Bowman v. Illinois Cent. R. Co.

• Decision Date: 05 March 1956
• Docket Number: Gen. No. 46705
• Parties: Elizabeth B. BOWMAN, as Conservator of the Person and Estate of Charles Dale Bowman, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, a corporation, Appellant. . First District. First Division
• Court: United States Appellate Court of Illinois

Page 558

132 N.E.2d 558

9 Ill.App.2d 182

Elizabeth B. BOWMAN, as Conservator of the Person and Estate

of Charles Dale Bowman, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, a corporation, Appellant.

Gen. No. 46705.

Appellate Court of Illinois. First District. First Division.

March 5, 1956.

Floyd E. Thompson, Charles J. O'Laughlin, Joseph H. Wright, Herbert J. Deany, Robert S. Kirby, Chicago, for appellant.

James A. Dooley, Chicago, for appellee.

NIEMEYER, Judge.

Defendant appeals from a judgment for $200,000 entered in plaintiff's action under the Federal Employers' Liability Act, 45 U.S.C.A. § 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 asphasia, 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...