Fisher v. Mutimer

• Decision Date: 23 January 1938
• Docket Number: Gen. No. 9138.
• Citation: 293 Ill.App. 201,12 N.E.2d 315
• Parties: FISHER v. MUTIMER.
• Court: United States Appellate Court of Illinois

293 Ill.App. 201

12 N.E.2d 315

FISHER

v.MUTIMER.

Gen. No. 9138.

Appellate Court of Illinois, Second District.

Sept. 28, 1937.

Rehearing Denied Jan. 23, 1938.

Appeal from Circuit Court, Winnebago County; Edward D. Shurtleff, Judge.

Action by Norma A. Fisher against Grant Mutimer. Judgment for plaintiff, and defendant appeals.

Reversed, and remanded. Shultz & Reid, of Rockford, and Wm. L. Pierce, of Belvidere, for appellant.

Karl C. Williams, of Rockford, for appellee.

DOVE, Justice.

The complaint in this case alleged that on January 25, 1935, and for more than one year prior thereto, Robert Mutimer, now deceased, was living in Winnebago county at the home of his father Grant Mutimer, the defendant herein; that during that period of time he, the said Robert Mutimer, exhibited threatening tendencies and committed personal violence toward his father by striking him; that such actions caused his parents to believe that he was mentally unsound and at their request he, the said Robert, was examined by a psychiatrist; that on January 25, 1935, Robert was, upon the petition of the defendant, adjudged insane and committed to the East Moline State Hospital; that he entered the hospital on January 28, 1935, and remained confined therein until March 11, 1935, when, at the request of the defendant, he was paroled for a period of 90 days, the defendant agreeing in writing to carefully care for him both day and night and to make written reports to the managing officer of said hospital every two weeks and to return him to the hospital in the event the defendant was unable to carry out such written agreement. It was further alleged that the defendant further agreed to exonerate the management in the event his son should commit any act of violence while away from the institution. The complaint then averred that on June 5, 1935, at the request of the defendant, Robert was ordered recommitted to the hospital, that thereafter and while Robert was incarcerated in the county jail, the defendant requested that said order of recommitment be vacated; that the county judge did not vacate said order of recommitment but did release Robert from jail and thereafter on June 7, 1935, at the request of the defendant, Robert's parole to his father was extended upon the same conditions for a further period of 90 days. It was further alleged that during the month of July, 1935, Robert obtained a revolver and engaged in target practice upon defendant's premises with the knowledge and consent of the defendant. The complaint then alleged that the defendant, knowing the aforesaid facts and circumstances, was under a duty to plaintiff's intestate to exercise ordinary care and caution in caring for Robert, that he did not do so, but negligently permitted Robert to be at large with a revolver and to have and to use the same and negligently procured his release on parole following his recommitment to the hospital. It was then alleged that, as a result of said negligence, Robert, on July 23, 1935, went to the home of the plaintiff and then and there shot and killed plaintiff's intestate.

By his answer, the defendant admitted that Robert, on January 25, 1934, was living at the defendant's home, denied that for a year prior thereto he had exhibited violent tendencies, and denied that he had committed acts of personal violence toward the defendant, except the defendant admitted that at one time Robert did strike the defendant in the ribs. The answer admitted the examination of Robert by a psychiatrist and the filing of the petition for the commitment of Robert to the East Moline State Hospital and his commitment to that institution on January 25, 1935, but denied or called for strict proof of substantially all the other matters alleged in the complaint. The cause was submitted to a jury, resulting in a verdict for the plaintiff for $4,500, upon which judgment was rendered, and the defendant brings the record to this court for review.

