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C H A P
T E R IX
LEGAL ACTION RESULTING FROM THE EPIDEMIC
Following
the epidemic, indictments were brought
in Kankakee County, Illinois, against 3 persons concerned
with the management and operation of Manteno State Hospital:
the managing officer, (Ralph T. Hinton, M.D.), the dietitian,
and the director of the State Department of Public Welfare,
(A. L. Bowen). The charges against the first two were
eventually dismissed. The director of Public Welfare was
brought to trial in the circuit court of Kankakee County,
Illinois, Indictment No. 1847, People of the State of
Illinois v. Archie Leonard Bowen. The jury was unable
to reach a decision, and mutual agreement between the
defendant and the State placed the decision in the hands
of the judge. The decision rendered by the judge found
the defendant guilty of omission of duty as charged, but
this decision was subsequently reversed by the Illinois
State Supreme Court. The opinions of the lower and the
Supreme Courts are given in full at the end of this report.
An interesting
controversy developed in the lower-court trial in connection
with the introduction as evidence of the Department of
Public Health results of analyses of water samples, together
with the written opinions issued thereon. The prosecution
contended that the analytical reports and written opinions
of the State Department of Public Health should be given
full weight as evidence. The defense, however, argued
that these opinions on the analytical results gave no
greater notice of danger than did the results themselves,
contending that these opinions were merely those of persons
giving them based on the facts disclosed by the laboratory
results themselves, from which laboratory results or facts
it argued that the defendant could as well formulate his
own opinion, which would be as much entitled to weight
and authority as the opinions given on these results by
the Department of Public Health. In other words, the defense
contended that the opinions written concerning the analytical
results or facts added nothing legally that was not shown
by the results themselves. It also contended that the
State Department of Public Health in its analyses did
not claim to find disease germs but merely the presence
of B. coli, which, it pointed out, in themselves are harmless
organisms. Further, that no differentiation was made in
the reports between fecal and non fecal types of coli.
It was also pointed out by the defense attorneys that
the defendant knew no disease germs had been found by
the analyses, and, particularly, that no typhoid organisms
had been isolated (previous to the epidemic). Furthermore,
that he (the defendant) drank the water each month when
visiting the institution and from a taste standpoint the
supply was excellent, that the water was cold, and that
he was justified in believing that it was safe. On this
matter of the written opinions, analyses and field-inspection
reports of the State Department of Public Health, the
lower court rules that reports or analyses be admitted
in the record solely for the purpose of showing that the
defendant was being informed that the water was unsafe
and that an epidemic might occur at any time but not as
substantive proof. The court with these restrictions admitted
the reports and analyses as evidence, stating that they
were true and correct insofar as the results of the analyses
were shown and constituted legal evidence inasmuch as
the officials charged with the responsibility of making
these examinations and reports were all present for cross-examination
and to testify as to their correctness.
Another interesting
public-health point involved in the trial was the question
regarding admission as evidence of the salt tests showing
the seepage from the sewer to the well and the isolation
of the typhoid organisms from the water supply. The defense
contended that inasmuch as these tests were made after
the onset the epidemic it would be necessary to prove
that conditions in both the sewer lines and the water
supply underground were the same at the time of the salt
tests (August 29-30) as preceding the outbreak of the
epidemic, which was dated August 19. The burden of this
proof rested on the prosecution and while testimony admitted
that it was humanly impossible to prove that all conditions
underground were exactly the same on the days the tests
were made as there were a few says previous when the outbreak
started. The court ruled that neither the results of the
salt tests nor the isolation of the typhoid-fever organisms
could be admitted as evidence, inasmuch as these tests
were made after the date of the onset of the epidemic
and there was not sufficient evidence to show that underground
conditions were the same.
The defense
contended that the epidemic was caused by direct contact
with a carrier, one Mary Ores, who died of the disease.
Evidence was introduced to show that "Mary"
had been moved repeatedly from one ward to another and
that at such times she would have had direct contact with
all early cases.
Civil action
suits for damages, all eventually dismissed, were brought
into the district court of the United States for the Northern
District of Illinois, Eastern Division, against surety
companies providing bonds for the managing officer of
Manteno State Hospital, the director and the assistant
director of the State Department of Public Welfare, and
the director of the State Department of Public Health.
When these cases were dismissed in the lower court, they
were appealed to the United States Circuit Court of Appeals,
Seventh Circuit, which upheld the motions for dismissal.
STATE OF ILLINOIS COUNTY OF KANKAKEE} SS.
