text:
    John Grutzius, Appellant, v. Armour and Company of Delaware, Inc., Appellee.
    Gen. No. 42,070.

      Heard in the second division of this court for the first district at the June term, 1941.
    Opinion filed December 30, 1941.
    Rehearing denied January 20, 1942.
    H. A. Barnhardt, of Chicago, for appellant.
    Charles J. Faulkner, Jr., Walter C. Kirk and John P. Doyle, all of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

John Grutzius filed a second amended complaint against the defendant, Armour and Company of Delaware, Inc., to recover damages in the amount of $50,000 for permanent injuries to Ms health. Plaintiff’s action was predicated upon section 3 of the Workmen’s Occupational Diseases Act (ch. 48, par. 172.3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 143.16(3)]). Defendant’s motion to dismiss the second amended complaint was sustained and, plaintiff electing to stand on said complaint, judgment for costs was entered against him and in favor of the defendant. An appeal was taken from the judgment directly to the Supreme Court, which, in transferring the appeal to this court, held (Grutzius v. Armour & Co., 377 Ill. 447) that no constitutional question was reasonably involved and that it is the construction of the aforegoing section of the.statute rather than its validity that is presented for determination on plaintiff’s appeal.

So far as relevant, section 3 of the Workmen’s Occupational Diseases Act provides:

“Where an employee in this State sustains injury to health or death by reason of a disease contracted or sustained in the course of the employment and proximately caused by the negligence of the employer, unless such employer shall have elected to provide and pay compensation as provided in Section 4 of this Act, a right of action shall accrue to the employee whose health has been so injured for any damages sustained thereby; . . . provided, that violation by any employer of any effective rule or rules made by the industrial commission pursuant to the Health and Safety Act, enacted by the Fifty-ninth General Assembly at the third special session, or violation by the employer of any statute of this State, intended for the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section; . . .”

Plaintiff’s complaint alleged substantially that on and for many years prior to September 1, 1937, he was employed by defendant in its fertilizer plant in Chicago Heights, Illinois; that his employment required him to work in each of the three principal divisions, rooms and buildings of the plant and that while so engaged he was exposed to the inhalation of deleterious gases, dusts and fumes; that since November 1, 1936, the effective date of the Workmen’s Occupational Diseases Act, a statutory duty has rested upon defendant to use due and reasonable care for the safety of the health of its employees, including himself; that, notwithstanding its duty in that regard, defendant from November 1, 1936, to and including November 28, 1939, negligently failed to prevent the appearance and diffusion of noxious gases, fumes and dusts and to provide adequate ventilation and other mechanical means for the purpose of exhausting the substances named; that as a direct result of being required to work under the conditions described, he contracted diseases of a progressive nature, namely, silicosis, pneumoconiosis and tuberculosis;. that his condition eventually so disabled him that he was compelled to quit his employment on September 28, 1938; that during the time of his employment with defendant he was not guilty of any wilful or wanton conduct which contributed to his contraction of the aforesaid diseases; and that defendant did not at any time mentioned in the complaint avail himself of the compensation provisions of the statute.

The complaint further alleged that “on or before the said 28th day of September, 1938, the Industrial Commission made or published no rules pursuant to the Health and Safety Act, enacted by the 59th General Assembly at the Third Session as contemplated by the said Workmen’s Occupational Disease Act. Neither was there any statute passed in the State of Illinois intended for the protection of the health of employees after the date of the passing of the Workmen’s Occupational Disease Act and before or on the said 28th day of September, 1939.”

Defendant’s motion to dismiss the complaint is in part as follows: “(1) The plaintiff primarily bases his cause of action on Section 3 of the ‘Workmen’s Occupational Diseases Act’ . . . but this section in and of itself does not sustain the plaintiff’s alleged cause of action because:

“(a) The application of Section 3 is dependent upon a specific duty imposed upon the defendant by some other statute of the State of Illinois or by an effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act of Illinois (Chapter 48, Sections 137.1, 137.3, 137.4 and 137.5 [Ill. Rev. Stat. 1939]), and
“(b) The breach by the defendant of the duty so imposed, and the Complaint does not allege any specific duty imposed upon the defendant and owed to the plaintiff by the defendant during the time mentioned in the complaint.
“(2) The Complaint in its entirety fails to allege the violation by the defendant of any statute ‘intended for the protection of the health of employes’ . . ., or the violation of ‘any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act’ . . .; a violation of which statute or rule is expressly set forth in Section 3 of the Occupational Diseases Act, as constituting and defining ‘negligence of the employer within the meaning of this section’ ....
“(3) The Complaint does not charge that this defendant violated any duty imposed on it by the statutes mentioned in said Complaint, nor does it charge that plaintiff’s disease and disability was proximately caused by the violation of any such duty.
“(4) It is not alleged and it cannot be reasonably inferred from the Complaint that the defendant violated the statute known as the ‘Health and Safety Act,’ in that the Complaint fails to allege that the Industrial Commission adopted any effective rule or rules applicable to the operations of this defendant, as set out in the Complaint, and that the defendant violated the aforesaid statute or any effective rule or rules adopted pursuant to said statute.
“(5) If the alleged negligence on the part of the defendant, as set out in the Complaint, is to be treated as common law negligence and not statutory negligence, the Complaint likewise fails to state a cause of action, because under the common law there is no liability for an occupational disease caused by such acts of alleged negligence as are set out in the plaintiff’s Complaint.”

As heretofore shown defendant’s motion to dismiss was sustained and plaintiff, electing to abide by his complaint, judgment for costs was entered against him.

Plaintiff’s theory as stated in his brief is that “Section 3 of the Workmen’s Occupational Disease Act gives a right of action to an employee who suffers an occupational disease while in his employment occasioned or caused through the negligence of his employer without regard to any effective rule of the Industrial Commission made for the health and safety of employees or any statute of the state enacted for that same purpose.”

