text:
    Alma L. Slade, Appellant, v. Dana Slade, Jr., et al., Appellees.
    Gen. No. 41,493.
    Burke, J., dissenting.
    Opinion filed April 23, 1941.
    Manasse & Neltnor, of Chicago, for appellant; Milton Gr. Manasse, of Chicago, of counsel.

      Eckert & Peterson, of Chicago, for appellees; W. W. Boss, Jr. and Walter Speer, both of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order of court dismissing plaintiff’s amended complaint upon the motion of defendants, the plaintiff having elected to stand on her amended complaint.

The complaint is in three counts. The first count alleges that defendant Dana Slade, Jr., schemed to compel plaintiff to sell said defendant her interest in Slade, Hipp & Meloy, Inc., an Illinois corporation, for less than the true worth of said interest and'less than the price applicable to a purchase thereof by said defendant, as determinable by a pre-existing contract between plaintiff’s husband, Samuel Slade, deceased, and said defendant; and that to effectuate said scheme, said defendant exercised various means and devices, as hereinafter specified, to depreciate the apparent value of said corporation’s stock and to coerce plaintiff into selling said defendant her interest therein on the basis of such depreciated apparent value. Said count further alleges that said defendant asserted a false claim against the estate of plaintiff’s deceased, husband, Samuel Slade; that said defendant (a) set up on the books of the corporation a $5,000 reserve for “accrued taxes,” when in fact said corporation had no accrued tax liability; (b) set up a reserve which was excessive by at least $2500 for claims; (c) caused certain accounts receivable in the sum of $2,618.29, to be charged off as “bad debts,” whereas such debts so charged off were collectible and collected; (d) caused unauthorized and illegal expenditures and gifts from funds of the corporation during 1936, as follows (!) commissions in excess of amounts legally payable, $2600 (2) cancellation of obligations due to the corporation of $1,340.41; (e) that said defendant caused an excessively large adjustment to physical inventory, resulting in an erroneous and fraudulent diminution of the assets of said corporation, the excess of diminution so effected being $4,200; (f) that said defendant caused the apparent corporate assets to be reduced by noting as paid, when in fact not paid, salaries excessive as to $8,985.50, traveling expenses excessive as to $7,542 and miscellaneous office expenses, excessive as to $3,720.97; all of which acts were done — it is alleged — to effect an apparent reduction in the value of plaintiff’s interest in said corporation.

Said count further alleges that said defendant contrived to force plaintiff, by duress of circumstance, to abandon her rights under the contract aforesaid and to sell her stock for less than its true worth. The elements of duress as alleged are as follows: (a) that said defendant, knowing that plaintiff, who had already attained the age of 70 years and was no longer able to support herself, had been accustomed to that type of living made possible by her husband’s salary of $12,000 or more per annum, would, after the expiration of one year from said husband’s death, be without appreciable income or means of support, persisted in the aforesaid devices for deliberately undervaluing plaintiff’s stock so that plaintiff should ultimately be so impoverished that she would have no choice but to sell said stock on defendant’s terms, whether reasonable or unreasonable (b) that said defendant wilfully failed to effect a release of said Samuel Slade’s liability to Continental Illinois National Bank & Trust Company of Chicago, for indebtedness of Slade, Hipp & Meloy, Inc., and thereby made it impossible for plaintiff to procure release of certain of Samuel’s stocks pledged to said bank as collateral security for said indebtedness; (c) that, despite plaintiff’s ownership of half of the stock of said Slade, Hipp & Meloy, Inc., Dana Slade (1) wilfully prevented plaintiff from exercising any rights of stock ownership in said corporation (2) refused to call and hold a meeting of the shareholders of said corporation when thereunto requested by plaintiff (3) made manifest that he controlled all shareholders of said corporation other than plaintiff, and that he would use such control to prevent the presence of a quorum at any meeting called by plaintiff (4) held meetings of shareholders of said corporation without notice to plaintiff and at such meetings voted plaintiff’s shares in said defendant’s own name; (d) that said defendant gave plaintiff no notice of the time for the taking- of inventory, although plaintiff was entitled to participate therein; (e) that said defendant caused one Binges, who held stock for the joint benefit of said Samuel and said Dana Slade, to treat said stock as being held solely for said Dana Slade and, ultimately, to transfer same to said Dana Slade.

Said count further alleges that plaintiff expended and became obligated for large sums of money for legal and accounting services, including at least $3,500 of expense made necessary by Dana Slade’s actions aforesaid; that by the end of November, 1938, plaintiff, being without funds to maintain herself or to meet her legal and accounting expenses and without prospect of receiving such funds, except out of settlement with said Dana Slade, or sale of said pledged securities (unavailable to her until after settlement with said Dana), was compelled to accept an offer of said Dana Slade for sale at $55,000 (being at least $15,000 less than true worth) and with interest on deferred instalments of purchase price at 5 per cent per annum, instead of 6 per cent as provided by the contract; that plaintiff would not have sold on said terms except that she was under duress of being compelled so to do for lack of finances and lack of prospect for finances, except by so doing; and that the price, terms and conditions of such sale were so different from those prescribed by the contract, that said sale was not actually an effectuation of the contract, but was a new transaction forced upon plaintiff by the aforesaid actions of said Dana Slade.

The second count further alleges that defendants Kehoe and Dinges conspired with Dana Slade to aid him in the effectuation of said scheme and participated with him in each of said actions.

The third count alleges a duty upon Dana Slade’s part to effect release to plaintiff of Samuel Slade’s securities pledged for the corporate indebtedness; that, notwithstanding plaintiff’s requests for fulfillment of said obligation, Dana Slade wilfully failed to observe said duty and that before plaintiff could reduce such stock to her possession same depreciated $9,000 in value.

Defendants’ motion to dismiss is based on the claim that; first, the facts alleged do not show duress; and that, second, even if duress did exist, plaintiff’s remedy would be rescission of the sale, not affirmance of the sale and suit for damages.

The plaintiff and her husband, Samuel Slade, were the owners of one half of the stock of said corporation at the date of the death of Samuel Slade. On December 18, 1936, Dana Slade notified plaintiff of his election to purchase her stock for the price and upon the terms set forth in the contract of February 2, 1932. This contract, entered into between Samuel Slade, Dana Slade, Ida Slade, wife of Dana, and plaintiff, was executed in order to effectuate a plan for the conduct of the business by the survivor of Samuel and Dana Slade, after the decease of one of them. The contract granted the surviving brother an option for purchase of all stock of the first deceasing brother and his wife (1) on January 1st of the year following the death of the first deceasing brother, at a price per share to be determined by dividing among the total number of shares outstanding, the excess of assets (other than good will) over liabilities, purchase price to be paid in 10 equal annual instalments, or (2) at the price offered by any outsider, if the stock were not so purchased within one year of such death, and with a five-day period for preferential purchase by the surviving brother, before sale to such outsider might be effected. At the time of Dana Slade’s notice of his election to purchase plaintiff’s stock, plaintiff was 70 years of age, and was no longer able to support herself, it is alleged, and that excepting only for dividends of $1,264 in 1937, $950 in-1938, and $395 from the sale of certain stock, plaintiff had no income after the lapse of one year from her husband’s death. In his lifetime she had been accustomed to that manner of living made possible by his salary of $12,000 or more per annum.

The plaintiff, in considering the law as applied to the facts, urges that the rule of duress and coercion applies, and we quite agree with the suggestion of plaintiff that the law is, as stated in 13 C. J. 402, that: “. . . the question of duress is one of fact in the particular case, to be determined on consideration of the surrounding circumstances, such as age, sex, capacity, situation, and relation of the parties; and that duress may exist, whether or not the threat is sufficient to overcome the mind of a man of- ordinary courage, it being sufficient to constitute duress that one party to the transaction is prevented from exercising his free will by reason of threats made by the other, and that the contract is obtained by reason of such fact.” In the same citation, page 403, it is further said:

“Where the parties are not at arm’s length, but one of them is in a position to dictate, the courts will treat agreements which are influenced by threats of injury to, or the withholding* of, property as made under duress, as where a banker refuses to honor a customer’s check unless he accedes to a false and fraudulent claim; where one with the necessary power threatens to prevent the clearance of a vessel; where a gas or water company refuses to furnish gas until a promise which it has no right to exact is made; where a state institution refuses to admit a student unless a payment of an illegal fee is made by him; and other like cases.” These rules, of course, apply in cases where the question of duress is one of fact, and in all of the cited cases it is apparent that the application of the rule must be sustained by the facts as they appear in the record. There are other cases cited which approve of the rule as indicated in corpus juris. In applying this rule, we are obliged to do so to the facts alleged. It appears from the amended complaint that the plaintiff is a widow of 70 years of age, whose deceased husband had accustomed her to that type of living made possible by his annual income of $12,000 or more; that Dana Slade, one of the- defendants, is a brother of her late husband, and that the plaintiff was without appreciable income or means of support. It is urged that when Dana Slade decided, therefore, that he would like to have plaintiff’s interest in the corporation, he established an arbitrarily low valuation on the stock. It is alleged that Dana Slade asserted a false claim for over $15,000 against Samuel Slade’s estate (of which estate, plaintiff was sole beneficiary), and plaintiff suggests that such claim cannot be construed other than as an act of coercion and oppression upon plaintiff and urges that the allegation of such false claim is admitted by the motion to dismiss.

