author: Mr. Justice Newhall

text:
    Roland Gannon, Plaintiff in Error, v. Mildred Kiel, Defendant in Error.

      Opinion filed February 1, 1929.
    Rehearing denied April 6, 1929.
    Ropiequet & Freels, for plaintiff in error.
    Pope & Driemeyer, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.

Plaintiff in error brings this suit to reverse a judgment obtained against him as defendant in the court below in an action brought by the defendant in error to recover damages sustained by her in a collision with plaintiff in error’s automobile.

(For convenience, in this opinion, the defendant in error, Mildred Kiel, will be referred to as plaintiff, and the plaintiff in error, Boland Gannon, as defendant.)

The declaration filed by the plaintiff consisted of two counts, the first alleging general negligence on the part of the defendant in the operation of his automobile, and the second alleging that the injury caused to plaintiff was due to wilful and wanton negligence on the part of the defendant.

The general issue was filed, and the case went to trial before a jury, which returned a verdict in favor of the plaintiff in the sum of $6,500, upon which, after motion for a new trial was overruled, judgment was entered.

The plaintiff was injured August 8, 1927, about eight o’clock in the morning, at Eighth Street and Illinois Avenue, East St. Louis, Illinois, in an accident involving the automobile driven by the defendant. As a result of the accident, plaintiff’s right leg was broken above the ankle, and she was taken to a hospital where she received medical treatment for a considerable period of time.

Eighth Street is an asphalt paved street extending north and south, and intersects at right angles Illinois Avenue, or State Street as it is commonly called, in the busy portion of the business and residential section of East St. Louis. Street cars are operated on State Street on double tracks. Vehicular traffic on Eighth Street has the right of way in both directions over traffic on State Street, traffic on the latter street being regulated by “stop” signs.

Plaintiff resided on Eighth Street south of State Street, and, on the morning she was injured, she left her home a little before eight o’clock in company with her sister, both of whom were on their way to work. Plaintiff testified that she walked north on the west side of Eighth Street, crossed to the north side of State Street, and, before starting across easterly on Eighth Street, stopped and looked both ways to see if there was any machine coming, and that she saw only one coming north.; that she waited on the west side of Eighth Street until this machine passed,' and then started across the street, when she was struck by defendant’s machine; that as she crossed the street, she was carrying an umbrella straight up above her head; that it was raining or misting slightly; that her sister was walking to her right about a step in advance; that in about the middle of the street, without warning, she was knocked to the pavement and dragged by defendant’s automobile about 8 feet; that the driver of the machine had not given any warning, sounded any horn, or given any signal of his approach; that the plaintiff did not see the machine until it struck her.

Plaintiff’s sister, Hollie Kiel, testified in corroboration of plaintiff’s version of the accident, and further stated that, as she and her sister walked easterly across the street, the witness was to the right and a little in front of the plaintiff; that the witness saw defendant’s car just barely in time to step back to avoid being hit, and that, as she stepped back, the car went past the witness and struck her sister, Mildred; that she judged the speed of the car at 25 or 35 miles per hour; that the car traveled about 40 feet after it hit her sister before it stopped; that the defendant did not blow his horn or give any . signal prior to the collision.

S. W. Moore, as witness for the plaintiff, testified that he was secretary of the Board of Education of East St. Louis, Illinois; that, just prior to the accident, he was walking west on Illinois Avenue at Eighth Street on the north side of Illinois Avenue; that about the middle of the street he passed the plaintiff and her sister, who were walking east; that just after passing them, he heard a noise resulting from the collision between defendant’s car and the plaintiff, and he then looked around and saw the plaintiff lying on the street ; that, as he went back to assist, he noticed the defendant’s car about 30 feet to the north; that from what he saw, he judged the speed of the car from 30 to 35 miles per hour.

Mrs. Kiel, witness for plaintiff, testified that the defendant visited the plaintiff at the hospital, and while there stated in the presence of herself and the plaintiff that he did not see the plaintiff prior to the accident, and that he did not know that he had had a collision until he felt the jar in his car.

Other testimony on behalf of plaintiff showed that at and near the intersection of Eighth Street and Illinois Avenue there are several stores and business houses, and that in the immediate vicinity surrounding the intersection are places of business and residences; that traffic at the intersection is quite congested in the morning, and' that considerable numbers of people pass on both streets at this intersection.

The defendant testified that he was driving north on Eighth Street; that, before coming to Illinois Avenue, he slowed down, sounded his horn, and started across the intersection in second gear; that he shifted into high gear as he crossed the north street car tracks, and that he was not going over 10 or 12 miles per hour across the intersection; that he looked for pedestrians, and that the only persons he saw were on the west side of the street going in the same direction that he was; that there were no persons crossing Eighth Street as he came up to the intersection; that on the north sidewalk line plaintiff came in contact with the side of his car, and that he applied the brakes, stopped his car, and went back to pick her up.

On-cross-examination, he testified that he always sounded his horn at every corner, and that, to the best of his knowledge, he did sound his horn on the morning in question; that he did not sound it to give the plaintiff and her sister warning because he saw no one crossing the street at the time; that the only persons he saw were on the west side of Eighth Street; that he did tell the plaintiff at the hospital that he did not see her until his car struck her, and that he could not say where they were immediately before then; that before crossing Illinois Avenue he did not come to a full stop; that he had a clear view in both directions on State Street, and that, as he drove northward across the intersection, he had a wide unobstructed view; that he did not see the girls until one of them stepped into the side of his car, and that he imagined that they came from across the street.

Vernon Garrison, witness for the defendant, testified that he was walking on the west side of Eighth Street, and that he noticed plaintiff and her sister when they were about half-way across the street; that he saw the defendant’s car coming from the south when it crossed the street car tracks, and that he judged the speed of the car at 10 or 12 miles per hour; that at this time there was another car coming from the north approaching Illinois Avenue, and that, when this car sounded its horn, the plaintiff stepped forward quickly, and was struck by defendant’s car.

J. C. Kramer, witness for defendant, testified that, immediately prior to the accident, he was driving south on Eighth Street approaching State Street; that, when about 150 feet north of State Street, he saw the defendant’s car when he started across Illinois Avenue, that he judged the speed of the car from 10 to 15 miles per hour; that he saw two young ladies on Eighth Street 6 or 8 feet from the northwest corner, and that they were going east; that, when they reached the center of the street, Gannon’s car was between the north car tracks and the sidewalk; that he was looking at the approaching traffic; that, when he saw the girls, he sounded his horn; that he saw defendant’s car strike the plaintiff, who fell to the street, and that she was struck either by the running board or the fender on the left side of the car.

Witness Hart testified for the defendant that he was employed at a filling station located on the southwest corner of the intersection; that he judged the speed of defendant’s car at 7 or 8 miles an hour as it crossed Illinois Avenue; that he heard defendant’s car blow its horn before it started across the intersection on the south side of the street car tracks, and that he saw the plaintiff run directly into the left front wheel of the defendant’s machine.

Other testimony on behalf of the defendant consisted of an affidavit of an absent witness, whose affidavit substantially corroborated defendant’s contention as to the happening of the accident.

Peremptory motions were asked by the defendant at the close of the plaintiff’s case, and again at the close of all of the evidence, to instruct the jury to find for the defendant, which motions were overruled and exceptions taken. It is contended on behalf of the defendant that the record does not show due care on the part of the plaintiff or negligence on the part of the defendant to warrant a verdict under the first count, and that there is no evidence whatever to support the verdict under the second count of the declaration charging wilful or wanton misconduct.

It is argued that there is no testimony by anyone to show that the defendant intentionally or deliberately ran into plaintiff. It is- admitted by counsel, and the record so shows, that the defendant did not see the plaintiff until his machine collided with her, and it is argued that this failure on the part of the defendant, while negligent, cannot be said, under all the circumstances, to amount to wilful or wanton negligence.

In Broton v. Illinois Terminal Co., 319 Ill. 326, at page 330, it was said:

“It has been frequently said by this and other courts that whether an. injury is the result of wilful and wanton conduct is a question of fact, to be determined by the jury from all the evidence. Where there is no evidence tending to support the charge of wilful and wanton conduct there is no question of fact to submit to a jury, and the motion to direct a verdict on those counts would present a question of law for the court to decide. Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of1 wilful and'wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to establish the charge. Plaintiff and defendant had a legal right to pass over the highway crossing, and each was required, in doing so, to observe due regard "for the legal right of the other. A willful or wanton injury must have been intentional or the acts must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. (Lake Shore & Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596; Heidenreich v. Bremner, 260 id. 439; Illinois Central Railroad Company v. Leiner, 202 id. 624.)”

If the jury believed the testimony of the plaintiff and her witnesses, then it was clearly a question of fact for the jury to determine whether defendant, under all the circumstances shown, was guilty of wilful or wanton negligence.

It is the clear duty of an automobile driver to have regard for the safety regulations provided by law, and to take into consideration existing conditions at the place where an injury may occur. The defendant did not look, when it was his duty to be on his guard and have his car under control, at a busy street intersection where he was bound to know that pedestrians might be crossing.