Defendant’s position as to plaintiff’s complaint is as follows: “It was insufficient to state a cause of action under the statute in question since the complaint clearly shows and plaintiff admits that this defendant did not violate any statute intended for the protection of the health of the plaintiff or any rule of the Industrial Commission which shall be and constitute negligence . . . within the meaning of this section.’

“If the Court sustained the complaint, then and in that event the statute as applied to this defendant would contravene subparagraph 2 of Article II and Article III of the Constitution of the State of Illinois and the Fourteenth Amendment to the Federal Constitution.”

The Workmen’s Occupational Diseases Act was enacted March 16, 1936, and on the same day the Legislature adopted the Health and Safety Act (ch. 48, sec. 137.1 et seq., Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 45.075(1) et seq.]). The latter act provided in part as follows:

“137.1. Industrial commission to administer.] § 1. The industrial commission is hereby vested with the power and authority to administer the provisions of this Act.
“137.2. Application of act.] § 2. This Act shall apply to all employers engaged in any occupation, business or enterprise in this State, and their employees, except as follows:
“(a) Nothing contained in this Act shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil or stock-raising, or to those who rent, demise or lease land for such purposes, or to anyone in their employ, or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered.
“(b) Nothing contained in this Act shall be construed to apply to employers and employees in the coal mining industry.
“137.3. Rules to secure protection of employees.] § 3. It shall be the duty of every employer under this Act to provide reasonable protection to the lives, health and safety of all persons employed by such employer. The industrial commission shall, from time to time, make, promulgate and publish such reasonable rules as will effectuate such purposes.
“Such rules shall be clear, plain and intelligible as to those affected thereby and that which is required of them, and each such rule shall be, by its terms, uniform and general in its application wherever the subject matter of such rule shall exist in any business, occupation or enterprise having employees.
“Nothing in this Act shall be construed to grant to the industrial commission the power to make any rule which will require the submission of any plan, specifications or other information concerning any proposed installation, alteration, construction, apparatus or equipment, or in any manner regulate the hours of labor of any employee in this State.
“137.4 Nature of rules.] § 4. To effectuate the purposes stated in Section 3, the industrial commission shall make such rules only for:
“(a) The proper sanitation and ventilation of all places of employment to guard against personal injuries and diseases.
“(b) The arrangement and guarding of machinery and the storing and placing of personal property to guard against personal injuries and diseases.
“(c) The prevention of personal injuries and diseases by contact with any poisonous or deleterious materials, dust, vapors, gases or fumes.
“(d) The prevention of personal injuries and diseases caused by exposure to artificial atmospheric pressure.
“137.5. Effect of rules.] § 5. Such rules of the industrial commission shall have the force and effect of law.”

It will be noted that the first part of section 3 of the Occupation! Diseases Act, heretofore set forth, provides: “Where an employee in this State sustains injuries to health ... in the course of the employment and proximately caused by the negligence of the employer ... a right of action shall accrue to the employee whose health has been so injured for any damages sustained thereby.” (Italics ours.)

It will be further noted that the foregoing part of the section was followed by this proviso: “provided, that violation by any employer of any effective rule or rules made by the industrial commission pursuant to the Health and Safety Act, enacted by the Fifty-ninth General Assembly at the third special session, or violation by the employer of any statute of this State, intended for the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section.”

Plaintiff contends that “the specific negligence” defined in the proviso “is an addition to the general negligence provided for in the first part of the section and that the word ‘provided’ was not used by the Legislature in any technical sense but really means ‘and/or also’ ”; and “that in addition to the general negligence the violation of a rule of the Industrial Commission or a state statute would also amount to negligence.” Defendant’s answer to this contention is that the right of action of the employee under this section is limited to negligence of the employer as defined in the proviso.

Prior to the adoption of the statutes involved herein, the former Workmen’s Occupational Diseases Act was declared unconstitutional and void (Parks v. Libby-Owens-Ford Glass Co., 360 Ill. 130; Boshuizen v. Thompson & Taylor Co., 360 Ill. 160; and Vallat v. Radium Dial Co., 360 Ill. 407) and it was thereafter .repealed by the present Occupational Diseases Act. The former Health and Safety Act was also declared unconstitutional (Parks v. Libby-Owens-Ford Glass Co., supra) and it was thereafter repealed by the present Health and Safety Act.

In insisting that the word negligence as used in the first part of section 3 of the present Occupational Diseases Act means general or ordinary negligence, plaintiff makes the following statement in his brief: “Before an employer carries on a business and has employees working for him in any place or in any conditions, it is his duty to know that there is nothing in that work that is detrimental to the health of his employee, or if the work is such that there is some hazard in that regard he should use reasonable care and diligence to correct the conditions to make the surroundings safe from such hazard. Certainly a statute giving a right of action for negligence without attempting to define what particular acts would constitute the negligence does not contravene either the Illinois or the United States Constitutions.”

It is difficult to understand how this proposition can be seriously urged since the Supreme Court decisions above cited declared the former Occupational Diseases Act void for uncertainty because its provisions were so vague, indefinite and incomplete that no sufficiently clear and understandable standard of duty was defined therein to guide employers in complying with its requirements. In the Parks case it was said at page 114 that “the General Assembly has failed to establish a standard or rule of action.” In the Boshuizen case, the court said at page 167 that “to be valid the statute must prescribe a standard so definite, fixed and understandable as to permit a compliance therewith by one who desires to meet its requirements.” In the Vallat case this language was used by the Supreme Court at page 414: ‘ ‘ There is no question as to the need and imperative right that men, women and children engaged in such occupations should have to be guarded against destruction or impairment of health. This end must be obtained by laws that are themselves a protection, and it is not a compliance with the due process provisions of our fundamental law if the duty be put upon employers without some accurate and definite chart and compass to guide them towards the humane results intended.” These cases squarely hold that before the duty can be imposed upon employers to guard against the destruction or impairment of the health of their employees the legislature must prescribe a standard or chart of duty which is so definite, fixed and understandable that it will permit a compliance therewith by one who desires to meet its requirements.