Under the provisions of the will of Samuel Slade, plaintiff succeeded to the ownership of such high grade and valuable stockholdings as 375 shares of Union Carbide & Carbon Corporation stock, 32 shares of Westinghouse Electric Company stock, 65 shares of Wm. Wrigley, Jr. Corporation stock, 50 shares of Chicago Corporation stock, and 40 shares of Electric Household Utilities Corporation stock, which stocks were pledged to Continental Illinois National Bank & Trust Company as collateral to secure an indebtedness of Slade, Hipp & Meloy, Inc., the stock of which corporation is now in question. Plaintiff urges that, having elected to exercise the stock option, Dana Slade was obliged to post other collateral for the company’s indebtedness, and thus enable plaintiff to dispose of her stock which was pledged as collateral for said indebtedness. Plaintiff urges that by the allegations in the complaint Dana Slade’s purpose would have been hindered, and not served, had plaintiff been given free access to the pledged collateral, and that he, therefore, failed to free the collateral, with the result that she was unable to reduce the stock to her possession until after she sold the Slade, Hipp & Meloy, Inc., stock to the defendant, Dana Slade; and that the only purpose for said defendant’s wilful failure to release the pledged stock was to oppress the plaintiff; and that, after considering all of the facts alleged in the amended complaint, plaintiff was obliged because of her impoverished condition to accept Dana Slade’s terms for the sale of the stock, whether reasonable or not.

It must be conceded that there can always be a legitimate difference of opinion as to the value of the stock of Slade, Hipp & Meloy, Inc., the question of value being determined largely by the stock of merchandise on hand and the business operated by the brothers, Dana Slade and Samuel Slade.

It further appears as alleged that Dana Slade prevented plaintiff from exercising her rights of stock, ownership, that he voted her shares in his own name, and it is urged by plaintiff that this with his other actions must all be recognized as means of harrassing and coercing plaintiff into action which would otherwise have been unacceptable to her. The contract of February 2, 1932, must be deemed to have been execiited primarily for the benefit of the surviving brother, and was essentially a recognition that the business, although in corporate form, ivas actually a joint enterprise of the two brothers, the purpose of the contract being to give the surviving brother an absolute continuing option to determine whether the business should become his alone or one in which others might have a part. The stock was not susceptible to valuation by the ordinary market influences of supply and demand, and the continuing* option provision of the contract made the stock virtually unsalable to anyone except a party to the agreement.

On February 2,1932, Samuel Slade, Dana Slade, Ida Slade, wife of Dana, and plaintiff were the owners of all the shares of sto'ek of this corporation, and subsequent to the death of Samuel Slade, on February 16, 1936, the defendant, Dana Slade, notified plaintiff on December 18, 1936, of his election to purchase her stock for the price and upon the terms set forth in the contract. During the time between the death of her husband and the time when she sold her stock to defendant, Dana Slade, excepting* the receipt of dividends of $1264 in 1937, $950 in 1938, and $395 from the sale of certain stocks, plaintiff had no income after the lapse of one year after her husband’s death.

It appears that the plaintiff requested defendant, Dana Slade, to effect a release of the stock that was pledged for the liability of the Slade, Hipp and Meloy, Inc., that he neglected to meet with this request, and that plaintiff was unable to reduce the pledged stock to her possession until late in the month of December, 1938, being two years from the date of the notice of Dana Slade that he would purchase the stock in question. During this period, the stock depreciated in value approximately to the amount of $9,000 at the date when the stock was in fact released to the plaintiff. Plaintiff is seeldng to recover this amount. It would appear from the facts alleged in the pleadings that the delay in the settlement of the matter that existed between the plaintiff and defendants was caused by the acts of the defendant, Dana Slade, in order- — as alleged — to decrease the value of the holdings of Samuel Slade. Under the allegations made, the matter was proper to submit-to a jury.

The argument is offered by the defendants that, the plaintiff having accepted the amount that was paid, there is np right of recovery. In the case of News Publishing Co. v. Associated Press, 114 Ill. App. 241, upon this question the court said:

“A further claim is made to the effect that appellant having paid its money and delivered its property, the guaranties in question, voluntarily and upon its own request, there could be no right of action. We think this claim is untenable, for the reason that the basis of the action is the duress under which the appellant acted, in view of which there can be said to be no voluntary payment of the money nor voluntary parting with appellant’s property.” This . language applies with equal force to the questions involved in the instant case. As we have stated before, the rule of duress and its application depends entirely upon the facts established at a hearing on the merits. There are other cases where, money or property having been accepted, it has been held the acceptance of such money was not a voluntary payment. They either had to accept it or depend on tort litigation as was suggested by the parties in this litigation. In the case of Chicago & A. R. Co. v. Chicago, Vermilion & Wilmington Coal Co., 79 Ill. 121, the court said:
“It can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of ‘life or death’ with them, as they had no other means of conveying their coal to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress, by submitting to which appellants have received money from them which in equity and good conscience, they ought not to retain.” And in Rees v. Schmits, 164 Ill. App. 250, the court in setting up the facts as they applied to the case said this on the question of duress:
“Moral duress consists in imposition, oppression, undue influence, or the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another; the theory under which relief is granted being that the party profiting thereby has received money, property or other advantage, which in equity and good conscience he ought not to be permitted to retain. ’ ’ . Upon a like question in the case of Pittsburgh Steel Co. v. Hollingshead & Blei, 202 Ill. App. 177, on the questions involved in that case, said:
“It is the well-settled rule of law in this State that where one is compelled to pay money to another, who has no legal right to demand it, in order to prevent injury to his person, business or property, such payment is, in law, made under duress, and may be recovered back from the party receiving it, and it makes no difference that the payment was made with full knowledge.” Other cases of like character are called to our attention, and we are of the opinion that sufficient facts were alleged to justify the submission of the cause to a jury, notwithstanding the fact that plaintiff was obliged to receive the money from defendant, Dana Slade, and that upon defendants’ motion to strike the amended complaint, the allegations are sufficient to permit of recovery in this action of tort.

An interesting case is cited by plaintiff, Illinois Merchants’ Trust Co. v. Harvey, 335 Ill. 284, where the trial court dismissed the case on the ground that lessee could have avoided forfeiture by a bill to restrain, the court going on to pass upon the question involved in this case. The court there said that “compulsory payment is primarily a question of fact . . . .” The character of the instant case is that of a compulsory acceptance of the amount that was offered by the defendants for the purchase of the stock in question. In the Illinois Merchants’ Trust Co. case (supra) the court said in passing upon the question of common law duress:

“At the common law duress meant duress only of person, and nothing short of a reasonable apprehension of imminent danger to life, limb or liberty sufficed as a basis for an action to recover money paid. The doctrine became gradually extended, however, to recognize duress of property as a sort of moral duress, which, equally with duress of person, entitled one to recover money paid under its influence. To-day the ancient doctrine of duress of person (later of goods) has been relaxed, and extended so as to admit of compulsion of business and circumstances. Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535.”

As before indicated, we believe that the allegations of the amended complaint are sufficient, upon defendants’ motion to dismiss, to clearly entitle the plaintiff to have her case submitted and disposed of upon the evidence that may be offered upon the trial of the action.

As also before indicated, the defendants contend that plaintiff' must repudiate her sale and that her sole action is for rescission, in order that the parties may be placed in status quo. As answer to defendants’ contention, plaintiff suggests that admittedly, plaintiff’s grounds for this suit are grounds for rescission; but that is not her sole remedy; and that the law is quite clear that plaintiff may affirm the transaction, so far as it has gone, and sue in tort for her damages sustained by reason of the defendant’s wrongful acts. This being a case where the facts as alleged, justified the submission of the cause for trial on its merits, and, as we have said, there being no waiver, it is well to have in mind what this court said in News Publishing Co. v. Associated Press, 114 Ill. App. 241, as follows:

“It is also said that if there was duress appellant has waived it, because the Associated Press, the appellee, went out of business in the fall of 1900, when the duress, if any, ceased, though appellant did not promptly repudiate the contract and commence its action. The cases of Eberstein v. Willetts, 134 Ill. 101, and Bogue v. Franks, 199 Ill. 411-19, are cited as supporting the contention. We think they have no application here, since this action is not based upon a rescission of the contract (Brumbach v. Flower, 20 Ill. App. 219), but upon the wrong done appellant at the time it was compelled to enter into the contract by reason of its necessities. Appellant was entitled to bring its action, as in the case of any other tort, at any time before the Statute of Limitations was a bar. ’ ’

In conclusion, we are of the opinion that the plaintiff is entitled to a reversal of the order appealed from and to a trial upon the merits of this case. The order dismissing the plaintiff’s amended complaint is reversed and the cause remanded for further action in conformity with the views herein expressed.