It was the positive duty of the defendant, if he saw plaintiff crossing the street, to give reasonable warning of his approach, and to use every reasonable precaution to avoid injuring her, and, if necessary, stop his car until he could safely proceed. Nearly all of the witnesses for defendant saw plaintiff and her sister crossing the street, while the defendant’s car was proceeding across the street intersection. Defendant testified that his view was unobstructed, yet he did not see plaintiff until she was struck by his car.

It was peculiarly the province of the jury to determine, under all of the circumstances, whether he was guilty of such a degree of negligence as could be said to be wilful or wanton. Failure to discover danger through recklessness or carelessness, when it could have been discovered by the exercise of ordinary care, may ofttimes be considered wilful or wanton negligence. See Brown v. Illinois Terminal Co., supra, and Fromm v. Seyller, 245 Ill. App. 392, where many decisions of our courts are quoted and commented upon in reference to the duties and obligations of drivers of automobiles upon the public highway. In view of these decisions and the facts in this record, we are of the opinion that the evidence supports the finding of the jury that the defendant was guilty of wilful or wanton negligence.

It is also urged that plaintiff was guilty of such contributory negligence as bars her right to recover. If, as we hold, defendant was guilty of wilful or wanton negligence, then plaintiff is not precluded from recovering damages. However, the facts as to the care that plaintiff was exercising at and prior to her injury are set forth briefly in the foregoing statements of the various witnesses, and, after due consideration of the record, we are of the opinion that, if it were necessary to so determine, plaintiff cannot be said, as a matter of law, to be guilty of contributory negligence. Her care or want of care was for the jury to determine under all the surrounding conditions that existed at and prior to her injury. The proof tends to show that she looked before crossing the street, and could not be held to be bound to anticipate that defendant’s car would approach at such rapid speed without giving her due warning.

Counsel contend that a criminal offense was charged in the second count of the declaration, and that it was necessary to prove the same beyond all reasonable doubt. The most that can be said is that this, count charged a misdemeanor, and, under the holding of the Supreme Court in Rost v. Noble & Co., 316 Ill. 357, proof by a preponderance of evidence is sufficient. It is only where the charges in a civil case amount to a felony that proof beyond a reasonable doubt is required. Instructions offered by defendant only required plaintiff to prove her case by a preponderance of evidence. A party cannot complain of an error in instructions when the same error is found in the instructions offered by the complaining party. (McInturff v. Insurance Co. of N. A., 248 Ill. 92.)

The last contention of counsel is that the verdict is excessive. It is undisputed that her actual pecuniary loss was over $600 in wages and about $800 for hospital and medical bills. The proof tended to show that she suffered a compound fracture of her leg below the knee, with the bones protruding through the flesh; that she has a deformed leg, being shorter by a quarter of an inch than the other, causing a decided limp and hindering her in ordinary use; that she suffered considerable pain, and that the suffering existed over a period of several months. We are of the opinion that the verdict was not so excessive as to warrant a new trial.

For the reasons aforesaid, we are of the opinion that the judgment of the court below should be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Dove D. Hickman, Appellant, v. Ritchey Coal Company, Appellee.

      Opinion filed February 27, 1929.
    Wilbur R. Wicks and George W. Dowell, for appellant; Wilbur R. Wicks, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant sued to recover for personal injuries, sustained in March, 1919. The action was begun October 25,1923, and issues were joined at the November term of court. At the May term, 1924, May 5, Judge Crow made an entry on the docket that the parties agreed the cause should be tried by the court on the following Thursday, on a stipulation of facts. No entry was thereafter made that the cause had been tried and submitted to the court, or that it was taken under advisement. Neither does it appear from any record entry that the parties agreed to waive, a formal trial in open court.

On May 4,1925, Judge Gillham entered an order that upon the call of the cause for trial it was dismissed for want of prosecution at appellant’s costs. About two years later, May 2,1927, Judge Stuttle ordered the reinstatement of the cause upon being advised by the attorney then representing appellant that both parties had agreed that it should be reinstated. At the same term of court, on May 17, 1927, appellee moved the court to set aside the order of reinstatement on the ground that it had never agreed that the cause should be reinstated. Thereupon Judge Harriss allowed the motion and set aside the order of reinstatement and again ordered that the suit be dismissed and removed from the docket.

In that state of the record Judge Crow, on June 14, 1927, and at the same term of court, rendered a judgment in favor of appellant for $5,000 based upon a stipulation of facts which had been entered into at the May term, 1924. At the same term of court, on August 1,1927, appellee moved to set aside that judgment and Judge Miller entered an order setting it aside and again dismissed the suit at appellant’s costs. At a subsequent term of court, on May 7, 1928, appellant moved the court to set aside the original order of dismissal entered May 4,1925, the order of May 17,1927, setting aside the order of reinstatement, and the order of August 1, 1927, setting aside the $5,000 judgment and asked the court to restore and reinstate that judgment. The motion was overruled and appellant has perfected an appeal from that ruling.

Appellant’s motion was filed more than three years after the original order of dismissal for want of prosecution had been entered. The law is well settled that the court is without authority to set aside a judgment, on motion made at a subsequent term, except in the following cases: where it is by consent of the parties; where the judgment is absolutely void, and where the motion is made under section 89 of the Practice Act, Cahill’s St. ch. 110, if 89. After the term has expired, a court has no authority on a motion made at a subsequent term to set aside the judgment, but may amend it in mere matter of form, after notice has been given to the opposite parties. Cook v. Wood, 24 Ill. 295; Cramer v. Commercial Men’s Ass’n, 260 Ill. 516. Where a cause was dismissed for want of prosecution and it was reinstated at a subsequent term, it was held that the court was without jurisdiction to reinstate it. Smith v. Wilson, 26 Ill. 186.

In the absence of a statute providing otherwise, a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term, or unless the judgment is void. People v. Weinstein, 298 Ill. 264. It is apparent, therefore, that the motion to set aside the original order of dismissal cannot be allowed unless the motion is sufficient to bring the case within section 89 of the Practice Act, Cahill’s St. ch. 110, ft 89. That question will be considered later.

The court did not err in setting aside the order of reinstatement which was entered on May 2,1927. The cause was reinstated on that day on representations made by the then attorney for appellant that both parties had agreed thereto. A few days later, and at the same term of court, appellee moved the court to set aside the order reinstating the cause on the ground that it had never made such an agreement. The court was fully warranted in setting aside the order of reinstatement.

The court did not err in denying the motion to set aside the order of August 1, 1927, which vacated and set aside the $5,000 judgment. The judgment was set aside at the same term at which it was rendered and the judgment had been rendered at a time when the cause had been dismissed for want of prosecution. Upon the dismissal of a suit the parties are out of court, and no further, proceedings are authorized until the judgment of dismissal is vacated and the cause reinstated. Goodrich v. Huntington, 11 Ill. 646; Chicago Title & Trust Co. v. Tilton, 256 Ill. 97.

A motion under .section 89 of the Practice Act, Cahill’s St. ch. 110, fí 89, must set up and rely upon such a fact or facts as do not appear upon the record and are unknown to the court, and which, if known, would have precluded the rendition of the judgment. People ex rel O’Connell v. Noonan, 276 Ill. 430. The motion does not aver that there was any fact or facts unknown to the court at the time the suit was dismissed for want of prosecution. There was nothing upon the docket to indicate that the parties had waived a trial in open court. The last order prior to the dismissal of the case was to the effect that the parties had agreed to try the case before the court on a certain day on a stipulation of facts. There is no showing that the case was actually submitted to Judge Crow for decision other than the affidavit of appellant hereinafter referred to. At the time the $5,000 judgment was set aside the court was fully advised as to all of the facts.

The motion under section 89 of the Practice Act, Cahill’s St. ch. 110, U 89, is for the sole purpose of correcting such errors of fact, which, by the common law, could have been corrected by a writ of error cor am nobis. The statute so provides. The motion will not lie where the party complainant knew the facts complained of at the time of or before trial, or by the exercise of reasonable diligence, might have known them, or is otherwise guilty of negligence in the matter, or when advantage could have been taken of the alleged error at the trial. 5 Encyc. PL & Pr. 29; 34 C. J. 394; Mitchell v. Eareckson, 250 Ill. App. 508. The motion is not intended to relieve a party from the consequences of his own negligence. Loew v. Krauspe, 320 Ill. 244; Cramer v. Commercial Men’s Ass’n, 260 Ill. 516.

The attorney who brought this suit knew all of the facts now relied upon by appellant in support of his motion before the orders in question were entered. He died in December, 1927, and had represented appellant in this case since October 25,1923. Appellant filed his own affidavit in support of his motion in which he averred, inter alia, that the several orders aforesaid were entered without notice to him or his attorney; that the cause was submitted to Judge Crow at the May term, 1924, for Ms decision upon a stipulation of facts; that the judge then took the case under advisement and retained it until June 14, 1927, when he rendered judgment for $5,000; that under the circumstances the case should not have been set for trial at the May term, 1925, and should not have been dismissed for want of prosecution, etc.