It must be assumed that when the legislature repealed the former unconstitutional Occupational Diseases Act and the Health and Safety Act and contemporaneously adopted the present acts, it acted in the light of the foregoing Supreme Court decisions and intended to meet the defects pointed out therein which caused the former acts to be condemned as void.

In our opinion the language used in the proviso to section 3, heretofore set forth, is plain and understandable and really not open to construction. It states as clearly as language can that the violation by any employer of any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act or the violation by the employer of any statute of this State intended for the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section.

Thus actionable negligence under this section is clearly defined and the proviso excludes any action by an employee for an employer’s negligence except as defined.

To sustain his contention that the proviso merely specifies acts of negligence for which an employer may be held liable in addition to its liability for general negligence, plaintiff is compelled to avoid the force of the language used in said proviso. He argues that the legislature in using the word “provided” intended it to mean “and or also.” His contention in this regard is directly contrary to the fundamental rule of construction that the office of a proviso is to limit, restrain or qualify. (People ex rel. Oelsner v. Andrus, 299 Ill. 50; State Public Utilities Commission v. Early, 285 Ill. 469; In re Day, 181 Ill. 73.) It seems perfectly obvious that the word “provided” was used in its ordinary sense and that the legislature clearly intended to qualify the word negligence appearing in the first part of section 3 to mean negligence as defined in the proviso. The use of the imperative language “shall be and constitute negligence” and the phrase “within the meaning of this section” is significant of the intention of the legislature to define the word negligence as used in section 3 to mean the “violation by any employer of any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act . . . , or violation by the employer of any statute of this State, intended for the protection of the health of employees.”

In its endeavor to adopt valid statutes that would adequately and effectually protect the health of employees, the legislature enacted the present Workmen’s Occupational Diseases Act and the Health and Safety Act. These acts are in pari materia. It will be noted from the provisions of the Health and Safety Act, heretofore set forth, that the Industrial Commission is vested “with the power and authority to administer the provisions of this Act” and that “the Industrial Commission shall from time to time make, promulgate and publish such reasonable rules as will effectuate” the protection of the health of employees. It appears from plaintiff’s complaint that “on or before the said 28th day of September, 1938, the Industrial Commission made or published no rules pursuant to the Health and Safety Act enacted by the 59th General Assembly at the Third Session as contemplated by the said Workmen’s Occupational Disease Act. Neither was there any statute passed in the State of Illinois intended for the protection of the health of employees after the date of the passing of the Workmen’s Occupational Disease Act and before or on the 28th day of September, 1939.”

Plaintiff’s argument resolves itself into the proposition that the failure of the legislature to enact any statute for the protection of the health of employees since the adoption of the Workmen’s Occupational Diseases Act and the failure of the Industrial Commission to make and promulgate pursuant to the Health and Safety Act any effective rule or rules for the protection of the health of employees should not preclude him from recovering damages for the injury to his health suffered as a result of defendant’s general negligence. We cannot agree with plaintiff in this regard since to hold as he contends would amount to judicial legislation. It is strictly a matter for the legislature or the Industrial Commission to take the proper steps to effectuate the purpose of both of the acts under consideration.

Since employees had no right under the common law to recover damages resulting from occupational diseases contracted by them in the course of their employment and since in our opinion the legislature did not intend to afford employees a right of action against their employers for general negligence under the Workmen’s Occupational Diseases Act and the Health and Safety Act, we are impelled to hold that plaintiff’s complaint was properly dismissed.

For the reasons stated herein the judgment of the superior court is affirmed.

Judgment affirmed.

Scanlan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Opinion by Presiding Justice Scanlan.

license: Public Domain

text:
    Ephian Gant et al., Appellants, v. William McDowell, Executor of Last Will and Testament of Nina Johnson, Deceased, et al., Appellees.
    Gen. No. 41,347.

      Heard in second division, first district, this court at October term, 1940;
    opinion filed December 30, 1941.
    Jay Clifford McCally, for appellants; William E. King and Theophilus M. Mann, for certain appellees.
   Opinion by Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Ben’s Tri-State Motor, Inc., Appellee, v. John F. Cuneo Company, Appellant.
    Gen. No. 41,363.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed December 30, 1941.
    Campbell, Clithero & Fischer, for appellant; William Feldman, for appellee.
   Opinion by Presiding Justice Scanlan.

“Not to be published in ful.”


text:
    Doreen Wilcox, Appellant, v. Fred S. Tracy, Appellee.
    Gen. No. 41,383.

      Heard in second division, first district, this court at October term, 1940;
    opinion filed December 30, 1941.
    Wendell H. Shanner, for appellant; Braun & Brodie, for appellee; John C. McKenzie and W. E. Corrigan, of counsel.
   Opinion by Presiding Justice Scanlan.

“Not to be published in full."


text:
    Irma Watkins, Appellee, v. Town of Cicero, Appellant.
    Gen. No. 41,398.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed December 30, 1941;
    rehearing denied January 20, 1942.
    Joseph I. Bulger, for appellant; Charles C. & Richard M. Spencer, for appellee.
   Opinion by Presiding Justice Scanlan.

“Not to be published in full."


text:
    People of the State of Illinois, Defendant in Error, v. James Crowley, Plaintiff in Error.
    Gen. No. 41,795.
    Heard in second division, first district, this court at June term, 1941;
    opinion filed December 30, 1941.
    Harold L. Levy, for plaintiff in error; Lawrence S. Jacobson and Grenville Beardsley, of counsel; Charles E. McGuire and Thomas J. Courtney, State’s Attorney, for defendant in error; Charles E. McGuire, of counsel.
   Opinion by Presiding Justice Scanlan.

