text:
    Johanna Rebenstorf, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,167.

      Opinion filed February 14, 1939.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    McKenna & Harris and I. W. Kaufman, all of Chicago, for appellee; James J. McKenna and Burrell J. Cramer, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment for $5,000 entered against defendant, Metropolitan Life Insurance Company, on the verdict of a jury in an action brought by plaintiff, Johanna Rebenstorf (now Johanna Lutz) upon a policy of accident insurance issued by defendant to her husband Paul F. Rebenstorf, in which she was named beneficiary.

Plaintiff’s amended complaint alleged the issuance of the policy and the death of Rebenstorf on April 3, 1935; and that on December 25, 1934, he “sustained bodily injuries which were caused directly and independently of all other causes by violent and accidental means, from which bodily injuries said Paul F. Rebenstorf subsequently . . . died.” Plaintiff filed the following amendment to her amended complaint: “That ... on the 25th day of December, 1934, the said Paul F. Rebenstorf sustained certain bodily injuries, which were caused directly and independently of all other causes, by violent and accidental means, which such injuries, directly and independently of all other causes, wholly and continuously disabled and prevented the said Paul F. Rebenstorf from performing any and every kind of duty pertaining to his occupation, and thereafter, during the period of such total and continuous disability, and within two hundred weeks from the date of said accident, i. e., on the 3rd day of April, 1935, said injuries, directly and independently of all other causes, resulted in the death of said Paul F. Rebenstorf.”

Defendant’s answer, after admitting the issuance of the policy and the death of Rebenstorf, denied that “the injuries alleged to have been sustained by the said Paul F. Rebenstorf on December 25, 1934, wholly and continuously disabled the said Paul F. Rebenstorf and . . . that said alleged injuries prevented the said Paul F. Rebenstorf from performing any and every kind of duty pertaining to Ms occupation from December 25, 1934, until the date of his death” and further denied that “the death of the said Paul F. Rebenstorf was caused by said alleged injuries directly and independently of all other causes and . . . that it is liable to the plaintiff in the sum of $5,000 ... or any other amount whatsoever.”

Johanna Lutz, plaintiff, testified that after dinner on Christmas day, 1934, her then husband, Paul F. Rebenstorf, took her, her daughter and her father and mother for an automobile ride; that as he drove east on Dempster road “there was a lady driving a big car going west, and she skidded, lost control of her car and skidded all the way across the road, and hit us ... it was not right head-on, it was to the left, right at the driver’s wheel, hit us there, and then she turned around her car, swing around, and she hit us again in the back, right at the left side in the back of the car where my mother was sitting”; that after the impact our car stopped immediately and “was junked right there’ ’; that ‘ my husband and myself were taken by the Riles Center Police to the police station, from which we were taken home.by neighbors”; that after the accident and while they were at the police station her husband “just doubled up” with pain and when they got home “he had to lie down, he was feeling bad”; that she then telephoned Dr. Herpe and went to his office where the doctor “examined him and taped Mm . . . about between the chest and the abdomen”; that the doctor “put the tape,” where the steering wheel hit him; that after the doctor treated her husband they went home in a taxicab; that prior to the time of the accident her husband was in apparent good health; that he had his tonsils removed in the spring of 1934, but had no serious illness during the five years previous to the accident; that, upon reaching home after their visit to Dr. Herpe’s office, her husband went to bed, where he remained for about a week, and “then he tried to get up, to sit in a lounging chair right near the bedroom door”; that Dr. Herpe continued to treat her husband; that during the period following the accident, he complained a great deal about his condition; that he moved around the house “just from the bed to the chair, to the bathroom and back to the bed and back to the chair,” and that from the time of the accident until the time of his death he did no work of any kind around the house.

She further testified that at the time of the accident and prior thereto, her husband worked for the Bed Cross Spaghetti and Macaroni Company as a salesman on a commission basis and as such salesman used an automobile; that about a month after the accident, he “tried to go back to work”; that he left home one morning about 11 or 12 o’clock and “was back within an hour or an hour and a half”; that she went with him on that occasion and he did not get out of the car ; that she turned the car around and drove home; that when they reached their home her husband went to bed; that from that time until his death, he did not “undertake to go back to work”; that her husband was operated upon April 1, 1935, and died April 3, 1935; that at the time of the accident Bebenstorf weighed about 210 pounds and at the time of his death he weighed approximately 180 pounds; that as time elapsed after the accident he became apparently worse and “he lost weight and looked yellow in his face”; and that he got out of bed less frequently and for a period of time before his operation he remained in bed continuously.

Plaintiff testified upon cross-examination that in addition to the time that her husband tried to go back to work “he just reported Friday nights” at his employer’s place of business; that he did no work for his employer during the months of February and March, 1935; and that such compensation as was paid him for those months was either for orders he had sold prior to the accident or for orders which she secured from some of his regular customers and transmitted in her husband’s name to his employer. At one point during her cross-examination, upon being asked “Now, isn’t it a fact that your husband worked from February to March of 1935, for the same concern, doing the same work?” and the witness answered, “Yes.” Further examination of the witness demonstrated that when she answered said question affirmatively, she was confused and did not understand the import of the question.

Dr. Gustav G. Herpe testified that he first attended Rebenstorf in 1933 when he removed his tonsils; that “at that time I found nothing abnormal” upon a cursory examination; that on Christmas day, 1934, “I made a rather complete examination, he having been in an accident ... at the time I saw him he complained of having been struck on the right side of the chest . . . and he complained of severe pain over the area of the fourth, fifth and sixth ribs on the right side, in about the middle of the clavicle line, that is, in the mid-right side . . . his breathing at that time was very shallow and the man had the facies and expression of a man who was really in quite a bit of pain and discomfort”; that “at that time I strapped up his chest, sent him to bed and gave him some sedatives”; that “I saw him daily, then, until he came into the office ... I think it was four or five days later when he returned to the office for an X-ray”; that when he saw Rebenstorf at his home during the four or five days mentioned “he was in bed”; that “at that time we continued to leave his chest strapped and gave him sedatives ... he was a little more comfortable as long as he took the sedatives although his breathing did not improve for quite some time”; that in his opinion Rebenstorf continued to suffer pain; that when he came to the office of the witness four or five days after the accident “we fluoroscoped him and X-rayed his chest ... at that time we found no fractured bones, but it did seem that there was a tearing of what we called the costal margins where ribs and cartilages come together”; that he taped him again and “sent him back to bed and prescribed absolute rest, with sedatives, free cauterization, etc., ’ ’ and that from that time on “I saw him very often, every day or two or three, just depending on how comfortable he was”; that from the time he X-rayed him in his office until he went to the hospital to be operated upon, the pain in his right side continued, “not always as severe, but depending mostly upon the amount of sedative, medication”; that in his opinion Rebenstorf was physically unable from the day of the accident “to carry on the duties of driving a car and soliciting customers”; that “up to . . . February fourteenth, there were no symptoms at any time to indicate any pathological condition, any abnormal condition in the abdominal organs ... he complained of no indigestion or otherwise acute condition in the gall bladder, or of gas, intestinal disorder . . . but at that time he began to complain to me of abdominal distress, and we treated him from the fourteenth of February up to the latter part of March before we decided or thought that an operation was necessary ... we thought probably medical treatment would cause the whole thing to subside . . . we put him on a fat free diet, which they do in gall bladder conditions ... we try to thin the bile by giving the bile salts and certain medications, we try to offset the gall bladder and liver condition by keeping them on a restrictive diet and absolute rest, as near absolute rest as we possibly can”; that he had “a suspicion of gall bladder difficulty about that time”; that “he did not respond at all to the treatment given him”; that the witness then determined that an operation was necessary and Bebenstorf was taken to the Lake View Hospital on March 31, 1935; that he operated upon him the next day, April 1,1935, and when it was found that his gall bladder was in such condition that it could not again function normally, same was removed; that in his opinion Bebenstorf’s gall bladder had not “functioned for a number of years, because the gall bladder was filled with stones, and there was no bile in the gall bladder at all, some old fetid material that may have laid there for many months or years, but the gall bladder was not functioning . . . there was not a drop of bile in it at that time”; that it was possible for Bebenstorf “to have lived without his gall bladder definitely functioning for that period of time”; that “the gall bladder is an organ which simply acts as a reservoir to collect bile in between meals, but empties, usually, when it is stimulated by the intake or food or intestinal secretions . . . but there is a double duct, one leading from the liver, and one leading from the gall bladder, into this same common duct, which then empties into the duodenum and supplies the bile, so that the gall bladder may be completely obstructed, and yet you may have a perfectly normal bladder function . . . the duodenum is part of the intestine . . . leading from the stomach, into which the bile empties . . . that is where the digestion of food begins”; that Bebenstorf died April 3, 1935, the third day after the operation; that he assisted in the “post mortem on the body”; that in his opinion “the direct cause of the man’s death, in layman’s terms, was a heart failure”; that “the trauma precipitated an acute acerbation of the gall bladder condition for which I had to operate, which in turn caused the strain and stress upon the heart, which produced his heart failure and death.”

On cross-examination Dr. Herpe testified that upon the autopsy he found a chronic condition of the heart of some considerable standing; that there “was a fatty condition of the heart . . . probably of a number of years standing”; that the condition found in the gall bladder “was chronic” and may have existed “from ten to twenty years”; that the accident could not have been the beginning of this condition; that gall stones take many years to form; that the existence of gall stones is a diseased condition; that in his opinion “myocarditis, the chronic myocarditis or condition of the heart” which he found, was not caused by the accident but was in existence prior to same, that the operation for the gall bladder condition would have been successful if it had not been for the chronic heart disease from which Rebenstorf was suffering, and that he died from natural causes; and that “the operation was for a chronic condition of the gall bladder.”

