defendant would not be liable.

In the case of The Lusitania, 251 Fed. 715, 732, the court in passing upon the question of proximate cause where the Cunard Steamship Company was charged with negligence in connection with the loss of lives when the Lusitania was torpedoed by a German submarine, states:

“It is an elementary principle of law that, even if a person is negligent, recovery cannot be had, unless the negligence is the proximate cause of the loss or damage.

“There is another rule, settled by ample authority, viz. that, even if negligence is shown, it cannot be the proximate cause of the loss or damage, if an independent illegal act of a third party intervenes to cause the loss.”

In the case of Hartnett v. Boston Store of Chicago, 265 Ill. 331, 333, where the defendant sold a gun to a minor and in using the gun the minor caused injuries to the plaintiff, the court held:

“There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequent injury so connected with the failure to perform the duty that the failure is the proximate cause of the injury. What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person • ought to have foreseen might probably occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which might result from his act. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.”

The case of Seith v. Commonwealth Electric Co., 241 Ill. 252, 259, clearly sets forth the rule on proximate cause, which is followed by the courts of this and all other states whose decisions we have examined. There as here the defendant contended that the evidence proved no negligence on the part of the defendant, and that if any negligence was shown it was not the proximate cause of the injury to plaintiff. In that case the defendant was charged with negligence in failing to properly guard a live electric wire and using weak improperly insulated wire and that by reason of its negligence the wire came in contact with another wire, broke, and one end of it fell upon the sidewalk. It appears that a policeman struck the wire with his club and knocked it against the plaintiff. In this case the court used the following language: “The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. ■ The question is not determined by the existence or non-existence of intervening events, but by their character and the natural connection between the original act or omission and the injurious consequences. To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still 'the proximate cause, and wheré the circumstances are such that the injurious conse-1 quences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excúse the first wrongdoer. When the act of a third person intervenes which is not a consequence of the first wrongful act or omission and which could not have been foreseen by the exercise of reasonable diligence and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connectiofi is broken and the first act or omission is not the proximate cause of the injury.” Many other cases are cited to the same effect.

We find no evidence in the record of any continued altercation from the third to the seventh round or any conduct on the part of the patrons or spectators prior to the seventh round of the main boxing bout that justified the defendant’s servants or agents in taking steps other than those taken for the maintenance of order; that the joshing, laughter, moving about, yelling, conversation, shouting, verbal tilts or even betting at a boxing exhibition were the ordinary incidents of such a performance and could not be considered as such dangerous or wrongful conduct as would warrant the arrest or ejection of patrons and that none of this conduct as shown by the evidence could be construed as notice of impending peril to the extent that the defendant was required to anticipate against the altercation and drawing of deadly weapons in the seventh round.

The plaintiff admits that the management provided an ample number of police and guards, but urges that they were negligent in the performance of their duty in that they did not take summary steps to stop what he chooses to characterize a continuing altercation and thus preclude the occurrence in the seventh round, or that they were absent from their assigned posts in the seventh round and thus in no position to prevent the altercation which took place then.

There is no evidence in the record that fairly tends to prove negligence on the part of the defendant, but if we did hold that the defendant was not entirely free from negligence, yet we must hold that such negligence was not the promixate cause of the injury in this' case. The seventh-round altercation and the drawing of weapons were not consequences of negligence of the guards or police in leaving their posts if they did leave their posts or in failing* to arrest or eject those men in the earlier rounds and could not have been foreseen by the exercise of reasonable diligence. The injurious consequences were brought about solely by the intervening act of the man with the gun and any negligence of the guards or police, if they were negligent, was not a proximate cause of the injury.

The doctrine and reasoning of the case of Seith v. Commonwealth Electric Co., supra, are particularly applicable to the case at bar.

The plaintiff relies on and cites only one authority, the case of Quinn v. Smith Co., Inc., 57 F. (2d) 784. In that case it appears that the defendant conducted a swimming pool and on the occasion in question charged admission to a swimming exhibition or carnival. It failed to provide a life guard or person of authority to safeguard its patrons. Some of the patrons became engaged in horseplay and shoving one another from the platforms surrounding the swimming pool and one of these boisterous patrons struck and shoved the plaintiff with great force into the swimming pool, seriously injuring her. The plaintiff, who was a woman, was in close proximity to a thing that was inherently dangerous, that is, a swimming pool, and the defendant failed to have any guards, life guards, or ushers on the premises. It further appears that this horseplay and boisterous conduct had been going on for some time without interference and apparently with no one present to prevent it. Because of the inherent dangers of a swimming pool the defendant could readily have anticipated that someone might be shoved into the pool and injured.

This case is not in point with the case at bar. There was nothing inherently dangerous on the premises here and the talking and conduct of the patrons did not indicate that one of them might draw a revolver and the other a knife and cause a panic.

After a careful examination of the entire evidence, we have reached the conclusion that the theory of fact of plaintiff that there was a continuing altercation from the third to the seventh round of the main bout, that culminated in the drawing of weapons, and the fight in the seventh round is not sufficiently sustained by the evidence, and that the verdict is manifestly against the weight of the evidence. As this case may he tried again we refrain from analyzing and commenting further upon the facts and circumstances that have caused us to reach this conclusion and we are of the opinion that justice will he best served by a retrial of this case.

The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

Soanlaw, P. J., and Gridley, J., concur.