IN THE CIRCUIT COURT OF KANKAKEE COUNTY
THE PEOPLE OF THE STATE OF ILLINOIS VS. ARCHIE LEONARD
BOWEN}
INDICTMENT FOR MALFEASANCE
NO. 1847
OPINION OF THE COURT
The defendant,
Archie Leonard Bowen, was indicted by a special Grand
Jury of Kankakee County. The indictment was returned and
filed on November 21, 1939. This indictment consisted
of three counts: the first charged the defendant with
unlawfully, willfully and corruptly being guilty of a
palpable omission of duty; the
second charged him with being guilty of willful and corrupt
malfeasance in office' and the third count charged him
with maltreating a certain insane person.
The case was
tried with a jury commencing February 13, 1940, and the
jury after being out a considerable length of time, having
failed to agree, was discharged by the Court. However,
it not appearing to the Court from the evidence that the
defendant was guilty of any affirmative act of malfeasance
or of maltreatment directed a verdict as to the second
and third counts; so that there is remaining only for
further consideration the charge made in the first count
of the indictment.
The charge
mad in this first count was a violation of Section 208
of the Criminal Code. This Section provides in part as
follows:
"Every
person holding any public office (whether State, county
or municipal) trust or employment, who shall be guilty
of any palpable omission of duty, *** or who shall be
guilty of willful and corrupt oppression, malfeasance
or partiality, where no special provision shall have
been made for the punishment thereof, shall be fined
not exceeding $10,000 and may be removed from his office,
trust or employment."
This case
was again set for trial before a jury on May 20, 1920,
and after the selection for the jury to try the case,
on May 21, 1940, The People and the defendant agreed to
waive a jury and agreed to submit the case to the Court
without a jury upon the evidence taken in the first trial.
At the time it was agreed that briefs would be submitted
and there was a request by the Court that both The People
and the defendant point out any alleged errors in the
record, so that the Court might have an opportunity of
passing on the same and correcting any that should be
corrected.
The parties
have filed their briefs and pointed out various alleged
errors. The Court will endeavor to pass upon them or such
of them as he deems necessary to pass upon.
At the original
trial of the case, after proof having been first made
of the correctness of the information contained therein
a large number of reports that the Department of Public
Health sent to the defendant was admitted
in evidence, which purported to show over a period
from 1931 to the time of the epidemic in question, according
to well known and accepted health standards, the water
furnished the patients at Manteno State Hospital, Manteno,
Illinois was unfit for drinking purposes. On the back
of these reports were warnings from the Department of
Public Health to the effect that the water was unsafe
for drinking purposes and advising that a dangerous water-borne
epidemic might result at any time. The warnings contained
on the backs of the reports, or in letters sent, was admitted
in evidence by the Court with the restriction that they
were being admitted solely for the purpose of showing
that the defendant was being told that the water was unsafe
and that an epidemic might occur at any time but not as
substantive proof. The State's Attorney contends that
the warnings should have been admitted as substantive
proof. The Court is still of the opinion that he was right
in his rulings in this respect. If the warnings were admissible
as substantive evidence as opinion evidence the person
making them would have to have been present with the right
of cross examination. They simply amounted to a warning
like a statement to one under a chimney, that the chimney
is about to fall and therefore, look out.
The State's
Attorney also says that the Court should have admitted
in evidence the making of certain salt test and proof
of the alleged isolation of a certain typhoid germ. The
evidence showed that this alleged salt test and alleged
isolation of a typhoid germ was long after the alleged
offense was committed, and after the epidemic had reached
its peak and there was no sufficient showing, in the opinion
of the Court, that the conditions were the same as they
were at the time of the alleged offense. The Court is,
therefore, of the opinion that his ruling in this respect
was correct.
The State's
Attorney also says that the Court should not have admitted
in evidence certain reports made by the Dearborn Chemical
Company (two or four reports I have forgotten which) some
years back stating that the water was safe to drink. These
reports offered by the defendant were admitted with the
same qualifications as those admitted on behalf of the
State. And the Court still feels that his view was correct,
for the reasons heretofore expressed. They were expressions
that the chimney was not about to fall.
The defendant
first argues that the indictment is insufficient to charge
a crime.
Judge South passed on a motion to quash the indictment
and overruled the same. This Court concurs in the conclusion
reached by Judge South.
Stripped of
all surplusage, the first count of the indictment charges
the defendant with being guilty of unlawful, willful and
corrupt palpable omission of duty in failing to exercise
reasonable care to furnish reasonably safe drinking water
to the patients at the Manteno State Hospital, Manteno,
Illinois. The evidence and the statutes clearly show that
the defendant was charges with a duty of supervising and
executively administering the Hospital. Being charged
with that responsibility, can anyone say that he was not
bound to exercise reasonable care to see to it that the
patients had reasonably safe drinking water? To state
the question is to answer it. All human life depends on
safe drinking water.