Dr. B. M. Johnson testified in defendant’s behalf that he “performed the autopsy on the body of the deceased [Rebenstorf]” whose death had recently occurred following a surgical operation for the removal of his gall bladder; that the heart, lungs and kidneys were examined and there were no findings of any importance as to the lungs; that there was a dilatation of the heart chamber and degenerative changes in the heart muscle; that some of the changes were of recent origin and others were chronic; that the degenerative changes in the heart were of long standing; that there “were stones found in the gall bladder and also an inflammation of the gall bladder wall of more or less „ long standing . . . not very acute, probably years ’ ’; and that the chronic changes.in the heart were of long standing, “a matter of years.”

Dr. Herman Roy Johnson, called by defendant as a witness, testified that he was an interne at the Lake View Hospital at the time the operation was performed on Bebenstorf; that he recorded as part of Bebenstorf’s hospital record his history and the history of the operation performed upon him; that his case history sheet reads as follows: 1 ‘ He states his first serious attack of abdominal pain was about twenty years and since then has had several severe attacks of pain. No nausea or . . . vomitting occurred. Becent sickness began six weeks ago and has been seized with these attacks fairly often since then. The pain begins right subcostal area up to right shoulder and around to the back.”

James Paul Canepa, also called as a' witness by defendant, after stating that he was treasurer and vice president of the John P. Canepa Company, manufacturer of Bed Cross Macaroni, Bebenstorf’s employer, testified substantially from his records that same showed commissions paid to Bebenstorf and expenses paid for his automobile, amounting to $175.99 for February, 1935, and $259.65 for March, 1935; and that he saw Bebenstorf once a week during said months, when he reported at the company’s office.

Defendant contends that “the trial court erred in denying the motion made by the defendant at the close of all the evidence to instruct the jury to find the issues for the defendant, since the evidence conclusively shows that Paul F. B.ebenstorf did not die as a result of bodily injuries sustained by violent and accidental means, directly and independently of all other causes, but that his death was the result of disease or bodily infirmity or surgical treatment therefor, risks expressly excluded in the policy, and also because the plaintiff failed to prove that Paul F. Bebenstorf was wholly and continuously disabled as required by the terms of the policy.”

Under the terms of the policy in issue, it was incumbent upon plaintiff to prove:

“1. A bodily injury caused directly and independently of all other causes by violent and accidental means.

“2. That such injury, directly and independently of all other causes, did, from the date of the accident, wholly and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation.

‘ ‘ 3. That death occurred within 200 weeks from the date of the accident and as a result of such injuries, directly and independently of all other causes.”

It is undisputed that Rebenstorf’s death occurred within 200 weeks from the date of the accident and it must be conceded that the bodily injuries suffered by him as a result of the automobile accident on December 25, 1934, were caused, directly and independently of all other causes, by violent and accidental means.

The first question presented then is whether the injuries received by the insured, directly and independently of all other causes, wholly and continuously disabled and prevented him from the day of the accident from performing any and every kind of duty pertaining to his occupation. There was ample evidence to justify the jury in answering this question affirmatively. The principal duties of the insured as a salesman were to drive his automobile and solicit orders. There is not a particle of evidence in the record that he performed or was able to perform either of such duties. Dr. Herpe testified that Rebenstorf’s condition precluded his performing said duties. It clearly appears from plaintiff’s testimony that he neither did nor could perform any of the essential duties of his occupation and that he did not sell a single order of goods from the day of his accident until his death. The evidence disclosed that the insured, accompanied by his wife, was driven, usually in a taxicab, to his employer’s place of business to report every Friday during February and March, 1935, and defendant stresses this fact as showing that he was able to and did perform some of the duties of his occupation. It has been repeatedly held and defendant admits in its brief “that in order to be wholly and continuously disabled” it is “not essential to prove a state of total helplessness.” We repeat that under the facts in evidence the jury was warranted in resolving the question under consideration in plaintiff’s favor.

The next question presented is whether under the terms of the policy Rebenstorf’s death occurred as a result of the injuries received in the accident, directly and independently of all other causes. The injuries suffered by him required treatment by Dr. Herpe from the date of the accident on December 25, 1934, until he was operated upon April 1, 1935. It is true that at the time of his accidental injury Rebenstorf had a diseased condition of the gall bladder of possibly from 10 to 20 years’ standing, that his gall bladder was filled with stones to such an extent that it had ceased to function but that it did not interfere with the functioning of his bladder and that he also suffered from a dilation and fatty degeneration of the heart of a number of years ’ standing. It is .also true that prior to the accident none of these conditions interfered with his living or with his ability to earn a livelihood. He was in apparent good health and suffered from no serious ailment for five years immediately preceding the accident. There is not a particle of evidence in the record that either the gall bladder or the heart condition would have caused Rebenstorf’s death within a reasonably short time except for the injury received by him in the accident. Defendant makes much of the testimony of Dr. Herpe that, in his opinion, Rebenstorf died from natural causes and that the direct cause of his death was heart failure. While the doctor did say that the direct cause of his death was heart failure, he described the chain of events leading up to his death as follows: ‘ ‘ The trauma precipitated an acute acerbation of the gall bladder condition for which I operated. The gall bladder condition caused a strain and a stress upon the heart, which produced heart failure and death.”

In view of this testimony of Dr. Herpe and of the fact that Rebenstorf received an accidental injury within the terms of the policy, is the beneficiary to be defeated of her right to recover merely because that injury operated upon a physically imperfect body, causing an acute acerbation of the gall bladder condition as it then existed, which required an operation, which, in turn, caused a strain upon an existing weak heart? In a case of this character why should not the real test be whether or not the injury itself was accidental? If the accident, when operating upon either a healthy or unhealthy body, causes death by putting in motion a chain of events which can be directly traced back to the accidental injury, why then should not such accident be considered the sole cause of the death? If Rebenstorf had been instantly killed in the accident it could hardly be seriously urged that his death resulted in whole or in part from the pre-existing diseased condition of his gall bladder and heart. What difference in principle is there when the injury resulting from the accident is the motivating factor in a chain of events that results in his death? Except for his accidental injury, what mortal could have divined or predicted with any reasonable degree of accuracy how long Rebenstorf would have lived? We are impelled to hold that the question of whether Rebenstorf’s death within the contemplation of the terms of the policy before us was caused solely as a result of his accidental injury was properly submitted to the jury and that there was sufficient evidence to warrant the jury in resolving this question in plaintiff’s favor.

Clause 9 of the special provisions of the policy provides inter alia that it does not cover ‘ ‘ accident, injury, disability or death . . . caused wholly or partly, directly or indirectly, by disease or bodily or mental infirmity or medical or surgical treatment therefor.”

Clause 1 provides that there can be no recovery unless “such injuries shall, directly and independently of all other causes, result in” death.

These are the clauses of the policy which defendant claims preclude recovery by plaintiff and they must have been intended to have the same meaning since they relate to the same subject matter in the same contract.

The identical clause 9 in a policy issued by defendant was recently construed by the United States Circuit Court of Appeals, 7th circuit, in Scanlan v. Metropolitan Life Ins. Co., 93 F. (2d) 942, decided November 30, 1937. In that case where the insured, having been injured in an automobile accident, died 20 days thereafter and one of the defenses interposed was that the evidence showed that death was caused in part by bodily infirmity, the court said:

“While the bodily infirmity need not be the sole cause of the death to defeat recovery under this policy, it is well settled that the ‘cause’ as here used, either sole or partial refers to something different than a disease or affliction rendered more serious by the consequences of the accident.

“One may recover on an accident policy such as here in issue although the insured suffers from bodily infirmities. If the accident brought about conditions from which death resulted, the fact that the insured was ill, aged or infirm, or had bodily or mental infirmities, would not bar recovery provided the accident excited the bodily infirmity into activity and death resulted. If the infirmity alone would not have caused death, it cannot be said to have caused death when the immediate result was occasioned by an infirmity which became active only because of the accident. The infirmity may have made the insured less able to resist, but if the accident caused the condition which in turn affected the weak spot which did not resist as well as a healthy body, the cause is nevertheless the accident, and recovery cannot be avoided or evaded. Pacific Mutual Life Ins. Co. v. Meldrim, 24 Gra. App. 487, 101 S. E. 305; Wachtel v. Equitable Life Assur. Soc., 241 App. Div. 172, 271 N. Y. S. 650; Equitable Life Assur. Soc. v. Gratiot, 45 Wyo. 1, 14 P. (2d) 438, 82 A. L. R. 1397; Lewis v. Ocean Acc. & Guar. Corp., Ltd., 224 N. Y. 18, 120 N. E. 56, 7 A. L. R. 1129; Bohaker v. Travelers’ Insurance Co., 215 Mass. 32, 102 N. E. 342, 46 L. R. A. (N. S.) 543; Meyer v. Fidelity & Casualty Co., 96 Iowa 378, 65 N. W. 328, 59 Am. St. Rep. 374; Rowden v. Travelers Protective Ass’n, 201 Ill. App. 295; Prehn v. Metropolitan Life Ins. Co., 267 Ill. App. 190; Horrie v. Industrial Casualty Ins. Co., 272 Ill. App. 252; Manufacturers’ Acc. Ind. Co. v. Dorgan (C. C. A.) 58 F. 945, 22 L. R. A. 620; United States Fidelity & Guar. Co. v. Blum, (C. C. A.) 270 F. 946; Fairclough v. Fidelity & Casualty Co., 54 App. D. C. 286, 297 F. 681.

