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Bowman v. Illinois Cent. R. Co.

MARCH 5, 1956.




Appeal from the Circuit Court of Cook county; the Hon. HARRY J. FLANDERS, Judge, presiding. Reversed and remanded.


Defendant appeals from a judgment for $200,000 entered in plaintiff's action under the Federal Employers' Liability Act (45 U.S.C.A., sec. 51) for injuries sustained by her ward and son, Charles Dale Bowman (hereinafter called Bowman), a locomotive fireman employed by defendant, in jumping from a moving engine just before it collided with the caboose of a standing train. He was thrown against a cement milepost and suffered several broken ribs and a severe head injury. The defendant does not question on appeal its original liability for these injuries. The extent and effect of the head injury and the validity of a release executed by Bowman four months after the accident are the major matters in controversy.

The accident occurred on Saturday, May 22, 1948, near Olney, Illinois. Bowman was taken to the Olney Sanitarium for treatment. He was unconscious and remained in that condition until the fourth day when Dr. Lawrence F. Weber, the physician in charge, had his first conversation with him. On the following Sunday H.J. Hasch, an attorney practicing in Mattoon who had previously represented Bowman and later represented him in the settlement with defendant, visited him. Bowman's speech was rather halting and his memory was not too clear. Hasch saw him again during the week. He was greatly improved and talked more fluently. Gilbert Edward Tenison, Bowman's engineer and a witness for plaintiff, visited Bowman a week or ten days after the accident. Bowman talked with Tenison and seemed normal.

Plaintiff says in her brief that on May 29th Bowman answered questions intelligently, and on June 15th he carried on a fair conversation with an aphasia, or a hunting for words. The plaintiff, Niza Sims, her daughter and sister of Bowman, Emily Foster, his niece, and Bonnie Alexander, a friend of the family, were at the hospital on three Sundays. Each testified that Bowman did not recognize them on any occasion. Plaintiff testified that he did not talk, he muttered.

On June 23, 1948, Dr. Weber, a witness for plaintiff, reported to defendant that Bowman had not fully recovered; that prognosis as to complete recovery to normal was questionable; that in his, the doctor's, opinion the progress toward recovery had been satisfactory, but he believed it advisable for Bowman to have a thorough neurological examination to evaluate more accurately the cerebral nervous system damage (the hospital was not equipped to do that examination).

June 28th Bowman was transferred to the Illinois Central Hospital in Chicago. He left the Olney Sanitarium in an ambulance. At the request of defendant he saw Dr. Eric Oldberg, who specializes in neurology and neurological surgery. The doctor, testifying as a witness for plaintiff, said that he saw Bowman at his office in Chicago on June 30th. He did not examine him. He reported to defendant that Bowman was improving rapidly and wished to be discharged to recuperate at his home; that he, Dr. Oldberg, saw no objection to this; that he felt Bowman had not returned to his normal mental state and did not believe any final opinion regarding disability should be rendered at that time; that he should see Bowman approximately three months after the date of the injury.

Bowman was married July 3rd. The marriage caused a break in his family relations. His Pontiac automobile and his clothes were in the possession of plaintiff. Bowman went to his sister's home when plaintiff was there and asked for his car. Plaintiff testified that she did not let him have the car because he was in such bad health. She admitted that on a pre-trial deposition she had testified that she would not let him take the car because she was not certain they were married. She further testified on the trial that she turned over the keys of the car to the deputy sheriff the next day; that the deputy came later for Bowman's clothes; that for seven months thereafter she would just see Bowman on the street; he came home about February 1949; she, plaintiff, finally let his wife come to her home about three times. Niza Sims, Bowman's sister, testified that the first conversation she had with Bowman after he left the hospital was at the trailer where he was living with his wife in February 1949; that his wife was not the type of person that she would associate with; she, the witness, did not know that she had ever spoken to her; she, the wife, kept Bowman away from everybody.

Bowman was a few days late in his payments on the Pontiac. He went to James H. Ray, Sr., the district manager of the Chicago Motor Club at Mattoon, who had financed the purchase of the Pontiac and issued insurance on it, and told him that his, Bowman's, mother had locked up the car; he asked Ray what he could do to assist him in repossessing it. Ray told him to get a court order. After talking to Seibert, local claim agent for defendant, Bowman was introduced to Jack Horsley, a member of Craig & Craig, local attorneys for defendant, on July 6th. Horsley instituted a replevin suit against plaintiff and recovered the automobile and clothes.

