author: MORAN, J.

text:
    Keith G. Snelson, Plaintiff-Appellee, v. Pennsylvania Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 64-99.
    Fifth District.
    December 10, 1965.

      Wagner, Conner, Ferguson, Bertrand & Baker, of East St. Louis (Bernard H. Bertrand, of counsel), for appellant.
    Jones, Ottesen & Fleming, of Belleville (Ralph J. Derañgo, Jr., and Patrick V. Fleming, of counsel), for appellee.
   MORAN, J.

Defendant, Pennsylvania Life Insurance Company, appeals from a jury verdict and judgment of the Circuit Court of St. Clair County in favor of Keith 6. Snelson, plaintiff, in a suit to recover total disability benefits under an accident and health policy.

Plaintiff was 54 years of age at the time of trial. He attended school up to the seventh grade, having failed one year. He had no further education of any kind. He went to work at the age of fourteen or fifteen, doing odd jobs for his father, who was a brick contractor. He became a union bricklayer about three years later and bricklaying has been his sole source of income since then, except for a period during the war when he was an insulator for Lubrite Oil Refining Company.

On or about April 1, 1960, defendant had issued to plaintiff as the named insured, an accident and health insurance policy containing what is known as a “total disability clause.” The material portions of the policy provide as follows:

“Pennsylvania Life Insurance Co. does hereby insure the person named in the Policy Schedule (Keith G. Snelson), subject to the terms, provisions, conditions and exceptions of this policy against loss of . . . time resulting directly and independently of all other causes from accidental bodily injury sustained while this policy is in force. . . .
“If ‘such injury’ does not result in any of the specific losses named in Part One but causes continuous total disability and total loss of time within twenty days from the date of the accident and requires regular and personal attendance by a licensed physician, surgeon, osteopath or chiropractor, other than the Insured, the Company will pay at the rate of the Monthly Benefit stated in the Policy Schedule ($200 per month) for one day or more from the first medical treatment so long as the Insured lives and is so disabled, suffers such loss of time and requires such personal attendance.”

Following an accident on June 7, I960, plaintiff made a claim under the insurance policy for total disability benefits. On the basis of such claim and medical information supplied by the plaintiff’s physicians, he was paid the total disability benefit of $200 per month for eleven months. Thereafter, as a result of medical reports submitted by plaintiff’s physician and the report of an examination on May 16, 1961, by Dr. Donald O. Burst, on behalf of the insurance company, defendant discontinued the total disability payments'to plaintiff.

The plaintiff testified that he was injured in June of 1960; that after treatment by medication, a surgical corset and hot baths, an operation on his back was performed in December of 1960; that he did not get any better after the operation; that six months after the operation he had pain in his back and legs; that this pain has not changed except to get worse as he gets older; that his back hurts him constantly; that his legs ache; that he has spasms and his legs pull; that the doctor gives him medicine to take care of the aching; that he takes it sometimes two or three times a day; that the medicine numbs him, takes the pain away to a certain degree and makes him drowsy.

He further testified that he was able to drive an automobile a short distance, to the store and back; that he visits friends once in a while; that he watches television; that he owns two automobiles, that his wife works; that there is one car available to him at all times and when he needs that car he uses it; that he has three used cars other than the ones he and his wife use which are located in his yard; that he is able to dress and undress himself; that he lies in a hammock and rests sometimes during the day; that he has gone to the Social Security office and to the “unemployment place” to try to get a job but was told that “he had guys in better shape than he was and that there wasn’t any work for him and not to come back.”

Charlotte Snelson, wife of the plaintiff testified that she does most of the work around the house, the heavy work being done by some young kids who come in; that she mows the lawn, paints, washes windows, and shovels snow; that the plaintiff shuffles and limps when he walks; that he has a very hard time sitting down or getting up; that he complains to her about pain; that he takes medication two or three times a day; that his sleeping is very irregular; that the only thing he does around the house to help her is to burn trash.

Loretta Mertz, a neighbor and friend of the Snelson family, testified that she and the Snelsons have been neighbors for several years; that she has observed Mr. Snelson around the neighborhood and he appears to be a drunkard from the way he walks and he doesn’t seem to be like a normal man; when he walks, he shuffles, and walks in a stooped position; when he gets up from a chair he grabs his back as if in pain and moans; when he stoops, it seems he has a hard time getting up and when he does get up, he holds onto things and grabs his back.

She further testified that she has observed Mr. Snelson from her home when he was not in a position to know that she was looking at him; that when she sees him, he is always in the same position, and when he walks, he grabs his back and walks stooped and shuffles; that he is the same morning, noon and night; that this condition has stayed the same over the past two years; that Mrs. Snelson does the painting, washing windows and shoveling of snow.

The medical evidence offered on behalf of the plaintiff consisted solely of the testimony of Dr. Bart Cole. He testified concerning his examination of the X rays, the performance of the laminectomy operation, his subsequent treatment of plaintiff following the operation, and the continuous course of treatment up to May 12, 1964, at which time the plaintiff still had objective signs of a physical disorder. He testified as to a hunchback or kyphosis and a list or scoliosis. He prescribed pain killing drugs for the plaintiff throughout the course of his treatment. He further testified that in his opinion the plaintiff had suffered permanent damage to the nerve roots of L-4, L-5 and S-l; that this damage could cause a dull, constant pain which would increase upon movement. He stated that plaintiff was no longer able to do the work of a bricklayer but that “he could do sedentary things, seated at a particular job, a job where he pushes buttons, something like that.”

On May 16, 1961, at defendant’s request, plaintiff was examined by Dr. Donald 0. Burst, an orthopedic specialist in St. Louis, Missouri, who submitted his report of examination to defendant. In summary, Dr. Burst stated that subjectively the patient complains of some headaches with some limitation in the lumbar area; that he also complains of some pain in the left leg, posteriorly, in the thigh and knee and upper portion of the calf. He found, objectively, a well-healed, nontender scar in the midline of the low back about in length with some measure-able difference in the circumference of the two thighs, with the right thigh measuring less than the left. He reported that the patient stated that his pains have always been on the left side and not on the right, following his injury of June 1960.

Dr. Burst, in his report, went on to say: “However, assuming all these things occurred as stated, it is now my impression and opinion that this man will be able to return to full activity by June 20, 1961, at the latest date.”

Dr. Burst again, at defendant’s request, examined plaintiff on May 22, 1963. In summary, Dr. Burst stated as a result of his May 22, 1963 examination of plaintiff, that he was unable to account for the man’s complaints as of that examination based upon his previous difficulty and surgery. It was Dr. Burst’s impression that plaintiff should be able to work as of that date. Dr. Burst stated that he believed plaintiff would have about twenty-five percent permanent partial disability of the man as a whole as a result of his herniated intervertebral disc.

In addition to the evidence of Dr. Burst, defendant introduced evidence to demonstrate that the policy in question is what is known as a total disability policy as distinguished from an occupational disability policy.

Defendant contends that the trial court should have directed a verdict against plaintiff because the evidence established that plaintiff was not totally disabled within the meaning of the language of the policy, because it was a “total disability” policy as contrasted to a policy with an “occupational disability” clause; that the test for payment of benefits under an occupational disability policy is whether or not the insured is prevented by the injury (or sickness) from performing the usual and regular duties of his specified occupation while under a “total disability policy,” the test is not whether he can perform the duties of his particular occupation but whether or not he is able to perform any work or employment for gain or profit.

Defendant further claims that the trial court erred in permitting plaintiff to introduce evidence pertaining to his usual occupation, his inability to perform the duties of same and his prior experience and educational qualifications and that giving of plaintiff’s instruction No. 4 was reversible error because it improperly instructed the jury as to the burden of proof required by plaintiff.

The plaintiff contends that the policy of insurance in question is ambiguous and should have been construed against the defendant to provide benefits in the event the plaintiff was totally disabled from performing the duties of his occupation; that plaintiff may recover even under defendant’s advocated construction of the policy in question, namely, as requiring total disability from performing the duties of any occupation; that defendant has waived any right to object to plaintiff’s instruction No. 4 on appeal since the defendant’s post-trial motion did not contain any specific references to this instruction.

Defendant relies principally on the following cases to support its position: Aronson v. Mutual Life Ins. Co. of New York, 313 Ill App 35, 40, 38 NE2d 976; Sibley v. Travelers’ Ins. Co. of Hartford, Connecticut, 275 Ill App 323, 331, and Buffo v. Metropolitan Life Ins. Co., 277 Ill App 366, 368.

In Aronson, the court distinguished a total disability policy from an occupational disability policy, explaining that in a total disability policy there must be proof that the insured is disabled from engaging in any occupation and performing any work for compensation or profit while in an occupational disability policy it is necessary to prove only that the insured was disabled from transacting duties pertaining to the particular occupation in which the insured is then engaged.