“Our conclusion is that in an action on an accident insurance policy to recover for the death of the insured, testimony to the effect that the results” which followed the injury as its necessary consequences, and which would not have taken place had it not been for the injury, caused the death of the insured, is sufficient to support a verdict that the injury was the proximate and sole cause of the death.”

It will be noted that among the many supporting authorities cited are included Prehn v. Metropolitan Life Ins. Co., 267 Ill. App. 190, and Horrie v. Industrial Casualty Ins. Co., 272 Ill. App. 252. In the Prehn case, where the provisions in the policy were the same as those in the case at bar, the beneficiary proceeded on the theory that on September 12, 1930, the insured arose quickly from a chair, that in so doing he ruptured his spleen and that as a result of the accident he died 5 days later, on September 17, 1930. During the trial it appeared that on the previous June 4,1930, the insured fell from a scaffold while painting a church; that the scaffold was not more than 12 or 14 feet high; that about 10 days after his fall he was seen playing baseball; and that he appeared vigorous at the time. The attending physician testified with respect to the result of a post mortem examination after the insured’s death that “I believe that his fall off the ladder caused a slight laceration in the spleen underneath the capsule, and that this further exertion on his part completed the act; by further exertion I refer to when he arose from the chair. ’ ’ The doctor had found a scar on the spleen of the insured, which, he testified, might have been caused by his fall from the scaffold. One of the defenses advanced there was that the death of the insured was contributed to by other causes than violent and accidental means, and after an elaborate discussion of the evidence the court said at p. 198:

“In urging a reversal of the judgment defendant’s counsel contend that Prehn’s death did not result from violent and accidental means independently of all other causes, and that the court erred in refusing defendant’s motions, made at the close of plaintiff’s evidence and at the close of all the evidence, to enter a finding and judgment for defendant. We cannot agree with the contentions. We are of the opinion that the evidence sufficiently showed that Prehn’s death did result from such violent and accidental means and independent of other causes as rendered defendant liable under the certificate or policy sued upon, and that the court’s finding and judgment are sufficiently sustained by the law. (See United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 121; Lewis v. Ocean Accident & Guarantee Corp., 224 N. Y. 18, 20, 21; Higgins v. Midland Casualty Co., 281 Ill. 431, 435, 437; Christ v. Pacific Mut. Life Ins. Co., 312 Ill. 525, 530, 531; Vollrath v. Central Life Ins. Co., 243 Ill. App. 181, 184, 187; Hibbs v. United States Fidelity & Guaranty Co., 262 Ill. App. 279, 286,287.)”

In the Horrie case, 272 Ill. App. 252, where the defense was that the total disability of the insured did not result directly and independently of all other causes from the bodily injuries received by him, it appeared that in August, 1930, the insured discovered that he was passing blood in his urine and in October of that year one of his kidneys was removed; that during the following January, 1931, Horrie returned to work and continued working until March 12, 1931, when he slipped on the ice, fell and fractured his left hip while walking on the street; that the fracture was of a very severe character, causing complete disability; that there was no evidence of carcinoma at the time the fracture occurred; that Horrie remained in the hospital until July 2, 1931, when he returned home; that he was never able thereafter to bear his weight on his left leg, even with the aid of crutches; that about the latter part of September, 1931, he suffered a spontaneous fracture of the femur of the right leg, which examination disclosed was caused by a malignant growth or cancer; that about 2 weeks after this a swelling developed in the left hip; and that about 3 or 4 months after the fracture of the femur it was noticed that the left hip had greatly enlarged and cancer had developed at the point of fracture of same. Suit was brought upon the theory that the cancer in the left hip was the result of the accidental fracture thereof and was defended upon the theory that the disability was the result of a malignant cancer of the right femur and of the left hip, not caused by any accidental means, but by the metastasis or extension to those parts of the body of the primary carcinoma of the kidney. There the court said at p. 256:

“We have carefully considered the evidence in this case, however, and conclude that the testimony of the operating surgeons that the infected kidney was removed together with all of the malignant tissues in connection therewith; that the malignant growth therein was of recent origin; that in their opinion no metastasis could have originated from the kidney region; that the cancer in the left hip was at the site of fracture; that the fracture was such as caused irritation, as shown by the photograph, and by excessive pain and that irritation is a well known cause of cancer; that said cancer in the left hip was primary and not a metastasis, is prima facie evidence that the fracture was the primary cause of the cancer. Whether this prima facie case was overcome by the expert testimony, given by the witnesses for plaintiff in error, was a question of fact for the jury to determine; and we would not be justified in reversing their judgment under these circumstances. ’ ’

We have considered the authorities of this and other jurisdictions cited by defendant in support of its position, but since the facts in none of them are comparable to the facts here they are readily distinguishable from this case.

Defendant claims that the trial court erred in refusing to give to the jury the following instruction:

“The Court instructs the jury as a matter of law that if you believe from all the evidence that the accident aggravated a pre-existing disease so that the insured died as a result of the combined effects of the accident and the pre-existing disease, then you must find the issues for the defendant.” If this proffered instruction contained a correct statement of the law, the trial court should have directed a verdict for defendant, but the subject matter of this instruction is expressly stated not to be the law in Scanlan v. Metropolitan Life Ins. Co., supra.

Defendant also claims that the court erred in giving the following instruction :

“The Court instructs the jury as a matter of law that when an insurance company places certain phraseology in a policy issued by it for its own protection and benefit and it attempts to avoid liability because of an alleged violation of any such provision, then such provision is to be construed most strongly against said insurance company.” This instruction contains a correct statement of law but it was inapplicable to any issue in this cause and should not have been given. However, having examined the given instructions in their entirety, we find that the jury was fully and fairly instructed on the real issues involved, according to both plaintiff’s and defendant’s theories, and are of the opinion that the giving of this instruction constituted, at most, harmless error. In 64 C. J. 986, it is said: “Where, however, it appears that the correct instruction must have so preponderated in the consideration of the jury that the erroneous instruction neither contributed to, nor controlled, the verdict, the charge may be upheld. ’ ’

Such other points as have been urged have been considered, but in the view we take of this cause we deem further discussion unnecessary.

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

Affirmed.

Burke, P. J., and Friehd, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Robert Anderson et al., Appellants, v. Sol Behr, Appellee.
    Gen. No. 40,250.

      Opinion filed February 14, 1939.
    Milton L. Durchslag and Ralph M. Schwarthberg, both of Chicago, for appellants.
    Abrams, Sherman & Lewis, of Chicago, for appellee ; Maurice L. Lewis and Irving S. Abrams, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action brought by plaintiffs, Robert Anderson, Joseph Wolper, Charles Zaccone, Harry Madniek and Arnold F. Owens, to recover from defendant, Sol Behr, damages for personal injuries alleged to have been sustained by them and for property damage to the automobile belonging to Arnold F. Owens, one of the plaintiffs, as the result of defendant’s negligence. The record discloses that plaintiffs filed their complaint December 19, 1935; that January 29, 1936, defendant answered said complaint without raising any question concerning the legal sufficiency thereof; that when the cause was reached on the trial call, defendant presented a motion on March 30, 1938, for leave to withdraw his answer and to file a motion to dismiss the complaint; that the sole basis for his motion to dismiss was the failure of plaintiffs to set forth in the complaint the exact date on which the accident occurred; that plaintiffs thereupon filed a motion to amend their complaint by inserting therein the date of the accident; that both motions were set down for hearing; and that on March 31, 1938, an order was entered by the trial court, which order as amended on April 1, 1938, reads: “It is ordered that defendant’s motion for leave to withdraw his answer and file a motion to strike the complaint and dismiss suit granted. . . . Motion of plaintiffs for leave to file an amendment to the complaint denied. . . . Motion of defendant to strike the complaint and dismiss the suit granted. . . . Judgment entered herein in favor of defendant and against the plaintiffs, including judgment for costs and execution issue.” This appeal is prosecuted by plaintiffs to reverse the order of April 1, 1938.

Plaintiffs’ theory as stated in their brief is that “there is no basis in law for the dismissal of the complaint on the ground that the omission of the date of the accident from the complaint was a fatal defect; that this is particularly true when plaintiffs offered to amend the complaint by inserting the date of the accident ; and that under such circumstances the trial judge erred in allowing the withdrawal of the answer and allowing defendant’s motion to dismiss the complaint and in failing to allow plaintiffs to amend. The only reason the trial court might have had for dismissing the complaint was that the trial court was of the opinion that no cause of action was stated by the complaint by reason of the omission of the date of the occurrence of the accident despite the fact that the defendant, by his answer filed two years before, had admitted full knowledge of the occurrence of the accident.”

Defendant’s theory is that “the date of the accident is a material allegation in a complaint for personal injuries and the failure of the plaintiffs to aver such date is a fatal defect”; that “a complaint which is fatally defective by failing to set out a cause of action, cannot be amended after the running of the Statute of Limitation”; and that “the plaintiffs, having failed to set out a cause of action and the Statute of Limitation having run upon the claim or right of action, the Court properly sustained the motion to strike the complaint and properly denied plaintiffs leave to amend by inserting the date of the accident.”

