Scholle v. Continental National American Group

SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

In its petition for rehearing, Continental contends that the court’s original opinion contains language which is suggestive of a departure from the well-established principle that a plaintiff in a civil case must prove the material allegations of his complaint by a preponderance of the evidence. Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 209-11 (1927).

We adhere to our holding that the proofs were sufficient to support a finding that Mrs. Scholle’s fall caused the rupture of the aneurysm which resulted in her death and that the defendant’s motions for judgment notwithstanding the verdict and for a new trial were properly denied. We believe the appellant has misapprehended some of the language in the original opinion. No departure from the established rules governing the burden of proof in civil cases was intended.

As noted in the original opinion, the defendant’s theory of the case was that the aneurysm ruptured as Mrs. Scholle was leaning over the pool, thus causing her to lose her balance and to be unable to take proper corrective action. The medical experts were unable to state within a reasonable degree of medical certainty what caused Mrs. Scholle’s aneurysm to burst; however, none of the experts ruled out the possibility that the fall could have caused the aneurysm to rupture. On this record, in view of the limited medical knowledge with regard to the causes of aneurysm ruptures, it cannot be said that the medical testimony was pure conjecture. (Compare Quaker Oats Co. v. Industrial Co., 414 Ill. 326, 335 (1953), with Sommers v. American Economy Insurance Co., 8 Ill. App. 3d 450, 452-53 (1972).) However, based on the medical testimony alone, the inferences that the fall did or did not cause the aneurysm to burst could have been drawn with equal certainty. Thus, the plaintiff was obliged to resort to circumstantial evidence to prove that it was more probable than not that the fall caused the rupture of the aneurysm.

“The sole limitation on the use of circumstantial evidence is that inferences drawn therefrom must be reasonable.” (Pearson v. Ford Motor Co., 32 Ill. App. 3d 188, 191 (1975).) It is not required that circumstantial evidence both create a reasonable inference of the fact to be shown and also exclude all other possible inferences. (Olsen v. Pigott, 39 Ill. App. 2d 191, 196 (1963); Pearson v. Ford Motor Co., 32 Ill. App. 3d 188, 191 (1975).) “[A] 11 that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion.” Lindroth v. Walgreen Co., 407 Ill. 121, 134 (1950).

The evidence in support of defendant’s theory that the aneurysm caused the fall was medical testimony to the e ifect that a fall could be a symptom of a leaking aneurysm. When viewed in the light of Mrs. Scholle’s precarious position at the time she lost her balance and the other evidence, we cannot say that the jury’s conclusion that itwas more probable than not that the fall caused the aneurysm to rupture was unsupported by the evidence and the result of mere speculation or conjecture.

The petition for rehearing is therefore denied.

GUILD, P. J., and RECHENMACHER, J., concur.