Reversed and remanded.

Denis E. Sullivan, J.,

concurs.

Mr. Justice Burke dissenting: By the clear provisions of paragraph 1 of section 31 of the Civil Practice Act (par. 155, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.031]) the complainant is required to aver “the substantial averments of fact necessary to state any cause of action either at law or in equity.” The complaint in the instant case • does not contain such averments and is vulnerable to a motion to dismiss. Such motion admits all facts that are well pleaded, but does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts, and the pleading is construed most strongly against the pleader. Plaintiff contends that she was forced to sell her stock at an unconscionable price because of various acts of duress exercised by the defendants. She sold the stock for the sum of $55,000. Her complaint shows that after Dana elected to purchase the stock she hired attorneys and accountants to go over the books, to advise her and to protect her interests. Hence, if she has a cause of action she should be able to set up the ultimate facts showing such cause of action. One of the principal grounds of coercion asserted is that Dana did not pay off the indebtedness owing to the bank, thereby preventing her from securing the collateral which had •been put up by her husband. She maintains that she was without funds and that Dana did not pay the indebtedness in order to prevent her from obtaining the securities that had been so deposited by her husband. She does not state the amount of the indebtedness of the corporation to the bank, nor when it became due, nor whether the corporation, after the death of her husband, was in a position to pay such indebtedness. If she had set out these facts, the court could by reading the complaint, determine whether the failure to pay the indebtedness by the corporation constituted an act of duress. The complaint also charges that Dana caused the corporation to file a claim against her husband’s estate in the sum of $15,842.88, and that this claim was without foundation and was advanced in order to reduce the value of plaintiff’s interest in the corporation. She does not set up any facts showing how this claim was represented to the probate court, or in what respect it was unfounded, or what action was taken thereon in the probate court. It is common knowledge that on filing a claim in the probate court, an early trial may be had. She could have insisted on a trial as to the merits of the claim. "When she accepted $55,000 for the stock, the corporation and the defendants released all claims they were asserting against the estate of her husband. Practically all of the material allegations of the complaint are conclusions of law or of fact, which the motion to dismiss does not admit. With such conclusions eliminated, the complaint does not state a cause of action.


source: Caselaw Access Project

author: Mr. Presiding Justice Hebel

license: Public Domain

text:
    Opal Cochran, Appellant, v. Louis Koller, Sr., Appellee.
    Gen. No. 41,517.

      Opinion filed April 23, 1941.
    Boyal W. Irwin, of Chicago, for appellant.
    Hinshaw & Culbertson, of Chicago, for appellee; Osweld G. Treadway, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The plaintiff, a young woman 25 years of age, was injured in an automobile accident on March 5, 1939, and instituted suit against Louis Koller, Sr., to recover damages for personal injuries. The jury returned a verdict of not guilty.

On the evening of March 4, 1939, the plaintiff went to the Princess Ballroom where she met two young men acquaintances, who drove her to her home in Riverside. When they arrived there it was decided they would take a drive, and the plaintiff, thereafter rode in the back seat of the automobile with one of the young men, while the other one drove the car. They were on their way home and were driving in a southerly direction in route 66 approaching the intersection of 46th street when the accident occurred. Route 66 is the principal highway to Joliet. It is concrete, four lanes wide. As one approaches 46th street going south in route.66 the road is straight, but a little to the south of the intersection of 46th street the road makes a broad turn to the right. 47th street crosses route 66 on the curve.

The automobile in which the plaintiff rode proceeded in a southerly direction in the west half of route 66 going at the rate of 25 or 30 miles an hour. The defendant rode in the back seat of the automobile owned by him but driven by his son in the opposite direction on route 66, approaching the car in which the plaintiff rode.

As the defendant’s car rounded the curve in route 66 approaching the intersection with 46th street, there is evidence that it was observed to zig zag back and forth on the two ways in the north-bound lane, and that instead of straightening out after leaving the curve continued on to its left across the center line of route 66 and ran head-on into the automobilé in which the plaintiff rode in the southbound lane. The evidence upon this question is controverted.

The plaintiff suggests that she suffered severe injuries of a permanent character, but that the extent of the injuries is not material at this time.

It is contended by plaintiff that the attorney for the defendant improperly injected into the case the claim that the plaintiff who was unmarried had given birth to an illegitimate child, and also that she had had an abortion performed. It seems that this is the question involved in this appeal. The plaintiff urges that the effect of this testimony before the jury was disastrous, in that it must have influenced the jury so that they returned a verdict of not guilty.

The plaintiff on this appeal insists that the verdict is against the manifest weight of the evidence, and suggests that the issue on the trial was clear cut as to whether the accident occurred in the southbound lanes of route 66, or whether it occurred in the northbound lanes. There is evidence, testified to by witnesses for the plaintiff, that the accident occurred in the southbound lanes, whereas the three witnesses for defendant, who were occupants of defendant’s car, testified that the accident occurred east of the center line of the road. Upon this question the plaintiff is of the opinion that the defendant was unable to produce any disinterested witnesses, and argues that if the court would disregard the testimony of plaintiff’s and defendant’s interested witnesses there is still the testimony of witnesses who were disinterested and who testified as to the manner in which the collision occurred. The defendant argues,, however, that the testimony of the witnesses is in hopeless confusion and contradiction.

Attention is called by the defendant to facts which it is claimed are not in dispute; that the plaintiff, age 25, on the evening of March 4, 1939, went alone to the Princess Ballroom, where she met Frank Hejhal, age 17, and Willard Jaeck, age 19; that the plaintiff had not been with either of these boys before; that the three left the ballroom about 11:30 p. m. and. drove, so they testified, direct to the plaintiff’s home, somewhere in Riverside; that they arrived at her home at 12:30 a. m.; that witness Hejhal did the driving and the plaintiff sat in the front seat with him; that they remained in front of plaintiff’s home about 10 minutes talking and listening to the radio; that, thereupon, witness Hejhal and the plaintiff got into the back seat and witness Jaeck took the wheel; and that they then started out for a drive. The defendant suggests that while each of them apparently felt it necessary to explain the purpose of this drive, their explanations were quite different. The further facts given as undisputed are that they circled back to Harlem avenue, from Harlem avenue to U. S. 66 and then south to a point somewhere near where it intersects with 46th Street, the place where the accident occurred; that the distance traveled was three or four miles and that the speed just before the accident was 30 to 35 miles.

The defendant, Louis Koller, together with his wife and son, left their home at 1929 Addison Street at 2:30 in the afternoon of March 4th, it being Saturday and went to Joliet, Illinois, where they visited friends. They left Joliet about 12:25 a. m. and proceeded home over route 66, the son, Clayton Koller, driving, his mother seated beside him in front and the defendant, his father, in the rear seat, and were driving in a northerly direction as they approached the place of the accident. It is further suggested by the defendant that all of the occurrence witnesses agreed that immediately before the occurrence the drivers of both ' cars turned to the left, that they collided head-on, the damage to both cars being to the right front; and that after the accident the car in which the plaintiff was riding was facing southeast and the defendant’s car towards the northwest. The witnesses also agreed that route 66 is a four-lane highway, runs north and south at the place of the accident, and that as it proceeds south near 47th street it curves to the west. The defendant’s testimony was to the effect that the place of the collision was south of 46th street and within the northbound traffic lane, while the testimony of the plaintiff’s witnesses is that the collision took place in the southbound traffic lane and is in disagreement with regard to whether it happened north or south of 46th street.