The principal question presented for our determination is whether the omission of the date of the accident from the complaint was so fatal that the trial court was justified in not allowing plaintiffs’ amendment to insert said date and in striking the complaint rather than allowing the cause to go to trial.

No authority has been cited and we have been unable to find one which holds that it is essential in an action for damages for personal injuries predicated upon a defendant’s negligence to state the date of the occurrence out of which the injuries arose. It is true that the date of the accident is usually alleged but failure to allege it, in so far as we have been able to ascertain, has never been held to render a complaint fatally defective. In passing upon what constitutes the essential allegations of a complaint in a personal injury action based upon negligence, in Miller v. Kresge, 306 Ill. 104, the court held at p. 106:

“A declaration should contain a clear and distinct statement of the facts which constitute the cause of action so they may be understood by the party who is to answer them. (City of Chicago v. Selz, Schwab & Co., 202 Ill. 545; Chicago City Railway Co. v. Jennings, 157 id. 274.) In actions growing out of personal injuries it is necessary to aver and prove three elements to make out a cause of action: First, the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; second, a failure of the defendant to perform that duty; and third, an injury to the plaintiff resulting from such failure. (McAndrews v. Chicago, Lake Shore and Eastern Railway Co., 222 Ill. 232.) ”

The complaint in the instant case meets all of the requirements of the Kresge case and in view of the fact that defendant elected to answer same as to the merits of the cause, he should not later have been permitted to question its sufficiency, where, as here, said complaint fully sets forth the essential requirements of the cause of action.

The real difficulty with defendant’s position is that he confuses this action with an action brought under the Injuries Act, in which case the complaint must include as one of its essential allegations and as a condition precedent that the suit is brought within one year from the date of the death of the deceased. Since this action was not and could not have been brought under the Injuries Act, the complaint herein need not have shown that the suit was commenced within the 2-year period of the statute of limitations applicable to this proceeding. If a defendant desires to avail himself of the statute of limitations as a defense to an action for personal injuries, he must allege such defense affirmatively and show that the suit is barred by said statute. In this case the accident occurred October 21, 1935. Plaintiffs filed their complaint within 60 days thereafter, on December 19, 1935. As heretofore shown, said complaint contained all the necessary and essential averments for a good cause of action. No motion was presented by defendant for a more specific statement of plaintiffs’ claim or to strike the complaint on the ground of its insufficiency for the failure to allege the date of the accident, but on January 29, 1936, defendant filed a full and complete answer to the complaint in and by which he acknowledged that he knew all about the occurrence and simply denied that he was guilty of the negligence and wilful and wanton conduct charged. This was the state of the pleadings until more than 2 years later when the cause was reached on the trial call and defendant moved “for leave to withdraw the answer filed January 29,1936, and for leave to file motion to strike complaint and dismiss suit” and “to strike complaint . .. . for failure of said complaint to set forth a cause of action against the defendant.” Then, as already stated, plaintiffs on the same date moved to amend their complaint by inserting therein the date of the accident, which motion was denied and defendant’s motions allowed. We not only feel that it would be highly inequitable, under the circumstances presented by the record in this case, to deprive plaintiffs of a trial on the merits, but that there was no legal justification for striking their complaint. We have shown that the complaint stated a good cause of action, but, even though we assume that it was defectively stated by reason of the omission of the date of the accident, “it has long been the settled law of this state that ‘a mere defect in the pleading’ might be amended after the Statute of Limitations had run, without affecting the plaintiff’s right to recover.” Zister v. Pollack, 262 Ill. App. 170. “In this state there has been a studied effort to get away from so-called technicalities of the common law pleading.” Anderson v. Biesman & Carrick Co., 287 Ill. App. 507.

Subsection 2 of sec. 42 of the Civil Practice Act (par. 166, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.042]), provides:

“No pleadings shall be deemed bad in substance, which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet.” Defendant surely must have been informed of the nature of the claim he was called upon to meet since he filed a complete answer to the complaint.

Subsection 3, sec. 33, par. 157 of the Civil Practice Act provides:

‘ Pleadings shall be liberally construed with a view to doing substantial justice between the parties.”

Subsection 2, sec. 46, par. 170 of the Civil Practice Act provides:

“The cause of action, cross demand or defense set up in any amended pleading shall not be barred by, lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defeti.se or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted when such condition precedent has in fact been performed, and for the purpose of preserving as aforesaid such cause of action, cross demand or defense set up in such amended pleading, and for such purpose only, any such amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended. ’ ’

In Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, in construing the last above quoted section of the Civil Practice Act, the court said at pp. 228-230:

“Section 46 of the Civil Practice act makes several noticeable changes in the prior statute. Presumably the legislature knew the import of our pronouncements under the former acts, and had in mind remedial legislation to overcome and correct such statutory faults. (Schoellkopf v. DeVry, 366 Ill. 39; People v. Nash, 364 id. 224.) Section 46 of the Civil Practice act, like section 39 of the prior act as amended in 1929, consists of two paragraphs, respectively treating the same subjects. Paragraph 1,. in each case, prescribes what classes of amendments may be made in any process, pleading or proceedings before final judgment. It does not deal with the subject of limitations at all. Paragraph 2, in each case, deals exclusively with the subject of limitations on the right to amend pleadings after the limitation period. It is thus apparent that both paragraphs must be considered together. Under the holdings of this court construing the prior statutes it is obvious that any amendment permitted by paragraph 1 which does not also come within the provisions of paragraph 2 of section 46, must be made within the time limited for commencing suit. To otherwise construe paragraph 1 would destroy the effect of paragraph 2, come in conflict with the limitation in the Injuries act and leave the situation the same as it was before section 46 was enacted.

“Two significant changes appear in paragraph 1. Instead of the permission, in section 39, to change the form of action, section 46 permits changing the cause of action or adding new causes of action. In place of the provision, in section 39, that the change may be made to enable the plaintiff to sustain the action for the claim intended to be brought, section 46 permits such change as may enable him to sustain the claim intended to be brought. It is further to be observed that section 42 of the Civil Practice act provides that no pleading shall be deemed bad, in substance, which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet. The prior acts contained no such provision nor anything equivalent thereto. While these changes do not deal with the subject of limitations, they eliminate the former requirement that the original pleading must state a cause of action and that an amendment must set up the same cause of action.

“Under paragraph 2 of section 39 it was required that the cause of action set up in the amendment not only grew out of the same transaction or occurrence, but that it must be substantially the same as set up in the original pleading. The requirement for substantial identity was omitted from paragraph 2 of section 46. The sole requirement of that paragraph is that the cause of action set up in the amendment grew out of the same transaction or occurrence set up in the original pleading. Briefly summarized, section 46 permits any amendment of a pleading, filed in apt time, after the time limited for commencing suit to set up a cause of action on any claim which was intended to be brought by the original pleading, provided, only, that it grew out of the same transaction or occurrence, and it is not necessary that the original pleading technically state a cause of action, or that a cause of action set out in the amendment be substantially the same as any cause of action stated in the original pleading. The term ‘same transaction or occurrence,’ so used in the statute, means the same suit. These changes, together with the judicial construction of the prior statutes, evince the legislative intent to remedy the evils incident to the former legislation and to preserve causes of action against loss by reason of technical rules of pleading. This is manifest from the concluding language of paragraph 2 which specifically declares the purpose of preserving the cause of action.”

In the light of this liberal construction of the section of the Civil Practice Act considered in the foregoing case and in the further light of the other quoted sections of said act, all declaring for a liberal interpretation of pleadings and pointing the way of departure from the strict construction of same and from the so-called technicalities of common law pleading, there can be no question that plaintiffs ’ proposed amendment to their complaint should have been allowed and that it would not have constituted a new cause of action against which the statute of limitations had run.

Even under the outmoded common law rules of pleading, “the general principle is, that in all torts and parol contracts, the day when the tort is alleged to have been committed, or the contract made, is not material; and if the defendant makes it material by his plea, the plaintiff may reply another day, and it will be no departure; and the same principle applies to a case where it becomes necessary to prove when the contract was made, and it does not agree with the time alleged in the declaration.” Little v. Blunt, 33 Mass. 359. We are impelled to hold that plaintiffs’complaint set forth a good cause of action within the contemplation of the applicable provisions of the Civil Practice Act and furthermore that when the question as to the date of the accident was raised, their proposed amendment for the purpose of inserting said date in their complaint should have been allowed.

Such other points as have been urged and authorities cited have been carefully considered, but in the view we take of this case we deem further discussion unnecessary.

Inasmuch as the order allowing defendant’s motion to strike plaintiffs ’ complaint and to dismiss their suit and denying plaintiffs ’ motion to amend the complaint was improvidently entered, the judgment of the superior court is reversed and the cause remanded with directions to deny defendant’s motion for leave to withdraw his answer and to file his motion to strike plaintiffs ’ complaint, to deny his motion to strike said complaint, and to allow plaintiffs’ aforesaid motion to amend their complaint; and that such further proceedings be had as are not inconsistent with the views expressed herein.

Reversed and remanded with directions.

Burke, P. J., and Friend, J., concur.


author: Mr. Justice Johh J. Sullivah

text:
    Theresa Joller Smith, Administratrix, Appellant, v. Albert Luckhardt and I. S. Trostler, Appellees.
    Gen. No. 40,357.
    Opinion filed February 14, 1939.
    Lloyd T. Bailey, of Chicago, and Charles E. Jack, of Waukegan, for appellant; Joseph W. Bailey, Thomas C. Hollywood and J. Theodore Kiggins, all of Chicago, of counsel. .
    Rawlins & Wright, of Chicago, for appellees; Bernard Genis, of Chicago, of counsel.
   Mr. Justice Johh J. Sullivah

delivered the opinion of the court.