After a defendant is served with process both parties are bound to be in court, and are charged with knowledge that any proper order or motion may be made at any time, in the absence of a rule excusing attendance unless notice is given. Bonney v. McClelland, 235 Ill. 259. It is quite apparent that the motion to set aside the order of reinstatement and the motion to set aside the $5,000 judgment, and the orders entered on those motions, were proper motions and orders of which appellant and his attorney were bound to take notice. The only remaining question is as to whether the original order of dismissal on May 4, 1925, was a proper order of wMch appellant and his attorney should take notice. We think it cannot be said that it was a void order. Appellant’s affidavit alleged to have been filed in support of his motions has not been properly preserved.

The bill of exceptions in this case, omitting the caption, conclusion and signature, is as follows: “Be it remembered, that heretofore, to-wit, on the hearing of the above entitled cause, before the Honorable Henry Gf. Miller, one of the Judges of said Court without a jury, on the 16th day of July, A. D. 1928, the same being one of the days of the May term, A. D. 1928, of said court, the plaintiff, to maintain the issues on his behalf, introduced the following motion, affidavit and stipulation, which is hereto attached, and which was all the evidence offered, heard or received on the trial of the above entitled .cause.” It will be observed that the bill of exceptions does not contain the ruling of the court on the motion or the exception thereto. Motions, petitions in the nature of motions, and the court’s rulings thereon, are not parts of the common-law record and must be incorporated in a bill of exceptions. People v. Levin, 318 Ill. 227; People v. Arnett, 317 Ill. 425.

It will also be observed that thé bill of exceptions simply states that the plaintiff: introduced “the following motion, affidavit and stipulation, which is hereto attached,” without otherwise incorporating the same therein or attempting to identify the instruments referred to and it does not by express terms make the said instruments a part thereof. To bring before a court of review the question whether the evidence sustains the judgment, such evidence must be incorporated in a bill of exceptions signed by the trial judge, or particularly referred to therein and by express terms made á part thereof in such a manner as to show conclusively that such was the evidence submitted to the trial court. Legnard v. Rhoades, 156 Ill. 431, Hughes v. Bell, 157 Ill. 655. When instructions are referred to in a bill of exceptions but there is nothing contained therein to identify the instructions so referred to, they are not properly preserved. Chicago, B. & Q. R. Co. v. Haselwood, 194 Ill. 69.

Under the foregoing authorities the motion, affidavit, stipulation and ruling of the court on the motions and an exception thereto have not been properly preserved. Even if they had been we have shown that the court did not err in its ruling and the judgment is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    D. L. Sullivan, Defendant in Error, v. John V. Mulvihill and Michael Mulvihill, Plaintiffs in Error.
    Gen. No. 8,008.

      Opinion filed May 1, 1929.
    Barnes, Magoon & Horton, for plaintiffs in error; Howard H. Bayne, of counsel.
    Elmer Mohan, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted in the circuit court of LaSalle county by defendant in error, hereinafter called plaintiff, against plaintiffs in error, hereinafter called defendants, and one Mary Mulvihill, for the purchase price of a certain tractor, repairs and supplies. The declaration consisted of the common counts, accompanied by affidavit of claim. Mary Mulvihill was not served. Pleas of the general issue and a plea denying joint liability were filed by each of said defendants, accompanied by affidavit of merits.

At the close of the plaintiff’s evidence, a joint motion was made by defendants for a directed verdict. Said motion being denied, separate motions to the same effect were made by each of said defendants. Said motions being denied, defendants made a motion to exclude from the consideration of the jury the evidence and testimony offered on behalf of plaintiff, assigning as reason therefor that the “declaration charged the contract sued upon was made by John V. Mulvihill, Michael Mulvihill and Mary Mulvihill, and the alleged contract proven and sought to be proven by the testimony and evidence offered by the plaintiff is testified to have been made only with John V. and Michael Mulvihill.” Said motion was denied. Similar motions were made by each of said defendants, which motions were denied. Thereupon, leave was given plaintiff to amend said declaration by dismissing Mary Mulvihill as a party defendant. Defendants were given leave, on motion, to file a plea of the statute of limitations to the declaration as amended. A demurrer filed to said plea was sustained, and defendants elected to abide by the same. Thereupon, on motion of defendants, the pleas on file to the original declaration were allowed to stand to the declaration as amended. The same or similar motions were made by said defendants at the close of all the evidence, which motions were denied.

A verdict was returned in favor of plaintiff for $1,585, on which judgment was rendered upon the overruling of the motion for a new trial. To reverse said judgment, this writ of error is prosecuted.

It is first insisted that the court erred in sustaining the demurrer to the plea of the statute of limitations. The assignment, as set forth in the record, abstract and brief, is that the court erred in overruling the demurrer to said plea. Technically, therefore) no error is assigned on the sustaining of the demurrer to said plea, but, as counsel on both sides have treated said assignment as being that the court erred in sustaining said demurrer, we will so consider it.

The general rule at common law was that, under a declaration against two and a joint plea, the plaintiff could not recover without establishing the joint liability. Mayer v. Brensinger, 180 Ill. 110-117.

That plaintiff had the right, under section 39 of the Practice Act, Cahill’s St. ch. 110, If 39, to amend his declaration, dismissing therefrom one of the defendants, cannot be questioned.

Counsel representing the defendants practically concede this, but insist that said amendment brought into the suit a new cause of action, viz., a cause of action against the defendants, instead of a cause of action against the defendants jointly with Mary Mulvihill.

Plaintiff amended his declaration, striking the name of Mary Mulvihill as one of said defendants, following the motions in writing of said defendants to direct a verdict for the reason that the evidence tended to show a contract only as against said defendants. The defendants therefore are not in a position to insist that Mary Mulvihill was a necessary party. In this connection, the language of the Supreme Court in Mayer v. Brensinger, supra, while based on a somewhat different record, is well worth considering. At page 118 the court says:

“It is also to be observed, that the dismissal of the suit as to Simon Mayer was upon the motion of the defendants, and not upon the motion of the appellee. Where an attorney for joint defendants stipulates for a discontinuance as to one of them, the others, having practically acquiesced, cannot urge the non-joinder in bar of further proceedings. (Callam v. Barnes, 44 Mich. 593.) So, here, the appellant cannot rely on a nonjoinder when he not only consented to it, but procured it by his own motion.” In the same case the court further discusses the exception to the rule requiring the suit to proceed as to all of the defendants sued, and says:
“In the case at bar, as Simon Mayer was merely a clerk of the appellant and without interest in the business carried on by the appellant, he was an unnecessary and improper party; and, therefore, the present case clearly falls within the exception to the rule.”

• An examination of the record will disclose that counsel for defendants herein, by cross-examination, attempted to develop that the said Mary Mulvihill was not a party to any contract for the purchase of said tractor. If plaintiff adopted the defendants’ theory, and dismissed from said suit or struck the name of Mary Mulvihill from the declaration, defendants cannot now complain that such action was erroneous.

The next question which arises is as to whether the dismissal of Mary Mulvihill from said suit thereby instituted a new cause of action as to said defendants. As stated, following the amendment to said declaration, the defendants procured leave of court to allow the pleas theretofore filed to stand to the declaration as amended.

A dismissal of an unnecessary party defendant does not work a discontinuance in the sense that a new cause of action is created. In an action ex contractu, the dismissal of an unnecessary defendant does not effect a discontinuance of the cause of action so as to make a judgment against the remaining defendant or defendants erroneous. Mayer v. Brensinger, supra, 118; Patten v. Iroquois Furnace Co., 124 Ill. App. 3; Teich v. Ayer, 213 Ill. App. 41-47; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61-77. In Teich v. Ayer, supra, the court at page 46 says:

“In 1872 our legislature passed a law now found in our Practice Act, ch. 110, sec. 39 (J. & A. par. 8576), reading as follows:
“ ‘At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense.’
“Following the enactment of that statute, our courts have held that in an action ex contractu against several defendants, a plaintiff might dismiss as to one or more at any time during the trial and before final judgment and proceed to judgment as to those remaining. Cogshall v. Beesley, 76 Ill. 445; Black v. Womer, 100 Ill. 328, 330; MacLachlan v. Pease, 171 Ill. 527, 531; Franklin Life Ins. Co. v. Hickson, 197 Ill. 117; Metropolitan Life Ins. Co. v. People, 209 Ill. 42, 49; Malleable Iron Range Co. v. Pusey, 148 Ill. App. 344, 348, affirmed 244 Ill. 184, 200; Douglas v. Newman, 5 Ill. App. 518, 520; Brown v. Tuttle, 27 Ill. App. 389, 390; Willoughby v. Brown, 190 Ill. App. 51; Leisteko v. Smith, 190 Ill. App. 313. Our courts have said that the rule which was the law prior to the enactment of section 39 of our Practice Act, namely, that, in order to recover in an action ex contractu, a cause of action must be established against all of the defendants, and that a dismissal or discontinuance as to one codefendant effects a discontinuance as to the entire action, so as to make a judgment against the remaining defendant or defendants erroneous, is subject to certain exceptions. One of these exceptions is where one is joined as a defendr ant in the action who is an improper or unnecessary party. This rule has been applied in cases where the proof showed that one of the defendants was not liable, and in such cases the dismissal of such defendant and the recovery of judgment against the defendant remaining were upheld. Mayer v. Brensinger, 180 Ill. 110, 118, 119; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 77, 79.”