“Not to be published in full.”


author: Opinion by Justice Friend.

text:
    Edelman Bros., Inc., et al., Appellees, v. Charles Baikoff et al., Appellants.
    Gen. No. 41,507.
    Heard in second division, first district, this court at February term, 1941;
    opinion filed December 30, 1941;
    rehearing denied January 20, 1942.
    Simon Herr, for appellants Charles Baikoff and Paul Baikoff; Weissenbach, Hartman, Craig & Okin, for appellees; Harry Okin and Cecil Magid, of counsel.
   Opinion by Justice Friend.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Howard A. Boender, Appellant, v. William F. Propper, Appellee.
    Gen. No. 41,589.
    Heard in second division, first district, this court at December term, 1940;
    opinion filed December 30, 1941.
    William Jacobs, for appellant; Arthur E. Dillner, Wm. F. Donahue and O. I. Lewis, of counsel; Herbert A. Ellis, for appellee.
   Opinion by Justice Friend.

“Not to be published in full.”


text:
    Sunbeam Heating Company, Inc., Plaintiff, v. Edward W. Chambers et al., Defendants. Albert E. Lake, Petitioner, Peter A. Grosso, Appellee. Appeal of Albert E. Lake et al., Appellants.
    Gen. No. 41,633.

      Heard in second division, first district, this court at February term, 1941;
    opinion filed December 30, 1941;
    rehearing denied January 20, 1942.
    Albert E. Lake, for appellants; Joseph B. Gilbert, for appellee.
   Opinion by Justice Friend.

“Not to be published in full.”


author: Opinion by Justice Sullivan.

text:
    Georgia L. White, Appellant, v. William J. White, Appellee.
    Gen. No. 41,326.
    Heard in second division, first district, this court at June term, 1940;
    opinion filed December 30, 1941.
    Robert E. Cantwell, Jr., for appellant; Edward S. Cody, for appellee; Edward S. Cody and Albert E. Hallett, Jr., of counsel.
   Opinion by Justice Sullivan.

“Not to be published in full.”


text:
    E. S. Frank, Appellant, v. Norman J. Reilly, Appellee.
    Gen. No. 41,392.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed December 30, 1941.
    Maurice R. Kraines and Telford Hollman, for appellant;
    no appearance for appellee.
   Opinion by Justice Sullivan.

“Not to be published in full."


text:
    Joseph Maloney, Appellant, v. John Rosenblad, Appellee.
    Gen. No. 41,434.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed December 30, 1941.
    William S. Kleinman, for appellant; Anderson & Anderson, for appellee.
   Opinion by Justice Sullivan.

“Not to be published in full."


author: Mr. Presiding Justice Hayes

text:
    Doris Metcalfe and Freda Stroud, Appellees, v. First National Bank of Pittsfield, Appellant.
    Gen. No. 9,278.

      Heard in this court at the January term, 1941.
    Opinion filed November 3, 1941.
    Rehearing denied February 3, 1942.
    Barry Mumford, of Pittsfield, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, and Williams & Williams, of Pittsfield, for appellees; Philip G. Listeman, of East St. Louis, and Wayne P. Williams, of Pittsfield, of counsel.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

John E. Woods died intestate in 1922, leaving surviving him, his widow, Amy Woods,—and Erbie M. Woods, Iva May McClintock and Howe C. Woods, his only children. He left an estate consisting of about twenty six thousand ($26,000) dollars.

Instead of probating his estate, his widow and children entered into an agreement on January 13, 1923, making disposition of the estate between them, by contract.

The contract provided in paragraph one, for the deposit of twelve thousand ($12,000) dollars, with the First National Bank of Pittsfield, Illinois, as trustee for the widow, “the same to be in full of all claims of Special Award, inheritance, or other right or interest in said estate, . . .” and the same was thereby accepted by the widow as such. It was further provided that the said amount was to be held by the trustee during the life of the said widow, and the income paid to her annually, and that after the death of the widow, said funds were to be paid to the said Erbie M. Woods, Iva May McClintock, and Howe C. Woods, share and share alike.

Under paragraph two, the contract provided that the “trustee shall hold said principal sum intact, and only the income therefrom be paid to said Amy Woods; and at her death the remainder shall be paid to said children or their heirs, share and share alike.”

Paragraph three provided that after the payment of all debts and the amount provided for said trust fund, the rest of said estate was to be equally divided among said three children, share and share alike.

The twelve thousand dollar fund was turned over to the appellant (First National Bank of Pittsfield) who paid the income to the widow until her death on October 14, 1938. On July 31, 1930, Erbie M. Woods, one of the children, died intestate, and was survived by Doris Metcalfe and Freda Stroud, appellees, his only children. His estate was probated in the county court of Pike county, Illinois. The estate was insolvent, and the administrator filed an inventory listing as an asset of said estate the undivided one-third interest in this fund of twelve thousand dollars, subject to the life estate of the mother. The administrator obtained an order from the county court for authority to sell the undivided interest in this fund, and sold the same to the appellant for the sum of twenty two hundred and fifty dollars ($2,250). No notice of this order or sale was given to the appellees.

The principal question in the ease is the construction of the contract entered into between the widow and children of John E. Wood, deceased, and this is based primarily on the intention of the parties, — which must be determined from the instrument itself.

In construing an instrument, all parts should be construed together to determine the true meaning. One clause of the instrument may be modified or limited by another clause. In arriving at the maker’s intention, the court should consider every clause and give each word its ordinary meaning. No word should be rejected or changed, if by considering the entire instrument, all parts of it may be interpreted to create one consistent plan.

Upon examination of the contract it is obvious that under paragraph one, the twelve thousand dollars, subject to the life estate of the widow, was to go to the three children, but this was qualified by adding paragraph two, which restated that at the termination of the life estate, the remainder should go to the three children, and adds-the significant language, “or their heirs.”

Appellants contend the word “or” as used in this paragraph should be construed to mean “and,” while appellees insist that it should have its ordinary meaning and be in the disjunctive. The case turns on what construction is given the word “or” placed as it is separating “children” from the words “their heirs.”