The defense
alleges that the venue is not properly laid in Kankakee
County, because it is said that Mr. Bowen's office was
in Springfield. It seems to me that the case of the People
vs. Johnson, (66 App. 103) is conclusive on this Court
at to that question, the Court on page 107 says:
"But
it is to be observed that the personal presence of the
offender is not always an indispensable element in fixing
the local jurisdiction of a criminal offense. A crime
is, in legal contemplation, committed in the place where
the doer's act takes effect, whether he is himself in
such place or not; in this way one may even perpetrate
an offense against a State or county upon whose soil
he never set foot."
Moreover,
the evidence in this case shows that the defendant personally
supervised and inspected the Manteno State Hospital at
its location, and on at least one occasion the condition
of the water was a matter of discussion between himself,
Dr. Hinton and Dr. Hinton's secretary.
It is argued
that the statute is unconstitutional because it imposes
as a possible penalty a removal from office, and that
this could only be done by the Governor and not as a judicial
act. Even though the Governor may have power to remove
an officer, I see no reason why that removal may not also
follow as a part of the punishment for an offense, if
an offense has been or is committed. The one is power
vested in the Governor, the other is a penalty which may
or may not be imposed and which is fixed by the Legislature.
It is argued
by the defense that the Grand Jury was illegally constituted,
because it is said the entire Grand Jury was hand-picked;
and that the regular Grand Jury was in session. Judge
South, however, passed on both of the objections and overruled
them. Moreover, I find nothing in the record to show that
the Grand Jury was hand-picked. As to the other question
the Supreme Court in the case of The People v. Graydon,
(333 Ill. 429) settled the law in Illinois that a special
grand jury may return indictments even though the regular
grand jury is in session.
It is also
argued that the venire was not under
the hand and seal of the Clerk. It seems to me that the
only essential was that the grand jury was selected in
accordance with the law and was present even though the
venire had never been returned. In the case of The People
v. Kramer (352 Ill. 304) the court held that even though
a clerk omitted to attest the return before the grand
jury it made no difference. The court says at page:
"The
grand jurors, so far as appears, were lawfully selected.
Though the venire was void, its only service was to
notify the grand jurors that they were required to appear
at the time fixed. They were so notified and were present
in court when, according to the law, they should have
been. Being there, there was no reason to inquire when
or how they were notified, and the court properly was
no reason to inquire when or how they were notified,
and the court proceeded to empanel
them for the purpose for which they had been selected."
The defense
argues that the reports of the Department of Public Health
should not have been admitted in evidence. The evidence
showed that the reports were true and correct in so far
as the results of the analyses were shown. I see no reason,
therefore, why these reports were not competent. The officials,
who were charged with the responsibility of making the
examinations and having the reports mad, were all present
for cross-examination and testified to their correctness.
I come now
to the question as to whether the proofs show beyond a
reasonable doubt that the defendant is guilty as charged.
The charge being, as I view it, that he willfully, intentionally
and corruptly failed to furnish reasonably safe drinking
water to the patients of the Manteno State Hospital, and
was therefore, guilty of palpable omission of duty within
the meaning of the law. (The People vs. Mays, 17 App 361).
In that case considering a statute of identical language
here, the Appellate Court in speaking of what was meant
by palpable omission of duty, says on page 366:
"The
finding that through intoxication he has at carious
times been guilty of neglecting his duties is tantamount
to a finding of "palpable: omission of duty. We
quite agree with counsel that the word "palpable,:
as here used in the statute, embraces the idea of an
intentional and substantial failure to perform the duties
imposed by law, partaking of the nature of a willful
or gross neglect of the officer to attend to his duties.
It would be a too restricted use of the word to give
it the sense only of "easily perceived", "plain",
or "obvious", as such a construction would
make the office liable to removal when he had omitted
to perform any of the duties of the office, although
his failure to perform the same may have occurred through
accident, mistake or some personal inability, arising
from illness or other cause, for which he might not
be in any degree responsible, which certainly could
not have been contemplated by the legislature as a cause
for removing him. Through a mistake, that anyone is
liable to make, he may present an erroneous report to
the county board, showing his receipts and disbursements,
and such report therefore be untrue as a matter of fact,
and an examination of his books would plainly show the
incorrectness of it, yet if it should also appear that
the error was not intentional but the result of a mistake
of the officer it would certainly not be contended that
he would thereby render himself liable to be removed
by the board. But if it appeared to be a willful act,
upon his part, done with the design to wrong the county,
there could be no question that the board not only could,
but should remove him."
This case
was afterwards affirmed by the Supreme Court in the case
of John Henderson v. The People of the State of Illinois.
117 Ill. 265.
The word "corrupt",
in my opinion, means nothing more than willful and intentional.