This action was originally brought by Theresa M. Joller, a minor, by her mother and next friend, Theresa M. Joller Smith, against defendants, Albert Luekhardt and I. S. Trostler, to recover damages because of personal injuries alleged to have been sustained by her prior to her birth. Suit was commenced July 20, 1937, approximately 13 years after the birth of said Theresa M. Joller. Motions to strike the original complaint were filed by both defendants and sustained. Plaintiff having died subsequent to the commencement of the suit, her death was suggested and leave given to file an amended complaint. Theresa Joller Smith, as administratrix of the estate of her deceased daughter, thereafter filed an amended complaint, which alleged in substance that the defendants were doctors; that upon being called to give medical treatment to the mother of Theresa M. Joller, they negligently diagnosed her condition as a tumor of the womb, when she was not so afflicted but was pregnant with the said Theresa M. Joller; that they negligently treated the mother of said Theresa M. Joller by administering 6 X-ray treatments of 45 minutes each, over a period of 4 months from the time said child was less than 4 months mature until she was more than 7 months mature; that said X-ray treatments were of such strength, force and violence as were intended to destroy a tumor and as a result of the negligence of the defendants, said child was burned, certain tissues of her body were destroyed, the bones of one ankle and certain vertebrae in her neck failed to mature, certain cells of her brain were destroyed, and she was born a permanent cripple and feeble-minded, developing only to the mental age of 2 years, although she lived to be 13 years of age.

Defendants’ motions to dismiss the amended complaint on the ground of its insufficiency in that it appeared from said amended complaint that the damages sought to be recovered were for alleged injuries to the decedent prior to her birth were sustained, plaintiff’s cause of action was dismissed and judgment rendered against her for costs. It is from this judgment that plaintiff appeals.

Plaintiff’s theory, as stated in her brief, is that “the fundamental rights of personal security and the pursuit of happiness, out-weigh in importance the transient rights of property, and that an unborn child, especially after it becomes'quick, viable and alive, and when the destruction of the life of the mother does not necessarily end its existence, and at an age when if separated prematurely from its mother, by artificial means, it would be so far matured that it would live and grow naturally, that such a child has a right to recover for injuries sustained by negligence and malpractice.”

Defendants’ position is that “the amended complaint of plaintiff does not state a cause of action against the defendants, or either of them for it appears from said amended complaint that the plaintiff, as administratrix of the estate of the deceased, is seeking to recover damages because of alleged personal injuries claimed to have been sustained by said deceased while she was an unborn child. . . . Under the law such an action does not lie.”

Conceding that it is the law of this State that an action of the character instituted here cannot be maintained, it is stated in plaintiff’s brief that “the only question involved in this case is whether or not the highest courts of this state think the time has come to determine the legal rights of an unborn child upon scientific truth, or upon legal fiction. It is a matter of common knowledge that unborn children at the age of seven . . . months and younger, have lived, grown, and become healthy members of society, when separated from their mothers by artificial means. Of this fact onr courts and judges have been long and well advised. ... As the justices of our courts have had time to think and consider the inequities of the apparent holdings in cases of this character, that an unborn child cannot recover for direct injuries received through negligence and malpractice, their line of thought has gradually turned toward the protection of such coming generations. They have been looking forward to the time when such children will become members of society. . . . We confidently feel that the court in this case will look beyond the stupid legal fiction which has failed to match legal remedy with irreparable wrong, and will take the only view consistent with logic, justice, and modern thought and medical science, and find that the time has come when the well-being, health and minds of our children are of at least as much importance and in need of care and protection as are their rights in property.”

The real and only question presented is whether a child after it is born may maintain an action for injuries occasioned before its birth. This identical question was presented in Allaire v. St. Luke’s Hospital, 184 Ill. 359, which is not only squarely in point and decisive of the issues sought to be raised by plaintiff’s complaint but is a leading case on the subject, which has been cited and followed by courts of review of many other jurisdictions in the following, among other cases: Newman v. City of Detroit, 281 Mich. 60, 274 N. W. 710; Drobner v. Peters, 232 N. Y. 220, 133 N. E. 567; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566; Gorman v. Budlong, 23 R. I. 169, 49 Atl. 704; Buel v. United Railways Co., 248 Mo. 126, 154 S. W. 71; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S. W. (2d) 944.

In the Allaire case, supra, plaintiff, Thomas Edwin Allaire, an infant, by Ada A. Allaire, his next friend, brought suit against St. Luke’s Hospital and St. Luke’s Free Hospital to recover damages because of personal injuries claimed to have been sustained by said infant while in his mother’s womb. In the declaration filed in that cause it was alleged that “the defendants were possessed of and using a hospital building as a hospital for the care and treatment of sick persons and of ladies during the time before, at and after accouchement and parturition and of convalescence thereafter, and for the care, careful treatment and medical diligence in the safe delivery of infants in ventre de sa mere, all for hire and reward”; that within approximately 10 days of the time calculated for the natural birth of plaintiff, his mother became and was a patient of defendants in said building; and that by reason of the negligence of the defendants in the operation of an elevator in such building in which she was riding she was thrown to the floor of said elevator and by reason thereof plaintiff was “then born and seriously injured and crippled for life.” Defendants there filed a general demurrer to plaintiff’s declaration, which was sustained by the trial court and judgment entered in their favor. Upon appeal to this court the judgment of the trial court was affirmed and the cause was then appealed to the Supreme Court. In affirming the judgments of the trial and Appellate Courts, our Supreme Court, adopting the opinion of the Appellate Court and affirming its judgment, said at pp. 365-368:

“ ‘The action is not given by any statute, and if maintainable it must be so by the common law, and, therefore, the question is whether, at common law, the action can be maintained. Had the plaintiff, at the time of the alleged injury, in contemplation of the common law, such distinct and independent existence that he may maintain the action, or was he, in view of the common law, a part of his mother ? If the former, it would seem the action can be maintained; but if the latter, not, because, if a part of his mother, the injury was to her and not to the plaintiff.

“ ‘Appellant’s counsel has argued the case learnedly and with not a little industry, but has cited only two cases in which it was attempted to maintain actions involving the question presented here, namely, Dietrich, Admr. v. Inhabitants, etc., 138 Mass. 14, (decided in 1884) and Walker v. Great Northern Railway Co., 28 L. R. Ire. 69, (decided in 1891). In the former case the facts were, that the mother, when advanced four or five months in pregnancy, slipped and fell by reason of a defect in the highway, the consequence of which was a miscarriage. The plaintiff was alive when delivered, but was too little advanced in foetal life to survive its premature birth. The action was brought by the administrator of the deceased infant under a statute authorizing an action for the benefit of the mother or next of Mn. The trial and Supreme Courts both held that the action could not be maintained, the latter court saying: “Taking all of the foregoing considerations into account, and further, that as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff’s intestate, within its meaning.”

“ ‘In Walker v. Great Northern Railway Co., the statement of claim was, substantially, that Annie Walker, mother of the plaintiff, while quick with child, became a passenger on the defendant’s railway and was so received by the defendant, and that the defendant so carelessly and negligently conducted itself in carrying said Annie Walker and in managing its railway, that the plaintiff was thereby injured, crippled and deformed. A demurrer was sustained to the statement of claim, all the judges concurring in the opinion that it was defective in not showing a contractual relation between the plaintiff and the railway company, but merely averring a contract between the mother of the plaintiff and the company. The question, however, whether such an action could be maintained by an infant in its mother’s womb at the time of the alleged injury could under any circumstances be maintained, was discussed elaborately and with great learning both by court and counsel. O’Brien, C. J., after discussing the question, expressly declined to commit himself by an opinion, leaving it, as he said, “an open question,” so far as he was concerned. Harrison, J., while basing his decision on the insufficiency of the statement of claim, says in his opinion: “When the accident occurred on the 12th of June the plaintiff was still unborn and had no existence apart from her mother, who was the only person whom the defendants contracted to carry on their line,” etc. Johnson, J., in his opinion says: “As a matter of fact, when the act of negligence occurred the plaintiff was not in esse, — was not a person or a passenger or a human being. Her age and her existence are reckoned from her birth, and no precedent has been found for this action.” Again, commenting on the claim of liability, the same learned judge says: “If it did not spring out of contract, it must, I apprehend, have arisen, if at all, from the relative situation and circumstances of the defendant and plaintiff at the time of the occurrence of the act of negligence. But at that time the plaintiff had no actual existence, — was not a human being and was not a passenger in fact; as Lord Coke says, the plaintiff was then pars viscerum matris, and we have not been referred to any authority or principle to show that a legal duty has ever been held to arise toward that which was not in esse in fact and has only a fictitious existence in law, so as to render a negligent act a breach of duty. ’ ’ 0 ’Brien, Associate J., in his opinion says of the action: “It is admitted that such a thing was never heard of before, and yet the circumstances which would give rise to such a claim must at one time or another have existed.” In Dietrich v. Inhabitants, etc., supra, the court says: “But no case, so far as we know, has ever decided that if the infant survived it could maintain an action for injuries received by it while in its mother’s womb. ’ ’