In examining the circumstances surrounding the parties, at the time this contract was executed, it appears that the widow was entitled to a sum almost equal to the amount fixed by the contract for the trust fund. Under the inheritance laws of the State, she had one third of the personal property, and in addition her widow’s award. This amount would have been her absolute property. Under the terms of the contract she had only the income, and the balance was divided among the three children, of which they.immediately came into possession. They received about as much as they would have received, if the contract had not been executed. Under the terms of the contract they would get, in addition, the principal of the trust fund, at the death of the widow.

The only advantage, appearing in the contract, which the widow received in lieu of surrendering the principal of her inheritance and taking a life estate, was her being able to direct that the beneficiaries receiving the remainder, be her children who survived her, or the heirs of those that were deceased.

Both sides have cited many authorities in reference to the construction of the language in paragraph two of this contract, but as our Supreme Court said in the case of Straw v. Barnes, 250 Ill. 481: “No two wills are precisely alike, and the conditions which surround one testator may differ so widely from those which surround another that the conclusion reached in one instance is of little value as a guide in another.” In that case the testator had given two thousand dollars to his brothers and sisters or their heirs. The court refused to construe the word “or” to mean “and,” and stated: “While the word or will sometimes be read as"and, ordinarily it is used as a disjunctive rather than as a conjunction, and in this case the word should, we think, be given its ordinary meaning. ’ ’ By adopting this construction upon the words “my brothers and sisters or their heirs,” the court stated: “. . . we are satisfied, when the whole will is considered in connection with the circumstances which surrounded the testator at the time he made the will, does justice to all parties in interest and fully effectuates the intention of the testator as expressed by his will.”

In the case of Bartlett v. Mutual Benefit Life Ins. Co., 358 Ill. 452, the court says: “It is contended that the word ‘or’ should be read as ‘and.’ Unless the context of the instrument shows that the testator clearly intended that the word ‘or’ should receive the meaning of ‘and’ it will be given its ordinary meaning. . . . The intention of the testator, when clearly expressed, must be given effect in preference to any surmise that he did not mean what he said or intended what he said to mean something else.”

. The court in passing on this same question in the case of Ebey v. Adams, 135 Ill. 80, stated: “The words ‘heir’ or ‘their heirs’ are technically words of limitation; but in this and other cases they are used as words of purchase, and always have that operation when it sufficiently appears that the term is used to designate a particular person, or particular persons who may stand in that relation at the happening of a certain event or at a certain period, and not to the whole line of heirs in succession. No one can have heirs while living. The word ‘or,’ therefore, as here used, indicates substitution, and the payment or distribution is to be made at a fixed period, — i. e., upon the sale by the executors after the termination of the intermediate estate. It would seem clear, therefore, that the persons who were to take are such of the children as might be living at the time of distribution, and the heirs of such as might have pre-deceased. It follows, when this language is considered in connection with the context, that there was here created an alternative devise. Such of the children as were living at the time of distribution would take, and such persons as would fall under the designation of ‘heirs’ of such as had predeceased would take the share or portion that their ancestor would have taken if living. The vesting of the estate in interest, as well as in possession, in the children of the testator, depended upon their surviving the day of distribution, — in other words, time is of the substance of the gift, and related to the vesting of the legacies in interest as well as in possession.”

To construe “or” to mean “and” would be to nullify and cancel paragraph two of the contract. It is plain from the face of the contract that it was inserted by the parties with a definite purpose, namely, that the time of distribution should be at the termination of the life estate, and the distributees should be the surviving cMldren, or the heirs of predeceased children.

Contention is made by appellants that appellees should be barred by reason of laches and the statute of limitations, but appellees did not obtain their right of action until the termination of the life estate, and they acted expeditiously thereafter. Appellant further contends that appellees should be barred on the doctrine of estoppel, in that the interest had been sold under an order of the probate court. Under the construction given to this contract, the probate court had no jurisdiction of the subject matter, and its order in that regard'was a nullity. While acting as trustee, appellant attempted to buy the corpus of the trust from itself.

For the reasons herein stated, the decree of the circuit court of Pike county is hereby affirmed.

Decree affirmed.


author: Mr. Justice Riess

text:
    E. C. Kane, Appellant, v. Henry J. Wehner et al., Appellees.
    Gen. No. 9,265.

      Heard in this court at the January term, 1941.
    Opinion filed November 3, 1941.
    Behearing denied February 3, 1942.
    Jacoby & Patton, Epler C. Mills, F. L. Manns and Emerson Baetz, all of Alton, for appellant.
    Clarence W. Heyl, of Peoria, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellant, E. C. Kane, of Alton, Illinois, filed suit in the circuit court of Mason county, wherein he sought recovery of damages alleged to have been sustained by him while duck hunting in a boat on November 7, 1937, through the alleged negligence of one Vernie Fritz, resulting in the loss of plaintiff’s right foot, and by subsequent operations, portions of his lower right leg. The complaint further charged that at the time of the alleged negligent shooting and injury of the plaintiff, Fritz was employed and acting as a servant or agent of defendants Henry J. Wehner, John Wehner and W. T. Boyd, in the conduct, as copartners, of duck shooting grounds located adjacent to the Illinois River in Stewart River, Mason county, Illinois.

At the close of plaintiff’s evidence, motions for a directed verdict in favor of each and all of the defendants on the ground that no prima facie cause of action had been established by the plaintiff were interposed and allowed as to all of the defendants except Vernie Fritz, after which plaintiff dismissed the suit as to said defendant, and judgment was entered upon the directed verdicts against the plaintiff appellant in bar of suit and for costs as to the remaining defendants. Motion to set aside the directed verdicts and judgment and grant plaintiff a new trial was denied and this appeal then followed.