(Chicago City Ry. Co. v. Olis, 192 Ill. 514, the court
said:
"The
modification complained of consists in the insertion
of the words 'intentionally, corruptly,' between the
words 'has' and 'willfully,' so that, as given, the
instruction reads that if 'any witness has intentionally,
corruptly, willfully and knowingly sworn falsely,' etc.
It is substantially conceded that 'intentionally' is
synonymous with 'willfully,' and such reiteration ought
not to make the instruction vicious. But as to the word
'corruptly' it is insisted that it use was equivalent
to saying to the jury that although they should believe,
from the evidence, that any witness had intentionally,
willfully and knowingly sworn falsely to any material
point in the case, yet they had no right to reject his
testimony, when not corroborated, unless they should
also believe, from the evidence, that such witness had
been bribed or was to receive some sort of gain or reward.
We are unable to agree with counsel in such respect.
In such connection, 'corruptly' refers to the motive
of the witness rather than to the means by which his
testimony is obtained. So in OVERTOOM V. CHICAGO AND
EASTERN ILLINOIS RAILROAD CO., 181 Ill. 323, it said:
"It is the corrupt motive, or the giving of false
testimony knowing it to be false, that authorizes a
jury to disregard the testimony of a witness'. Again,
in 1 Bouvier's Law Dictionary it is said : 'An act may
be corruptly done though the advantage derived from
it be not offered by another.' And that learned author
defines 'corruption' as being something against law,
and illustrates its application by the case of contract
for usurious interest, wherein it was 'corruptly agreed,'
etc. It would seem that a witness who should testify
'willfully and for the purpose of concealing the truth'
would bring himself within the meaning of 'corruptly
testifying."
In charging
a criminal intent as a matter of law, one is presumed
to intend all natural and probably consequences which
flow from his own deliberate act. He must no be charged
alone by what he actually intends, but how that act would
be construed by a reasonable person. The intent may be
inferred by the acts he did. An intentional disregard
of a known duty necessary to the safety of the person
or property of another, and an entire absence of acer
for the life, person, or property of others, such as exhibits
a conscious indifference to consequences, make a case
of constructive or legal willfulness. A sane person cannot
utterly disregard consequences and then say that he intended
to do no wrong. These principles are too well settled
to require the citations of authorities. Just about all
law violations justify themselves by a philosophy that
they are right, the law is wrong, or that they intended
no wrong.
I come now
to a brief discussion as to what the evidence shows. A
terrific epidemic broke out at the Manteno State Hospital
as a result of which some 450 patients of the Manteno
State Hospital became ill with typhoid and some 60 lost
their lives. To me this is only important as showing the
terrible effect of the thing if an offense was otherwise
committed.
The sewage
plant was originally built for a population of 2300, and
was required to serve at times some 6000. No conclusion
can be drawn from the evidence except that the sewage
plant was grossly inadequate.
The entire
area where the Hospital was located was underlaid with
creviced limestone. As a result of this it is clear that
if the sewage escaped from the pipes which carried it,
it would find its way into the drinking water, unless
all pipes were securely incases down for a sufficient
depth to prevent seepage; and the evidence shows that
this was not so. The evidence shows that commencing in
1931 and until the epidemic, tests were made from time
to time by the Department of Public Health that owning
to the large quantity of Coli-type bacteria that the water
was not fit, according to the known standards, for drinking
purposes, and that up to the time of the epidemic and
from time to time the Department notified the defendant
that a serious epidemic might occur at any time.
The State's
Attorney has summarized the percentages of positive portions
of drinking water during the years 1931 to 1939. They
are as follows: (Taken from the original brief of the
State's Attorney on page 25)
1931..........17.3%
1932..........21.8%
1933...........2.7%
1934..........23.6% |
1935..........18.0%
1936..........19.0%
1937..........36.9%
1938..........40.0%
1939..........55.3% |
It is a known
fact and the evidence shows that typhoid originates in
the human body and is carried about by excretion and that
typhoid epidemics may be and at times are water-borne.
Only in one year, according to known standards, did this
water appear safe for drinking purposes.
The evidence
in this case shows beyond all reasonable doubt that the
defendant paid no attention whatever to the reports of
the Department of Public Health, and on the contrary shows
that on one occasion when the water situation was being
discussed while he was engaged in his duties at Manteno
and the reports of the Department of Public Health were
being presented to him, he said that the water would have
to wait, that there were more important things to take
care of. The epidemic broke out after repeated warnings;
that it was water-borne, there is no doubt in my mind.
The conditions to make it were all there. Visiting truck
drivers drank the water and become ill with typhoid. Mr.