Defendant does not agree with the plaintiff’s contention that the verdict is against the manifest weight of the evidence, but on the contrary argues that it is in accord with it. The questions involved were, of course, for the jury to pass upon. As to the question of disregarding the testimony of interested witnesses, and looking to that of the disinterested witnesses, this is not a fair rule to ask this court to apply in passing upon the questions involved. It is for the jury to pass upon the witnesses, their interest or lack of interest, and their credibility. The jury in this case passed upon those questions and was properly instructed by the court. It is contended that plaintiff had the larger number of disinterested witnesses. This fact is to be considered, but, still, it is for the jury to consider the appearance of the witnesses and to pass upon which of them are the more credible and reasonable in their testimony regarding the facts as they occurred at the time of the collision. One of the cases cited is that of Burnham v. Peoria Ry. Co., 223 Ill. App. 573, where in its opinion the court said; “ ... Appellant contends that on this question it had the greater number of witnesses and therefore the jury were not warranted in finding for plaintiff. The number of wit-” nesses on each side is not the only matter to be considered. Upon a consideration of all the evidence of the witnesses on this subject, we conclude the jury were warranted in believing appellee’s witnesses on that subject and therefore finding defendant guilty of negligence.” Further, in the case of Harre v. Foyette County Mut. Tel. Co., 284 Ill. App. 292, it appears that the plaintiff, who was riding on top of a truck load of baled straw, was swept off onto the ground by a guy wire belonging to the defendant which was stretched across the highway. Six witnesses had measured the height of the wire for the plaintiff and two for the defendant. In affirming a judgment for defendant, the court said;

“Whether the wire was 11 feet and 3 inches, or 13 feet and 4 inches, above the highway track, was a question of fact. The jury saw and heard the witnesses and were in better position than are we, to pass upon their credibility, and the mere fact that six swore to the lower height, and two testified to the greater, is not alone sufficient for us to determine which group told the truth. The weight of the testimony is determined, largely, by the credibility to be accorded to the evidence of the several witnesses, and not inferred, merely, from numbers.” Considering the facts appearing in this record, it was for the jury to pass upon the questions involved, and, having done so, we are not in a position to find as a fact that the verdict was against the manifest weight of the evidence. We are not inclined to disturb the verdict on this ground.

It is urged by the plaintiff that counsel for the defendant acted improperly in the cross-examination of the plaintiff by asking improper questions. The ground upon which these questions were called to the attention of the plaintiff was as to her physical condition prior to the accident. It appears in plaintiff’s brief that there was no claim made either in the complaint, by the plaintiff’s attorney, or the plaintiff herself that she received any injury to her female organs, and that no claim was made that the alleged cessation of menstruation resulted from the accident and that no damages were claimed on that account. This matter was first called to the attention of the court and jury by a statement of Dr. Grunnar, a physician who attended the plaintiff, made on direct examination by the plaintiff’s attorney. Dr. Grunnar testified in part that ‘£ She was extremely nervous and she complained there had been a cessation of menstruation for several months.” This statement was made by the doctor in response to a question asked of him with reference to an examination made by the doctor on May 1st, following the accident. Defendant contends that there can be no question but that it was intended that the jury should take this statement of the doctor into consideration if the ease got so far as to require the assessment of damages, and calls it to our attention that at no time during the trial were the jury informed that the plaintiff was not seeking damages for this particular ailment and this testimony of the doctor was never withdrawn.

From the record it appears that the plaintiff was 25 years of age, doing housework, and that- she testified on cross-examination by defendant’s counsel that she was not married and never had been married. As already indicated, Dr. Grunnar, who treated her, testified that she was extremely nervous and that she complained there had been a cessation of menstruation for several months. Upon the cross-examination of plaintiff the following questions and answers appear;

“Q. I believe the doctor told us about some menstrual trouble, did you have any menstrual trouble while in the hospital!
“A. While I was in the hospital?
“Q. Yes. A. Yes, sir, I did.
“Q. Was that the first time you had any menstrual trouble ?
“A. Yes, sir.
“Q. You had given birth to a child before that, had you?
“A. I have, yes.
“Mr. Irwin: I object, Your Honor.
‘1 The Court: Sustained,
“Mr. Hinshaw: Exception. She has claimed all along these were'the result of this accident. If" she wants to withdraw the claim, that is something else.
“Mr. Irwin: I move that counsel’s statements.be stricken out, Your Honor.
“Mr. Hinshaw: I have proof of it.
“The Court: Sustained, Proceed.” and finally another question was asked of plaintiff “Did you ever suffer an abortion before this accident?” to which an objection was made and sustained by the court.

After the cross-examination of plaintiff was completed, counsel for the parties retired to the Judge’s chambers. There was a discussion by the parties but it does not appear from the proceedings that were had in chambers that any motions were made or considered by the court on the questions, involved. The fact is, however, that the plaintiff did not make a motion to withdraw a juror, so that there would have been a further trial in this case, nor was any other motion made to withdraw a juror during the course of the trial. Counsel for the plaintiff proceeded with the trial and during the-course of the balance of the hearing, nothing further was said upon the subject of the examination objected to. Having submitted the facts to the jury, the result being not to plaintiff’s liking, plaintiff now urges that there was error in the asking of the questions that were propounded' by defondant’s counsel. Upon this question, however, we are of the opinion that the plaintiff opened the door for this cross-examination when Dr. G-unnar was examined by plaintiff’s counsel, when the doctor said, “She was extremely nervous and she complained there had been a cessation of menstruation for several months.” This statement the plaintiff permitted to stand and, of course, the defendant’s counsel was permitted under the circumstances to ask questions as to whether the injuries brought about this failure of menstruation. Under the circumstances, there was not such error as would justify the reversal of the judgment.

There is a further question that has been called to our attention regarding the court’s refusal to give an instruction presented by the plaintiff. The instruction is as follows;

“While plaintiff must prove her case by a preponderance of evidence, the proof need not be the direct evidence of persons who saw the occurrence sought to be proved, but facts may also be proved by circumstantial evidence, that is, by proof of circumstances, if any, such as to give rise to a reasonable inference in the minds of the jury based upon the proof of the truth of the facts alleged and sought to be proved, provided such circumstances, together with all the other evidence bearing on such facts, constitute a preponderance of evidence.’-’ The defendant calls attention that after the return of the verdict the plaintiff filed her motion for a new trial, setting up 17 supposed reasons for said motion, and that it is not set up in said motion for a new trial that the court erred in refusing to give this instruction. It is further suggested by the defendant that at no place in the said motion for a new trial did the plaintiff contend that the refusal on the part of the trial court to give this instruction was error, nor was it urged by the plaintiff on the hearing-on the motion for a new trial that there was error in-the refusal to give this instruction. The rule of law is well settled that a failure to specify such an alleged error in the motion for a new trial is a waiver of the error. In the case of People v. Amore, 369 Ill. 245, the Supreme Court said;
“Certain instructions given by the Court are claimed to be repugnant and contradictory to each other. In the written motion for a new trial, specific grounds of alleged errors were enumerated, but no complaint was made nor any error charged relative to any instruction, either given or refused. A written motion for a new trial, assigning specific reasons in support of it, limits the party making it to the grounds therein urged. All other errors are deemed waived and will not be considered on review. (People v. Hatcher, 334 Ill. 526; People v. Fox, 346 id. 374.) A contrary holding would deprive the trial court of an opportunity to correct its own errors, if any. ’ ’ To the same effect see Ulbricht v. Western Coach Lines, 289 Ill. App. 164. Under the circumstances the matter of refusing this instruction was not properly before the trial and will not be considered on review.

There is also the plaintiff’s contention that there was improper argument by counsel for the defendant. We have examined the arguments as complained of by the plaintiff, but upon a consideration of all the facts as they appear, we are of the opinion that there is not sufficient in the objection to justify a reversal on the ground that the arguments of counsel were improper.

Having considered the questions involved in this appeal, we are of the opinion that the trial court properly denied plaintiff’s motion for a new trial and was justified in entering judgment on the verdict of the jury. The judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan and Bubke, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Jean Maggi, Appellant.
    Gen. No. 41,563.
    Opinion filed April 23, 1941.
    Ringer, Reinwald & Sostrin, of Chicago, for appellant; Philip E. Ringer and Morris Sostrin, of counsel.
    George F. Barrett, Attorney General, for appellee; James C. O’Brien, Jr., Assistant Attorney General, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

It appears from the facts that an information was filed on April 1, 1940, in the municipal court of Chicago, charging the defendant with failure to furnish to an agent of the department of labor records of the hours worked by, and the wages paid to, employees of the defendant, as required by “An Act in relation to Minimum Fair Wage Standards for Women and Minors, and providing penalties for violation thereof, approved July 6, 1933, as amended,” (ch. 48, Ill. Rev. Stat. 1939, sec. 198 et seq. [Jones Ill. Stats. Ann. 45.014 et seq.]) — sometimes referred to as the Minimum Wage Law. A motion to quash the information was made by the defendant on the grounds that the act applies only to occupations, as defined in said act, and that the definition of “occupation” in section 2 of said act (ch. 48, Ill. Rev. Stat. 1939, sec. 199 [Jones Ill. Stats. Ann. 45.015]) as “an industry, trade or business or branch thereof or class of work therein” does not include a “profession”; that the practice of beauty culture is the practice of a profession, by reason of which the department of labor did not have authority under the act to prescribe minimum wages for beauty culturists, nor to require an employer to keep a record of hours worked and wages paid to employees, nor to furnish the same to an agent of the department of labor.

