Swanson v. Swanson

• Decision Date: 25 February 1970
• Docket Number: Gen. No. 53115
• Citation: 121 Ill.App.2d 182,257 N.E.2d 194
• Parties: Eugene V. SWANSON, Plaintiff-Appellant, v. Arthur A. SWANSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 194

257 N.E.2d 194

121 Ill.App.2d 182

Eugene V. SWANSON, Plaintiff-Appellant, v. Arthur A. SWANSON, Defendant-Appellee.

Gen. No. 53115.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 25, 1970.

Asher, Greenfield, Gubbins & Segall, Chicago, for plaintiff-appellant; Irving D. Levin, Chicago, of counsel.

Robert J. O'Rourke, Donald A. Carr, Chicago, for defendant-appellee.

STAMOS, Presiding Justice.

Plaintiff, Eugene Swanson, brought an action for damages against defendant, Arthur Swanson, for the intentional infliction of mental distress. Defendant's motion to strike the complaint for failure to state a cause of action was denied. At the close of plaintiff's evidence, defendant moved for a directed verdict which was granted. Plaintiff appeals.

Plaintiff and defendant are brothers. Their mother, Emma Swanson, had resided with defendant for approximately six months during the early part of 1950, but had been moved to plaintiff's home pursuant to an agreement whereby each of the two brothers would care for their mother for six month intervals. She, however, continued to reside with plaintiff until February 11, 1961 when she was taken by plaintiff to defendant's residence. Plaintiff testified that he told defendant to care for the mother over the weekend while he and his wife left town to visit his mother-in-law. However, defendant as an adverse witness under Ill.Rev.Stat., ch. 110, § 60 (1967) testified that plaintiff stated, 'That's your mother. We don't want to see her or you anymore.'

On February 13, 1961 defendant placed his mother in the Sutton Nursing Home, Belvidere, Illinois on the advice of Dr. Nelson who had allegedly examined her six months prior to this occurrence. Defendant gave the Home his telephone number to be used in case of emergency, but failed to give plaintiff's number.

Plaintiff testified that after returning from the weekend trip, he attempted to take his mother back home, but defendant refused to tell him of her location. Plaintiff then traced his mother to the Home by making numerous phone calls. When he visited her at the Home, he failed to leave his telephone number.

On August 17, 1961 the mother died and the Home promptly notified defendant who made arrangements for the funeral on August 19, 1961. Defendant testified that he deliberately failed to inform plaintiff of the mother's death, and further, deliberately failed to cause an obituary to be published. Plaintiff learned of his mother's death five days after the funeral and allegedly, as a result of being unable to attend, suffered severe emotional distress. Plaintiff testified:

'I was shocked to hear that she had passed away. I was very nervous about it and had many sleepless nights. Kept thinking about it all the time. Yet to this day I think I am going to have nightmares of this situation.'

OPINION

The issue presented for review is whether the trial court properly granted defendant a directed verdict. The applicable standard is enunciated in Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513;

'* * * verdicts ought to be directed and judgments N.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.'

Since plaintiff seeks recovery for the intentional infliction of mental distress, the Pedrick test, Supra, must be applied to the evidence in conformity with the precepts of Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961).

In Knierim, supra, the plaintiff sought recovery for the intentional infliction of severe mental distress allegedly caused by defendant's threats to kill her husband and the subsequent fulfillment of those threats. The court held that the complaint stated a cause of action and in so doing adopted this tort in Illinois for the first time. The cause of action, as enunciated therein, allows compensatory...