Bowen himself testified before the grand jury that he
was convinced as well as everybody else that the typhoid
was due to the water, but that if he had the thing to
go over again he would do just as he did; and that the
only reason for not chlorinating the water, which the
evidence shows would have avoided the epidemic and make
the water reasonably safe, was the cost which the record
shows is no more than ten to fifteen thousand dollars.
Why Mr. Bowen refused to heed the warnings of the State
Health Department, I cannot understand.
The defense
adopts the theory that the epidemic was cause by a patient,
Mary Ores. I do not believe that this Mary Ores had anything
whatever to do with the epidemic. Her people visited her
from time to time in close contact and nothing resulted.
As to her (Mary Ores) Mr. Bowen when on the witness stand
and when asked when he first learned of her and that she
was the cause of the epidemic state that it was after
he had got into trouble and was looking for an out.
I must conclude
that the evidence shows beyond all reasonable doubt that
the defendant is guilty in a manner and form as charges
in the first count of the indictment. The only extenuating
circumstance that I can see is the tremendous burdens
that either the law placed upon him or that Mr. Bowen
took upon himself. Mr. Bowen is a man approximately seventy
(70) years of age and with the exception of eight (8)
years, has been in the State service since 1909; and to
quote from the brief of the defendant on page 55, and
which is shown by the evidence:
"As
director of Public Welfare he exercised an executive
and administrative supervision over 25 public, charitable
and penal institutions of the State of Illinois containing
56,000 patients, inmates or prisoners. These were scattered
over the State of Illinois from Chicago to Anna and
included institutions at Alton, Jacksonville, Kankakee,
Dwight, Manteno , Menard, Peoria, and Joliet. He had
supervision of the Board of Pardons and Paroles including
the supervision of parole prisoners. In the penal institutions
of the State there were 13,000 prisoners. In addition
to this there were 7,000 persons on parole. In the charitable
institutions there were 56,000 patients and 2,000 on
parole from the hospital. In southern Illinois there
were held five clinics for tracoma.
In the Institute for Juvenile Research in Chicago there
was held the largest research clinic in the world. Five
hundred hospital beds are constantly kept and 500 or
600 persons daily go through the dispensary. 350,000
people a year are treated in these public institutions.
In addition to this service as Director of Public Welfare
he was in charge of investigations of and allowance
of old age assistance for which at the commencement
of the service there were 138,000 applications and now
are approximately 225,000. In this old age assistance
service about $3,000,000 a month is paid out under his
supervision. In addition to this service he is supervisor
of the Federal Social Security Service for handicapped
children involving about 20,000 crippled children and
in addition to this about 4,000 or 5,000 dependent children
placed in homes came under his supervisory jurisdiction.
There are also 3,000 world war veterans that come within
the jurisdiction of his service."
Through arrangements
with the State's Attorney and Mr. Bowen and his counsel,
I understand that indictments against Dr. Hinton and Miss
Williams are to be dismissed on the decision of this case
having been made, which understanding was reached upon
Mr. Bowen having as far as within his power permanently
removed these people from State service. Their indictments
are somewhat similar offenses of Mr. Bowen's. Dr. Hinton's
position was local superintendent and Miss Williams was
the dietitian.
The judgment
of the court, therefore, is, and the clerk is ordered
to enter the same. The defendant is found guilty in the
manner and form as charged in the first count of the indictment.
June 27, 1940
ILLINOIS STATE SUPREME COURT
DOCKET No. 25947 - AGENDA 5 - OCTOBER, 1940.
The People of the State of Illinois, Defendant in Error,
v.
Archie Leonard Bowen, Plaintiff in Error.
MR. JUSTICE
SHAW delivered the opinion of the court:
Archie Leonard
Bowen, then director of the Department of Public Welfare
of the State of Illinois, was indicted by a special grand
jury in the circuit court of Kankakee county for the alleged
violation of section 208 of the Criminal Code. (Ill. Rev.
Stat. 1939, chap. 38, par. 449.) This act provides a penalty
of a fine not exceeding $10,000 and removal from office
for every person holding any public office, who shall
be guilty of any palpable omission of duty, etc. It was
charged that the plaintiff in error failed to take proper
measures to render the drinking water at the Manteno State
Hospital fit for drinking purposes and that, by reason
thereof, an epidemic of typhoid fever occurred, resulting
in many serious illnesses and deaths. The cause was first
heard by a jury which failed to agree. The second trial
was before the court without a jury and, by stipulation,
was had upon a transcript of the same evidence which had
been heard by the jury in the first trial. The court found
the defendant guilty, imposed a fine of $1000 and removed
him from his office as Director of the Department of Public
Welfare, and that is the judgment reviewed by this writ
of error.
The plaintiff
in error makes a number of contentions, only one of which
needs to be considered. He urges (1) that the evidence
is insufficient to sustain the judgment, (2) that the
statute under which he was indicted is unconstitutional,
(3) that the venue was improperly laid in Kankakee county
and (4) that the grand jury which indicted him was illegally
selected. A consideration of the first point only disposes
of the case.