It was stipulated that if the respective affiants whose affidavits were filed in support of the motion to quash, had appeared as witnesses, their testimony at the time of the hearing or at the time of the trial would have been as set forth in their respective affidávits, and that the facts contained in the affidavits should have the same force and effect as if the affiants had appeared and testified. The affidavits, being of three beauty culturists, tend to confirm the fact that since the adoption of the beauty culture license law (ch. 16¾, Ill. Rev. Stat. 1939, sec. 15 et seq. [Jones Ill. Stats. Ann. 11.20 et seq.]) it is necessary for a prospective beauty culturist to acquire a scientific, theoretical education as a preparation for practice in the various branches of the profession, and that the practice of beauty culture in a modern beauty shop requires the use of complicated machinery and processes which require the constant exercise of discretion and judgment; that by virtue of the human element, the conduct of a beauty shop resembles the office of a doctor or dentist more than a factory or mercantile establishment; that the practice of beauty culture is referred to by individuals connected therewith as the practice of a profession, and that members thereof consider the welfare of their patron ahead of their own individual gain. Said affidavits further set forth that in order to secure a beauty culture license it is necessary for an applicant, (among other things), to pass a written theoretical examination in the following subjects, namely: anatomy, including anatomy of the face, neck, arm and scalp; hair and hair dyeing, including chemistry of dyes and cosmetic chemistry; and sterilization and equipment, including use of electric currents and therapeutic lamps. No other evidence was offered by either party on the question of whether or not beauty culture is a profession. The trial court overruled the motion to quash.

At the trial, it was stipulated that Florence Wabel, Inspector for the Department of Labor, went to the beauty shop of the defendant on March 6, 1940, and that her request to examine the records with respect to wages paid to employees of the defendant was refused. Defendant testified that she had only three employees, and that each of them was a registered beauty culturist engaged in the practice of beauty culture.

The trial court in passing upon the questions involved, held that beauty culture was a business and not a profession; that it came within the purview of “occupation” as defined in the law, by reason of which, the department of labor had authority to prescribe a minimum wage for beauty culture, and found the defendant guilty and assessed a fine of $25 and costs, from which the defendant appeals.

The defense theory is that the law did not authorize the department of labor to prescribe a minimum wage for beauty culture, for the reason that the practice of beauty culture is not within the scope of occupations as defined in the law. The defendant relies upon the following propositions; (1) since the minimum wage law is penal in character, it should be strictly construed; (2) construing the statutory definition of “occupation” in the minimum wage law strictly, the law does not apply to professions; (3) beauty culture is a profession; and (4) the intention of the legislature not to include professions in general and beauty culture, in particular, can be seen from a comparison of the language which is used in the minimum wage law with the language used by the legislature in other statutes.

The appellant (defendant) contends that since the minimum wage law is penal in character, it should be strictly construed, and that failure to keep records of hours worked and wages paid is an offense unknown to the common law; that the foundation of this entire proceedings, therefore, is the minimum wage law; and that, hence, it is fundamental that unless the statutory definition is broad enough to include the practice of beauty culture, the right of the department of labor to deal with beauty culture is lacking, and consequently its right to require the keeping' of records and its right to inspect such records is nonexistent and the within prosecution must fail. We agree that the act should be strictly construed, if the act is broad enough to consider the question involved. In Chicago, Rock Island & Pacific Ry. Co. v. People of the State of Illinois, 217 Ill. 164, the court in its opinion said:

“Penal statutes are, by well settled principles of law, to be strictly construed, and matters and things which are not clearly included cannot be brought within the operation of such statutes by mere construction. . . . Appellant also cites in support of her contention that the act in question should be strictly construed, the cases of State v. De. Wolfe, 67 Neb. 321; Lane v. State of Nebraska, 120 Neb. 302; State v. McClellan, 155 La. 38; and Peoples Loan & Homestead Ass’n of Joliet v. Keith, 153 Ill. 609, from which last case the following language appears:
“. . . In the construction of statutes, it is a well understood rule that the enumeration of certain specified things which may be exempted, excludes all others not therein mentioned. . . . “In People ex rel. Hansen v. Collins, 351 Ill. 551, the Supreme Court in part said: “It is a general principle of statutory interpretation that the enumeration of certain things implies the exclusion of all others.” In the consideration of this suggestion of the appellant, we quite agree with the theory that the strict construction rule applies, as well as that the enumeration of certain specified things excludes all others not specified.

Then, the second point that is made by appellant is that, construing the statutory definition of “occupation” in the minimum wage law strictly, the law does not apply to professions. Attention is called to that portion of the act involved in this case (ch. 48, Ill. Rev. Stat. 1939, sec. 199 [Jones Ill. Stats. Ann. 45:015]) which is as follows: “ ‘occupation’ means an industry, trade or business or branch thereof or class of work therein in which women or minors are gainfully employed, but does not include domestic service in the home of the employer or labor on a farm.” It is urged that unless the practice of a profession clearly comes within the strict meaning of any of these three enumerated classifications — industry, trade or business — then such practice is not within the scope of the law. It might be well to consider the title of the act (ch. 16¾, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann., vol. 2, p. 287]) under which beauty culturists are licensed, which is entitled “an' act to regulate the pursuit of the business, art and avocation of a barber, and to insure the better qualifications of persons following* such business in the State of Illinois. [Approved June 10, 1909. In force July 1. L. 1909, p. 98, as amended by act approved June 25, 1929. L. 1929, p. 189].” The practice of beauty culture is further by this chapter regulated by “an act relating to the practice of beauty culture. [Approved June 30, 1925. L. 1925, p. 174].” This act relating to the practice of beauty culture provides in section 1, par. 15, for registration, as follows: “Sec. 1. After the first day of October, 1925, it shall be unlawful for any person to practice, or to attempt to practice beauty culture, without a certificate of registration as a registered beauty culturist, issued by the Department of Registration and Education, pursuant to the provisions of this Act and of the Civil Administrative Code. ...” In section 2, par. 16, practice is defined as “Section 2. Amy one or any combination of the following practices constitutes the practice of beauty culture when done for cosmetic or beautifying purposes and not for the treatment of disease or of muscular or nervous disorder. The application of cosmetic preparations to the human body by massaging, stroking, kneading, slapping, tapping, stimulating, manipulating, exercising, cleansing, beautifying, or by means of devices, apparatus or appliances ; arranging, dressing, marcelling, curling, waving, cleansing, singeing, bleaching, coloring, dyeing, tinting, or otherwise treating by any means the hair of any person. However, the provisions of this Act shall not authorize any registered beauty culturist to cut or clip the hair of any person unless he has first obtained a certificate of registration as a barber under the provisions of ‘An Act to regulate the pursuit of the business, art and avocation of a barber, and to insure the better qualifications of persons following such business in the State of Illinois, ’ approved June 10, 1909, as amended.” From the provisions of the act before us, therefore, this law does not apply to any person that may practice giving treatment for disease or muscular or nervous disorder, but is applied strictly to the practice of beauty culture when done for cosmetic or beautifying purposes. It is in the.class with the barbers statute, which speaks of the “Business, art and avocation of a barber.” Webster’s Collegiate Dictionary defines the word “profession” as being generally applied to three professions, namely the professions of theology, law and medicine, and to those persons engaged in one of the three callings.

When we come to consider the case from the decisions that have passed upon like questions we find that the statute relating to barbers was before our Supreme Court. The occupation or practice of barbering is defined in ch. 16¾. par. 14.4, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 11.41], as serving or attempting to serve the public generally in any one or any combination of the following:

“To shave or trim the beard or cut the hair; to give facial and scalp massage or facial and scalp treatment with oils, creams or other preparations either by hand or by mechanical appliances; to singe or shampoo the hair or apply a hair tonic; or to dye or tint the hair of any person; provided, however, that any person registered under the provisions of an Act relating to the practice of beauty culture, approved June 30, 1925, as amended, shall be exempt from the provisions of this Act insofar as the practice of beauty culture under the provisions of said Act is authorized. . . .” In the case of Banghart v. Walsh, 339 Ill. 132, the Supreme Court said:
“. . . For the same reasons that the Barbers Law was held to be constitutional the occupation of beauty-shop operators and beauty culturists may be the subject of regulation. . . . The occupation of barber, as alleged in the bill and admitted by the answer, is made up principally of men and is practiced upon the persons of men, while the occupation of beauty-shop operator or beauty culturist is made up principally of women and is practiced on the persons of women. . . .” It would seem that the chief difference between barbers and beauty culturists is that the former are principally men and perform on the person of men, while the latter are principally women and perform on the person of women such services as needed by them; otherwise there seems to be no marked difference between the two occupations. In People v. Logan, 284 Ill. 83, the court said:
“. . . Am individual has the right to pursue any trade, calling or occupation, without restriction, which is not injurious to the public. The exercise of the police power for the regulation of any trade, occupation or calling can be justified only on the ground of necessity for the health, safety, welfare or comfort of society. (Bessette v. People, 193 Ill. 334.) The trade of a barber brings him in direct contact with the persons of his patrons, and careless and unsanitary practices in his trade may induce diseases of the skin. . . . It cannot be said that the reasonable regulation of the trade of a barber has no relation to the health and safety of the public. . . . ” ■ The language of the court here used applies to the work or occupation of the beauty culturist, the regulation of whom is provided largely that such occupation shall not be done in a careless and unsanitary manner, the purpose of the legislature being to so regulate the occupation as to provide proper health and safety measures.