The court construed the policy as a total disability policy and held that the plaintiff was not entitled to recover as a matter of law because the evidence disclosed that he was not totally disabled as a matter of law within the meaning of that policy. The court pointed out that the plaintiff was the successful manager of a hotel of which he was part owner, saying at page 39:

“. . . Plaintiff meets tradesmen, orders supplies such as soaps, paints, varnishes, hardware, etc., accepts deliveries of articles of merchandise, signs delivery tickets, supervises painting and decorating the building, assists in patching holes in the plaster and in doing so has carried plaster about on a piece of board and applied it to the wall with a trowel. He shellacked places in the woodwork and plaster; mixed up paint and painted the bottom part of one bathroom, a job that took him over an hour; washed walls as high as he could reach and delivered furniture about the apartment; carried paint buckets around; collected rents and gave receipts; repairs faucets; counts linens; operates a machine for stamping the hotel linen.”

The foregoing was only a partial description of plaintiff’s activities in the Aronson case.

In holding that Aronson was precluded from recovering under the policy in question as a matter of law, the court said at pages 42-43:

“All of the circumstances of a case of this kind must be considered. Plaintiff here is not an illiterate. He is not a man whose livelihood is lost by mere inability to perform manual labor. He possesses business and managerial experience.”

The loss of livelihood of the plaintiff in the Aronson case and of the plaintiff in the present case is quite different.

In Aronson, plaintiff was actually working at a gainful occupation while claiming total disability benefits. The plaintiff in the present case has not worked at all, even around his own home. Aronson possessed business and managerial experience while the present plaintiff is a man of limited education whose only occupation has been the performance of manual labor.

In Sibley, the policy provided “that after one full annual premium shall have been paid, if the insured will furnish the company with due proof that he has been wholly disabled by bodily injuries, or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the company will waive any future premiums and make the payments agreed upon.” Plaintiff contended that if the evidence showed that he was disabled so that he could not engage in the business in which he was engaged at the time of the injury which was- general contracting, carpentry and concrete work, then he was totally disabled so far as the terms of the policy were concerned. In pointing out the difference between a “total disability policy” and an “occupational disability policy,” the court held this to be a total disability policy which precluded recovery by the plaintiff, saying at page 833-334:

“An examination of the evidence disclosed that the appellee after his injuries drove his automobile on various occasions to adjoining cities, and that in November, 1931, he took his family to California in his automobile and returned to his home in Antioch, Illinois, in the same way; that he and his family stopped at different camps en route and while in California he drove his car to various places on business trips and amusement; that he is a member of the board of trustees of the Village of Antioch and attends the various meetings for the transaction of business that comes before said board; that he remains at these meetings a considerable length of time. He attends social gatherings, picnics, theaters, and plays bridge for extended periods, and at some of the entertainments, dances with his wife and other acquaintances. He makes frequent visits to his friends around his home and goes down town on business and to the post office regularly. He visits the various stores and performs errands while he is down town. He makes trips by automobile and elevated train to his physician in the City of Chicago unassisted. On some of these trips he walks up the stairs to the elevated station and is away from home practically the whole of the day. He drives his car to the City of Chicago, puts it into a garage and drives back home unassisted and does other chores around his home. From this evidence we are of the opinion that the plaintiff has not proved that he is totally and permanently, wholly disabled, by bodily injuries or disease, nor that he had become permanently and wholly prevented thereby from engaging in the business of general contractor, carpenter, concrete and superintendent and working therein, and thereon as claimed in the declaration.”

From the foregoing it is apparent that Sibley was capable of earning a living, but this is not true of the present plaintiff.

In Buffo, the court construed the clause in question to be a total disability clause and not an occupational disability clause, saying at page 369:

“An examination of the record in this case discloses without controversy that the appellee confined his proof solely to that of demonstrating he was unable to perform the duties incident and necessary to that of the wholesale and retail fruit and vegetable business. There is no attempt made to show any. inability to engage in any other occupation or from performing any other work for compensation or profit. Under such state of facts this court is of the opinion that appellee has not proven he is totally and permanently disabled by the alleged injury so as to be prevented from engaging in any occupation and performing any work for compensation or profit, in accordance with the terms of the policy.”

In Buffo, the plaintiff did not even claim that he could not do work other than that of his principal occupation. The present plaintiff claims he is totally disabled.

Plaintiff relies principally on the case of Missouri State Life Ins. Co. v. Copas, 265 Ill App 478. The plaintiff in that case was a coal miner whose experience was limited to manual labor. He was disabled from performing manual labor, and sought recovery of disability benefits under a policy which provided benefits if the insured was “totally and permanently disabled by bodily injury and disease, and wholly prevented thereby from engaging in any gainful occupation.” The defendant insurance company appealed from a verdict judgment in favor of the plaintiff and contended that the plaintiff had to prove that he was totally and permanently disabled for every purpose before he could recover on the policy in question. The Appellate Court rejected this contention even under the clear and strict liability provision involved in that case, saying at page 483:

“This is not the law. In Taylor v. Southern State Life Ins. Co., 106 SC 356, 91 SE 326, LRA 1917C, page 911, the court said:
“ ‘An illiterate three-horse farmer, dependent in large measure on his own strong arm for livelihood, accustomed and trained only to bodily labor, made by disease suddenly and generally unfit for bodily labor, comes within the meaning of the contract; he is deemed totally disabled when he is no longer able to do his accustomed task, or such work as he has only been trained to do, and upon which he must depend for a living. A man of waning years, of small means, of no education, totally dependent upon the strength of his body for a livelihood, is bankrupt when the marvelous and mysterious parts of his organism go wrong.’ ”

The court in that case sustained the finding of the jury as not against the manifest weight of the evidence.

We believe that, Missouri State Life Ins. Co. v. Copas, supra, is in accord with the vast weight of judicial authority throughout the United States. In 29-A, Am Jur, Insurance, Par 1518, the following language appears at pages 622-23:

“In the case of a ‘general disability’ policy, the courts are in conflict as to the type of work which the insured must be unable to perform in order to be totally disabled within the meaning of the policy. Some courts refuse to distinguish between policies which relate specifically to disability in respect to a particular occupation and those which undertake to insure against disability from performing any sort of remunerative labor, holding that total disability occurs in either case if the insured becomes unable to perform the duties of, or labor pertaining to, his particular occupation. According to the rule, recovery will not be prevented by the fact that the insured is able to perform all the substantial and material acts of some other business or occupation. At the other extreme, there is authority for the view that an insured person may not be regarded as totally disabled within a ‘general disability’ clause until he is unable to follow any occupation whatsoever. Under this theory the liability of the insurer does not extend to cases where the insured is still capable of engaging in some occupation for profit. A majority of the courts, however, take the middle ground that it is not sufficient, in order to recover under the ‘general disability’ clause, that the insured is disabled only from engaging in his usual business or occupation, but that he must also be unable to engage in any comparable occupation or employment for which he is fitted by education, experience, and physical condition. These cases proceed upon the theory that the term ‘total disability’ as used in general disability clauses is a relative one depending in a large measure upon the character of the occupation or employment and the capabilities of the insured, and upon the circumstances of the particular case. While under this rule it is not sufficient, in order to recover under the disability clause, that the insured is disabled from engaging in his usual business or occupation, he need not be disabled from following any occupation whatsoever regardless of its character.”

Defendant asks us to adopt one of the extreme authorities by urging that plaintiff is not totally disabled as long as he is able to follow any occupation whatsoever. In Foglesong v. Modern Brotherhood, 121 Mo App 548, 97 SW 240, the court rejected this extreme position and said at page 241 of the Southwestern Reporter:

“We are unwilling to adopt such a doctrine, the effect of which would be, practically, to reduce all such contracts to nullities, and to make them the instruments of extracting dues from policy holders without creating any liability on the part of the insurers. Common knowledge of the occupations in the lives of men and women teach us that there is scarcely any kind of disability that prevents them from following some vocation or other, except in cases of complete mental inertia. We have examples of persons without hearing and without sight following a vocation—some without feet, and some without hands, engaged in business. The achievements of disabled persons are seemingly marvelous. Under defendant’s theory, the plaintiff might embark in the peanut trade or follow the business of selling shoe strings or lead pencils, or follow some similar calling; in which instances, under the rule invoked, there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties. In order to carry out the intent of the parties, it is our duty to disregard the broad language used which would have the effect to defeat the purpose of the contract and render it a nullity.”

We also reject this extreme position and hold that when a man is no longer able to do his accustomed task and such work as he has only been trained to do, and upon which he must depend for a living, he is totally disabled within the meaning of the policy in question. The jury found Snelson to be such a man. There was ample evidence to support its finding.

Defendants argue that because plaintiff’s doctor said that he could do some kind of sedentary work such as being seated at a particular job where he pushes buttons, he is not totally disabled. Under this test it is hard to visualize anyone, other than a blind person, who would be totally disabled within the meaning of this policy.