It is to be
noted at the very outset that Bowen is not a doctor, bacteriologist,
nor any kind of scientist, and that for such technical
matters he was dependent upon the advice of the doctors
in the Department of Public Health. He started in life
as a newspaper man, having been born in 1869, and is now
seventy-two years of age. From newspaper work he went
into public charitable work and thereafter into supervising
State charitable institutions in which capacity he served
as under five Governors. namely, Dunne, Deneen, Lowden,
Emmerson and Horner. He served the State of Illinois from
1909 to 1921 and again from 1929 until 1940. Since 1909,
he has served under every Governor except Governor Small,
and his original commission was obtained under the Civil
Service law.
At the time
of the unfortunate events at Manteno State Hospital, which
are hereinafter set forth, Bowen's duties were very extensive.
The Department of Public Welfare, of which he was in charge,
had more than ten thousand employees under his direction
and supervision and these, in turn, had direct supervision
over the following State Institutions: Ten Insane Hospitals,
with 32,000 patients, five penal institutions with 14,000
inmates, two institutions for juvenile research, two schools
for technical education of the blind and deaf, three institutions
for veterans, an infirmary in Chicago, treating 350,000
patients per year, five clinics for control of trachoma,
treating 4000 to 5000 patients per year, a decision of
child welfare, the State Board of Pardons and Paroles,
with supervision of all paroled prisoners during their
period of rehabilitation, and the division if old age
assistance, caring for approximately 138,000 pensioners.
Without any effort at a detailed statement of the entire
record, it is apparent from a mere recital of the foregoing
facts, that the Manteno State Hospital could not have
ben expected to receive more than a small portion of the
time of the director and the appropriations for the department.
The first case of typhoid
fever at Manteno State Hospital occurred in July, 1939,
which was approximately the period of incubation for the
typhoid bacillus after the admission of one Mary Ores,
whose case will be noted later in this opinion. The next
case was on or about August 15, 1939, and others followed
swiftly thereafter until a total of 411 cases had developed.
Nothing out of the ordinary, in the way of an epidemic,
took place prior to August 15, 1939, at which time Bowen
was taken rather desperately sick with a streptococcus
infection, and, for several weeks and during the height
of the epidemic, was so far disabled as to not know, except
by hearsay, during part of the time, as to what the Department
of Health was doing at the Manteno State Hospital.
It was the theory of the
People that the epidemic was caused by pollution of the
drinking water at the hospital, which came from four deep
wells. The record indicates that the terrain at that place
is underlaid with creviced niagaran limestone, which is
of such a character as to permit the sub-surface drainage
of water to get through without being filtered. There
were four wells, varying in depth from 227 feet to 1760
feet, and these were cased from the surface of the ground
to carrying depths. It is a further theory of the People
that sewage escaped from the sewage disposal system of
the hospital and, percolating through this creviced limestone,
entered the various wells and thereby caused a pollution
which brought about the epidemic of typhoid, It is contended
that it was the defendant's duty to have a chlorinating
plant installed, or by some other means to have prevented
this alleged contamination. In this connection, it is
to be noted that it was neither alleged nor proved that
the defendant has any authority to expend the necessary
eight or ten thousand dollars for a chlorination plant,
nor that the Department of Health of the State of Illinois
had ever recommended it.
It appears from the record
that the State Department of Health has laboratories at
Springfield, which regularly, at approximately monthly
intervals, examines samples of drinking water from the
various state institutions, and that this department has
a series of stock-form recommendations numbered from 1
to 14 which are stamped on the back of the reports sent
to the various institutions. These analyses of drinking
water are made by chemists or bacteriologists and not
by doctors nor by any one qualified to express any medical
opinion. It seems that the routine procedure is for the
examiner, who is sometimes a recently graduated chemical
student, to note from number so and so to be stamped on
the back of the report, which is done accordingly. Some
of these forms say "the above analyses shows that
the water is contaminated at the time samples were taken
and was not entirely safe for drinking purposes."
Other forms are "the above result shows that the
water at the time of sampling was safe to drink. The continued
safety of the supply is not assumed however. See previous
reports and correspondence." The court admitted in
evidence about 158 of these periodic reports, ranging
in time from March, 1931 to October, 1938, and ranging
in results from a statement of contamination in some of
them to a statement in the latest of them that the water
was safe for drinking purposes. There is no report of
any examination within 7 or 8 months of the outbreak of
this epidemic.
It is fully apparent from
the record that no microscopic examination was ever made
for the presence of typhoid bacillus and there is no evidence
to indicate that typhoid bacillus was ever mentioned to
the defendant until after the outbreak of this epidemic.