However, the State by its representative suggests that conceding for the purpose of argument that the practice of beauty culture is the practice of a profession, still the practice would be subject to the minimum wage law, and cite United States of America v. American Medical Ass’n, 110 F. (2d) 703. In that case the circuit court of appeals for the District of Columbia used this language:

“We think enough has been said to demonstrate that the common law governing restraints of trade has not been confined, as defendant insists, to the field of commercial activity ordinarily defined as ‘trade,’ but embraces as well the field of the medical profession . . . it follows that we must hold that a restraint imposed upon the lawful practice of medicine, — and a fortiori — upon the operation of hospitals and of a lawful organization for the financing of medical services to its members, is just as much in restraint of trade as if it were directed against any other occupation or employment or business. . . .” The State contends, therefore, that by reason of the provision that “ ‘occupation’ means an industry, trade or business . . . ,” the minimum wage law applies in the instant case regardless of whether the practice of beauty culture is classed as a profession or as a business.

After considering the questions involved, we are of the opinion that the defendant (appellant) was engaged in a business which is governed by the regulations of the minimum wage law, which are the subject of this controversy. This opinion is fully sustained by the fact that defendant engaged three beauty culturists who were employed in her business of a beauty shop. She was engaged in such a business as to be subject to the provisions of the act, requiring a report to the department of labor of the State of Illinois, showing the hours worked by, and the wages paid to, employees of the defendant. As we have indicated, by her admission and because of the fact that she employed help to carry on her business, she should have filed a report as by statute made and provided. Having failed to do so, the court was fully justified in inflicting' the penalty of a $25 fine because of her failure to comply with the statute.

We are of the opinion that the defendant is subject to the act. Furthermore, on the question of whether it is a profession, we are inclined to believe from the facts, as stated in this opinion, that she was engaged in an “industry, trade or business” as contemplated by the act.

For the reasons stated, the judgment entered by the court is affirmed.

Affirmed.

Denis E. Sullivan and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Herbert Drefahl and Martin Stefecek, Appellees, v. William Hinchcliff, Jr., Trading as Hinchcliff Motor Service, and Robert Armey, Appellants.
    Gen. No. 41,412.

      Opinion filed April 23, 1941.
    Lord, Bissell & Kadyk, of Chicago, for appellants; C. H. Gr. Heineelden and Bussell Creer-acre, both of Chicago, of counsel.
    Henry Mitgang, of Chicago, for appellees; Arthur A. Woleinsohn, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On November 13,1939, plaintiffs filed their amended complaint in the superior court of Cook county to recover damages for injuries to the person and the automobile of each of the plaintiffs respectively. The injuries arose out of an accident which involved an Essex automobile driven by the plaintiff Martin Stefecek, a Plymouth automobile driven by the plaintiff Herbert Drefahl and an auto truck driven by the defendant Bobert Armey. The accident occurred on July 28, 1938, in the city of Chicago. In driving the truck, Armey was a servant of the defendant William Hinchcliff, Jr. The amended complaint alleges due care on the part of each plaintiff and negligence on the part of Armey. It also alleges that Armey “wilfully, wantonly and maliciously drove said auto truck” at “a reckless rate of speed.” After a trial the jury returned a verdict finding both defendants guilty and assessing Drefahl’s damages at $2,500 and Stefecek’s damages at $750. Judgment was entered upon the verdict. At the close of plaintiffs’ case and again at the close of all of the evidence, motions presented by .the, defendants for a directed verdict were overruled. After the return of the verdict, the defendants moved for a judgment notwithstanding the verdict and also for a new trial, which motions were overruled. This appeal is prosecuted to review the judgment. Plaintiffs’ theory of the case (as stated in defendant’s brief) is that “Stefecek was driving his automobile southwesterly upon Archer Avenue; that Drefahl' was driving a short distance behind Stefecek; that Stefecek, because of trouble with his automobile, stopped it or was unable to prevent it from stopping; that Drefahl stopped his automobile behind Stefecek’s automobile; that after said two automobiles had been stopped for a substantial period of time, the auto truck driven by Armey came up at an excessive speed and crashed into the rear of Drefahl’s automboile, causing it to strike Stefecek’s automobile; and that as a result Stefecek and Drefahl each sustained personal injuries and injuries. to his automobile. It is impossible for defendants to know whether plaintiffs base their claims upon Armey’s alleged negligence and plaintiffs’ alleged freedom from contributory negligence, or whether plaintiffs base their claims upon the alleged wanton and wilful misconduct of- Armey.” Defendants’ theory of the case is that “in view of the allegations of the complaint, and the proceedings upon the trial, the verdict and judgment cannot be sustained unless Armey was guilty of wanton and wilful misconduct ; that the auto truck driven by Armey was following the plaintiffs’ two automobiles at a reasonable speed under the circumstances; that said two automobiles slowed down at the intersection of Archer Avenue and Mason Avenue, indicating that they might turn or stop, and then proceeded so as to indicate that they would continue at least to the next intersecting street, ■but suddenly stopped a short distance beyond the intersection of Archer Avenue and Mason Avenue; that the stopping of said two automobiles was done under such circumstances as to constitute negligent conduct by each plaintiff; and that in any event the failure of Armey to avoid striking Drefahl’s automobile with the auto truck was due neither to negligence on his part, nor to any wanton and wilful misconduct.” Defendants advance two points, first that “the verdict must be presumed to be based upon the alleged wanton and wilful misconduct of Robert Armey, and there being no evidence to support a finding that he was guilty of wanton and wilful misconduct, the verdict and judgment should be set aside”; and second that “the trial court should have allowed defendants’ motion for a new trial because the verdict is against the manifest weight of the evidence.” In support of their first point defendants lean heavily on the case of Greene v. Noonan, 372 Ill. 286, 291:

“Counsel for the appellee say that even though the court erred in refusing to instruct as to the wilful and wanton charge, the rule in this State is that if there is one good count in a declaration it is enough to sustain a verdict and judgment, and that this applies to cases where the declaration contains counts that are not supported by evidence. However, there is also a rule in this State, pertaining to wilful and wanton counts in a declaration, which is controlling in the situation here. That rule is that where the declaration consists of several counts, one or more of which state a cause of action the gist of which is malice, with others based upon negligence only, and the verdict is general, without specifying the count on which it is based, the presumption is that the verdict is based upon a cause of action of which malice is the gist. . . . A defendant in a case of this character, facing a charge of wilful and wanton conduct, is placed at a serious disadvantage as compared with one charged merely with negligence, and where there is no evidence to support such charge, it is the court’s duty, on motion, to withdraw such charge from the jury, and failure so to do is, by reason of the character of the charge, error requiring reversal of judgment, for no one may know what influence the charge, though not proved, may have had upon the jury, particularly since it has not been informed that it was not to be considered by it. The distinction in law between wilful and wanton conduct and mere negligence is not a matter with which the average juror is familiar. We are of the opinion that the refusal to withdraw from the jury on appellants’ motion, the consideration of the wilful and wanton charges, requires a retrial of the cause.” The statement made by defendants as to the law is not seriously challenged by plaintiffs. The latter, however, reply that whether an act is wilful or wanton depends upon the circumstances in each case, that there is ample evidence tending to show that the conduct of Armey was wilful or wanton, and that a question of fact was presented to the jury as to whether such conduct amounted to wantonness. Answering defendants’ point that their motion for a new trial on the basis that the verdict is against the manifest weight of the evidence, should have been allowed, plaintiffs say that the verdict is in accordance with the manifest weight of the evidence, and that the court did not err in refusing to grant a new trial. We have read the transcript in order to determine whether there is competent evidence to warrant the jury in finding that Robert Armey was guilty of wilful and wanton misconduct and also to determine whether the court erred in declining to allow the motion for a new trial. Archer avenue runs southwest and northeast. Mason avenue, a north and south highway, runs into Archer avenue from the north. Paul Hurbanis was a passenger in Stefecek’s Essex automobile, and Fred. Donath was operating a steam roller in a southwesterly direction on Archer avenue. Stefecek testified that he was operating the Essex automobile, at about 20 minutes before 8 a. m. on July 28, 1938, in a' southwesterly direction on Archer avenue; that just before coming to Mason avenue his speed was about 25 miles an hour; that he intended to turn to his right into Mason avenue and slowed down to 12 or 13 miles an hour by putting on his brakes; that putting on his brakes lighted a red taillight on his automobile; that he could not make the turn which he intended to because he saw a “horse” blocking Mason avenue and because work was being done by the “WPA”; that when he was half way across Mason avenue the motor “started to stopping”; that he proceeded to operate the starter and came to a stop about 15 or 20 feet west of Mason avenue; that when he stopped a telegraph pole on the north side of Archer avenue was in front of him; that he was completely stopped and had been for about three quarters of a minute when his automobile was struck in the rear by another automobile; that before coming to Mason avenue he saw an automobile behind him at a distance of more than 100 feet; that such automobile must have been the other automobile involved in the accident because no other car passed him; that he put on his brakes and that he gave no signal after he crossed Mason avenue: Paul Hurbanis testified that he was riding with Stefecek; that he and Stefecek intended to go to Soukal’s, a florist, and for that purpose were going to turn to the north (right) on Mason avenue; that just before coming to Mason avenue their speed was about 10 to 13 miles an hour, but before that it was about 26 miles per hour; that they proceeded to go about 17 feet west of the west curb line of Mason avenue, stopped for about three quarters of a minute and then there was a crash; that there was a telegraph pole on the north side of Archer avenue about 30 feet west of the west curb line of Mason avenue and about 25 feet west of where they stopped; that the car in which they were riding was pushed into the prairie and that the car was against the sign post which was knocked down by the impact. A photograph in evidence shows that Archer avenue is a broad well-paved highway and that no street car tracks are laid thereon in the vicinity of the scene of the collision. This photograph shows a cement sidewalk on the north side of Archer avenue, extending in a southwesterly direction from Mason avenue. The street is paved with cement or concrete. Between the cement pavement and the sidewalk is a strip commonly called a parkway. The telegraph post mentioned in the testimony is erected in the parkway, slightly east of the cement sidewalk. Another photograph of the scene of the accident was taken from a different direction than the first photograph. The photographs show a considerable area of vacant land to the north of the sidewalk. This vacant land appears to be on a level with the sidewalk. On this vacant land stood a wooden sign supported by two upright posts reading, ‘6 Soukal Floral Co., Flowers for All Occasions. ’ ’ This is the sign which was knocked down by the Stefecek car. Drefahl, called by plaintiffs, testified that on July 28,1938, he owned and was operating a Plymouth automobile in • a southwesterly direction on Archer avenue; that the highway was dry and it was a clear day; that he was driving in the north traffic lane and as he approached Mason avenue he noticed that there was a ear ahead of him and also a road roller and that he then slowed down to a speed of 20 to 25 miles an hour; that he saw the taillights on the car in front of him flash when he was about 100 feet or better behind him; that the other car slowed down to a speed of 7 or 8 miles per hour, which necessitated his (Drefahl’s) slowing down again; that he applied his brakes when the car ahead of him slowed down; that he believed he gave no signal with his hand when slowing down, but kept both hands on the wheel; that he passed the road roller on its right, the roller being in the traffic lane near the center of the road'; that the car ahead of him stopped about 15 or 20 feet past the west curb of Mason avenue, and that he (Drefahl) stopped his automobile about 6 or 8 feet behind that car; that before the other car stopped the driver of that car appeared to be having trouble because he slowed down so much and his car had a tendency to jerk; that upon stopping behind the car ahead of him he blew his horn and in the meantime the road roller was coming alongside of him; that he flashed his automobile brake lights on and off two or three times in coming to a stop; that while he was stopped he again applied his brakes flashing the lights on his stop signals; that while he was standing he looked in his rear view mirror and noticed a truck bearing down on him about 35 or 50 feet, or a little more, coming up behind his car but he could not “jump ’ ’ to the left because of the roller, nor turn to the right because of the telegraph pole; and that the truck hit his automobile, the impact knocking him unconscious. Drefahl further testified that his automobile stood behind the other car before the truck crashed into his automobile; that the road roller was just passing him as the truck struck him; that when he first saw the road roller its speed was about 5 miles per hour, but that he did not know whether it continued at the same speed. He identified the place of the accident as right opposite a water hole on the northwesterly side of Archer avenue, west of Mason avenue, but east of the telegraph pole nearest to it. Donath testified that on July 28, 1938, he was working in the vicinity of Archer avenue and Mason avenue; that he was operating a road roller along Archer avenue; that he was east of Mason avenue, and that he was going to Austin avenue; which is west of Mason avenue; that the Essex (Stefecek’s automobile) was going about 15 or 20 miles per hour and then slowed down; that the Essex was “just about stopped” when the Plymouth (Drefahl’s automobile) “stopped” in back of it; that when the áceident occurred the Essex was about 25 feet west of Mason avenue and there was about 10 feet between the Essex and the Plymouth; that he did not see the truck before the collision took place, but saw it as it “just passed” his roller, his roller being about 75 feet east of Mason avenue; that he saw “these two machines” passing him and looked, and as he looked he saw the truck coming; that he was about 75 feet east of Mason avenue; that he was east of the accident and that the accident occurred “maybe” 35 or 40 feet in front of him; that in his opinion the truck was going at a speed of “at least 45 to 50 to 55 miles an hour”; that the truck was going 40, 45 or 50 miles per hour, and that shortly before the accident the speed of the roller was from 4 to 5 miles per hour; that the collision knocked the machine off the street; that he could form an opinion on how fast a vehicle is moving; that he saw the truck move a distance of 100 feet before the collision, and that he did not see the truck slow up at all before the collision. Robert Armey, called by defendants, testified that on July 28,- 1938, at about 7:50 a. m., he was driving a truck southwest on Archer avenue in the traffic lane next to the curb; that as he approached Mason avenue there were two automobiles and a steam roller in front of him; that before he reached Mason avenue he was going between 25 and 28 miles per hour, and that as he approached Mason avenue he was about 75 feet behind the Essex automobile, which was going about the same speed as his (Armey’s) truck; that the first automobile started to slow down and the second automobile also slowed down so that he (Armey) had to shift gears and he slowed down to about 15 miles per hour; that the first car “stopped like he was going on” and'he (Armey) left his truck “in gear” and both automobiles stopped in front of him, and that “it was too close to stop then”; that when the automobiles stopped they were between the steam roller and the curb, and that the speed of the steam roller was about'4 or -5 miles per hour; that his speed as he drove along Archer avenue was about 25 to 28 miles per hour and not any greater at any time; that he was about 75 feet behind the Plymouth automobile when he saw the two automobiles start to slow down and was following about that close; that he could stop the truck in about 35 or 40 feet; that he saw no stop light on the Plymouth but could and did see that it was slowing down; that the Plymouth and his truck slowed down to about the same speed, which was about 10 or 12 miles per hour, at which time his truck and the Plymouth were about 15 or 20 feet apart; that from the time the Plymouth stopped until the collision it was standing still just “instantly” and that at the time of the collision the two automobiles had “just stopped,” and that he did not see the “flash lights” go on when the Plymouth stopped; that there was nothing at all to obstruct his vision; that after his truck hit the Plymouth, the Plymouth hit the Essex, and that the Essex was knocked across the sidewalk and into the prairie and onto a floral sign which was about 30 feet north of the curb of Archer avenue. Harold Flint, Jr., called by defendants, testified that on July 28,1938, at about a quarter to eight in the morning he was driving a car northeast on Archer avenue at a speed of 35 or 40 miles per hour; that he did not notice anything in particular except that there was a steam roller going “east”; that he heard a crash and looked over, but did not pay any attention until the crash; that at the time of the crash he was in the intersection of Archer avenue and Mason avenue and the steam roller was a little bit east of where he was, the front end of the steam roller being opposite the middle of his car and about in the middle of the intersection. Edward F. McCarthy, called by defendants, testified that he was a police officer, assigned to the accident prevention division, and that he visited the scene of the accident a short time after the occurrence; that he tested the truck after the accident by driving it and that it stopped in 42 feet at 20 miles an hour; that such a truck with its braking equipment in good working order should have stopped in between 25 and 30 feet at 20 miles an hour; that the truck and its load weighed about 36,000 pounds; that the defendant Armey in a conversation with him (McCarthy) at the scene of the accident said he ‘‘hadn’t had much sleep,” and that the floral sign is about 25 or 30 feet north of the curb of Archer avenue across the sidewalk and to the prairie.