“ ‘Appellant’s counsel substantially admits that there is no precedent for the action. While it is true that this is not conclusive that the action may not be maintained, yet in view of the fact that, as said by Mr. Associate Justice O’Brien, similar circumstances must have before occurred, it is entitled to great weight, especially when the right to maintain the action is, to say the least, doubtful. Mr. Associate Justice O’Brien, in Walker v. Great Northern Railway Co., says: “The law is, in some respects, a stream, that gathers accretions, with time, from new relations and conditions. But it is also a landmark that forbids advance on defined rights and engagements; and if these are to be altered, — if new rights and engagements are to be created, — that is the province of legislation and not decision.” In this we fully concur. That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed. The doctrine of the civil law and the ecclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes, when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth. If the action can be maintained, it necessarily follows that an infant may maintain an action against its own mother for injuries occasioned by the negligence of the mother while pregnant with it. We are of opinion that the action will not lie.’ ”

In the recent case of Newman v. City of Detroit, 281 Mich. 60, 274 N. W. 710, decided in 1937, where an action was brought to recover damages on account of the death of decedent alleged to have been caused by prenatal injuries sustained by him 22 days prior to his birth, and where a motion to dismiss the cause was denied by the court below, in reversing the decision of the trial court the Supreme Court of Michigan said at p. 711:

“Appellant claims that to permit such recovery, in view of the fact that it is not provided for at common law or by legislative enactment, would be judicial legislation on our part; that it would open the door to fraud and perjury; that the cause of physical or mental defects that appear at childbirth or thereafter may be congenital, or due to injuries prior or subsequent to the accident, on account of which liability is asserted, or may have been due to the use of instruments or other mishaps at parturition. Appellee, on the other hand, calls our attention to the criminal law, but there is no claim of any criminal liability and there is no statute governing civil liability. Appellee further points to the Survival Act (section 14040, Comp. Laws 1929), which provides that an action for personal injuries to a person should survive. It is admitted that decedent had viability at the time of the accident, but in order for an action to survive, it must have existed at the time of the person’s'death. We are also referred to the statutes of descent and distribution, which permit a child en ventre sa mere at the time of the death of the parent to inherit from such parent. These statutes are not applicable. Appellee further contends that where there is a wrong, there should be a remedy, and claims that the question of causation is a matter of proof, the same as in other actions for negligence. These arguments may well be addressed to the legislature.

“The question before us has been passed upon in other jurisdictions. In some inferior courts where decisions were reversed in the appellate courts and in Kine v. Zuckerman, 4 Pa. Dist. & Co. R. 227, recovery was allowed for prenatal injuries. However, the overwhelming weight of authority is to the contrary. Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242; Walker v. Great Northern Ry. Co., 28 L. R. 69 (Ireland); Allaire v. St. Luke’s Hospital, 76 Ill. App. 441, 445, affirmed in 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176; Gorman v. Budlong, 23 R. I. 169, 49 A. 704, 55 L. R. A. 118, 91 Am. St. Rep. 629; Buel v. United Bailways Co., 248 Mo. 126, 154 S. W. 71, 45 L. R. A. (N. S.) 625, Ann. Cas. 1914C, 613; Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N. W. 916, L. R. A. 1917B, 334; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566; Nugent v. Brooklyn Heights Ry. Co., 154 App. Div. 667, 139 N. Y. S. 367, appeal dismissed in 209 N. Y. 515, 102 N. E. 1107; Drobner v. Peters, 232 N. Y. 220, 133 N. E. 567, 20 A. L. R. 1503; Magnolia Coca Cola Bottling Co v. Jordan, 124 Tex. 347, 78 S. W. (2d) 944, 97 A. L. R. 1513. Plaintiff has no cause of action under the common law or under any statute.

‘ ‘ The order of the lower court denying the motion to dismiss is reversed, with costs to appellant, and the cause is remanded, with instructions to enter an order granting motion to dismiss. ’ ’

In Drobner v. Peters, 232 N. Y. 220, 133 N. E. 567, an action was brought by an infant to recover damages alleged to have been sustained by him 11 days before his birth by reason of the negligence of the defendant. The defendant there filed a motion for a judgment on the pleadings, which was denied by the trial court. Defendant appealed and in holding that plaintiff’s complaint did not state a cause of action and in reversing the order of the trial court the court of appeals said at pp. 567, 568:

“Defendant negligently permitted a coal hole in the sidewalk in front of his premises to remain uncovered. Plaintiff’s mother fell into it. Plaintiff, in his mother’s womb, sustained injuries. Born 11 days after the accident, he now brings this action. It is contended that at the time of the injury he was not a person but was a part of the body of his mother and that, as the injury was to his mother, he has no cause of action.

“Mr. Justice Holmes said in 1884 in Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242, that no case, so far as he knew had ever decided that an infant could maintain an action for injuries received in the mother’s womb. The great weight of authority is still against the plaintiff’s contention that the unborn child has a right of immunity from personal harm (Allaire v. St. Luke’s Hospital, 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176; Walker v. Great Northern Ry. Co., 28 L. R. Ir. 69; Gorman v. Budlong, 23 R. I. 169, 49 Atl. 704, 55 L. R. A. 118, 91 Am. St. Rep. 629; Buel v. United Rys. Co., 248 Mo. 126, 154 S. W. 71, 45 L. R. A. [N. S.] 625, Ann. Cas. 1914C, 613; Lipps v. Milwaukee, etc. Co., 164 Wis. 272, 159 N. W. 916, L. R. A. 1917B, 334), although much judicial argument has been advanced to support a contrary ruling (Nugent v. Brooklyn Heights R. R. Co., 154 App. Div. 667, 139 N. Y. Supp. 367; dissenting opinion, Boggs, J., Allaire v. St. Luke’s Hospital, supra; Beven on Negligence [3d Ed.] 73, 76).

í i

“By a legal fiction or indulgence,.a legal personality is imputed to an unborn child as a rule of property for all ¿purposes beneficial to the infant after his birth (The George & Richard, L. R. 3 Ad. & Ecc. 466), but not for purposes working to his detriment (Villar v. Gilbey, [1907] A. C. 139, 145). By the criminal law, such being the solicitude of the state to protect life before birth, it is a great crime to kill the child after it is able to stir in the mother’s womb by any injury inflicted upon the person of the mother (Penal Law, sec. 1050). . . . Bights of ownership of property do not connote a duty of personal care to the inchoate owner, nor does the crime of causing the death of an unborn child connote liability to the child for personal injuries. When justice or convenience requires, the child in the womb is dealt with as a human being, although physiologically it is a part of the mother, but the law has been fairly well settled during its centuries of growth against the beneficence of an artificial rule of liability for personal injuries sustained by it.”

In Dietrich v. Inhabitants of Northampton, 138 Mass. 14, an action was brought by an administrator to recover damages because of the death of a child alleged to have resulted from injuries sustained prior to its birth. In affirming the judgment of the trial court that the action could not be maintained, the Supreme Court of Massachusetts, speaking through Mr. Justice Holmes, said at pp. 14-16:

“The mother of the deceased slipped upon a defect in a highway of the defendant town, fell, and has had a verdict for her damages. At the time, she was between four and five months advanced in pregnancy, the fall brought on a miscarriage, and the child, although not directly injured, unless by a communication of the shock to the mother, was too little advanced in foetal life to survive its premature birth. There was testimony, however, based upon observing motion in its limbs, that it did live for ten or fifteen minutes. Administration was taken out, and the administrator brought this action upon the Pub. Sts. c. 52, sec. 17, for the further benefit of the mother in part or in whole, as next of kin. The court below ruled that the action could not be maintained; and we are of opinion that the ruling was correct.

((

“But no case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother’s womb. Yet that is the test of the principle relied on by the plaintiff, who can hardly avoid contending that a pretty large field of litigation has been left unexplored until the present moment. ’ ’

The foregoing authorities are conclusive on the question presented for our determination and plaintiff has cited no case and we have been unable to find one in which a court of review in this or any other jurisdiction has held that an action may be maintained by a living child for injuries suffered before its birth or by the administrator of the estate of a child, after its death, for the benefit of its heirs at law or next of kin for like injuries. Thus it appears that an action of this character may not be maintained unless and until the right to bring such an action is afforded by legislative enactment.

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

Affirmed.

Burke, P. J., and Friend, J., concur.


author: Mr. Presiding Justice McSurely

text:
    Mary Strzelecki, Administratrix, and Harold Novak, Co-administrator of Estate of Theodore Strzelecki, Deceased, Appellants, v. The Fair et al., Appellees.
    Gen. No. 40,277.
    Opinion filed February 27, 1939.
    Alfred M. Loeser, of Chicago, for appellants.
    David & Fainman, of Chicago, for certain appellees; Sigmund W. David and William J. Lederer, of Chicago, of counsel.
    Robertson, Crowe & Spence, of Chicago, for certain other appellee; Burt A. Crowe, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiffs appeal from an order of the trial court dismissing the suit on the ground of the alleged perjury of a witness.

Plaintiffs’ complaint alleged that on September 16, 1936, the deceased, Theodore Strzeleeki, became ill and died through eating tainted and spoiled sausage purchased from the defendants or one of them; the case was called for trial before the Honorable William F. Borders of the city of East St. Louis, at that time sitting in the circuit court of Cook county, and a jury of twelve men.