The recommendations and opinions written or stamped on
these reports were clearly not admissible in evidence
for a number of reasons: They did not show who made the
examination, they did not show that the person who made
the examination was qualified to make any recommendation
and they constituted merely a voluntary comment by an
unqualified person not present to testify in person nor
subject to cross-examination. The most that can be said
for these 158 exhibits, is that it showed the water to
be either positive or negative as to coli aerogenes.
It appears from the record
that coli aerogenes or colon bacillus may be friendly
or inimical, and that the mere presence of the colon bacillus
in water proves exactly nothing so far as typhoid fever
is concerned. The tests seem to have been made by a method
of broth fermentation, and determined nothing more than
the presence of absence of some kind of colon bacillus.
It further appears that this type of bacillus is present
in the air one breathes, in milk, on fruits and practically
everywhere.
It is further apparent
that colon bacillus may be of the fecal or non-fecal type
and that so far as typhoid is concerned it is only the
fecal type from man alone (not from animals) that can
spread the disease. The typhoid bacillus could not possibly
have been identified by the laboratory means used in any
of these reports and none of them is of any value to the
People in an attempt to prove the quilt of the defendant.
It should again be noted as above, that Bowen was not
a doctor nor a bacteriologist, and that all of these reports
passed through the hands of Dr. Andy Hall or Dr. Frank
Jerka or Dr. Baxter in the Department of Health and that
none of them either directly or indirectly ever mentioned
typhoid to Bowen.
Even if these reports were
of any probative value they would
necessarily tend to disprove, rather than prove a case
against the defendant. The water from these wells was
consumed by all the inhabitants of Manteno for more than
eight years prior to this epidemic. This test over a period
of eight years, if looked upon as a laboratory experiment,
would go a long way toward proving that the water actually
was safe for human consumption, because there is no evidence
of any abnormal condition as to typhoid occurring during
that period of time. It is difficult to think of any better
proof that could be offered that the water was free from
typhoid bacillus and that the epidemic was not water-borne.
The conclusion that it was not water-borne was also proved
by an exceptionally well-qualified and experienced expert
witness, who based his conclusion of the People's own
exhibits. Still another reason for thinking that the epidemic
was not water-borne is necessarily inferred from a total
failure to prove that there existed any defect or leak
in the sewage system.
The People offered the
expert testimony of a young doctor employed by the Department
of Public Health. This witness prepared a number of charts
showing such essential points as the number of cases beginning
on particular days during the epidemic, whether the afflicted
person was an employee or patient, the age group of the
various patients, their sex whether or not they were food-handlers,
the location of the patients within the numerous buildings,
constituting the entire hospital, the number of cases
in each separate building, with dates of incidence of
the disease and other pertinent facts. This doctor was
neither asked nor expressed any opinion as to whether
the disease came from the water supply. The record discloses
that at least ten qualified physicians in the employ of
the Department of Public Health were at Manteno during
the epidemic and not one of them was even asked by the
People to express an opinion as to whether or not the
epidemic had been caused by the drinking water. In fact,
only Dr. Baxter, was later called by the defendant and
testified that in his opinion the disease was not caused
by the water. There is thus a total failure to prove,
even by the opinion of experts, that the disease was caused
by the drinking water as charged in the indictment.
At this point it is desirable
to consider the case of Mary Ores, who has heretofore
been mentioned in this opinion. This patient was admitted
to the hospital June 12, 1939, which, according to the
medical evidence, was about the normal period of incubation
for the typhoid bacillus before the first case of that
disease occurred in the institution. She was so insane
as to require feeding by tube through her nose, and refused
to remain in bed, getting up continuously and roaming
about the ward in which she was a patient. Physically,
she was gross and filthy. She weighed approximately two
hundred pounds, ran a constant temperature of from 99
to 103 degrees, suffered from a large carbuncle
on her neck which required surgical treatment, and had
an uncontrollable diarrhea, which she either did not or
could nor restrain. As a result, her person, clothes and
her bed were constantly defiled with bodily excretions.
At that time no one either had or could have diagnosed
her case as typhoid, and she was, therefore, constantly
and by the most virulent methods, exposing others in the
ward, her nurses, attendants and those who handled her
food and laundry. She was taken from her ward to a surgical
wards for treatment and from the surgical to to the non-surgical
part of the hospital for a time, and later on returned
to a different ward. She was moved several times and there
is in evidence a large plat showing the exact places in
the institution where she was from time to time. Her symptoms
did not become such as to permit a diagnosis of typhoid
to be made until two or three weeks after her admission
and she died of that disease on August 30, 1939. Without
detailing the testimony, it is sufficient to state that
the first twenty-six cases of typhoid were medically directly
traceable to this woman and that it is also true, from
a medical standpoint, that all of the cases might be accounted
for by either direct or indirect exposure to her and to
those whom she infected.