In Grand Pacific Hotel Co. v. Pinkerton, supra, the court at page 77 says:

‘ ‘ The claim here is that, according to the showing of the record, Glennie was served with process, as well as the Grand Pacific Hotel Company, and filed a plea, and that the record, consisting of the process, the pleadings and the judgment; shows that the judgment was defective by reason of having been rendered against the appellant alone, without a dismissal of the suit as to Glennie. The law upon this subject, as contended for by the appellant, may be admitted to be correct, but we do not consider that the showing of the record is such as appellant claims it to be. It is conceded that, if the suit was actually dismissed as to Glennie, the judgment was properly rendered against the appellant alone. Here, the suit could be properly dismissed as to Glennie, and retained as to the appellant, because Glennie was really and in fact an unnecessary party, under the theory upon which the case was tried in behalf of the appellees.”

Under the above authorities, it cannot be held on this record that* the dismissal of Mary Mulvihill amounted to a discontinuance of said cause of action as to the other defendants. In other words, proceeding against the defendants did not amount to a new cause of action. We have gone into this matter somewhat fully, although, as stated, the assignment of errors does not raise the point.

It is next contended that the court erred in admitting in evidence a letter, purporting to have been written by the defendant John Mulvihill to the plaintiff. The principal contention in this court is that the court erred in admitting said letter in evidence as against both of said defendants, as said defendants were denying joint liability. The counsel here represented both defendants in the trial court. The objection in the trial court to the admission of said letter was that there was no sufficient identification of the same; that the same was improper, incompetent, immaterial and not proper rebuttal, and that there was no sufficient proof that a letter had been written by the plaintiff to which the letter in question purported to be a reply. The record discloses that the proper foundation was laid in connection with the testimony of the plaintiff that he had written to the defendants. The letter was competent, relevant and material, and was concededly admissible so far as the defendant John Mulvihill was concerned. No objection being made in the trial court that its admission should be limited to him alone, and ho instruction having been offered in this connection, the defendants are not in a position to urge in this court for the first time that said letter was not admissible as against the defendant Michael Mulvihill. Without reference, however, to the fact that this point was not raised, we are of the opinion that, under the facts as disclosed by the record, said exhibit was in fact admissible as to both of said defendants.

It is next contended that the court erred in the giving of plaintiff’s second instruction. ‘Said instruction states a correct principle of law, and the court did not err in giving the same.

Lastly, it is insisted that the verdict is contrary to the manifest weight of the evidence. In this connection, counsel quote from the record, testimony offered by the plaintiff tending to show that Mary Mulvihill was also jointly liable with the defendants. For the reasons heretofore stated, counsel are not in a position to urge that the verdict is against the manifest weight of the evidence for the reason that it tended to show a contract with Mary Mulvihill also.

Without going into a discussion of the evidence, it is only necessary to say that the verdict is not against the manifest weight of the evidence but is, in our judgment, supported by a preponderance thereof.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed,


author: Mr. Presiding Justice Jones

text:
    Bertha Eichhorst, Appellant, v. Edward Eichhorst et al., Appellees.
    Gen. No. 7,990.

      Opinion filed May 7, 1929.
    Richard R. Klein, for appellant; Alvin E. Stein, of counsel.
    Frederick C. Harbour, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court..

Bertha Eichhorst filed her bill of complaint to set aside a certain trust agreement between her and appellees, because of fraud, undue influence, and want of consideration. An answer and a cross-bill were filed by the defendants. Issues of fact were made up and submitted to a jury. The findings of the jury were in favor of appellees and the chancellor rendered a decree dismissing the original bill for want of equity. This appeal is prosecuted to reverse that decree.

Prior to August, 1911, Emil Eichhorst, then a widower, resided with his several children on his farm of 320 acres near Downers Grove, Illinois. During that month he and appellant were married. They resided on the farm until December, 1917, at which time the family moved to Downers Grove. On November 22, 1919, Emil Eichhorst executed his last will and testament, appointing three of his sons executors and trustees. By the third paragraph there was given to his widow, all of the household goods, and also the house and lot situated in Downers Grove where they lived; all to be taken by her in lieu of widow’s award, dower, and homestead rights, and to be held for and during her natural life, or so long as she shall remain his widow.

The fourth paragraph of the will devised and bequeathed to the executors and trustees, in trust, all of his other real estate, with power to manage it and to pay out of the gross income all taxes and costs of necessary maintenance. The trustees were then to pay to the widow, monthly, one-third of all the net income of the estate during her natural life, the balance of the income to be divided equally among his children.

In March, 1925, Emil Eichhorst and his wife entered into a contract to sell the farm to one Nelligan for $88,000, of which $500 was paid down, and the balance was to be paid in instalments, with a final payment of $58,000 on or before April 18, 1926. Emil Eichhorst died September 27, 1925, and it appears that $15,000 of the purchase money was paid prior to that time. Shortly thereafter his will was admitted to probate by the county court of DuPage county, and letters testamentary were issued to the executors named in the will. The gross value of the estate was about $100,000. The farm was incumbered by a mortgage of $8,000 and after deducting the $15,000 paid before decedent’s death, there remained an equity of $65,000 in it. The balance of the estate consisted of personal property.

The trust agreement bears date November 25, 1925, and was executed by appellant and all the children of decedent, including the three sons who were appointed executors of said will. The preamble of the agreement recites the substance of the fourth clause of decedent’s will, except that it states the trustees were to pay appellant, monthly, one-third of all the net income of said real estate, and that at the time of making the will, decedent had in mind the income from the farm. However, the language of the will is “one-third of all the net income of my estate.”

The trust agreement was prepared by Gustav H. Bunge, the attorney for the executors, and sets out that, by reason of the sale of the farm, the only real estate owned by decedent, in addition to the homestead occupied by his widow, consists of five vacant lots in the Village of Downers Grove, from which there is no income whatsoever; that the widow is therefore deprived of the income which was contemplated by the testator in and by the terms of his will; that she has expressed a willingness to abide by the terms of the will, except as to the provision made for her maintenance, and that the other heirs are willing to make provision for an income for her, sufficient to maintain the home and for her personal needs during, her life. The agreement then provides that in' lieu of the provision contained in the fourth clause of the will, a trust fund of $20,000 is to be established and the income paid to appellant during her natural life. r

In pursuance of the terms of the agreement, securities to the amount Of $19,650 were deposited with the trustee. On February 17, 1926, appellant filed in the county court her renunciation of the provisions made for her by the will and elected to take her dower and legal share in the estate.

Edward Eichhorst, one of the executors, testified that within a few days after decedent’s death, he procured a copy of the will from Bunge and went to appellant’s house; that she asked him how the will was made, and he told her there would probably be some trouble because the farm had been sold, and if he understood or read it right, it provided she was to receive one-third of the income from all the real estate; and that he told her to call on Bunge. He also testified that he had several conversations with her about the matter, and that between the 21st and 24th of November, 1925, he called on her and told her that Bunge wanted to talk to her at his office.

Bunge testified that he advised appellant that she could either renounce the will and take absolutely one-third of the estate, or, if she wanted to comply with the desires of her husband as expressed in the will, she should not rely upon voluntary contributions from the heirs, but should insist upon some arrangement for the deposit of securities with a trustee from which she would derive sufficient income to keep her during her lifetime. ,He also testified that she suggested to him a trust fund of about $10,000, later asking that it be increased to $15,000, and still later suggested that the principal of the fund should be $18,000; and that finally at her suggestion it was increased to $20,000.

It appears from the record that appellant conferred with no one else about the matter until after the trust agreement was executed, but relied upon the statements that Bunge and Edward Eiehhorst had made to her. She testified in substance that Bunge told her the farm had been sold and there was nothing left for her; that the children were willing to provide a trust fund of $15,000 for her, but that she requested that the fund be, made $18,000, to which he agreed. Her statements are corroborated by the testimony of an aunt of decedent, who testified that she was with appellant in Bunge’s office at the time appellant claims such conversation took place. Appellant also testified that Bunge told her he thought it would be better for her to leave the will just the way it was, and not to break it. This statement is not contradicted in the record. ■

Under the Dower Act, section 10, chapter 41, Cahill’s Revised Statutes, appellant had an interest in the estate of her deceased husband, of which she could not be divested by his will. (Christensen v. Christensen, 327 Ill. 448; Lessley v. Lessley, 44 Ill. 527; In re Taylor’s Will, 55 Ill. 252.) By complying with the provisions ©f that section, she would be entitled to an absolute estate in lieu of dower, in the real estate of which her husband died seized, i. e., one-third of each parcel of real estate which he owned at the time of his death, which remained after the payment of all just debts and claims against his estate, and in which she waived her right of dower, and also one-third of the personal estate after the payment of all just debts. Under the statute, appellant was entitled, at any time within one year after the issue of letters testamentary, to renounce the benefit of the provisions made for her in the will..