In order to establish a prima facie cause of action, it is the law and is in effect conceded by respective counsel that it was necessary for plaintiff to show by competent legal evidence and reasonable inferences therefrom (a) the negligent shooting and injury of the plaintiff by the defendant Vernie Fritz while the plaintiff was in the exercise of due care for his own safety, which proximately caused damages to the plaintiff as charged. Upon the denial of the motion for a directed verdict as to said defendant, the lower court so found and we are in accord with its findings upon the facts and circumstances in evidence. .

(b) That in order to establish a prima facie cause of action against the remaining defendants or any of them, it was necessary to also prove that the relationship of master and servant or agent existed between defendant Fritz and one or more of the remaining defendants and that at the time of so cansing the alleged tortious injury, the servant was engaged in his master’s business and acting within the scope of his authority. In appellant’s brief, it is concisely stated that “Success of this appeal must depend on the application of the rule governing a master’s liability for his servant’s torts. There is no contention that the named appellees are responsible to the appellant for any wrong other than the negligent handling of a firearm by their alleged servant, Yernie Fritz; therefore, unless the evidence admitted, or offered and improperly excluded, suffices to show prima facie that some or all of the appellees were Fritz’s employers, the appeal must fail.”

(c) It was the further contention of the plaintiff that all of the defendants were engaged in the conduct of a shooting grounds for profit and that a copartnership relation existed between them in the pursuit of said venture as shown by the evidence admitted or offered and erroneously excluded by the court. If the plaintiff’s second contention, namely, that the master and servant relation was not shown to exist, is sustained, it becomes unnecessary for us to pass upon the third contention that a copartnership relation existed between the remaining defendants. If, however, the relationship of master and servant appears from the evidence or reasonable inferences therefrom under the motion for directed verdicts at the close of plaintiff’s evidence, it becomes necessary to pass upon the contention of prima facie proof of a copartnership relation between the remaining defendants.

The defendants denied the material allegations of the complaint and especially denied any negligence on the part of defendants or any of them; the existence of such relationship of master and servant or principal and agent and the alleged copartnership relation between any of the defendants.

Plaintiff introduced in evidence a letter, exhibit “D,” dated September 28,1937, from defendant Henry J. Wehner, wherein it was stated that “I have a very good shooting place near Browning this year, there are a good many ducks here now. The price-is $7:50 (3.00) and $10.00 (5.00) per shoot. You may also hunt at Frederick if you like. If you should like a shoot let me know as soon as possible, as the blinds are very much in demand.” Plaintiff appellant answered the letter and requested that a blind be reserved for him and one Clyde Bassett for November 1st, further stating that they would “undoubtedly come up to Beards-town Sunday afternoon October 30. In case we do we will drive over to your farm at Frederick and see you for a few minutes.”

On October 30, plaintiff Kane telegraphed defendant Henry J. Wehner at Havana, Illinois, that “due to unforeseen difficulties cancel three reservations for Monday will want them November seventh.” On November 2nd, defendant W. T. Boyd wrote to plaintiff Kane, stating “Your telegram to Mr. Henry Wehner Havana was given to me to answer. As I am managing the duck grounds here at Stewart Lake, we can take your party for next Sunday Nov. 7th, as there is no water nor ducks at the other place at Frederick. You can come up to my place for the night, and meals and be ready to. out early Sunday Morn. There is a gravel road to our place from #100 at 1 mile'east of Sheldons Grove.”

On November 3rd, plaintiff telegraphed to Henry J. Wehner at Havana, Illinois, as follows: “Reserve blinds for two men for Saturday and Sunday of this week.” To this telegram, defendant W. T. Boyd replied as follows: “Mr. Wehner gave me your telegram of 1st, to answer. Will hold blind for you & friend Nov. 6th and 7th and hope that you will have a good shoot while here. Go past Sheldons Grove & turn to right, on a graveled road.”

Wehner’s letterheads contained only his name and address. At the top of both of Boyd’s letterheads appeared the following: “W. T. BOYD, Duck and Goose Shooting, Black Bass Fishing, Telephone and Telegraph via Astoria, R. R. Stations Browning and Bath, Located on the Illinois River, six miles east of Browning and ten miles west of Bath; ten miles off the hard road at Frederick, route No. 3. Our motorboats and taxi will meet any train, any time, anywhere, upon notice. Heated blinds for cold weather. From Chicago take state hard road route No. 4 to Chenoa, No. 8 to East Peoria, No. 24 to Pekin, No. 9 to Canton, No. 31 to Astoria; from there eight miles of improved dirt road will lead you to our place, a total of six or eight hours driving. From St. Louis take state hard road route No. 3 to Jacksonville, No. 10 to Alexander, No. 3 to Frederick, from there ten miles of improved dirt road to our place, a total of five hours driving.”

Appellant testified that on November 7,1937, he, accompanied by Clyde Bassett and . Charles Wilkins, went to the place indicated in Boyd’s letter. At the Illinois River shore they were taken by Boyd in a boat to an island, where they were met by Henry Wehner and defendants Wehner and Boyd then took them across the island, Wehner and Boyd each carrying a sack of decoys. They had then arrived at Stewart’s Lake, where Bassett and Wehner engaged in a discussion as to how to allot the parties to the blinds.

According to appellant, Wehner told them that there were blinds together out on the lake, but “some parties have a reservation on one particular blind.”. He then told Kane’s party to wait; that he would “go out there and determine” if certain parties apparently in the blind “are the parties that belong in there.” Wehner then went out and returned, saying that the right persons were in the blind. Wehner then told a man present to get some reeds and fix a blind. The man did so, and Bassett and Wilkins went out to it. They remained in it thirty or forty minutes and returned, saying the shooting was “no good” and they wanted to return to Beardstown. Plaintiff Kane, however, insisted on shooting, so the others agreed to wait on the bank for him. Kane turned to Henry Wehner and said, “Henry, what boat can I take?” Wehner replied, “That one there,” indicating a boat. Vernie Fritz was also present at this time. Kane testified that he spoke up and said the wind was coming up and that Kane would have a good shoot if he went out. Kane then again asked Wehner about a boat, but this time Wehner answered, “Ed (Kane), I will have to send a pusher out with you.” A pusher is a guide. “I don’t need a pusher,” Kane replied, “I was raised on the Mississippi River and can row a boat as good as any pusher. ” “It is necessary to send a pusher with you, ’ ’ Wehner responded, “There is fifteen feet of water out there and I have got to send a pusher with you for safety first’s sake.” “I have a pusher and guide here,” he continued, and then turned to Fritz and said, “Take Mr. Kane out there; give him the breaks on the shots and he will get them if you give him the breaks.”