The question of whether or not the plaintiff was totally disabled from engaging in his regular occupation or some other, was a question of fact for the jury and if there is any evidence to sustain the jury’s verdict, it will not be disturbed. Since there was sufficient evidence to support the essential elements of the plaintiff’s case and present a question of fact for the jury even though the policy in question be construed as a total disability policy, we find it unnecessary to decide whether or not this particular policy is what is known as a total disability policy or an occupational disability policy. Missouri State Life Ins. Co. v. Copas, supra; Davis v. Midland Cas. Co., 190 Ill App 338. The jury answered “no” to the following interrogatory submitted by the defendant: “Is the plaintiff able to do, perform or direct any kind of labor or business for remuneration or profit?”

We will not review defendant’s objection to plaintiff’s instruction No. 4 because objection was not made to this instruction in defendant’s post-trial motion. Chapter 110, § 68.1(2), Ill Rev Stats 1963, provides in part as follows: “A party may not urge as error on review of the ruling on his post trial motion any point, ground or relief not particularly specified in the motion.” Objections to instructions will not be considered on review if not specifically set forth in the objecting party’s post-trial motion. Amenda v. Suits, 8 Ill2d 598, 134 NE2d 811.

The cases cited by both parties commented upon evidence being introduced concerning all of the circumstances involved which included evidence of the educational background and experience of the party involved in addition to his physical incapacity. We therefore find that defendant’s contention that the introduction of evidence concerning plaintiff’s educational background and business experience was reversible error is without merit.

For the foregoing reasons the judgment of the Circuit Court of St. Clair County in favor of the plaintiff and against the defendant is affirmed.

Judgment affirmed.

EBERSPACHER, P. J. and WRIGHT, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Guardianship of Mike Smythe and Susan Smythe, Minors. Alva M. Phillips and Ruth Phillips, Petitioners-Appellees, v. Mike Smythe and Susan Smythe, Defendants, Barbara Hazelip, et al., Defendants-Appellants.
    Gen. No. 65-13.
    Fifth District.
    December 13, 1965.

      David L. Stanley, of Carmi, for appellants.
    Kern and Pearce, of Carmi, for appellees.
   MORAN, J.

This is an appeal from a judgment of the Circuit Court of White County appointing Alva Phillips guardian of the estates and persons of Mike and Susan Smythe.

On July 16, 1964, Alva M. Phillips and Ruth Phillips filed a petition in the Probate Division of the Circuit Court of White County, Illinois asking that Alva Phillips be appointed guardian of the estate and person of Mike Smythe, born May 13, 1958, and of his sister, Susan Smythe, born January 10, 1957. Foster L. Smythe, through his attorney, appeared in the Circuit Court of White County in opposition to the petition. The Circuit Court of White County entered the following order:

ORDER APPOINTING GUARDIAN
And now come Alva M. Phillips and Ruth Phillips, husband and wife, and file and present their petition for appointment of Guardian, and tender bond in the penal amount of $500.00. And the Court, from the verified petition and the evidence presented finds:
Mike Smythe and Susan Smythe are both minors; that said minors resided with their parents in Paducah, Kentucky; that both parents of said minors were killed in an auto accident in Illinois, and that said minors have been hospitalized at Crawford Memorial Hospital, at Robinson, Crawford County, Illinois as a result of injuries received in the accident; that the maternal grandparents of said minors reside at Enfield, White County, Illinois and also the paternal Grandmother; that paternal Grandfather of said minors is a resident of Indiana, at LaPorte, where he lives with his second wife, the step-grandmother of said minors. That the majority of the nearest kin of said minors are residents of White County, Illinois. That there may be a claim for wrongful death, as well as insurance benefits arising from the employment of the Father of said minors, all of which would be assets of the estates of said minors; and that there is likely a small amount of personal property coming to said minors from their deceased parents; and that a guardian of the estates and persons of said minors should be appointed, since each is an infant of tender years; and that the petitioners herein are fit and proper persons to assume the responsibilities of such guardianship.
It is therefore ordered that letters of Guardianship of the estates and persons of said minors, Mike Smythe and Susan Smythe, issue herein to Alva Phillips, a resident of White County, Illinois, whose bond herein has been approved; all in accordance with the prayer of the petition.
ENTER: July 16,1964.
/s/ Charles E. Jones Judge

On July 21, 1964, Barbara Hazelip, paternal grandmother, Foster L. Smythe, paternal grandfather, and Natalie D. Willis, paternal aunt of said minors, filed a motion to vacate the foregoing order on the sole ground that the court was without jurisdiction to enter it. An affidavit and counteraffidavit were filed by the respective parties.

The facts disclosed that Foster A. Smythe and Aldean Phillips were married on April 21, 1956. Two children were born to their marriage, namely Mike Smythe (whose full, correct name is Dann Michael Smythe) born on May 13, 1958 and Susan Smythe who was born on January 10, 1957. Prior to her marriage to Foster Smythe, the said Aldean Phillips Smythe resided in White County, Illinois with her parents. Foster and Aldean first lived in Evansville, Indiana after their marriage, where their two children were born. They moved to Paducah, Kentucky about July of 1961 and resided there until June, 1964, when they moved to Ledbetter, Kentucky where they resided until the time of their deaths.

On July 12, 1964, Foster and Aldean and their two children were involved in a two-car collision in Crawford County, Illinois. Foster died the same day and Aldean died two days later. The children were hospitalized in Crawford County, Illinois. On July 16, 1964, Alva Phillips and Kuth Phillips filed a guardianship petition in the Circuit Court of White County, Illinois and Alva Phillips was appointed guardian of the person and the estate of both children on the same date, over the objection of Foster L. Smythe, who was represented by an attorney.

On July 16, 1964, Mike Smythe was removed from the Crawford County Memorial Hospital and taken to Indiana. The next day, Foster L. Smythe, with the full knowledge of the guardianship order of the Circuit Court of White County, removed Susan Smythe from the Crawford County Memorial Hospital against the advice of the attending physician and over the protest of the hospital administration, and took her to Indiana.

The nearest relatives of the minor children, Mike Smythe and Susan Smythe, are their grandparents: Alva Phillips and Ruth Phillips on the mother’s side, Foster L Smythe and Barbara Smythe Hazelip on the father’s side. All of the grandparents except Foster reside and are domiciled in White County, Illinois and did so live and reside at the time of the issuance of letters of guardianship in this cause. Both parents of said minors are buried at Enfield, White County, Illinois.

Appellants contend that the courts of this state have no jurisdiction of minors in guardianship proceedings other than that given them by statute and that the only statutes giving them jurisdiction are section 133 of the Illinois Probate Act, Smith Hurd Ill Ann Stats, chap 3, and section 2001 and section 2006 of the Illinois Family Court Act, Smith Hurd Ill Ann Stats, chap 23.

The Illinois Probate Act as amended in 1963, reads as follows:
On the filing of a verified petition by a reputable citizen of this State or on its own motion the Circuit Court may appoint a guardian for a minor wherever it appears necessary or convenient. If the minor is a resident of this State, the guardian of his estate and person shall be appointed by the Circuit Court of the county in which he resides. If the minor is not a resident of this State, the guardian of his estate shall be appointed by the Circuit Court of the county in which he owns real estate, or if he owns no real estate in this State, by the Circuit Court of the county in which he owns personal estate.

Appellants argue that the above statute does not give the courts of this state jurisdiction to appoint a guardian of the estate or of the person for a nonresident minor who has no estate in Illinois; that since both children are nonresident minors without property, the Circuit Court of White County had no jurisdiction to appoint a guardian for the Smythe children.

Appellants concede that the courts of Illinois have jurisdiction over nonresident minors who have no estate in Illinois and who are in need of protection. However, they claim that this jurisdiction can be exercised only through the Family Court Act, Smith Hurd Illinois Stats, chap 23, sec 2001 and sec 2006, wherein jurisdiction is conferred upon the courts of the several counties to establish guardianships for minors found in their respective counties who are in need of the protection and assistance of the courts. They contend the Circuit Court of White County had no jurisdiction under this act because thé Smythe children were not physically in White County, Illinois at the time of the appointment and in any event, the petitioners herein did not proceed under the Family Court Act.

Appellees contend that the Smythe children acquired a domicile in White County, Illinois after the death of their parents because three of the four living grandparents of the children reside in White County; that the Circuit Court of White County had jurisdiction to appoint a guardian of the estate of the Smythe children because they had certain items of personal property located in White County which had belonged to their parents; that the Circuit Court of White County had the power to appoint a guardian for the estate and person of the Smythe children because they were without parents at the time of the appointment and were within the territorial boundaries of Illinois.