On August 25th Seibert accompanied Bowman to Chicago where Bowman again saw Dr. Oldberg. The doctor did not examine Bowman. He testified that in cases of head injury a hospital examination would be necessary for him to reach a definitive opinion. Seibert talked with Bowman about going to the hospital, but Bowman would not go. On this trip to Chicago Bowman talked with Dr. Chester C. Guy, who testified for plaintiff. He was examined by Dr. John J. Madden, a witness for defendant.

Dr. Guy, chief of surgery at the Illinois Central Hospital three years at the time of the trial, had been connected with the hospital for about 27 years. He testified that he did not examine Bowman; he interviewed him August 25, and the records show that he saw him July 1st; that from his observation of Bowman and from what Bowman told him, he noted on his record that Bowman was a psychiatric problem and recommended July 1st that he be discharged to his home under the further observation of the local railroad doctors (Drs. Link and Zinschlag, conducting the Link Clinic); that Bowman did not want to stay in the hospital.

Dr. Madden's specialty is neurology and psychiatry. Having no independent recollection of examining Bowman, he testified from his report to defendant that he made a tentative diagnosis of a post concussion syndrone of moderate degree which will probably not permanently disable him. (The court struck the word "probably," leaving the rest of the statement standing.) The doctor further testified that it was his tentative opinion that Bowman would make an almost complete recovery within a period of approximately six months; that it is extremely difficult to predict the future in such head injuries as Bowman had, and that in his daily practice he wanted to know the history of the patient prior to the accident and to observe him on more than one occasion.

In the latter part of August Bowman and his wife came to the home of Marcus Glenn Stevens, chairman of the local grievance committee of the Brotherhood of Locomotive Firemen and Enginemen Railroad Union, part of whose duties was the settlement of personal injury claims of union members when they requested his help. Bowman told Stevens that he wanted to make a settlement. They talked about 15 or 20 minutes. Stevens saw him at least three or four times after that. Stevens made an appointment with Dr. Link, and Bowman and his wife went with Stevens to keep the appointment. After talking with Dr. Link, Stevens made an appointment for Bowman and himself in Seibert's office Monday, September 13. When Stevens got to Seibert's office Bowman was there with Hasch, his attorney. Stevens left. Hasch, a witness for defendant, testified that Bowman came to him the early part of September and said he believed he could get a settlement and wanted Hasch to help. Bowman, Hasch and Seibert discussed a settlement, but no agreement was arrived at. Hasch and Bowman then took a long ride. (The court refused to permit Hasch to tell his conversation with Bowman.) They tentatively arrived at a figure of $15,000. Bowman asked what Hasch's fee would be and was told $2,000. The next Friday, the 17th, they went to Seibert's office and submitted the figure. Seibert called Chicago and received authority to settle. Hasch and Bowman then said they wanted to talk about it further and would be back the next morning. About 9 o'clock Saturday morning, September 18th, they returned to Seibert's office and stated they had decided to make the settlement. Seibert prepared a release and a resignation of Bowman as an employee of defendant and wrote a draft for $14,730, the Railroad Retirement Board having served a lien for $270. Seibert said he would have to have witnesses to the release and suggested that they go to one of the banks. Bowman selected the Central National Bank. Mrs. Lucille Bowman, who had been with the bank 32 or 33 years and was cashier of the bank when the case was tried, was related to Bowman by marriage. Seibert called Horsley, who made arrangements for the use of a conference room at the bank for witnesses, and a notary public.

Present at the bank during all or part of the time were Bowman, Hasch, Seibert, Irma Wetzel (now Mrs. William Kidwell) and Myrtle Swain, employees of the bank who acted as witnesses, Betty Armentrout, an employee of Craig & Craig, who acted as notary public, Horsley and A.D. Williams, then vice-president, now president of the bank. Seibert stated the purpose of the meeting, handed the papers to Hasch, who read them and told Bowman they were proper papers and handed them to him. Bowman read the release. Seibert asked if he understood it was a full settlement of all claims, and Bowman said yes. Seibert then asked him to write in the body of the release that he had read it and understood it. Bowman wrote as requested. No one told him how to spell. The papers were then signed by the parties, the witnesses and the notary public. The draft, payable to Bowman and Hasch, was delivered to them and endorsed. Bowman asked for $2,730 in cash and deposited the remaining $12,000. He counted out $2,000 to Hasch in payment for his fee, and $75 to Horsley for his services in the replevin suit.