Kane and Fritz then got in the boat and went to the blind. Both were armed with shotguns, and both shot at a duck which flew over. Kane shot once; then Fritz shot; then Kane shot again. Kane testified that he reached back in his coat for more shells; that while he did so, Fritz’s gun was discharged and the shot penetrated Kane’s foot and leg and that Fritz was holding the pistol grip of his gun at the time; that Fritz exclaimed, “Christ Almighty, I have shot you.”

Appellant’s foot and leg thereupon began to bleed profusely, and there was a rush to get him to shore. Fritz called for help and rowed as fast as he could; those on shore waded out and helped them in. Kane’s injuries subsequently resulted in the amputation of his leg and repeated operations on the stump to halt the progress of a resultant osteomyelitis.

On cross-examination Kane said he had nothing to drink during the morning; that Wehner had told him he had to take a pusher with him; that Fritz had “hold” of the pistol grip of his gun when it was fired, and that the barrel of it was pointed toward him when he was shot.

Bassett and Wilkins corroborated the substance of Kane’s testimony as to what occurred while they were present, and the trial court properly held that plaintiff had made prima facie proof of his alleged cause of action against Fritz.

Upon a motion of the defendant for a directed verdict, the court can only determine whether or not there was any evidence, which, with all reasonable inferences therefrom, viewed in the light most favorable to the plaintiff, tended to prove the material allegations of the complaint or some count thereof. If there was such evidence, it became the duty of the trial court to deny the defendant’s motion for a directed verdict and to submit controverted issues of fact to the jury, subject only to the giving of proper written instructions by the court as to the law applicable thereto. A motion to direct a verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case.

From a consideration of the foregoing correspondence and telegrams in evidence which passed between the plaintiff and the defendants Henry J. Wehner and Boyd, it appears that the first letter from Wehner was one soliciting the patronage of the plaintiff at shooting grounds for a valuable consideration and for profit; the answers of Boyd to plaintiff’s telegrams; the specific communications and subsequent arrangements made by said defendants Wehner and Boyd with the plaintiff and his companions for use of the hunting grounds upon the terms submitted; the admission that each of said defendants was to receive a division on a fifty per cent basis of the charges or receipts from the shooting grounds; the fact that they together met and received the patrons, furnished the boat, decoys and blinds without any explanation so far as the testimony of the plaintiff shows of their respective interests or relationship; the insistence of Wehner that a pusher or guide would be furnished by him; his designation of Fritz as such pusher without any explanation that he was a guest or other than a guide or pusher furnished by him; that they knew he carried with him the gun and ammunition and made the request that he give the plaintiff the breaks in shooting, were facts and circumstances in evidence from which it might reasonably be inferred that the relationship of master and servant existed between them and that the defendant Fritz, in carrying out the specific directions of the defendant Wehner, negligently injured the plaintiff, which evidence constituted in the opinion of this court such a prima facie showing of the relationship of master and servant upon the facts, circumstances and reasonable inferences therefrom, when viewed in the light most favorable to the plaintiff, as to require the defendants under the issues joined to offer proof as a matter of defense in support of their denial that such relationship did so exist.

The application of this rule has been well stated as follows: “In an action wherein defendant’s liability depends upon proof of a master-servant relation, such relation is prima facie established by showing the alleged servant was performing services peculiar to the defendant’s business or affairs on and about the latter’s property, and acts done in the rendition of such services may be found to be within the scope of employment, thus calling upon the defendant for rebuttal if he desires to escape the possible consequences.” Hozian v. Crucible Steel Casting Co., 132 Ohio St. 453, 8 O. O. 375, 9 N. E. (2d) 143, 112 A. L. R 333, 335. We are therefore of the opinion that the court, in allowing the motion at the close of plaintiff’s evidence for a directed verdict of not guilty as to the defendant Henry J. Wehner was in error.

Defendants Henry J. Wehner and Boyd were called by plaintiff for cross-examination under section 60 of the Practice Act (sec. 184, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.060]). The testimony which plaintiff sought to thereby introduce related to certain alleged statements and admissions against interest of said parties concerning alleged partnership relations between them, made upon the occasion of taking their respective depositions under the statute for the purpose of discovery. During the course of this examination, it developed that they were operating the hunting grounds under a written agreement designated as a lease which had expired but was claimed by defendants to be orally continued and in effect and was identified but not offered in evidence. The court, upon objection of defendant’s counsel and avowal of intended proof, excluded all alleged oral statements of defendants against interest concerning the alleged co-partnership at variance therewith and held in substance that the written agreement was the best and only admissible proof or evidence of the relations so sustained by the parties thereunder. Plaintiff alleged that a copartnership relation existed, while it was the contention of the defendants that they operated under a lease whereby 50 per cent of the profits was to go as rent to Wehner, as lessor, from the business operated by Boyd, as lessee. While the excluded testimony bore upon the controverted issue of whether a copartnership or a tenancy relationship existed, the court was in error in excluding oral statements in the nature of ad missions against interest made by the defendants, since the alleged agreement or contract between them was not binding upon third parties who might show by facts, circumstances or statements of the parties what their actual business relations and conduct were, subject to being controverted, if so shown, by the defendants by any competent legal evidence.