Shine v. Wabash Ry. Co., 8 Ill App2d 521, 132 NE2d 41 (1956) and other authorities cited by appellant hold that the probate courts of this state obtained their jurisdiction to appoint guardians for minors from section 133 of the Illinois Probate Act and that therefore the requirements of this section were jurisdictional as far as the probate courts were concerned. In our opinion these authorities conflict with the holding of our Supreme Court in the case of In re Estate of Willavize, 21 Ill2d 40, 171 NE2d 21 (1961), which holds that section 54 of the Probate Act must be considered to be a venue provision rather than one of jurisdiction. In so holding, the Supreme Court stated at page 43:

. . . The existence of this jurisdiction in the county or probate courts is based upon the constitutional provisions found in sections 18 and 20 of article VI of the constitution of 1870, and on the statutory grant of jurisdiction found in the acts relating to county and probate courts. (Ill Rev Stat 1959, chap 37, pars 175 and 303.) Thus, jurisdiction of probate matters is established not by the Probate Act but, rather, by other constitutional or statutory provisions.

Although a different section of the Probate Act is involved here, it is apparent from a reading of the Willavize case that our Supreme Court would apply the same reasoning to section 133 of the Probate Act if ever called upon to decide whether this section was one of jurisdiction or one of venue.

However, assuming that Shine and the other authorities cited by plaintiff properly held that the probate courts of this state had no jurisdiction to appoint guardians for minors other than that given them by the Illinois Probate Act, they are not authority for holding that the circuit courts of this state are likewise without this power because of this statute. The probate courts of this state were abolished by the new judicial article which became effective January 1, 1964. The order appointing Alva M. Phillips guardian of the persons and of the estates of Mike and Susan Smythe was entered on July 16, 1964 by the Circuit Court of White County. The contention here is that the Circuit Court of White County had no jurisdiction to make this appointment. Therefore, we must consider not what power the probate courts had prior to the passage of the judicial article, but only what power the circuit courts of this state now have to appoint guardians for the estates and persons of minors.

If the circuit courts of this state exercise only a statutory jurisdiction to appoint guardians for minors found in its jurisdiction, then we must look to the statutes permitting this proceeding because such jurisdiction is derived only from the statute creating the action. (Sweitzer v. Industrial Commission, 394 Ill 141, 68 NE2d 290.) However, if the power of the court to act exists independently of the statute, the interpretation of the statute is a mere abstract question not necessary for the determination of the issue presented.

The case of The People ex rel. Ryan v. Sempek, 12 Ill2d 581, 147 NE2d 295, held that the jurisdiction of chancery courts to appoint suitable persons to act as guardian when the children do not have proper care is independent of the Family Court Act, saying at page 584:

The rule is well settled that if the power to act in the particular case exists independently of the statute, the validity of the latter is a mere abstract question not necessary for determination of the issue presented.

Therefore, if the circuit courts of this state have inherent power to appoint guardians of the estates and persons of minors, independent of statute, a discussion of whether the statute purporting to give this jurisdiction to the courts had been complied with is irrelevant to the question of whether or not the circuit courts of this state have such jurisdiction. In Thomas v. Thomas, 250 Ill 354, 95 NE 345, the court said at pages 364, 365:

There is another power which courts of equity have concerning inf ants, and their property, and that is the appointment of guardians. (Hohenadel v. Steele. 237 Ill 229.) The source of this jurisdiction is quite uncertain. Whether the power was originally a mere usurpation, or was legally delegated to the chancellor by the crown as parens patriae, or grew out of the practice of appointing guardians ad litem, the jurisdiction exists here by inheritance from the English courts of chancery and not because equitable rights or titles are involved. Like the power of any other court to appoint a guardian, that jurisdiction may be exercised upon a proper petition or application for the appointment of a guardian.

The Supreme Court approved this language in People ex rel. Houghland v. Leonard, 415 Ill 135, 112 NE2d 695, saying at 138, 139:

. . . Historically, courts of chancery, representing the government, have exercised jurisdiction over the person and property of infants to insure that they were not abused, defrauded or neglected. (Cases cited.) As has been pointed out, one method by which this general equity power over infants was exercised has been the appointment of guardians.

In the Matter of the Petition of Alexander Ferrier, 103 Ill 367, the court said at page 371:

The power conferred, under the act in question upon the county court is but of the same character of the jurisdiction exercised by the court of chancery over the persons and property of infants, having foundation in the prerogative of the Crown, flowing from its general power and duty, as parens patriae, to protect those who have no other lawful protector.

In Ames v. Ames, 151 Ill 280, 37 NE 890, the court said at page 285:

Courts of equity have plenary jurisdiction over the persons and estates of infants, and will in the exercise of that jurisdiction, cause to be done whatever may be necessary to preserve their estates and protect their interest. (Cases cited.)

In discussing the jurisdiction of probate courts, Howell v. Moores, 127 Ill 67, 19 NE 863, held that under the constitution circuit courts had original jurisdiction in all cases at law and in equity, therefore the jurisdiction conferred upon the county or probate courts was concurrent only with that previously existing in the circuit courts in matters of trust; that under the constitution this equity jurisdiction could not be taken from the courts of equity by the legislature. The Howell case was quoted with approval in Chapman v. American Surety Co., 261 Ill 594, 104 NE 247, when the court held that in addition to having a paramount jurisdiction in matters of the administration and settlement of estates, courts of equity have also “similar plenary jurisdiction over the persons and estates of infants, and in exercising that jurisdiction may cause to be done whatever may be necessary to preserve their estates and protect their interests.”

From the foregoing authorities we find that the circuit courts of this state have an inherent plenary jurisdiction to appoint guardians of minors independent of any authority given to the courts by the legislature under either or both of the aforementioned statutes.

We distinguish this case from People ex rel. Pauling v. Misevic, 32 Ill2d 11, 203 NE2d 393, People v. Nunes, 58 Ill App2d 55, 207 NE2d 143, and Cowdery v. Northern Trust Co., 321 Ill App 243, 53 NE2d 43, which hold that the circuit courts of this state have no inherent jurisdiction over the estates or persons of insane persons and the state, as parens patriae, exercises the same control over insane persons as was formerly exercised in England by its king, and therefore this power is exercised by the courts only through legislative enactments.

Under the Illinois Constitution of 1818 and the statutes enacted pursuant thereto, the circuit courts of this state possessed original jurisdiction in all matters of chancery as the same had previously been exercised and understood in the courts of this country and England and they possessed no other or further powers or jurisdiction. (Dodge, Conservator v. Cole, et al., 97 Ill 338.) Under section 12 of article VI of the Constitution of 1870, circuit courts were vested with original jurisdiction of all cases of law and equity and therefore were courts of general common law jurisdiction.

The courts of England never had jurisdiction over insane persons or their property. There was no proceeding under the laws of England by which the courts could exercise such jurisdiction. This power belonged to the king under the doctrine of parens patriae and was exercised by him through the lord chancellor. Although this jurisdiction was exercised by the lord chancellor in the high court of chancery, yet it was not exercised by him in his character of chancellor or by virtue of the general powers pertaining to that court, but on the contrary, by virtue of a separate and distinct commission under a sign manual from the crown. (The king’s signature on a royal grant or charter placed at the top of the document.) (People v. Nunes, 58 Ill App2d 55, 207 NE2d 143; Dodge, Conservator v. Cole, et al., 97 Ill 338; Maddock’s Chancery, Vol II, page 723, published 1827.)

On the other hand, courts of equity from time immemorial have upon proper application, assumed jurisdiction over the persons and property of infants. (Dodge, Conservator v. Cole, supra.) In Maddock’s, A Treatise on the Principles and Practice of the High Court of Chancery, published in 1827, Volume I at page 331, the author says:

The Court of Chancery, therefore, it seems, has the exclusive care over Infants: and though by Act of Parliament the Court of Wards had a particular power over Infants and Lunatics, yet in every other respect the Law as to Infants continued as before; and when the Court of Wards and Liveries was dissolved by the 12 Car 2 c 24, the power of the Court over Infants resulted back to them again in its original extent.

Since under our constitution the circuit courts of this state inherit their general powers from the common law of England and since the English courts had no power over the estates or the persons of lunatics and idiots, therefore the circuit courts of this state have no power over their persons or estates without a statutory enactment, because this being a prerogative exclusively belonging to the crown of England, our legislature and not our courts obtained this power upon the enactment of our constitution. However, since the circuit courts of this state were granted jurisdiction “in all cases at law or equity” under our prior constitution and since the English courts of chancery had jurisdiction over the persons and the estates of infants, therefore the circuit courts of this state were granted a plenary jurisdiction over the estates and persons of infants by the adoption of our constitution.

Since the Circuit Court of White County had jurisdiction of the subject matter, its order must be upheld if it also had jurisdiction of the persons.

The Supreme Court of the United States has never placed constitutional limitations upon the power of the state court to appoint a guardian for minor children. Where there is not outstanding judicial award of custody by a foreign court, the courts are nearly unanimous in holding that even though the children may be domiciled without the state, the power in the court exists to make an award of custody of children present in the state in furtherance of the welfare of the children. (See authorities collected in 4 ALR2d, page 16.)