Within a few weeks Bowman paid the balance due on the Pontiac automobile, paid a garage bill of $200 and bought a new Hudson car, paying $1,530 in cash and receiving credit for $1,230.61 on the Pontiac. In December 1948 he bought a trailer for $3,800, and after several months, being dissatisfied because it did not have a bathroom, he bought a second, more modern trailer, receiving full credit for the amount paid for the first trailer. January 3, 1949 he sold a Philco refrigerator for $200, receiving cash, executing a bill of sale and signing a receipt.

April 28, 1949 Bowman entered the neurosurgical clinic of the Washington University Hospital in St. Louis, Mo. He was examined for treatment on that day and again on May 3rd by Dr. Gerald L. Winokur, a neurosurgeon called as a witness by defendant. He testified to the history given by Bowman, including an account of his injury, his gradual and steady improvement to the time of the examination, with residuals of weakness of the right arm and leg, some difficulty in speech and inability to see out of the right side of his eye. The doctor found definite evidence of brain damage but no abnormality in so far as his thought processes were concerned. He discharged Bowman after the second examination with no neurological treatment — none was indicated. In his opinion Bowman was fully competent, alert and rational at the time of his examination.

July 8, 1949 Bowman was committed to the Veterans' Facility Hospital, Danville, Ill., on a finding of traumatic psychosis, as a person in need of mental treatment. In October 1949 plaintiff was appointed conservatrix of his estate and person. November 6, 1950 this suit was started. Defendant answered, denying the negligence charged and the injuries alleged. It also filed a special defense, setting up the release as a bar to the action. Plaintiff replied, alleging that on September 18, 1948, when the purported release was entered into, Bowman was mentally incompetent to enter into any contract of any kind or character and did not know the nature of the so-called release, and could not know the nature of it; that defendant knew of the mental incapacity and incompetency of Bowman to enter into a contract, but its agent, H.G. Seibert, who was well aware of this condition, nevertheless obtained Bowman's signature to the "so-called release."

Defendant moved for judgment on the pleadings because plaintiff had not tendered or offered restitution of the $14,730 received by Bowman, or any part thereof, and in the alternative, in the event its motion for judgment was denied, defendant moved for a separate trial on the issue of the validity of the release. Both motions were denied. On the trial defendant moved for a directed verdict on the issue raised by the special defense at the close of plaintiff's evidence, and again at the close of all the evidence. These motions were denied.

The court submitted to the jury, at the request of defendant, the following interrogatory:

"Do you find by a preponderance of the evidence that at the time plaintiff's ward executed the release he was incapable of understanding what he was doing and unable to comprehend the terms and effect of the release?"

The jury answered "yes," and returned a verdict for plaintiff, assessing his damages at $200,000. Judgment was entered on the verdict. Defendant moved for judgment notwithstanding the verdict, and in the alternative for a new trial. Among the grounds assigned for a new trial were,

"37. The jury's finding on the given special interrogatory demonstrates that the jury disregarded and ignored the manifest weight of the evidence.

"38. The jury's finding on the special given interrogatory demonstrates that the verdict should be set aside."

These motions were denied.

Before filing her brief plaintiff moved to strike that part of defendant's brief wherein it contends "The finding of the jury that Bowman did not understand the nature of the release is contrary to the manifest weight of the evidence," and wherein it contends "that the award of $200,000 is `grossly excessive,'" assigning as reasons therefor that defendant did not preserve its objection to the special finding, and that the contention that the verdict is "grossly excessive" is not open for consideration in this court. This motion was taken with the case. By it plaintiff seeks a piecemeal determination of the objections raised by defendant on appeal. If the court should entertain the motion, there is no reason why similar motions could not be filed as to each contention made by the defendant, thereby unnecessarily increasing the work of the court and denying defendant the right of oral argument on each contention which plaintiff moved to strike. The portions of the brief complained of are not scandalous or impertinent. They do not violate any rule of the court. We know no other grounds for striking a brief or any part thereof. The motion is denied.