The executors of the last will and testament of Emil Eiehhorst, deceased, and their attorney, Gustav H. Bunge, bore a fiduciary relation to appellant. (Christensen v. Christensen, supra; Lipscomb v. Allen, 298 Ill. 537.) Appellees admit that such a fiduciary relation did exist. The law casts upon them the burden of proving by clear and convincing evidence that they acted in perfect good faith and did not betray the confidence reposed in them. (Mayrand v. Mayrand, 194 Ill. 45; Beach v. Wilton, 244 Ill. 413.) Transactions of parties between whom a fiduciary relation exists are prima facie voidable upon grounds of public policy. The burden rested upon appellees to show that the transaction was entered into by appellant with full knowledge of its nature and effect and was the result of her deliberate, intelligent desire and for her benefit. (Beach v. Wilton, supra; Mayrand v. Mayrand, supra; Lipscomb v. Allen, supra.) When the fiduciary relation exists and there is a presumption as to the invalidity of the execution of papers under such conditions, such presumption must be overcome by showing that the person acted independently of any advice or suggestion of the dominating personality. Undue influence means an influence which acts to the injury of the person who is swayed by it, or of those, whom it would, if left to himself, have benefited. It is immaterial by whom the undue influence is exercised, whether by a beneficiary or an outsider. (Lipscomb v. Allen, supra.)

It is apparent from the record that at and before the time appellant executed the trust agreement in question, she had not been fully informed of her rights under the law. It is not claimed by appellees that she was told by them or by anybody representing them, or that she knew, the extent or value of her husband’s estate, or the length of time in which the law permitted her to file a renunciation of the benefits of the provisions made for her in her husband’s will. The language of the preamble of the trust agreement lends support to appellant’s claims that she was not fully advised of her rights and that she was led to believe that there was little left for her.

Appellant is a woman about 54 years of age, not in good health, illiterate and not familiar with the English language. She never attended an English school, but had attended a Grerman school about three years,

Under the trust agreement, complainant would receive only the income from a $20,000 trust fund during her natural life, whereas under the statute, by renouncing the provisions of her deceased husband’s will, she would be entitled to one-third of the net estate left after the payment of decedent’s debts. Such one-third would amount to approximately $30,000, which she would receive absolutely. We are of the opinion that the testimony shows that appellant, in executing the trust agreement, did not act with a full knowledge of her rights. In order to bind a party by election it must be made with full knowledge of all the facts, and if made by mistake or under a misapprehension, or in ignorance of the facts or the rights of the party, it will not be conclusive. Where the rights of third persons have not intervened, an election made in ignorance or under misapprehension of the effect of the act or the extent of the party’s rights is not binding and may be revoked. (Carper v. Crowl, 149 Ill. 465.) Before any presumption of an election can arise, it is necessary to show that the party acting or acquiescing was cognizant of his rights. (Cowdrey v. Hitchcock, 103 Ill. 262.)

It is apparent from the record that appellant, through her conversation with Edward Eichhorst and Bunge, conceived the idea that the sale of decedent’s farm prior to his death deprived her from any income from his estate. In order to entitle her to relief, it is not necessary for her to show that the representation or advice by which she was induced to execute the trust agreement was made with fraudulent intent. The trust agreement which she executed gave to decedent’s children property to which they were not entitled, under misrepresentations- which, however innocently made, operated as a fraud on her. It is against conscience for those who enter into the error to insist upon the fruits of the contract. She depended upon them and their advice and opinion in the transaction of the business. They bore her a fiduciary relation. There is a marked disparity in the position and intelligence of the parties, so that they have not dealt on equal terms. Where the party obtaining property is the dominant one and has taken advantage of the confidence reposed in him, equity will grant relief notwithstanding the mistake under which the agreement was made was one of law. (Engelbrecht v. Engelbrecht, 323 Ill. 208.)

The purpose of allowing a widow a year within which to determine whether she will accept the provisions of her deceased husband’s will, or elect to take under the statutory provision made for her, is to enable her to determine the condition of the estate and which course would be more advantageous to her. (Canavan v. McNulty, 328 Ill. 388.) The trust agreement was executed about 60 days after decedent’s death. Appellant went to Bunge’s office at the solicitation of Bunge and Edward Eichhorst. They owed her the duty to fully advise her of the nature and extent of the estate, of the fact that she was' entitled to make her renunciation at any time within a year after letters testamentary were issued, and to fully advise and inform her of everything which would be to her advantage in the matter.

There is nothing in this record which made it inequitable for appellant to renounce at the time she did. Under the facts, she cannot be deemed to have “elected” within the meaning of that term by taking a part of that which she would otherwise receive by operation of law.

The court erred in dismissing the original bill and in declaring* null and void the renunciation filed by complainant. The decree is reversed and the cause remanded with directions to the chancellor to enter a decree granting the relief prayed for in complainant’s bill.

Reversed and remanded with directions.


author: Mr. Presiding Justice O’Connor

text:
    Yellow Cab Company, Appellee, v. The Newberry Library, Appellant.
    Gen. No. 33,273.
    Opinion filed April 30, 1929.
    Dent, Dobyns & Freeman, for appellant.
    Samuels, Costello & Greenberg, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of assumpsit against the defendant to recover damages claimed to have been sustained by the plaintiff by reason of the breach of a written lease entered into between the parties. The basis of plaintiff’s claim as alleged in its declaration was that on May 9, 1927, a wind and rain storm tore off and destroyed the roof of a building used by it as a garage; that under the terms of the lease the defendant landlord was required to replace the roof but that it refused to do so; that thereafter plaintiff had the damaged roof replaced at an expense of $1,190.79; that on account of the roof being torn off by the wind storm and the failure of the defendant to replace it, plaintiff’s property was damaged and this damage was sought to be recovered in addition to the expenses incurred in replacing the roof. The lease is set out • verbatim in the first count of the declaration. The defendant demurred to the declaration; the demurrer was overruled and it elected to stand by its demurrer. The court then entered judgment for the $1,190.79 item plus interest, making $1,261.66, and ordered “that this cause be continued for hearing on plaintiff’s declaration for unliquidated damages.” It is from this judgment that the defendant prosecutes this appeal.

The judgment was entered in favor of plaintiff on its affidavit of claim, in which it set up that its claim was for “the sum of Eleven Hundred Ninety Dollars and Seventy-nine cents ($1190.79) and interest at six per cent per annum from August 1st, A: D. 1927, as liquidated damages and unliquidated damages by reason of damage to its property because of the failure of said Newberry Library, a corporation, defendant, to make the repairs promptly, in accordance with the terms of said written lease.” There was no warrant in the law for the entry of the judgment for part of plaintiff’s claim. By section 55 of the Practice Act, Cahill’s St. ch. 110, fí 55, the court is warranted in entering judgment for a part of the plaintiff’s claim where the defendant in its affidavit of merits admits a part of the claim to be due and unpaid. But in the instant case there was no affidavit of merits filed by the defendant; on the contrary it filed its demurrer to the declaration. The authority for the entry of a judgment for part of plaintiff’s claim is entirely statutory, and where a judgment is entered for that part of plaintiff’s claim which the defendant admits to he due and unpaid, obviously the defendant cannot seek to reverse such judgment: When the demurrer to plaintiff’s declaration was overruled in the instant case and the defendant elected to stand by its demurrer, a jury should have been called to assess the damages. The liability or nonliability of the defendant turns upon the construction of'the written lease, but since the appeal was unwarranted the merits of the case are not properly' before us.

There being no warrant for the appeal, it is dismissed.

Appeal dismissed.

McSurely and Hatchett, JJ., concur.


text:
    Charles E. Welter, Appellee, v. Ruby H. Schell and C. H. Briggs, Defendants. Ruby H. Schell, Appellant.
    Gen. No. 33,310.

      Opinion filed May 20, 1929.
    Amos W. Marston and Sheridan E. Fry, for appellant.
    Earl J. Walker, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendants to recover damages claimed to have been sustained by him as a result of a collision whereby plaintiff’s automobile was damaged. The jury by its verdict found defendant Ruby H. Schell guilty, assessed plaintiff’s damages at the sum of $1,200, and found defendant Briggs not guilty. Judgment was entered against Schell on the verdict and he appeals.