At the time the Circuit Court of White County entered its order appointing Alva Phillips, maternal grandfather of Mike Smythe and Susan Smythe, guardian of their persons and estates, the children were in this state. Therefore, the courts of Illinois had the power to award custody of these children even though the children may not have been domiciled in or were legal residents of Illinois.

In the People v. Wingate, 376 Ill 244, 33 NE2d 467, our Supreme Court said at page 250:

The jurisdiction of a State to regulate the custody of infants found within its territory does not depend upon the domicile of the child. It arises out of the power that every sovereignty possesses as parens patriae to every child within its borders to determine its status and the custody that will best meet its needs and wants.
(Woodworth v. Spring, 4 Allen, 231; White v. White, 77 NH 26, 86 A 353; Hanrahan v. Sears, 72 id. 71, 54 A 702.)

The cases cited in the above language from People v. Wingate hold that a state court has the power to determine the status and custody of children within its borders without regard to the domicile or residence of said children. The basic principle in custody cases is that the state seeking to exercise such jurisdiction must be so closely connected with the welfare of the child that it is in furtherance of his interest that his custody be determined in that state. (In re Fore, 168 Ohio 363, 155 NE2d 194.)

The Smythe children were orphans in need of the protection of the courts of this state. Three of their four grandparents resided in White County, Illinois. Their mother was born in White County and resided there until she met and married their father. The bodies of their parents are interred in the soil of White County. Since White County, Illinois is much more closely connected with the welfare of the Smythe children than any other place disclosed in this record, it would be the most logical place for the circuit court to exercise jurisdiction over them. However, assuming that this were not true and that jurisdiction should be exercised in some other county, this would not present a jurisdictional problem, but rather a problem of venue. (In re Estate of Willavize, supra.)

The need for court protection for orphan children found in the state of Illinois can best be illustrated by what actually happened to Mike and Susan Smythe while they were hospitalized in the Crawford County Memorial Hospital because of their injuries. On July 16, 1964, the very day that Alva Phillips was. appointed guardian of the persons and the estates of these children, Mike Smythe was forcibly taken from the hospital and from the state of Illinois. On the next day the appellant, Foster L. Smythe, paternal grandfather of these children removed Susan from the Crawford County Memorial Hospital against the advice of her attending physician, against the advice of the hospital administration and with full knowledge of the court order awarding custody of these children to Alva M. Phillips. In doing this he signed an acknowledgment that he had been informed of the risk involved and signed a release, releasing the attending physician and the hospital from any ill effects which may have resulted from her discharge.

We hold that the Circuit Court of White County had jurisdiction of the subject matter and of the persons of Dann Michael Smythe, a minor, Susan Smythe, a minor, of Foster L. Smythe and all other parties to the proceedings when it entered its order appointing Alva Phillips guardian of the persons and of the estates of Dann Michael Smythe, a minor, and Susan Smythe, a minor. Since the considerations that we have pointed out in deciding this case go to the jurisdiction and not to the merits of this controversy, nothing that we have said in this opinion will preclude the appellant from obtaining a hearing on the merits of this case before the Circuit Court of White County to determine what is for the best interests of the children. The judgment of the Circuit Court of White County is therefore affirmed.

Judgment affirmed.

EBERSPACHER, P. J. and GOLDENHERSH, J., concur.


author: EBERSPACHER, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Francis Beshears, Defendant-Appellant.
    Gen. No. 64-104.
    Fifth District.
    December 15, 1965.

      Norman H. Kinder, Jr., of East St. Louis, for appellant.
    John M. Karns, Jr., State’s Attorney, of Belleville (Robert L. Jennings, of counsel), for appellee.
   EBERSPACHER, P. J.

This defendant was arrested and placed in the St. Clair County jail on August 25, 1963. On November 27, 1963, the State’s Attorney of St. Clair County filed an information charging that the defendant, Francis Beshears, on the 25th day of August, A. D. 1963, within the County of St. Clair, did contribute to the sexual delinquency of a certain child, in that defendant, performed lewd fondling and touching of said child with intent to arouse and satisfy the sexual desires of said child and the defendant. On the same date the State’s Attorney also filed a petition to have defendant declared a sexually dangerous person in which it was alleged that defendant had been charged with the crime of contributing to the sexual delinquency of a minor child, as stated above, and that he was suffering from a mental disorder which had existed for at least one year immediately prior to- the filing of the petition, and that the mental disorder was coupled with criminal propensities to the commission of sex offenses. The petition alleged that defendant had been arrested on July 22, 1956 on a charge of statutory rape for having, allegedly, had sexual intercourse with a seven-year-old girl, and that he had been arrested again on September 20,1959, for having, allegedly, molested an eleven-year-old girl. The petition prayed that the court appoint two qualified psychiatrists to make a personal examination of the defendant in order to ascertain whether he was sexually dangerous.

An order was entered on November 27, 1963 appointing Doctors Groves B. Smith and John H. McMahan to examine the respondent in order to ascertain whether he was sexually dangerous.

On May 20, 1964, a hearing was held in the Circuit Court of St. Clair County. Prior to this time Mr. Beshears had been represented by retained counsel who had evidently withdrawn from the case at this time, and the Public Defender in St. Clair County, was appointed to represent the defendant. At this time the Public Defender made a motion that the defendant be discharged on the basis of the “four months” rule since he had been incarcerated in the County Jail in excess of 120 days. The court stated that this was a civil proceeding and the civil rule would apply and the motion would be denied.

At the hearing, a witness testified that he was a Sergeant on the East St. Louis Police Department and that on July 22, 1956, he had had occasion to arrest the defendant. The Sergeant further testified that at that time this defendant had freely and voluntarily given a statement and the said statement was offered into evidence. The nature of the complaint at that time, which was made either by the minor girl or by her mother, was that the girl had been molested by defendant.

Another witness testified that on September 20, 1959, he was employed as an usher at the Majestic Theatre in East St. Louis. While working that day he received a complaint that the defendant was bothering some small girls in the show. He went upstairs in the balcony and watched him over the side where he saw the defendant bothering some small girls and the police were called to the scene. Mr. Beshears was not arrested at the Majestic Theatre since he had already left the scene. However, he was arrested on the street near the theatre. The witness testified that he s.aw the defendant touch the legs of one little girl but he could not tell if her dress was up or disarranged, nor did he see him touch any other part of her body.

Another Sergeant testified that on September 20, 1959, he was a member of the East St. Louis Police Department and that on that date he received a call to investigate a molestation of a child at the Majestic Theatre. After arriving at the theatre the police were told that the defendant had left and walked down Collinsville Avenue toward Missouri and they went out and subsequently placed him under arrest in the 400 block of North Fifth Street. He was brought back to the Majestic Theatre and identified by the girl and then taken to the police station. No oral or written statement was taken at that time. The girl had told the police that the defendant was playing with her legs but the Sergeant did not remember whether or not she stated that he had his hand under her dress or on her knee or thigh.

Disposition of neither of these charges is shown in the record, and no record of conviction on either of these two charges was introduced into evidence.

The defendant was called by the State’s Attorney under Section 60 of the Civil Practice Act. A timely objection was made to calling him under this section on the basis of the privilege against self-incrimination; the motion was overruled. After reading his statement of July 22, 1956, defendant testified that it bore his signature but that he was not sure whether it was correct since it had been such a long time ago; that he had a propensity to want to touch and fondle little girls since he came back from Korea; that on Sundays he drank quite heavily and that is when he usually got into trouble. That all he did to the girls was to kiss them several times, and never went any farther. That he was examined by two doctors but he did not know who they were or what they were.

The psychiatric reports of Dr. Smith and Dr. McMahan were introduced into evidence. Neither defendant nor his attorney was ever given a chance to examine these reports ; and when the court commented that the defendant should be furnished copies, the Assistant State’s Attorney stated that their office only had one copy.

The psychiatric report of Dr. McMahan, states that,

“There is no psychiatric disorder. In my opinion the above has sufficient mental capacity to understand the charges made against him and to aid and dispate in his own sense.”

It has been suggested that the last five words were probably intended to be “participate in his own defense.”

The psychiatric report of Dr. Smith, after reciting a number of admissions and statements which tended to incriminate defendant, concludes,

“Diagnosis-sexually dangerous person under the meaning of the Sexually Dangerous Act; inadequate personality with definite character changes of a sex deviate type.”

After hearing the evidence the court declared the respondent to be a Sexually Dangerous Person and committed him to the care and custody of the Director of Public Safety.

Defendant by his court appointed attorney, has most capably and studiously presented to this court by both brief and oral argument, 5 assignments of error.

He urges first, that the psychiatric reports did not establish that defendant was a sexually dangerous person and that the order finding him to be sexually dangerous was against the manifest weight of the evidence; Second, that defendant should have been furnished copies of the psychiatric reports prior to the time of the hearing on the petition; Third, that the court erred in forcing defendant to testify at the hearing as an adverse witness under the provisions of Section 60 of the Civil Practice Act; Fourth, Beshears should have been discharged from custody by the trial court because he was held in jail in excess of 120 days in violation of Chapter 38, Sec 103-5, Ill Rev Stats 1963; and lastly, that error was committed when testimony concerning defendant’s two prior arrests on similar charges was allowed into evidence.