Mary Strzeleeki, a Polish woman, is the widow of the deceased and can neither read nor write English or Polish and was testifying through the aid of an interpreter ; she was the second witness for plaintiffs; on cross-examination she was handed the petition giving leave to her to sue as a pauper, and also the complaint in the case, both of these purporting to be signed by her; she was asked if these signatures were made by her and after some uncertainty on her part she testified that they were not; plaintiffs’ attorney admitted they were her signatures; defendants’ counsel moved that the case be dismissed; the attorney for plaintiffs offered to show by the notaries who attested the signatures that plaintiff had in fact signed the documents; the court, however, peremptorily ordered the case dismissed, saying it was “not going to tolerate this flagrant perjury — whether in foreigners or Americans. . . . Now as a reward for her perjury and false testimony the court will grant this motion (to dismiss) and hereafter when she or anybody else is in court, let them have some regard for the truth. ’ ’

Plaintiffs’ attorney objected and asked leave to be permitted to produce other witnesses to support the complaint, including medical testimony; this was denied and the order of dismissal was entered.

Subsequently counsel for plaintiffs made a motion to vacate the order of dismissal; this was supported by the affidavit of Mary Strzelecki to the effect that she had been on the witness stand for an hour and forty-five minutes when she was questioned as to her signatures; that she had never been in court as a witness before and became bewildered; that what she intended to say was that she did not know whether they contained her signatures; the documents were never read over to her and she does not read or write either English or Polish but merely knows how to form the letters constituting her name; that she answered “No” to the inquiry because of her confusion and bewilderment; that she has since ascertained and verified the fact that the documents were signed and executed by her.

Alfred M. Loeser, attorney for plaintiffs, made affidavit that he prepared the petition to sue as a pauper, that he saw Mary Strzelecki sign the petition, that he also prepared the complaint filed in this case and saw Mrs. Strzelecki sign it in his office; that at his request Jacob Kaplan administered the oath in the pauper’s petition and affixed his notarial seal and signature; that Elizabeth Moran, a notary public, administered the oath to Mary Strzelecki, in which she acknowledged her signature to the complaint; Elizabeth Moran also made affidavit to the same effect, as did Jacob Kaplan. It was thus established beyond any doubt that Mary Strzelecki had signed the instruments in question.

The court, however, denied the motion to vacate the order dismissing the suit and at the same time made rather a lengthy statement, stating that the proof presented by plaintiffs was entirely without merit and based upon perjury, with the further statement that “Those of foreign birth should be taught to appreciate that the administration of justice in our courts is a serious matter. ’ ’ The court also said, ‘ ‘ This incredible, inconsistent and ridiculous testimony presented on behalf of the plaintiff was an insult to the intelligence of the twelve men sitting in the jury box.”

The action of the trial judge in dismissing plaintiffs ’ suit was a peremptory direction to the jury to find for the defendants before plaintiffs had introduced all their evidence, and despite the fact that their counsel was offering to introduce other and material evidence in support of his claim. This action of the trial court was reversible error. Donnelly v. Chicago City Ry. Co., 235 Ill. 35. The court also was in error in denying the subsequent motion to vacate this order. The authenticity of the signatures was established beyond a doubt and the motion to dismiss should have been vacated promptly.

In North American Fire Ins. Co. v. Throop, 22 Mich. 146, Mr. Justice Cooley comments at some length on the probabilities of one being able to identify his own signature. He said that a large proportion of people are unable to express an opinion whether an isolated signature is theirs or not; that showing the witness a signature alone, without calling his attention to all the circumstances and surroundings, is not a reasonable mode of arriving at the truth. This statement would meet with the approval of any experienced and thoughtful person. It could not be a reasonable mode of arriving at the truth to ask a witness to identify her signature attached to a document which the witness is unable to read and could hardly understand even if it were translated to her.

Able counsel for the defendants present arguments tending to discredit any merit in plaintiffs’ case, but that question is not before us. Plaintiffs are entitled to present all material evidence to support their claim.

For the reason above indicated the judgment is reversed and the cause is remanded for a trial.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice McSurely Mr. Justice O’Connor

text:
    Morton E. Silfen et al., Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 40,305.
    Opinion filed February 27, 1939.
    Barnet Hodes, Corporation Counsel, for appellants ; Martin H. Foss, Charles P. Horan, Alphonse Cerza and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Maolay Hoyne, of Chicago, for appellees; Sidney R. Zatz, of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

After an extended hearing of evidence the .trial court granted plaintiffs a permanent injunction restraining defendants from interfering with the sale, operation and exploitation in places of public resort in the city of Chicago of a certain amusement device designated as “World Series.” Defendants appeal.

It is alleged that plaintiffs Silfen and G-eneral Coin Machine Corporation are engaged in the business of buying, operating and distributing coin operated machines and devices, including the one advertised and known as “World Series. ’’ The Rock-Ola Manufacturing Corporation is engaged in the business of manufacturing and selling this device.

The complaint describes the device and asserts that it has been set up in a number of places of public resort and that the defendant city’s police officers have interfered with it. Defendants claim the right to remove this device by virtue of a city ordinance sec. 1949a of the Revised Chicago Code of 1931, which makes it unlawful for any person “to keep or use in any place of public resort within the city of Chicago any tables or implements for any game of bagatelle or pigeonhole.” The ordinance defines “bagatelle or pigeonhole” as meaning “a game played with any number of balls or spheres upon a table or board having holes, pockets or cups into which such balls or spheres may drop or become lodged and having arches, pins, and springs, or any of them, to control, deflect or impede the direction or speed of the balls or spheres put in motion by the player, and shall include the modern variety of bagatelle or pigeonhole commonly known as pin games.” This ordinance was authorized by sec. 44 of art. V of the Cities and Villages Act, ch. 24, par. 65.43, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.108] which grants to cities in Illinois power “To . . . prohibit and suppress billiard, bagatelle, pigeon-hole or any other tables or implements kept or used for a similar purpose in any place of public resort. ...”

In the opinion of this court in the case of Levins v. City of Chicago, 296 Ill. App. 645 (Abst.), we held that the city had the authority to pass this ordinance and that the city council was authorized to prohibit not only the matters specifically mentioned but also “any other tables or implements kept or used for a similar purpose.”

Is the device called the “World Series” included within the prohibition of the ordinance 1 One of the devices has been submitted to this court as an exhibit and has been examined by us. It is mounted and enclosed in a cabinet approximately four feet two inches in height by three and a quarter feet in width and two and a half feet in depth; the top is covered by glass; it is intended to simulate the playing of a baseball game; it presents a playing field and a baseball diamond; the players are represented by ten small metal figures; in front of each of them is a hole with a hood back of it; at the back of the playing field there is a curved background representing a baseball grandstand; in this are various apertures labeled “Foul Ball,” “Home Run,” etc.; adjacent to the home plate is a metal bat swinging on a pivot; this bat is operated from outside by means of a lever; when a five cent coin is deposited in the device the “pitcher” throws a metal ball toward the “batter”; the balls thrown are either “balls”— wide of the home plate, or “strikes” — which are over the home plate; the person depositing the coin may through a lever either bat at the ball or let it go by, and strikes and balls are registered as in ordinary baseball; a batted ball may go into one of the holes in front of the metal figures or may go into one of the openings in the grandstand, and is registered as “Foul Ball,” “Three Base Hit” or otherwise as indicated by the opening into which the ball goes'.

The complaint alleged that the ‘ ‘World Series’’ game is not a gambling device, pays out nothing and gives no prize of any kind whatsoever; that its function is simply and solely to give the person playing it clean and wholesome amusement.

Almost all of the points raised by plaintiffs to sustain the permanent injunction have been answered against them in the Levins case, supra. That case was afterward followed in Coleman v. City of Chicago, 297 Ill. App. 130. The instrumentalities involved in the Levins case were two coin-operated devices known as the “Magic Boll” and “Skill Boll.” We held among other things that these devices were kept and used for a purpose similar to bagatelle and pigeonhole games and that the power of the city to suppress these games extends to and includes devices used for a similar purpose in any place of public resort.

Is the “World Series” device used for a purpose similar to bagatelle or pigeonhole 1 The essential features of bagatelle or pigeonhole games, as defined in various dictionaries are a table or playing surface with holes or pockets into which the balls put in motion by the player may drop, and with pins or arches to deflect or impede the direction and speed of the balls. The “World Series” device has all these factors. There are numerous holes on the playing surface into which the balls may drop, the metal baseball players are in the nature of pins, and the arches in front of these metal players as well as those in the grandstand control, deflect or impede the direction and speed of the balls. The fact that it simulates a baseball game and hence has slight variations from the regulation bagatelle or pigeonhole games is not important. It is essentially a bagatelle or pigeonhole game. Moreover, reading of the definition of the term “bagatelle” or “pigeonhole” in the ordinance, as above set forth, shows beyond any reasonable doubt that this device comes within the prohibition of the ordinances. Many of the contentions of the plaintiff have been answered in Village of Atwood v. Otter, 296 Ill. 70, which sustained the power granted to cities not only to prohibit the keeping and use of the devices mentioned by the legislature, but also upheld the power of municipalities to prohibit the keeping of any tables or implements used for a purpose similar to bagatelle or pigeonhole in any place of public resort.

Manifestly this device also comes within the prohibition of the amendment to sec. 1 of art. 1 of ch. 36 of the Chicago Code, known as sec. 1893-A, which makes it unlawful for any person, firm or corporation to keep for gain or profit any amusement device the operation of which is governed or controlled by the deposit of a coin or token. This is a coin operated device. The ordinance was authorized under article 5 of the Cities and Villages Act, ch. 24, secs. 41, 45, 58, 66 and 102.