The record discloses that on August 13,1926, an employee of defendant Briggs was driving plaintiff’s automobile east on Gfreenleaf street in Evanston, and when crossing Forest avenue, a north and south street, it was struck and damaged by defendant Schell’s automobile. At the time plaintiff’s wife, Katherine Welter, was riding in plaintiff’s automobile and was injured in the collision. She brought suit against the same defendants, Schell and Briggs, and the jury found Schell guilty and defendant Briggs not guilty. Judgment was entered on the verdict and Schell appealed to this court where, upon consideration, the judgment was affirmed, the opinion being rendered February 11, 1929. (Welter v. Schell, 251 Ill. App. 615.) The evidence in that case as to how the accident occurred is substantially the same as the evidence in the case before us; it will therefore be unnecessary for us to discuss those facts again. A number of points urged in the personal injury action are again urged here, but we are entirely satisfied with our former opinion and for this reason it will also be unnecessary for us to discuss many of the points made on this appeal.

The defendant contends that the declaration does not state a cause of action because there is no allegation that the plaintiff was in the exercise of due care to avoid the injury. It is alleged in the declaration that plaintiff’s automobile was being repaired by defendant Briggs, and was being driven at the time of the collision by an agent of Briggs for the purpose of ascertaining whether the repairs had been properly made. Obviously, in these circumstances there would be no necessity for an allegation of due care on the part of plaintiff. His automobile was in the custody of Briggs at the time.

Complaint is also made to the giving of instructions at the request of the plaintiff, and others at the request of the defendant Briggs, and further that there was error in the refusal of the court to give certain instructions requested by defendant Schell. We have carefully examined all of the contentions made, and while the rulings on the instructions were not accurate in some respects, we think the issues were fairly submitted to the jury; the facts are not at all complicated. The collision between the automobiles took place at the intersection of two streets in Evanston, on a bright day, and there was substantially no other traffic in the streets. Three juries have passed on the questions in-, volved and each found the defendant Schell guilty; two found the defendant Briggs not guilty; and upon a careful consideration of . all the evidence in the record we are clearly of the opinion that we would not be warranted in disturbing the verdict on account of any inaccuracies in the rulings on the instructions. It is also contended that the verdict and judgment are excessive and not warranted by the evidence. We think the evidence was insufficient to sustain the item sought to be recovered by plaintiff on account of the fact that he had been deprived of the use of his automobile as a result of the collision. It having been determined that the defendant was at fault, plaintiff was entitled to be compensated for the damages he sustained. The evidence shows that plaintiff’s damaged car was repaired by the Brinkman Auto Body Company which was engaged in that line of business and that it was paid $275 for doing the work; that sundry automobile parts rendered necessary on account of the collision cost $88.25 and that $60 was paid for other work and labor to complete the job, making the repairs cost a total of $423.25. The evidence further shows that plaintiff’s automobile was worth $2,200 at the time of the collision, and that after it was repaired it was sold for $1,725, the difference between these two amounts, or $475, plaintiff was entitled under the evidence to recover. Plaintiff also sought to recover damages sustained as a result of the fact that he had been deprived of the use of his automobile, and a witness testified that the usual rental value of such a car was $10 a day. This is a proper item of damage. McCabe v. Chicago & N. W. Ry. Co., 215 Ill. App. 99. But there is no evidence in the record as to how many days it would reasonably take to repair the damaged car. As stated, the accident occurred and the car was damaged August 13, 1926. Plaintiff bought "a new car on September 21,1926, but the damaged car was not repaired until the following January. Plaintiff contends that he was entitled to $10 a day for 30 days or $300, but there is no basis in the evidence for this contention. No witness testified, nor was any of them asked, how much time might reasonably be taken in the repair of the car. No one contends that it took until the following January; in fact, the evidence shows that nothing was done towards the repair of the car until a long time after-the accident, apparently for the reason that plaintiff and the defendant Briggs were engaged in negotiations whereby plaintiff might obtain another car from Briggs, from whom he had but recently purchased the car that was damaged. Plaintiff contends that the judgment is not excessive and that it is warranted; that under the evidence the repairs cost $423.25; damages sustained by the depreciation of the car, $475; and $300 for the loss of the use of the car, making $1,198.25 — almost the exact amount of the ver- ' diet. Plaintiff also contends that by virtue of further evidence in the case, the verdict might have been much larger. This contention is based principally on the testimony of the witness Ryan, who gave as his opinion that the automobile was depreciated $1,000 on account of the accident and that the usual fair and customary charge for repairing the damage done was $510. This evidence should all have been excluded, as the defendant contends. Opinion evidence of this character is not pertinent where, as here, we have the actual figures, which is a demonstration of the amount of depreciation and of the cost of the repairs. Cloyes v. Plaatje, 231 Ill. App. 183, and cases there cited; Byalos v. Matheson, 243 Ill. App. 60, affirmed in 328 Ill. 269. There being no basis in the evidence for the item of $300, which plaintiff claims is included in the verdict on account of the loss.of the use of the car, this amount must be remitted or a new trial will be awarded.

We have carefully considered all the contentions made by the defendant but are of the opinion that none of them would warrant us in disturbing the judgment. If plaintiff will, within ten.days, remit $300 from the judgment it will be affirmed for the balance; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed upon remittitur.

McSurely and Matchett, JJ., concur.


text:
    Richard L. Parish et al. (Complainants), Appellants, v. Morris Schwartz et al. (Defendants), Appellees.
    Gen. No. 33,393.
    Opinion filed May 20, 1929.
    Robert F. Pettibone, for appellants; Deneen, Healy & Lee, of counsel.
    Moses, Kennedy, Stein & Bachrach and Jones, Addington, Ames & Seibold, for appellees; Walter H. Moses and Thorley Von Holst, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the complainants seek to reverse a decree of the superior court of Cook county sustaining a demurrer to their amended bill and dismissing it for want of equity.

By their amended bill complainants sought to enjoin the defendants from violating a convenant contained in a written contract. Complainants purchased from the defendants certain shares of stock in the American Flange and Manufacturing Company, a corporation. The contract provided inter alia that in consideration of the moneys paid, the sellers agreed to turn over their shares of stock in the corporation and further agreed “that they will not, nor will either of them, engage directly or indirectly, either in person-or as stockholders in, or employees of, any other corporation, or as members or employees of any partnership or association, or otherwise, for the period of sixteen years from the date of this agreement in the manufacture or sale of articles relating to bungs or plugs for bungholes, or air-vent openings, in containers; bushings in or at, and for use in or at, bungholes or air-vent openings, tags and sealing devices for bungholes, or air-vent openings and bungs therefor, and mechanisms of bungs and sealing devices, either in the United States of America east of the Mississippi River, or in any territory in which the American Flange & Manufacturing Company is now selling its products and will not employ or offer employment to, or cause others to offer employment to, any person now in the employ of said American Flange & Manufacturing Company.” The bill further alleged facts which show that the defendants were violating the provision of the contract just quoted; and there are further allegations to the effect that the price paid by complainants to defendants for the stock was greatly in excess of the value of the stock unless the sale was accompanied by the restrictive covenant.

As we understand it, the court sustained the demurrer to the amended bill on the ground that the restrictive covenant was contrary to the public policy of the State of Illinois and therefore void. Counsel for the complainants contend that the covenant is valid and enforceable and in support thereof cite an article in 31 Harvard Law Review, 193, by Mr. Albert M. Kales; Hall Mfg. Co. v. Western Steel & Iron Works, 227 Fed. 588; Diamond Match Co. v. Roeber, 106 N. Y. 473; Swigert v. Tilden, 121 Iowa 650; Anchor Electric Co. v. Hawkes, 171 Mass. 101; Cincinnati, Portsmouth, Big Sandy & Pomeroy Packet Co. v. Bay, 200 U. S. 179, and other cases. And they seek to distinguish the cases of Lanzit v. Sefton Mfg. Co., 184 Ill. 326; Union Strawboard Co. v. Bonfield, 193 Ill. 420, chiefly relied upon by the defendants. The late lamented Albert M. Kales, in discussing the question now under consideration, in his article in the Harvard Law Review, said: “Formerly it was urged against the restriction that the seller might become a charge upon the community because he could not carry on his trade or business. This was at once met by the requirement that the seller must have received a substantial consideration for the sale of his business. Recently the requirement has been held to be satisfied if some consideration of value in addition to or including the consideration necessary to make a contract is given. Today the fear of the seller becoming a charge upon the community has practically disappeared. If the business sold is small, the seller may take the consideration and start elsewhere. If the business is so large that the restriction probably covers a wide area, the consideration paid to the seller will usually keep him from becoming a public charge.

“Another ground formerly expressed for holding invalid these restrictive covenants was that they might leave a given community unserved by anyone capable of carrying on a given business. This may have been an important consideration in the case of a business confined to a small territory at a time when others-could not mobilize readily at a given point. It is out of place today, when the ease and freedom of transportation are such that if one man goes out of business in a given locality, there is little need to fear that the public will suffer by reason of the failure of anyone to serve it. Besides, when a business is sold by one to another, the public is substantially as well off as it was before.

“. . . The rational test is the extent of the business sold and not the boundaries of some political subdivision of the country. This is the view of the more recent cases, where the restriction has been held valid even when the sale was to a competitor.”