In support of the first contention, appellant cites People v. Howell, 12 Ill App2d 84, 138 NE2d 691, where the question of whether or not the defendant was a sexually dangerous person was tried before a jury. The evidence revealed that one doctor filed his report, which stated it was his opinion that the defendant did classify as a sexually dangerous person, and recommended that defendant be tried under the Sexually Dangerous Persons Act. The report of the other doctor concluded that defendant was an exhibitionist, and stated that he did not believe defendant was sexually dangerous. The only other persons testifying were the defendant, who contended that he was changing his trousers while seated in his automobile on a country road, and the County Jailer, who testified that during the months defendant was in jail no evidence of abnormal sexual conduct on the part of defendant was observed or reported. The court, in holding that the verdict was against the manifest weight of the evidence, said,

“We have carefully reviewed the evidence in this case. We have noted the differences in the testimony of the two psychiatrists who testified on behalf of the People, one stating that defendant was a sexually dangerous person, the other stating that he was not. Particular attention has been directed to the testimony of the Deputy Sheriff, in whose custody defendant remained for several months prior to the trial. Although the jury is primarily judge of the facts and the weight and credibility of the evidence, we should not hesitate to reverse a judgment where the evidence on which it is based is of an unsatisfactory character. A reviewing court will set aside a verdict which is against the manifest weight of the evidence.”

Here Dr. Smith’s diagnosis was that Beshears was a sexually dangerous person under the Act, and Dr. Mc-Mahan’s diagnosis was that there was no psychiatric disorder. In the Howell case both doctors agreed there was no psychiatric disorder, but only one doctor diagnosed the defendant as a sexually dangerous person. We consider the reports in this case as much in conflict as .they were in that case, however in view of the state of this record, it is not necessary to determine whether the order was against the manifest weight of the evidence.

The State urges that there was no error in not furnishing copies of the reports to defendant or his counsel since defendant’s counsel in the trial made no request for them until the close of all the evidence. In view of the state of this record, we need not determine whether the failure to furnish copies was in this case reversible error, but would call attention to the mandatory language of the statute, Ill Rev Stats 1963, ch 38, sec 105-4 and the case of People v. McDonald, 44 Ill App2d 348, 194 NE 2d 541 in which the court said:

“The present action being predicated upon an insufficient petition which petition failed to allege facts tending to show that the person named is a sexually dangerous person and the failure to file with the Court and deliver a copy to defendant of the written findings of the psychiatrists compels us to reverse and remand this cause.”

If the defendant had been forwarded copies of the reports, as required by statute, Dr. McMahan’s conclusion of “no psychiatric disorder” could have been emphasized to the court, and defendant’s privilege against self-incrimination in statements and admissions to Dr. Smith could have been preserved.

The State contends, in answer to the last three contentions of defendant, that such contentions are directed entirely to a criminal proceedings, and that the proceedings under the Sexually Dangerous Persons Act are civil in nature and have no connection with the question of criminal guilt or innocence of the defendant, and that the provisions of the Civil Practice Act apply. The statutory provision, Sec 105-3.01, Code of Criminal Procedure of 1963, is:

“The proceedings under this Act shall be civil in nature. The provisions of the civil Practice Act including the provisions for appeal, and all existing and future amendments of said Act and modifications thereof and the rules now or hereafter adopted pursuant to said Act shall apply to all proceedings hereunder except as otherwise provided in this Act.”

That the objective of the Act is the care and treatment of sexually dangerous persons, as well as the protection of society by sequestering the sexual psycopath so long as he is dangerous and to subject him to treatment so that he might recover from his condition and be rehabilitated is conceded.

In People v. Redlich, 402 Ill 270, 83 NE2d 736, our Supreme Court construing the Act said at page 275:

“The foregoing statute was the subject of consideration by this court in People v. Sims, 382 Ill 472, where the act was held valid. It was there unsuccessfully contended that the act was invalid in discriminating between criminal sexual psychopathic persons who are charged with crime and those who are not so charged and in permitting evidence of the commission of other crimes to be introduced upon hearing. This court in the Sims case pointed out that the proceeding provided for by the act is not a criminal proceeding and that the statute is in its operation not unlike the statutes providing for an inquiry into the sanity of one charged with crime before trial on the indictment.”

and at page 276:

“The trial of the question of his insanity, feeble-mindedness, or psychopathy, as defined by statute, is no part of the criminal proceedings, has no connection with his guilt or innocence, and is not in aid of a determination of that question, but the sole object of the proceeding is to ascertain the mental condition of the accused, whether or not insane, feebleminded or psychopathic, as defined by statute, so as to determine if he should be required to plead to the indictment and be placed upon trial for the offense charged.”

In the present case, the trial court in denying the motion for discharge on the basis of the “four months” rule and in ruling on the objection to defendant being called under Section 60 of the Civil Practice Act, considered the proceeding to be civil and that the Practice •Act would apply. In People v. Capoldi, 10 Ill2d 261 at page 267, Chief Justice Klingbiel said:

“The State argues, however, that the present proceeding is not a criminal case, and that the statements were not admitted in their character as confessions but merely as admissions against interest.
“Insofar as the present requirements of due process are concerned, it is of little significance that the proceedings are civil in nature. A defendant found to be a sexually dangerous person under the act is deprived of his liberty as a consequence, and must be accorded the protections of due process in his trial.”

In People v. Olmstead, 32 Ill2d 306, 205 NE2d 625, the Supreme Court, in an opinion dealing with this Act, speaking through Justice Solfisburg, said:

“We agree that although these proceedings are called civil in nature, they may result in a deprivation of liberty and a defendant must be accorded the essential protections available in a criminal trial.”

citing the Capoldi case.

The Capoldi case was likewise cited in People v. Nastasio, 19 Ill2d 524, 168 NE2d 728, in which a hearing was conducted under this Act, certain depositions, taken outside the presence of the defendant, were introduced into evidence. The Supreme Court, speaking through Justice Schaefer, said:

“To sustain the use of depositions in this case, the People emphasize the civil nature of proceedings under the Sexually Dangerous Persons Act, and point out that the authority to use depositions in a civil case is of course unquestioned. . . .
“Despite this legislative direction that proceedings under the act shall be civil and that the Civil Practice Act shall apply, the proceedings in fact closely resemble criminal prosecutions in many critical respects. A hearing may be had only after the defendant is charged with a criminal offense, evidence of crimes may be introduced at the trial, and an adverse verdict subjects the defendant to indefinite incarceration. Ill Rev Stats 1959, chap 88, pars 822, 824, 825a. This court had these similarities in mind when it held that admission in evidence of statements in the nature of confessions, without preliminary proof of their voluntary character, violates due process of law in commitment proceedings under the act as well as in trials for criminal offenses. People v. Capoldi, 10 Ill2d 261, 139 NE2d 776.
“Similar considerations are operative here. Many decisions suggest that difficult constitutional issues would be raised by the use of depositions in proceedings which so closely resemble criminal prosecutions. ... It is our duty so to interpret the statute as to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity. Both ends will be served by holding, as we do, that while the general structure of the Civil Practice Act- has been adopted, the use of depositions taken out of the presence of the defendant has not been authorized.”

The basis of the privilege against self-incrimination is found in the Constitution of the State of Illinois in which it is stated, “No person shall be compelled in any criminal cause to give evidence against himself,” art II, section 10; and while this provision is very narrow, purporting to apply only “in any criminal cause” it has been interpreted in a somewhat broader view. In Kantner v. Clerk of the Circuit Court, 108 Ill App 287 at page 301, the court said:

“The constitutional exemption from compulsion in this regard extends to all proceedings sanctioned by law.
“Neither civil nor criminal courts, quasi-judicial tribunals, grand juries, commissioners, courts martial or inquisitors of any kind can compel a person to give evidence which may tend to convict him of a criminal offense.”

The question of the privilege against self incrimination as afforded to a defendant under the Sexually Dangerous Persons Act has been decided by the Supreme Court of Illinois in People v. English, 1964, 31 Ill2d 301, 201 NE2d 455. In that case a petition was filed under the Sexually Dangerous Persons Act to have the defendant declared a sexually dangerous person. The court appointed two qualified psychiatrists to personally examine defendant as provided by the statute and order the defendant to appear before them individually for an examination. English appeared before the psychiatrists and informed each of them that he felt the compulsory examination was a violation of his constitutional right. No examination was conducted and the court held the defendant in contempt of court. After discussion of the nature of the privilege against self incrimination and of due process as applied to a proceeding under the Act in question the Supreme Court, speaking through Justice House, said at page 307:

“We hold that the privilege against self incrimination protects defendant from making any statements to the psychiatrist which may tend to incriminate him.”