A mass of testimony was taken as to whether this device was a game of skill or of chance, and which, if either, factor predominated. We do not think this is controlling. Neither the statute nor the ordinances mention the factor of skill as an element which would make such a device lawful. If this were important we would be inclined to hold,. after a trial of the device, that the element of chance largely predominates.

We are of the opinion that City of Chicago v. Drake Hotel Co., 274 Ill. 408, cited by plaintiffs, is not in point. There involved was the reasonableness of a city ordinance which provided that no dance should be conducted in a restaurant or public place of refreshment other than a licensed dance hall; it was stipulated that the dances conducted by the defendant were orderly and respectable; it was held that the city had no power to pass the ordinance under the provisions of the Cities and Villages Act giving general power to suppress and prohibit amusements.

Here the ordinances were passed pursuant to a legislative enactment and they clearly come within the authority so granted to the municipality. As we have held, the ordinances having been authorized by the legislature, the only question for this court to deter7 mine is whether the instant device is included in the prohibition of the ordinance and of the statute. The court is not concerned with the question of the results of the operation of the device. That is for the city and the legislature to consider.

For the reasons indicated the injunctional order is reversed and the cause remanded with directions to vacate the decree and to dismiss plaintiffs’ complaint.

Reversed and remanded with directions.

Hatchett, J., concurs.

Mr. Justice O’Connor

dissenting: I dissent. City of Chicago v. Drake Hotel Co., 274 Ill. 408; Levins v. City of Chicago, 296 Ill. App. 645 (Abst.); City of Mt. Vernon v. Julian, 369 Ill. 447.


text:
    Joseph Martin, Appellant, v. Sixty-Third and Halsted State Savings Bank and George Lenz, Appellees.
    Gen. No. 40,315.

      Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellant; Francis E. Hinckley, of counsel.
    Clausen, Hirsh & Miller, of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

At the conclusion of all the evidence in the trial of an action seeking damages for fraud and deceit defendants moved for a directed verdict in their favor; the court, acting under section 68 of the Civil Practice Act, reserved its ruling and permitted the case to go to the jury; a verdict was returned against these two defendants for $10,800; the court then entered its judgment against plaintiff, notwithstanding the verdict, and plaintiff appeals to this court.

Plaintiff’s claim is based upon the sale to him by defendants of a note for $8,000, secured by a mortgage on certain real estate, which he asserts he was induced to purchase by designed misrepresentations by defendants of material facts, and that relying on such representations he purchased the note and mortgage, but subsequently ascertaining that these representations were untrue he tendered back the papers, which were refused; the note was not paid upon maturity; he alleged damages and was sustained in his claim by the jury.

The jury could properly believe that plaintiff had for upward of 15 years dealt with defendant bank and its cashier, Lenz, a defendant; he was a customer of the bank and his relation with its officers was friendly; he had occasionally purchased mortgages from the bank which had been satisfactory; he considered Mr. Lenz a man of good reputation for honesty and integrity.

Plaintiff testified that in September, 1930, he told Mr. Lenz he had about $8,000 and wished to purchase a mortgage on Chicago real estate, but Lenz dissuaded him and recommended a mortgage for $8,000 which he said was secured on property worth at least $25,000 in the village of Goodenow, in Will county; Lenz assured plaintiff the property was a very good piece of land, that the mortgagors were responsible, that they had spent $6,000 or $7,000 in improving the property, having graded it, laid out streets, installed sidewalks and placed water pipes; that the property was right in the town of Coodenow; that when plaintiff suggested he would go to look at it Lenz dissuaded him from doing so, saying he had a second mortgage on it for $5,000. Belying on these representations plaintiff gave his check, payable to defendant bank, for $8,000, with accumulated interest, and received the note and mortgage which he put away in his vault at the bank.

In July, 1931, plaintiff was told by Lenz that the mortgagors could not pay the note when it came due. Constant inquiries by plaintiff at the bank were fruitless, Lenz reporting that the mortgagors could not pay. Plaintiff learned there was no second mortgage on the property; attempts were made by the officers of defendant bank to have plaintiff extend payment of the mortgage note, which he declined to do; when he told one of the officers of the bank he was going to Goodenow to investigate he was assured that everything was all right, that he would get his money, but his reply was that he needed the money at once, but no money was paid; in October, 1931, he visited Goodenow and inspected the mortgaged property.

A well informed witness testified that Goodenow was a tract of 20 acres, platted about the time the C. & E. I. railway was constructed in 1869 or 1870; it is not an incorporated village; there is one general store and post office, an elevator and a tavern; there are about 20 houses altogether.

The 50 acre tract described in the mortgage in question is not in Goodenow but lies to the north. The witness Ferris Gaines was thorougly familiar with the property and described it as the drainage basin of three or four sections of nearby farmland. This property had been sold in 1926 by Ferris Gaines to Henry Thies,. vice president of defendant bank, for $8,000, who had at once sold it to Alice Schneider and Bertha H. Smith for $13,000, taking from them the $8,000 mortgage in question as part of the purchase price; the bank took this $8,000 mortgage and provided the funds for the purchase of the property by Thies, who kept the $5,000 profit on the transaction without any investment by him.

Gaines, the seller of the land to Thies, gave as his opinion that the value of the land when he sold it in 1926 was $8,000, and that in his opinion it was of the same value in September, 1930. Other informed witnesses valued the land at about the same amount. The witness Gaines also testified that they had an awful time getting the thistles out from the land. The note first matured in September, 1929, but was extended by the bank from time to time.

Under the new Practice Act section 68 (3)a, [Ill. Rev. Stat. 1937, ch. 110, § 192; Jones Ill. Stats. Ann. 104.068], either party may request the court for a directed verdict in his favor and the court may reserve his decision, submit the case to the jury and pass upon the motion after verdict is rendered. In Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471, it was held that in passing upon such a. motion the trial court has no more power to weigh and determine controverted questions of fact under the present Practice Act than it had under the old act. See also McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120; Gardiner v. Richardson, 293 Ill. App. 40. In Wolever v. Curtiss Candy Co., 293 Ill. App. 586, 600, 601, it was held that it was only where there was no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict. Farmer v. Alton Building & Loan Ass’n, 294 Ill. App. 206; Synwolt v. Klank, 296 Ill. App. 79. Other-cases to the same effect might be cited.

The essential elements of a cause of action in a case for fraud and deceit are a representation, falsity, scienter, deception and injury. Foster v. Oberreich, 230 Ill. 525, 527. And in other cases it is said that the representations must be shown to be false and known to be false by the defendant making them, or made as a positive assertion, recklessly, and made to deceive the plaintiff, who believed such representations to be true and, relying on them, was induced to part with his money and has suffered damages thereby.

The jury could reasonably find that there was evidence of all these elements in the instant case. Lenz represented to plaintiff that the property securing the note was available subdivision property located in the town or village of Groodenow; that the land was worth from $450 to $500 an acre; that the makers of the note had invested $6,000 to $7,000 in improvements upon the land; that the officers of the bank thought so highly of the land that Lenz had personally lent $5,000, secured by a second mortgage on the land. All these statements were known to defendants to be untrue and were made for the purpose of having plaintiff part with his money.

Defendants cite cases involving a different state of facts. In Malewski v. Mackiewich, 282 Ill. App. 593, the purchasers of a mortgage note for $6,000 claimed they were deceived by the representation that this was the entire indebtedness secured by the trust deed; the note for $6,000 which they purchased was in fact one of a series of 6 notes aggregating $13,000, all secured by the same trust deed. We held that plaintiffs were well acquainted with the security, that they received the note with the trust deed and an opinion of title, with other papers, showing clearly that the entire amount secured by the trust deed was $13,000; we held that upon the facts the verdict should have been for the defendant and that the motion for judgment for the defendant notwithstanding the verdict was properly allowed. Nearly all the cases cited by defendants involved proceedings in equity where some contract or deed was sought to be set aside.

Defendants argue that plaintiff should have fully advised himself as to all the facts and should have tested all the representations made before parting with his money. Whether or not a plaintiff under such circumstances is guilty of negligence is a question of fact to be decided by a jury. Here there were many circumstances, some of which we have referred to, which would justify the jury in concluding that plaintiff was dissuaded from making a thorough investigation. This is the essence of the opinions in Witherwax v. Riddle, 121 Ill. 140, and Kehl v. Abram, 112 Ill. App. 77, 81, affirmed by the Supreme Court in 210 Ill. 218, 224, 225. The facts in the latter case are very much like those in the instant case.

The evidence shows clearly that the makers of the note were unable to pay the indebtedness. Defendants say that Mrs. Schneider had $8,000 of other property out of which to pay the instant note. The record does not support this statement. All it shows in this respect is that Mrs. Schneider owned an old two-story building on South Halsted street in Chicago on which are mortgages aggregating $19,000. There is no evidence as to what the equity is worth. Moreover, the note in question was payable in currency, of which the mortgagors had none, or at least not sufficient to pay the note.

There is some argument as to the amount of the verdict. Defendants did not question this amount upon the trial either by a motion for a new trial or in any other way. In fact, no motion for a new trial was made. Their position, upon the trial and here, with reference to damages is that plaintiff was entitled to nothing. Apparently the jury was of the opinion that plaintiff was entitled to recover the principal amount he gave defendants — $8,000—with interest, which is approximately the amount of the verdict. We see no reason to disagree.

For the reasons indicated the judgment is reversed and the cause is remanded with directions to enter judgment upon the verdict as of the date it was returned.

Reversed and remanded with directions.

Matchett and O’Coxxor, JJ., concur.