In support of its contention that the release is a bar to plaintiff's action, defendant argues that restitution of the consideration received by Bowman is a condition precedent to rescission, and that the finding of the jury that Bowman did not understand the nature and effect of the release is contrary to the manifest weight of the evidence. By her reply to the special defense plaintiff narrows the grounds for rescission of the release. There is no allegation of fraud in the execution of or inducement to the contract, except the implication of fraud in dealing with Bowman, knowing his mental incapacity. Helbreg v. Schumann, 150 Ill. 12, 25-26; Clay v. Hammond, 199 Ill. 370, 377. The question raised is whether Bowman's incompetency and defendant's knowledge of it authorize rescission of the release without return of the consideration.

The validity of the release is to be determined by federal rather than state law, for "only if federal law controls can the federal Act be given that uniform application throughout the country essential to effectuate its purposes." Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 361. Defendant insists that "the releases of railroad employees stand on the same basis as the releases of others" (Callen v. Pennsylvania R. Co., 332 U.S. 625, 630), and that, except in cases where the release is attacked for fraud in its execution, return of the consideration paid for the release is a condition precedent to rescission. It insists further, on authority of Callen v. Pennsylvania R. Co. (pages 630-1), that section 5 of the Federal Employers' Liability Act (45 U.S.C.A., sec. 55), which provides that "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void . . .," does not apply to the settlement and compromise of claims arising under the act.

A judicial opinion must be read as applicable only to the facts involved, and is an authority only for what is actually decided. City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 519; Cohens v. Virginia, 6 Wheat. (U.S.) 264, 399. In the Callen case no charges of fraud in procuring the release were involved. The sole ground for setting it aside was the mutual mistake of the parties as to the permanency of plaintiff's injuries. The return of the consideration paid ($250) as a condition precedent to plaintiff's rescission of the release was not involved and was not decided. The statement in the opinion that a release "is not a device to exempt from liability" under section 5, was made in reference to the release before the court — a release untainted by fraud. In the instant case plaintiff charges that Bowman was mentally incompetent, and that defendant, knowing such incompetency, obtained his signature to the release. A release thus obtained before adjudication is voidable. (Ill. Rev. Stats. 1955, chap. 3, sec. 278.) Moreover, as hereinbefore stated, it is presumptively fraudulent. Defendant insists upon the return of the consideration of $15,000 as a condition precedent to plaintiff's right to attack the agreement as a bar to her action. If defendant's position is correct the employer will in most cases be exempt from liability no matter how meritorious the employee's claim, because the latter will, because of straitened circumstances, be unable to return the consideration which the employer has knowingly placed in the hands of an incompetent.

Section 5 was enacted to prevent this injustice. Duncan v. Thompson, 315 U.S. 1, establishes the application of the section to the situation presented here. Duncan, an employee having a right of action under the Federal Employers' Liability Act, entered into a contract under which in consideration of the payment of $600 to him he agreed in good faith to adjust and settle his case without litigation, and that if the claim was not so adjusted and he elected to bring suit, he would first return the $600, and that its return should be a prerequisite to the filing of any suit. He instituted suit. The trial court refused to make the return of the money a condition precedent to the suit and instructed the jury to credit the $600 on any verdict awarded Duncan. The Supreme Court, in upholding Duncan's right to sue without returning the money, held that the language of section 5 includes agreements after the event of the injury, and said (p. 7):

"The instrument prepared by the respondent for Duncan's signature purported to create a condition precedent to his bringing suit, the refunding of $600. By its terms, unless this condition were satisfied — and in view of Duncan's straitened circumstances the probability of satisfaction would seem negligible — Duncan's only means of enforcing such liabilities as should have been assumed by the respondent would be taken from him. Hence the agreement, if valid, would effectively exempt the respondent from liability under the act, no matter what the merits of Duncan's claim."

In Irish v. Central Vermont Ry., Inc., 164 F.2d 837, where plaintiff sought to avoid a release alleged to have been signed by him in reliance on the fraudulent representation of defendant's claim agent to try to get plaintiff a pension, the court said (p. 840):

"If he must as a condition precedent to maintaining suit return what he was deceived into taking, he is as effectively deprived of his right to sue except upon that condition as though he had expressly so agreed, as did the employee in the Duncan case, supra. If this be so, what cannot be done by a fair agreement would follow by implication of law as the result of a fraudulent one, provided only that the latter is couched in terms of full and complete compromise. We leave undecided the effect of Sec. 5 as to a bona fide compromise and settlement. But we do hold that, if this release were obtained fraudulently by the appellee, it was within the broad scope of the phrase ...

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