The court continued:

“This does not mean, however, that defendant is privileged from submitting to any examination. In People v. Greer, 28 Ill2d 107, and People v. Munziato, 24 Ill2d 432, we held that the privilege protects only against testimonial compulsion.”

The privilege protects against testimonial compulsion.

We therefore hold that in a proceeding under the Sexually Dangerous Persons Act the calling of the defendant under Section 60 of the Civil Practice Act, when objection is made, is a violation of the defendant’s constitutional privilege against self-incrimination.

Section 103-5 of The Code of Criminal Procedure provides, in essence, that every person in custody for an alleged offense shall be tried within 120 days from the date he was taken into custody unless the delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal. Every person not tried in this period of time is to be discharged from custody or released from the obligations of his bail or recognizance as the case may be.

While there are no cases on this point it does not appear that a psychiatric examination conducted under the provisions of the Sexually Dangerous Persons Act is the type of competency hearing contemplated by this section. The competency provisions of the Code are found in ch 38, § 104-1 et seq., and are concerned with the ability of a defendant to understand the nature and purpose of the proceedings against him or his ability to assist in his own defense. This was not the type of phychiatric examination to which Beshears was subjected, even though it is possibly the type of conclusion that was made by Dr. McMahan.

In this aspect of the case, perhaps more so than in any other, it is quite clear how the requirements of due process were violated. Mr. Beshears was arrested on August 25, 1963 and was placed in the St. Clair County jail in Belleville. On November 27, 1963, or some three months and two days after the arrest, an information and petition were filed in the Circuit Court of St. Clair County. On that same day, November 27, 1963, an order was entered appointing the two psychiatrists to examine the respondent. The psychiatrists were quite prompt in making their reports; Dr. Smith’s is dated December 6, 1963, and Dr. McMahan’s is dated December 12, 1963. The hearing in the Circuit Court was held on May 20, 1964, some five to six months after the psychiatric reports were completed. There is not one scintilla of evidence in the record that any of the delay was caused by the respondent. These are the facts and if a person can be incarcerated for this period of time and cannot remedy the situation because the Act is “civil in nature” then the Act is fraught with danger and the possibilities of its abuse are frightening.

The courts of Illinois have frequently admonished that due process of law must be followed in proceedings conducted under the Sexually Dangerous Persons Act; People v. Capoldi, supra; People v. Nastasio, 1960, supra; People v. Olmstead, supra, because of the possibility of lengthy incarceration and the close connection with the Criminal Law. When a respondent has been incarcerated for approximately nine months, and none of the delay is attributable to him, between the time of arrest and the time of trial it cannot be said that due process of law has been met.

The General Assembly has seen fit to incorporate into the Act, Section 5 (Code of Criminal Procedure, Sec 105-5) which provides in part:

“At the hearing on the petition it shall be competent to introduce evidence of the commission by the respondent of any number of crimes together with whatever punishments, if any, were inflicted.”

The courts recognize that there is a fundamental difference between the introduction into evidence of an arrest and the introduction into evidence of a conviction. In People v. Bennett, 413 Ill 601, 110 NE2d 175, the defendant was charged with burglary and larceny. The State’s Attorney, during the course of the trial, made inquiry as to whether defendant had been arrested since March 19, 1951. The Trial Court required defendant to answer this question. The Supreme Court of Illinois, in its review of that case, said:

“It is fundamental that mere proof that a party has suffered arrest cannot be used against him at a criminal case. The rule is different, however, where the defendant has previously been convicted of a felony, but even then only the record of the conviction or a certified copy thereof may be introduced as proof. People v. Herbert, 361 Ill 64, 196 NE 821, People v. Garippo, 321 Ill 157, 151 NE 584, People v. Schultz-Knighten, 277 Ill 238, 115 NE 140. Evidence of such arrest could not but prejudice the defendant before the jury. The defendant has a right to be tried by the law of the land, and a conviction secured through the use of improper questions cannot be condoned. People v. Page, 365 Ill 524, 6 NE2d 845, People v. Garinas, 314 Ill 413, 145 NE 699. The admission of the evidence was error.”

In the instant case, no certified copy of any conviction nor any record of any conviction were introduced into evidence nor was there any testimony that Beshears was ever convicted of any crime. The only evidence, concerning this aspect of the case, in the record, is the testimony of the policeman from the East St. Louis Police Department that the defendant has been arrested on two prior occasions for offenses similar to that involved in this case. This evidence was not competent, because evidence of arrests is not competent to prove “commissions of crimes.”

The order of the circuit court must be reversed, and in view of the fact that the criminal charge on which defendant was held in jail for more than four months cannot be prosecuted, and thus cannot serve as the basis for proceedings under the Sexually Dangerous Persons Act, no proper legal purpose would be served by remanding this cause.

The judgment declaring the defendant Francis Beshears a sexually dangerous person, is reversed.

MORAN and GOLDENHERSH, JJ., concur.


author: GOLDENHERSH, J.

text:
    Hughie Adell Clubb, Administratrix of the Estate of Everett Vernon Clubb, Deceased, Plaintiff-Appellant, v. George Main, Defendant-Appellee.
    Gen. No. 65-47.
    Fifth District.
    December 17, 1965.

      Jack Williamson, of Vienna, for appellant.
    Robert H. Chase, Chase and Forman, of Metropolis, and Donald R. Mitchell, Mitchell & Green, of Murphysboro, for appellee.
   GOLDENHERSH, J.

Plaintiff, as administrator of the estate of Everett Vernon Clubb, filed her complaint in the Circuit Court of Johnson County, alleging that her intestate decedent was employed by defendant on his farm, that while so employed, he fell from the tractor furnished him by defendant, and suffered injuries causing his death. She charges defendant with negligence in that defendant negligently failed to furnish the deceased with reasonably safe and proper machinery, and negligently required him to operate the tractor with a seat which was loose and unstable. Defendant answered, denying the allegations of negligence, and alleging by way of “special defense” that the decedent was aware of the dangers involved and assumed the risks as an ordinary incident to the discharge of his duties. Plaintiff replied, the case was tried to a jury, and a verdict returned in favor of plaintiff in the amount of $21,000. Defendant filed a post-trial motion praying the entry of judgment notwithstanding the verdict, and in the alternative for a new trial. The court allowed the motion for judgment notwithstanding the verdict, entered judgment for defendant, and denied the alternative motion for a new trial. Plaintiff prosecutes this appeal.

There were no eyewitnesses to the occurrence. The testimony shows that on October 11, 1963, the deceased was 62 years of age, in good health, and weighed 226 pounds. He had been employed by defendant for 13 or 14 years as a farmhand, and lived on defendant’s farm. He had been married to plaintiff for 29 years and they had one child, Ronald George, 15 years of age.

Plaintiff, administrator, testified that about 9:00 o’clock a. m., the deceased was driving a tractor, working in a field across a blacktop road from his house. Plaintiff testified that the deceased was “going across the ridges and was leaning to the right like the seat was leaning to the right”.

Defendant, called under section 60 of the Civil Practice Act, testified that the deceased was employed by him, that he operated machinery and a tractor, that he was a good operator and a man of careful habits. Defendant, on the morning of the occurrence, saw the tractor used by the deceased, “where he wasn’t supposed to be, next to the fence.” About 30 minutes later, he saw the tractor in the same position. He called Buel Basham, an employee of defendant, they went to the tractor, found no one there, and shortly thereafter found the deceased lying in the field. He had been run over by the disk, attached to the tractor. An ambulance was called, the deceased was taken to the Metropolis hospital, and died a few minutes after his arrival there.

Defendant described the tractor and stated he had bought it new, in 1952 or 1953. He testified that so far as he knew, the deceased had not had any mechanical experience, but like defendant’s other employees, did minor repairs on the equipment. Defendant’s employee, Buel Basham, was a mechanic, and Tony Miller was in charge of taking care of defendant’s machinery. Miller had recently installed the electrical system on the tractor used by deceased. Defendant’s machinery was periodically inspected by defendant’s employees, but not by any outside mechanics. Defendant himself had considerable knowledge of the machinery. The farm machinery was gone over 2 or 3 times a year. Defendant did not recall the last time he had seen this tractor when the motor was running; he had ridden on it about a month before for a distance of a mile, when it was being towed. At that time the motor was not running, and it was after that experience that a new electrical system was installed. This tractor was the oldest one he owned. Some time in the spring of 1963 Buel Basham and the deceased had repaired the tractor seat and had put in a new spring and bolt. Defendant sold his farm shortly after the occurrence and the tractor was sold, along with his other equipment. No repairs were made to any part of the tractor prior to the sale.

Ronald George Clubb, the deceased’s 15-year-old son, testified that he had driven the tractor about a month before his father’s death, and at that time the seat leaned to the right.