It will be seen that there is competent evidence that the accident took place on a clear day and on a broad and well paved highway; that Armey was driving a loaded truck weighing about 36,000 pounds at a speed estimated at from 40 to 50 miles per hour; that he drove at such speed while his braking equipment was not in good working order; that he was 75 feet behind the Plymouth automobile when he saw the two automobiles slow down; that there was nothing at all to obstruct his vision; that he observed the car in front of the Plymouth as well as the steam roller, all of which were some distance in front of him; that he could stop his truck at the speed he was going at that time in about 35 or 40 feet; that the truck struck the rear part of the Plymouth which was then standing still 6 or 8 feet behind the Essex; that the impact pushed the Plymouth into the Essex; that the Essex was by the force of the impact, knocked across the parkway and the sidewalk and into the prairie and onto a floral sign about 30 feet north of the curb of Archer avenue and about 40 feet west of Mason avenue, and that the force of the impact knocked the Essex a distance of 60 or 70 feet from where it had stopped. The jury saw and heard the witnesses and looked at the photographs. We are of the opinion that there was competent evidence to warrant the jury in finding that Armey was guilty of wilful and wanton misconduct. We find that the evidence on the question of wilful and wanton misconduct presented a question of fact for the jury, and that the verdict is not against the manifest weight of the evidence.

For the reasons stated, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Hebel, P. J., and Debts E. Stillivab-, J., concur.


author: Mr. Justice Burice

text:
    In the Matter of Estate of Katie Murray, Deceased et al., Appellees, v. Appeal of Carrie Murray, Appellant.
    Gen. No. 41,452.
    Opinion filed April 23, 1941.
    James W. Mraz, of Chicago, for appellant.

      Crescent P. O’Connor and James W. Cotter, both of Chicago, for certain appellees; James W. Cotter, of counsel.
   Mr. Justice Burice

delivered the opinion of the court.

The estate of Katie Murray, deceased, was pending in the probate court of Cook county. George J. Murray, a son of the decedent, was the administrator. In May, 1937, Carrie Murray, wife of the administrator, filed her claim against the estate in the sum of $617.50 for “room, board and practical nursing.” The administrator endorsed his appearance on the claim and consented to the allowance thereof. On September 27, 1937, it was allowed as a sixth class claim. On July 8, 1938, the probate court entered the following- order:

“This cause coming on to be heard on the motion of C. P. O’Connor, Atty. for Anna Murray Swain, et al., for an order to vacate the order allowing and disallowance of the claim of Carrie Murray which was heretofore allowed by this Court on Sept. 27, 1937, and the Court having heard the testimony and arguments of Counsel for all interested parties and being fully advised in the premises: It Is Hereby Ordered Adjudged and Decreed that the order heretofore entered allowing the claim of Carrie Murray in the amount of $617.50 be and it is hereby vacated and it is further ordered that said claim be and it is hereby disallowed.” Prom the last mentioned order Carrie Murray appealed to the Circuit Court, on May 10, 1940, that court entered the following order :
“On motion of Crescent P. O’Connor, solicitor for certain heirs, this matter having been heard upon the appeal of Carrie Murray, from an order of the Probate Court vacating and setting aside the order of allowance and disallowing the claim of Carrie Murray, and the Court having heard testimony and counsel having filed written briefs and the Court being first duly advised in the premises; It Is Ordered that the appeal of Carrie Murray, claimant herein, be and it is in all respects dismissed. It Is Further Ordered, that order and orders of the Probate Court herein appealed from are in all respects confirmed and affirmed. And to which entry of this order the said Carrie Murray, claimant, duly excepts.” The instant appeal is prosecuted for the purpose of reviewing this order. Appellant filed her praecipe with the clerk of the circuit court, directing* him to make up a transcript of the record and to insert therein, among other documents:
“11. The report of the proceedings at the trial consisting* of the testimony and the rulings of the trial judge, and all matters upon which such rulings were made and other proceedings which claimant and appellant desire to incorporate in the record on an appeal, or a complete stenographic record of the proceedings at the trial consisting* of the testimony and rulings of the trial judge, and all matters upon which all such ruling’s were made, or a report of the trial judge of his reasons for his decision, or in lieu of such report of the proceedings, a written stipulation of a statement of facts material to the controversy in litigation by all parties interested, either one of which is to be certified by the trial judge and filed, presented and approved in said cause at the election of said Carrie Murray, claimant herein, together with order of presentment and approval thereof.”
“12. A certificate that the same is a complete transcript of the proceedings had in this court.” The clerk of the circuit court certified the record before us to be a true, perfect and complete transcript of the record according* to a certain praecipe filed in his office on June 10, 1940, “excepting item No. 11, which is not of record.”

The claimant urges that the order of the probate court allowing her claim is a judgment. In Mitchell v. Mayo, 16 Ill. 83, the Supreme Court decided that an order allowing a claim in probate is a judgment. The court there points out that upon such a judgment “no execution is awarded, but the judgment is ordered to be paid in the due course of administration.” Claimant concedes that in a proper case the probate court may set aside the allowance of a claim after the close of the term at which it was allowed, as for fraud, accident or mistake. She maintains, however, that no petition or affidavit was presented to the probate court in support of the motion to vacate the order allowing the claim, as required by rule 64 of the rules of practice of the probate court, adopted in January, 1936. Claimant’s theory of her case is that “the Probate Court was without jurisdiction to vacate and set aside its order allowing appellant’s claim almost nine months after its allowance without proper notice, objections of any kind, or petition setting forth fraud, accident or mistake, together with proof thereof, and that the Circuit Court erred in not so holding; and that the Circuit Court erred in not disposing of that question, and then, if necessary, proceeding to a hearing on the merits. ’ ’ On appeal from the probate court, the circuit court does not sit as a court of errors, but tries the case de novo. (Barnes v. Earle, 275 Ill. 381, 385.) The presumptions are in favor of the action of the trial court and the burden is upon appellant to point out in the record any error which would warrant this court in reversing or modifying the order of the trial court. Although appellant directed the clerk to include in the transcript of the record the report of the proceedings at the trial consisting of the testimony and the rulings of the trial judge, she failed to procure such report. The order appealed from recites that the court heard testimony and was fully advised in the premises. As the order of the circuit court is presumed to be correct, and as appellant has not brought before us a transcript of the testimony on which the trial judge based his order, she has not sustained the burden imposed on her of pointing out errors committed by the court. In such a situation we presume that the evidence supports the order. Under Rule 36 of the Supreme Court the party appealing may or may not specify that the report of the trial proceedings shall be included in the transcript. This rule also provides that no dismissal of the appeal shall be made by the trial court where the appellant, after filing his praecipe, elects not to include any proceedings at the trial in the record on review, and transmits the record on appeal to the reviewing court in proper time without such proceedings. In the case at bar appellant did not elect to proceed with her appeal without including in the record a transcript of the proceedings at the trial. The record before us includes a copy of the claim with endorsements thereon, a copy of a petition filed by the attorney for the administrator praying for the restoration of such claim which had become lost, a copy of the order of the probate court vacating the order theretofore entered allowing the claim, a copy of the order allowing the appeal to the circuit court, a copy of the appeal bond, a petition in the circuit court by the attorney for the administrator asking that he be relieved of the duty of defending the appeal in that court and that he be permitted to associate himself with counsel for the claimant in the prosecution of the appeal, an order denying the prayer of that petition, and a petition filed in the circuit court by claimant alleging various steps taken in the probate court and praying that an order be entered in the circuit court reversing, vacating and setting aside the.order of the probate court of July 8, 1938, and that Carrie Murray’s' claim against the estate be allowed. The record also contains the final order of the circuit court, the notice of appeal and the praecipe. It will be observed that the record filed in this court does not show that the probate court acted improperly in setting aside the allowance of the claim. The presumption is that the probate court acted in accordance with the law. There is no pretense that all of the record of the probate court is included in the transcript before us. The petition filed by the claimant in the circuit court does make various allegations as to the occurrences in the probate court. This petition, however, is in the nature of a pleading and cannot take the place of the transcript of the testimony. It does not appear whether the parties opposing the claim were ruled to answer the petition. As "pointed out, the circuit court tried the case de novo. The presumption is that the judgment of that court is in accordance with the justice of the case. The record shows that testimony was heard. The transcript of the testimony has not been included in the record. In the absence of the transcript of the evidence, we assume that such evidence supports the order sought to be reversed. The record that is before us does not show that either the probate or the circuit court committed any error which would warrant us in reversing the order.

Because of the views expressed, the order of the circuit court of Cook county is affirmed.

Order Affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.