In the Hall Mfg. Co. case (227 Fed. 588), opinion by Judge Baker of the Circuit Court of Appeals, Seventh Circuit, it was held that the validity of a restrictive covenant in a contract in the sale of a business and good will was to be tested not by whether it was limited or unlimited as to time or place, but by determining whether on the facts of the particular case the restraint is greater than is reasonably necessary for the protection of the purchaser. And the Supreme Court of Iowa, in the Swigert case (121 Iowa 650), discussing the validity of restrictive covenants, said (p. 656): “It would therefore be absurd, in the light of this common experience, now to say that a man shuts himself up to idleness or expatriation, and thus injures the public, when he agrees, for a sufficient consideration, not to follow some one calling within the limits of some particular state. There is no expatriation in moving from one state to another, and from such removals a state would be likely to gain as much as it would lose.” This quotation was from a Rhode Island case and which the Iowa court approved. The Iowa court then quotes from a Hew York case as follows: “The doctrine which avoids a contract for being one in restraint of trade is founded upon a public policy. It had its origin at a time when the field of human enterprise was limited, and when each man’s industrial activity was more or less necessary to the material well-being and welfare of his community and of the state. The conditions which made so rigid a doctrine reasonable no longer exist. In the present practically unlimited field of human enterprise there is no good reason for restricting the freedom to contract, or for fearing injury to the public from contracts which prevent a person from carrying on a particular business. . . .” And continuing: “To any one at all familiar with present-day conditions, it requires no argument to demonstrate that public policy requires that in trade matters there shall be no restraints imposed, save in those instances where it is clearly made to appear that the public welfare would be otherwise seriously endangered. And an all-important factor in business life is the right of individual contract — the right to buy and sell, to bargain and convey at will. . . . So, too, note has been taken of the baneful results which follow, seemingly with inevitable certainty, from giving sanction, even negatively, to acts or conduct involving fraud or dominated by bad faith. Certainly it is not going too far to say that there can be no sound public policy which operates to give countenance to the open disregard and violation of personal contracts entered into in good faith and upon good consideration. . . .” In Underwood v. Barker, 68 L. J. Ch. Div. 201, it is said: “If there is one thing more than another which is essential to the trade and commerce of this country, it is the inviolability of contracts deliberately entered into; and to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken, is, prima facie at all events, contrary to the interests of any and every country.” The Supreme Court of Massachusetts, in the Hawkes case (171 Mass. 101), in discussing the question now before us, after considering the law of England at the time of Queen Elizabeth, and then the subsequent change of the law, said (p. 105): “Now the House of Lords in England has held by a unanimous decision in a recent case that such a limitation which covered the whole world was not unreasonable. Because in early times it seemed inconceivable that an agreement to refrain from establishing a business of the same kind anywhere in the kingdom should be necessary to the protection of the good will of any existing business, it was- laid down as an arbitrary rule that agreements so comprehensive in their terms were void. Thus the distinction between a general restraint, of trade and a partial restraint of trade grew up. . . . It is now settled in England that a covenant unrestricted as to space, not to engage in a particular kind of business for twenty-five years, made in connection with the sale of the property of a manufacturing establishment, is valid, if, having regard to the nature of the business and the limited number of its customers, it is not wider than is necessary for the protection of the covenantee, nor injurious to the public interests of the country.” And the New York Court of Appeals, in the Diamond Match Co. case, 106 N. Y. 473, said (p. 481) that: “The tendency of recent adjudications is marked in the direction of relaxing the rigor of the doctrine that all contracts in general restraint of trade are void.” In the Bay case (200 U. S. 179), Mr. Justice Holmes, speaking for the Supreme Court of the United States, said: “The withdrawal of the vendors from opposition for five years is the ordinary incident of the sale of a business and good will. . . . The price is paid not for the vessels alone, but for the vessels with the covenant. . . . Presumably all that there was to sell beside certain instruments of competition was the competition itself. ... It would accomplish no public purpose but simply would provide a loophole of escape to persons inclined to elude performance of their undertakings, if the sale of a business and temporary-withdrawal of the seller, necessary in order to give the sale effect, were to be declared illegal.”

In the instant case we have some difficulty in understanding just how the public would be injured by the failure of the defendants to engage in the business of making and vending bunghole devices in Illinois. The defendants deliberately sold their interests in the corporation to the complainants and as a part of the consideration solemnly agreed not to engage in the same line of business for a period of 16 years in the territory east of the Mississippi river, and after pocketing the money they turn around and violate their solemn agreement by engaging in the business contrary to their agreement. We think as did the Supreme Courts of Iowa and Rhode Island, as appears from the quotation from the Swigert case, supra, that even if the defendants would be compelled to move to another State, that Illinois “would be likely to gain as much as it would lose.” As said by Mr. Justice Holmes in the Bay case, by holding the covenant void we “but simply would provide a loophole” for the defendants to escape the performance of their undertaking. •

But the law of Illinois, as we understand it, is that it is against the public policy of the State that a citizen shall not have the privilege of conducting his occupation at some place with its border.

In the Lanzit case (184 Ill. 326), a bill was filed to restrain the defendants from violating the terms of their written contract by which defendants had agreed that they would not engage in the business of manufacturing, selling, handling or dealing in paper receptacles, oyster pails, paper clothing boxes, folding paper boxes, or paper novelties of any kind or description for a period of ten years in the states of Illinois and Indiana. The court held the restrictive covenant unenforceable and void. The court there said (p. 331):

“The question is here presented whether said contract between appellant and appellee is or not reasonable and consistent with the public policy of the State. The record shows that appellant was, at the time of the making of the contract, engaged in said business in this State, and that after his term of employment by appellee ended he became employed by the Rentz company, engaged in this State, in part in the same business. The effect of the contract, if enforced as decreed below, would be to deprive the public, — the people of the whole State, — of the industry and skill of appellant in the particular trade or business in which he may be most skillful and useful, and compel him to engage in some other business or move to another State in order to support himself and family, — in other words, to expatriate himself so far as his citizenship of this State extends and go beyond our jurisdiction. Whether or not, under certain facts and circumstances, a valid contract might not be entered into not to engage in a specified business within the State it is not necessary to here determine. As said above, ‘cases must be judged by the circumstances.’ But we are of the opinion that a contract of the character and tending to produce the effect of the one under consideration is, under all of the circumstances shown, unreasonable and against the public policy of this State.” (Citing a number of authorities) and continuing the court said (p. 332): “The interest and welfare of the public are of paramount importance. If a contract is in restraint of trade throughout an entire State it may be void as against public policy, although it may appear not to be unreasonable when considered merely with reference to the extent of the business of the covenantee and the protection intended to be secured to him. If such were not the rule, then the mere magnitude of the business and trade involved in the contract would determine its validity, overriding all questions affecting the public welfare.” And the same was the holding in the Union Strawboard Co. ease (193 Ill. 420), where it was held that a contract in restraint of trade may be good which embraces, within reasonable limits, parts of different States, but that a contract which applies to the whole State of Illinois is void and cannot be enforced. The court there said (p. 425-427): “The covenant sought to be enforced in this action is, that the defendant will not, for a term of twenty-five years, engage or be interested in the manufacture or sale of certain kinds of strawboard, boards and papers, or any other kind of boards or paper which will interfere with the sale and consumption of such boards and papers in the State of Illinois or elsewhere, when so doing may conflict with the business interests or diminish or lessen the profits of the Union Strawboard Company. . . . It is insisted, however, that the contract is divisible, and, the alleged violation being limited in the first and second counts to the State of Illinois, is valid and binding within the State. A contract in partial restraint of trade is valid provided it is founded upon a good consideration and only affords a reasonable protection to the interests of the party in whose favor it is imposed, and the prohibited area is reasonable, so as not to be injurious to the interests of the public and against public policy. . . . The restrictions imposed by this contract are probably no greater than necessary to prevent competition with the Union Straw-board Company in its business; but that is not the only test of its validity. If it should be conceded that the contract is divisible, the question then is, whether it can be enfroced as to the entire State of Illinois. Counsel contend that it is valid to that extent, at least, and that the rule stated on that subject in the cases above cited should not be adhered to. (One of the cases above cited being the Lanzit ease, supra.) The reason for the rule is, that it is against the policy of the St$,te that the people of the whole State should be deprived of the industry and skill of a party in an employment useful to the public, and he should be compelled either to engage in other business or abandon his citizenship of the State and remove "elsewhere in order to support himself and family. . . . It is against the policy of the State that its citizens should not have the privilege of pursuing their lawful occupations at some place within its borders, . . . It is true that a contract may be valid which embraces portions of more than one State. ■ Trade and business are not affected by State lines, and a contract might be good in restraint of trade which embraced^ within reasonable limits, parts of different States, but an agreement which applies to the whole State is void and cannot be enforced.”