Two photographs of the tractor were offered by plaintiff, and admitted in evidence, showing the back of the tractor. In one photograph (Plaintiff’s exhibit A) the seat is shown in an upright, verticle position. The witness who identified the photographs stated that subsequent to the making of plaintiff’s exhibit A, the seat was given “a small push of the hand,” and another picture was taken (Plaintiff’s exhibit B). In the second photograph the seat is tilted a distance, described by the witness, as 6 to 8 inches.

Defendant, on cross-examination by plaintiff’s counsel, identified a photograph that showed an exposed spring on the tractor, and stated if the seat were in proper position the spring would not be visible in the picture.

Buel Basham, by deposition, testified that the seat of the tractor was mounted so that it would fold back, that some bolts were loose and “the seat would work a little bit,” that he and the deceased put bolts in it and tightened it up. He stated that the seat sits on the spring, that if the spring gets weak the seat will go down to the floor of the tractor, that a bracket keeps the seat from going sideways, that if the seat were in proper working order, it could not be moved to the right. He stated that springs would break sometimes, that he knew the spring had been replaced, but he didn’t remember when this was done. He also testified that the deceased was cross-disking at the time, and “this is rougher than going with the rows.”

An exhibit prepared by defendant, and admitted without objection, shows that when deceased was found in the field, identifiable tracks of the tractor and disk showed the deceased had been disking from north to south, that upon completing a run extending from the south end of the field to its northern boundary, the tractor turned to the left, or westward, that it traveled in an inverted double S curve to the south a distance of 400 feet, swung to its left for a distance of 150 feet, at which point the deceased was run over by the disk, that it then traveled several hundred feet in a northeasterly direction, coming to rest against the fence which ran along the north edge of the field. When found, the tractor was in gear, the throttle was about half open, and the motor was not running.

It is defendant’s contention that there is no evidence of negligence on his part, or to support the inference that the deceased’s injuries were proximately caused or contributed to by any act, or failure to act, on the part of the defendant. He further contends that the evidence fails to prove the deceased free from contributory negligence, and the only reasonable inference to be drawn from the evidence presented is that the deceased was guilty of contributory negligence, or had assumed the risk of the employment, as a matter of law.

In his brief, defendant states it is perhaps reasonable to conclude that deceased was run over by the disk, but that the manner in which he came to be run over remains a matter of conjecture. He suggests that it is just as reasonable to conclude that his fall from the tractor was occasioned by physical illness, or that a wasp or bee may have attacked him. He argues that the course of the tractor as demonstrated by defendant’s exhibit (supra) is more consistent with these suggested possibilities than is a fall caused by a tilting tractor seat.

A similar contention was considered in Olsen v. Pigott, 39 Ill App2d 191, 188 NE2d 361. In rejecting the argument, the Appellate Court for the Second District, through Mr. Justice Spivey said at page 200, “It is clear that the evidence introduced did not exclude all possible causes, and leave, standing alone the conclusion that the death was caused by defendant’s failure to guard the shaft and knuckles and equip the tractor with a seat. But such proof is not required. As was said in Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847, ‘The inquiry here is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached.’ The defendants could reasonably anticipate that the operator might fall from the tractor if no seat were provided.”

In Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, the Supreme Court at page 84, said “Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vt. Ry. Co., 319 US 350.”

It is not required that the evidence from which the jury drew the inference exclude every inference other that the one drawn by the jury. It is only necessary that the inference be one that could be drawn from the evidence. The verdict may not be set aside because the jury could have drawn different inferences, or because a court may feel that another conclusion is more reasonable. Lindroth v. Walgreen (supra). There is evidence to support the inference drawn by the jury that defendant was negligent, and the negligence was the proximate cause of the deceased’s injury and death.

The trial court, in a comprehensive memorandum, found, as a matter of law, the deceased had assumed the risks of the employment. Both parties have cited numerous authorities and have ably argued their respective positions on this issue. We have examined the cases cited and have reached the same conclusion as did the Appellate Court for the Second District when it stated in Hinrichs v. Gummow, 41 Ill App2d 428, at page 484, 190 NE2d 610, “But each case is different on its facts and the only rule that can be derived from an examination of this authority is that each case must be decided on its own facts.” Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309.

In Wheeler v. Chicago & W. I. R. Co., 267 Ill 306, the Supreme Court at page 319, 108 NE 330, said “The law has long been settled in this State that the servant, when he engages in an employment, does so in view of the risks incident thereto. He will be presumed to have contracted with reference to such risks, and to have assumed the same, if he receives an injury resulting from the incidental risks and hazards ordinarily connected with the employment. (Chicago and Eastern Illinois Railroad Co. v. Heerey, supra.) Extraordinary risks,—that is, risks which may be obviated by the exercise of reasonable care on the master’s part,—are not assumed by the servant unless they are, or ought to be, known to and comprehended by him. The servant assumes all the ordinary risks of the service and all the extraordinary risks of which he knows and the dangers of which he appreciates. (3 Labatt on Master and Servant, —2d Ed—secs 1178, 1179, 1186a.) The general rule in this State is, that the servant will be regarded as voluntarily assuming the risks resulting from the use of defective machinery if its defects are as well known to him as to the master. He assumes the risk of known dangers and such as are so obvious that knowledge of their existence is fairly to be presumed. (Chicago Drop Forge and Foundry Co. v. Van Dam, 149 Ill 337; Pittsburg Bridge Co. v. Walker, 170 id. 550.) Not only the defects, but the dangers, must be known to him. (Union Show Case Co. v. Blindauer, 175 Ill 325; Illinois Terminal Railroad Co. v. Thompson, 210 id. 226.) But where the danger arising from the defect would be obvious to a person of ordinary intelligence the law will charge him with knowledge of the danger. Chicago and Eastern Illinois Railroad Co. v. Heerey, supra.”

Under the Illinois law, while a plaintiff must prove himself free of contributory negligence, the proof of assumption of risk is the defendant’s burden. As aptly stated in Restatement of the Law, Torts, 2d Edition, section 496D, the standard to be applied on the issue of assumption of risk is a subjective one, of what the particular plaintiff sees, knows, understands and appreciates. On the other hand, in determining the issue of contributory negligence, the conduct of the plaintiff is measured against the objective standard of what a reasonably careful person would do under the same or similar circumstances.

The evidence here shows that the tractor seat could be pushed from its proper vertical position a distance of 6 to 8.inches by a simple push of the hand. Buel Basham and the defendant testified that the spring which holds the seat erect had been replaced several months prior to the occurrence, that the spring was new, although some question is raised in the evidence as to whether the bolts used in its installation were new. Applying the subjective test applicable to the defense of assumption of risk to the evidence, we cannot say as a matter of law that the deceased knew that the use of the tractor in that condition was dangerous or that he comprehended the danger of its continued use. As the Supreme Court said in Wheeler (supra) “Not only the defects, but the dangers must be known to him,” Applying the rule that where the danger arising from the defect would be obvious to a person of ordinary intelligence, the law will charge him with knowledge of the danger, since the test of assumption of risk is subjective, we cannot substitute our judgment for that of the jury and attribute to the deceased a degree of intelligence sufficient to say that as a matter of law he knew, or should have comprehended the danger of operating the tractor. Fox v. Beall, 314 Ill App 144, 41 NE2d 126.

The question of contributory negligence presents little difficulty here. In Jines v. Greyhound Corp., 33 Ill2d 83, at page 85, 210 NE2d 562, the Supreme Court, speaking through Mr. Chief Justice Klingbiel said “Ordinarily contributory negligence is a question of fact to be decided by the jury, but it becomes a question of law when it can be said that all reasonable minds would reach the conclusion that the facts did not establish due care and caution on the part of the plaintiff. (Citing cases) In determining whether plaintiff was contributorily negligent as a matter of law, the testimony favorable to plaintiff must be taken as true. (Citing cases.)”

Applying the above quoted rule, we cannot say that all reasonable minds would reach the conclusion the deceased was guilty of contributory negligence.

In ruling on the portion of the post-trial motion which is in the nature of a motion for new trial, the trial court, in its memorandum, points out that defendant assigns only one error upon which he bases his prayer. The trial court correctly held that the error complained of is not, of itself, sufficient to warrant the granting of a new trial. For the reasons herein set forth the judgment of the Circuit Court of Johnson County is affirmed as to that part which denies defendant’s motion for a new trial, and as to that portion of the judgment which purports to enter judgment in favor of the defendant and against plaintiff, in bar of suit, the judgment is reversed, and the cause remanded to the Circuit Court of Johnson County with directions to enter judgment on the verdict in the amount of $21,000, and costs.

Judgment affirmed in part, reversed in part, and remanded with directions.

EBERSPACHER, P. J. and MORAN, J., concur.


author: PRESIDING JUSTICE MCCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. R. W. Thompson (Whose First Name Is Unknown to Said Grand Jurors [Impleaded]), Defendant-Appellant.
    Gen. No. 50,687.
    First District, Fourth Division.
    December 17, 1965.
    Ronald J. Lucaccioni, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MCCORMICK.

Not to be published in full.