The evidence discloses that prior to December 27, 1934, appellant lived with his wife and adult son, Robert, on Prairie road, southwest of Rockford, and was engaged in truck farming. On that day another son, Delbert, took Robert to Dr. Egbert W. Fell, a psychiatrist, for examination. Dr. Fell testified that he found him to be irritable but of average intelligence and diagnosed his case as dementia praecox, a common mental disease, curable in a few cases. Thereafter and on January 25, 1935, appellant filed a petition in the usual form in the county court, alleging that his son was insane or suffering from mental derangement, and as a result thereof Dr. Fell and Dr. Bissekumer were appointed commissioners and he was regularly adjudged insane and committed to the East Moline State Hospital. Within two or three weeks appellant visited the hospital and gave to an attendant there a history of Robert's case. On March 5, 1935, Dr. J. A. Campbell, the managing officer of the hospital, wrote appellant advising him that they had studied his son's case very carefully and had come to the conclusion that his mental condition did not warrant institutionalization at that time. Dr. Campbell's letter continues: “He (Robert) has many chances for improvement under favorable home conditions. We, therefore, suggest that he should be taken home. We would appreciate it very much if you would come to the institution and discuss this matter with us in detail.”

Appellant, upon the receipt of this letter, went to the hospital, discussed the case with Dr. Campbell and Dr. Gamberg, who had immediate charge of Robert's case and they both were witnesses upon the trial of this case. Dr. Gamberg testified that he specializes in psychiatry and neurology; that he examined Robert shortly after he entered the institution and found him in excellent health but suffering from a disorder of behavior characterized by stubbornness and selfishness and having his own way. He found that Robert had a grudge against his family because his brother apparently had received more advantages than he had. This witness further testified: “Robert behaved himself perfectly well under my observation. He had no delusions or hallucinations. He never had any arguments or fights while in the hospital. He didn't show any particularly bad signs or symptoms of insanity. I thought the boy a proper person for parole. He was never violent while I saw him. Patients are sometimes paroled to be given a chance to adjust themselves socially when the patientis not vicious or violent. We classed the boy under primary behavior disorder, simple adult maladjustment. This is not a form of insanity. The boy was not insane. It was proper to parole this boy to his father and that he so told his father and advised him to give the boy a chance to make good and not to cross him or argue with him but to bring the boy back if he was impossible to control.” Upon cross-examination he stated that Robert had had a fight with another patient while at the institution.

Following this conversation and on March 11, 1935, appellant executed a request to the managing officer of the hospital that his son be paroled. This request contained the following: “I agree to carefully care for the patient, or have some other responsible person do so, both day and night, and to exonerate the management of the state hospital should he commit any act of violence while away from the institution. I also agree to return the patient to the hospital should I not be able to fill my agreement and I further agree to report in writing to the managing officer of the hospital every two weeks for ninety days.” The evidence is further that, in lieu of these written reports, it was the practice of the hospital to substitute personal monthly contacts with a parole officer or other representative of the institution.

Upon Robert's release from the hospital on parole, he returned to his home and the evidence is, that with the exception of one occasion hereafter referred to, his conduct was good, that he was not vicious or violent but obedient, attended church and Sunday school, went out with young people, worked every day with his father upon the truck farm, and had a vegetable route which he covered about three times a week. On one occasion about June 5, 1935, he and his father had a disagreement about the use of the family car, and Robert told his father that, if he didn't give him the key to the car, he (Robert) would take it away from him. The father testified that he thereupon gave the key to the car to his son, and to justify his conduct testified that Dr. Gamberg had cautioned him not to cross Robert or argue with him. The evidence is further that Robert was physically strong and healthy, that he weighed in excess of 200 pounds, was six feet tall, and at this time was 22 years of age. Following the argument about the car, Robert was placed in jail at his father's request, but on June 7, 1935, appellant executed a request that the parole be extended for 90 days and this was done, and Robert returned to appellant's home. During the latter part of this month or in the early part of July, Robert secured a .22-caliber revolver without the knowledge or consent of his father and made a target near the garden on his parents' farm. According to the testimony of appellant and his wife, they heard him firing the revolver, inquired of him where he got it, and he said he rented it for 3 weeks for a dollar, and they told him to return it and he said he would; that on the day following his parents asked him if he had returned the revolver as he had promised; that he assured them he had; that they searched his room but did not find the revolver and concluded he had returned it, and they never saw the revolver again. There is evidence of others who testified that they had heard shooting on appellant's farm on various occasions and the target was found on July 23, 1935, and disclosed numerous shot holes.

The evidence is further that Guenivere...