Counsel for complainants contend that the holding in the Lanzit and Union Strawboard Co. eases is that a restrictive covenant such as the one involved in the instant case is held void only where the party sought to be enjoined from violating such covenant is prevented from engaging in an industry in which he is most skilful, and argue that, in the instant case, it appears that one of the defendants was skilful as a tool and dye maker and the other as a musician, in which occupations they had formerly been employed. There are some expressions in the opinions that might appear to sustain this contention but, upon a careful examination of them, we are of the opinion that the contention is untenable. Under the holdings of these two cases we are of opinion that the demurrer was properly sustained and the amended bill dismissed.

The decree of the superior court of Cook county is affirmed.

Affirmed.

McSubely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Irving H. Flamm and Ann Flamm, Defendants in Error, v. William Hale Thompson, Mayor of the City of Chicago and Members of City Council of Chicago, Plaintiffs in Error.
    Gen. No. 33,390.
    Opinion filed May 20, 1929.
    Rehearing denied and opinion slightly modified June 6, 1929.

      Samuel A. Ettelson, Corporation Counsel and Gotthard A. Dahlberg, for plaintiffs in error; Joseph J. Thompson, Assistant Corporation Counsel, of counsel.
    Tarnopol & Flamm, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants by this writ of error seek the reversal of an order awarding the writ of mandamus against them. The petitioners alleged that they had a judgment against the City of Chicago for property taken by it in a condemnation proceeding, which judgment had not been paid, and they asked that defendants be ordered to take steps to pay petitioners the amount of their judgment. Defendants filed a demurrer which was overruled and the writ was awarded.

The petition alleged that in 1921 the City Council of Chicago passed an ordinance for the widening of Ashland avenue, which involved the condemnation of 17 feet of private property on each side of the street. The ordinance provided that just compensation should be paid for the property taken and that the cost of the improvement was to be paid by special assessment under the Local Improvement Act. Cahill’s St. ch. 24, ft 120 el seq. The condemnation proceedings were terminated July 26, 1927, when a final judgment was entered fixing the compensation to be paid each property owner and adjudicating that approximately 35 per cent of the cost should be assessed against the private property and the balance, amounting to $7,890,904. against the City as a public benefit. The judgment for the portion of petitioners’ property condemned was $50,000. and the assessment for the benefit of the. portion not taken was $7,809. It was alleged that, although it was proposed that payment be made by issuing bonds in the usual way, the bonds when submitted to a referendum vote failed to receive the necessary number of votes; that, although over 90 days have elapsed since the entry of the judgment, yet the City continues to default in the payment of the judgment. The petition further alleges that, if the funds collected out of the first instalment are insufficient to pay the judgment and all other condemnation judgments in this proceeding, it was and is the duty of the City to apply all other funds held in its treasury for any particular purposes whatever but not immediately necessary for such purposes, to the payment of such judgments, and petitioners allege that the City has such other funds in its treasury not immediately required for other purposes, the amount of which is unknown to the petitioners. The petitioners claim that the City is by law authorized to become indebted for municipal purposes to an amount not exceeding 5 per cent of the full value of all taxable' property within its limits, as ascertained by the last assessment, and that the City is not now indebted in an amount in excess of its legal limitation and that the issuance of bonds in an amount necessary to pay the condemnation judgments will not increase its indebtedness in excess of such legal limitation. The petitioners represent that, by reason of the delay of the City in taking possession of the condemned premises and paying compensation therefor, the portion of their premises not taken for the improvement has been rendered unsalable and unmerchantable and that they are thereby incurring a loss of rents and income. The petitioners allege that the City is unconditionally liable for the payment of the judgment and that the city council has neglected and refused to levy and collect taxes for the purpose of paying the same.

The writ issued against the defendants commanded them to arrange for the payment of petitioners’ judgment and for this purpose first to resort to amounts collected on assessments levied for said improvement, and if the amount so collected and now on hand he insufficient to pay such judgment, they are commanded during the first quarter of the present fiscal year of said City of Chicago to cause to be included in the annual appropriation bill or any amendment thereto an appropriation for the payment of petitioners’ judgment and during the first half of the same fiscal year they shall by ordinance direct the levy and collection of a general tax in the manner provided by law sufficient to raise funds necessary for its corporate purposes, including the payment of petitioners’ judgment, and for this purpose either to make the necessary appropriations, issue and approve vouchers and adopt such resolutions and ordinances and perform such other official acts as may be required to carry this order into effect.

Section 32 of the Local Improvement Act, ch. 24, IT 155, Cahill’s St., provides that upon the return of a verdict in a condemnation proceeding, the petitioner shall within 90 days after final judgment elect whether it will dismiss said proceeding or enter judgment, and “if it shall elect to enter judgment, it shall become thereby bound and liable to pay the amount thereof, whether such assessment be collected or not, and such judgment or condemnation shall not be conditional.” It is the contention of the petitioners that after the expiration of 90 days after July 26, 1927 (which would be about October 26,1927), when the City did not dismiss said proceeding, the judgment was not conditional or contingent upon the collection of assessments, but must be paid forthwith.

Defendants’ position is that under the Local Improvement Act the City is liable for the payment of condemnation judgments only out of the assessments levied for the improvement and as these are collected. This position may be tenable as to contractors who voluntarily deal with the City subject to the conditions imposed by the ordinance. But this does not apply to property owners whose property is taken under condemnation proceedings, without their request or consent. This distinction was pointed out in Mecartney v. City of Chicago, 273 Ill. 276, where it was said that cases cited involving a contractor are not applicable to a case involving the rights of a property owner who has a judgment for property taken by condemnation. Whatever may be the rule with regard to a contractor, or whatever may have been the decision under prior statutes, there is little doubt that a property owner whose property is condemned, holding a judgment against the City, may compel the City to act by mandamus where it has failed to exercise due diligence in collecting funds necessary to pay the judgment. City of Chicago v. Thomasson, 259 Ill. 322; City of Chicago v. Roth, 334 Ill. 132. In both these cases the property owner had voluntarily delivered possession of the premises to the City, in which respect the facts are unlike those in the instant case, where the property owners still retain possession; but in these cases the decisions assume that, where possession has not been voluntarily delivered, compensation could be compelled by mandamus.

In Beveridge v. West Chicago Park Com’rs, 100 Ill. 75, the owner of the land sought to recover interest on the amount of his judgment for compensation for land taken, which compensation was not paid until more than nine years after the judgment was entered. It was there held that plaintiff was entitled to interest on the ground that the defendants did not have the power to oppress the property owner by postponing payment indefinitely, thus depriving him of the beneficial use of the property and of the money, and that “the law required them to pay him within a reasonable time.” In the condemnation case of Cook v. South Park Com’rs, 61 Ill. 115, it was held to be error to award execution and that the proper method to coerce payment of the condemnation judgment was by mandamus.

It being the law that the petitioners had the right to proceed by mandamus, the question then is, did their petition show facts which entitled them to the writ as awarded. From the opinions to which we have referred it is clear that the writ of mandamus will be awarded only where there is a clear case presented of unreasonable delay or negligence on the part of the City. Where it appears that a city is acting in bad faith, mandamus will lie. City of Chicago v. People ex rel. De Golyer, 48 Ill. 416; Price v. City of Elgin, 257 Ill. 63. “The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty which one charged with the duty has refused to perform. . . . The office of the writ is to compel action by the unwilling. There must be a refusal to perform the act, and if a personal right is involved a refusal must follow a demand. The writ will not issue to compel the doing of an act which the person sought to be coerced admits on the record he is willing to do without coercion. People v. Dulaney, 96 Ill. 503.” People v. Dunne, 258 Ill. 441.

The first petition in this case was filed September 22, 1928,"which was a few" months after an issue of bonds to pay these judgments had been submitted and defeated in a referendum to the voters. This petition alleged the right of the City to issue bonds and asked that it be ordered to issue bonds to pay petitioners’ judgment. A second amended petition with like allegations and prayer was filed, when there was pending a second referendum on an issue of bonds to pay these judgments. October 16, 1928, the second amended petition was filed. November 6, 1928, the referendum vote was taken and the bond issue was again defeated. January 17, 1929, the writ of mandamus was issued. So that, while the petition was pending, the defendants were in the exercise of diligence in presenting to the voters a proposed bond issue. In fact, the mandamus proceedings to compel a bond issue and action by the City to the same end synchronized. It is therefore evident that petitioners presented no facts and could not have presented any facts showing negligence or delay . on the part of defendants. Under such circumstances the writ should not have been awarded.

The writ seems to have been issued upon the theory that, when the second referendum on the bond issue failed to carry, petitioners were entitled at once to what might be termed a blanket order on the defendants to appropriate money for the payment of petitioners’ judgment and also to levy and collect a general tax to pay said judgment, without any showing •by petitioners of any unreasonable delay or any refusal by defendants to perform their duty.

For the reason indicated the judgment order awarding the writ is reversed and the cause is remanded with directions to enter an order sustaining the defendants’ demurrer tó the second amended petition, and to dismiss the petition.

Reversed and remanded with directions.

O’Connor, P. J., and Matchett, J., concur.