The defendant offered the
expert testimony of Dr. L. Loyd Arnold, who testified
without compensation and whose testimony is in no manner
impaired or impeached, In addition to the usual medical
degrees, this witness had studied four years in Europe
at the University of London, University of Oxford, at
the Institute of Tropical Medicine in Hamburg, Germany,
at the University of Goettingen, at the University of
Munch and the University of Quenbingen. His experience
included service as biochemist at the Barnes Hospital
in St. Louis, as pathologist at the Nashville City Hospital
and other such employments. At the time of his testimony,
the University of Illinois, Professor of Bacteriology
in the College of Dentistry at the University of Illinois,
and also in the College of Pharmacy of that institution.
He had previously served as professor of Pathology, Bacteriology
and Public Health for five years at Loyola University,
School of Medicine, and as director of laboratories for
seven large Chicago hospitals. For eleven years he served
as bacteriologist in the Illinois Department of Public
Health, in charge of its Chicago laboratory and was also,
at the time of his testimony, a member of the Chicago
Board of Health. During all of his experience, he had
specialized in public health matters and epidemics. His
experience with the latter included several studies in
the field in the examination of actual epidemics which
had occurred in various places. This witness considered,
analyzed and explained the various charts above referred
to, which had been made by Dr. Eberhard and as to which
Dr. Eberhard had expressed no opinion. It is the opinion
of this witness that Mary Ores was suffering from latent
and not yet developed typhoid when she entered and while
she was in the hospital, and that the epidemic was traceable
to her. His reasons for this opinion are not only reasonable,
but clear and convincing. He was quite positive that this
was not a water-borne epidemic and we think the record
proves this to be the fact.
It would unnecessarily
prolong this opinion to make any further or more detailed
analysis of the testimony of the great number of witnesses
who were called. From what we have already said it is
fully apparent that the People failed to prove the defendant
guilty and that no guilt could even be assumed, unless
at the same time many facts not proved by the record were
also assumed. It was not proved, and we cannot assume
that any typhoid bacillus was ever found in the drinking
water. It was not proved and we cannot assume that there
was ever any leak or defect in the system of plumbing
and sewage disposal, or that any such contamination entered
either of the wells. In the face of the testimony of Dr.
Arnold, it would be extremely presumptuous for any layman
to assume that the infection came from any other place
than the body of Mary Ores. On the other hand, we think
the evidence clearly and satisfactorily establishes that
the infection did come from that person and that the record,
fully considered and properly construed, shows nothing
at all to indicate any guilt on the part of this defendant.
In view of our opinion
of this matter, it is unnecessary to consider any other
errors assigned and it is not necessary to remand the
cause for any further proceedings.
The judgment is reversed.
Judgment Reversed.
DEFINITIONS
(from The American Heritage® Dictionary of the English
Language: Fourth Edition. 2000.)
admitted in evidence - To permit
to enter documentary or oral statements and the material
objects admissible as testimony in a court of law.
palpable - ADJECTIVE: 2. Easily
perceived; obvious
indict - VERB: 1. To accuse of wrongdoing;
charge: a book that indicts modern values. 2. Law To make
a formal accusation or indictment against (a party) by
the findings of a jury, especially a grand jury.
empanel - VERB: Variant of impanel.
Law To enroll (a jury) upon a panel or list.
venire - NOUN: 1. A writ issued
by a judge to a sheriff directing the summons of prospective
jurors. Also called venire facias. 2. The panel of prospective
jurors from which a jury is selected.
trachoma - NOUN:
A contagious disease of the conjunctiva and cornea, caused
by the gram-negative bacterium Chlamydia trachomatis and
characterized by inflammation, hypertrophy, and formation
of granules of adenoid tissue. It is a major cause of
blindness in Asia and Africa. (Spelled in report as "tracoma"
and "trachoma".)
probative - ADJECTIVE: 1. Furnishing
evidence or proof. 2. Serving to test, try, or prove.
carbuncle - NOUN: 1. A painful
localized bacterial infection of the skin and subcutaneous
tissue that usually has several openings through which
pus is discharged. |
TABLE OF CONTENTS
Cover
Introduction
Chapter 1
Description of Manteno State Hospital
Chapter 2
Onset of Epidemic
Chapter 3
Preliminary Observations
Chapter 4
Water-Supply Study
Chapter 5
Control Methods Adopted
Chapter 6
Amoebiasis-Control Methods
Chapter 7
Epidemiology
Chapter 8
Discussion
Chapter 9
Legal Action Resulting From The Epidemic |