It was early held in this State that “A stranger may prove a partnership by the acts and admissions of the partners, although written articles of partnership may exist between them.” Kaskaskia Bridge Co. v. Shannon, 6 Ill. 15, 25. In actions between partners and third persons where it is sought to prove not the terms of the agreement but merely the existence of the partnership, the best evidence rule does not apply, and the existence of the partnership may be proved by parol evidence without the necessity of producing the written articles or explaining their absence. 22 C. J. 999 and citations; Jones on Evidence (4th ed.), sec. 203, page 392; Farmers & Merchants Bank v. Narvid, 259 Ill. App. 554, 557 and citations.

Defendant’s counsel further contended that the cross-examination of defendants by plaintiff was for the purpose of impeachment. We cannot concur in this contention. Plaintiff may properly call any competent witness, or may call any defendant as an opposite party under section 60 of the Illinois Practice Act to show statements or admissions against interest, whether oral or written, as to material matters, when voluntarily made by the defendant at any specified time and place. While defendants were not called for the purpose of impeachment, it is unnecessary in any event to lay grounds for impeachment of statements made at another time or place as to material matters at variance with witness’ statements on the witness stand, where such witness is a party to the suit. Johnson v. Peterson, 166 Ill. App. 404, 405; VanMeter v. Gurney, 240 Ill. App. 165, 188. That rule would only apply when seeking to lay grounds for impeachment of other witnesses, not parties to the suit. It finds no application here, in any event, since the purpose of calling the witness, as stated by plaintiff’s counsel, was to show statements and admissions against interest which were competent substantive evidence against the defendant.

Without reviewing the testimony concerning the defendant John Wehner, we find that there was no evidence, which, with all reasonable inferences therefrom, established prima facie proof of a copartnership relation between the said defendant and any of the co-defendants ; but on the contrary, clearly established a .tenancy relationship between John and Henry J. Wehner, and that the court properly allowed the motion for a directed verdict as to defendant John Wehner.

We find and hold that the proof admitted in evidence and statements and admissions against interest erroneously excluded were sufficient to constitute prima facie showing of a copartnership relation between Henry J. Wehner and W. T. Boyd and a prima facie showing of master and servant relationship as between said named defendants and the former defendant Fritz.

We further find and hold from the record herein that the trial court did not err in directing a verdict and rendering judgment in favor of defendant John Wehner and overruling motion for new trial as to said defendant, but that the trial court erred in allowing the motion for a directed verdict of not guilty as to the defendants Henry J. Wehner and Boyd, in entering judgment thereon after the close of the plaintiff’s evidence and in denying motion to set the same aside and grant plaintiff a new trial as to said named defendants and in excluding proof of alleged statements against interest of said defendants as hereinabove indicated.

The cause is reversed and remanded for retrial or further disposition thereof with directions to proceed in accordance with the holdings herein.

Reversed and remanded with directions.


text:
    Soren P. Rasmussen and Robert Rasmussen, Minor, by Soren P. Rasmussen, His Next Friend, Appellees, v. Noah Wiley, Appellant.
    Gen. No. 9,290.

      Heard in this court at the April term, 1941.
    Opinion filed November 3, 1941.
    Rehearing denied February 3, 1942.
    Charles F. Short, Jr., of Bloomington, and Carl E. Robinson and Robert C. Gasen, both of Jacksonville, for appellant; Charles F. Short, Jr., of Bloomington, of counsel.
    Bellatti, Arnold & Bellatti, of Jacksonville, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.

Judgments in the respective sums of $1,000 and $200 were entered in the circuit court of Morgan county in favor of plaintiff appellees Soren P. Basmussen and Bobert Basmussen, his minor son, upon jury verdicts against defendant appellant Noah Wiley for damages resulting from personal injuries sustained in an automobile collision between cars of the respective parties due to defendant’s alleged negligence, from which the defendant has appealed. A verdict and judgment was also entered against the defendant on his counterclaim, from which no appeal was taken.

On July 15, 1939, at about 11 p. m., plaintiff, accompanied by his minor son, was driving his car in an easterly direction along U. S. Route No. 36, a two-lane paved highway, 18 feet in width, at a point east of Jacksonville, Illinois. Plaintiff testified in substance that he was driving 55 miles per hour and met the defendant at a point on said highway known as Bitter’s Lane, where the defendant, coming in the opposite direction, negligently made a left turn across the highway directly in front of plaintiff’s automobile and lane of traffic, resulting in the collision and alleged injuries while plaintiffs were in the exercise of due care for their own safety. Defendant testified that he was going east and not west and was in his own lane of traffic at the time of 'the collision, which he said occurred while he was mailing a right turn off of the highway in the exercise of due care and that the collision was caused by plaintiff’s negligence. Other witnesses testified, and the case was one wherein the evidence was in sharp conflict, and the weight and credibility of the testimony of the- various witnesses was a question of fact submitted to the jury upon issues joined under complaint and counterclaim and answers thereto.

Defendant strongly contends that the giving of several instructions at the instance of the plaintiff, in view of the sharply conflicting nature of the testimony, was erroneous and prejudicial. Fifteen instructions were given in behalf of plaintiff, several being repeated by inserting the name of respective plaintiffs in each instruction. Where the evidence is in sharp conflict, the applicable principles of law should be correctly stated in the instructions without undue or unnecessary repetition and should be confined to the pleadings and issues joined.

One instruction given for the plaintiffs, which has been criticized by the courts of review of this State a number of times, especially where the evidence is in sharp conflict, minimizing the importance of the rule requiring plaintiffs to prove their case by a preponderance of the evidence, read as follows: “The Court instructs the jury that while as a matter of law the burden of proof is upon the plaintiffs and it is for them to prove their case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon the plaintiffs’ case preponderates in their favor, although but slightly, it would be sufficient for the jury to find the issues in their favor.”

This instruction refers to the evidence bearing on plaintiffs ’ case without any statement of what the case is or what is necessary to be proved, but refers it to the jury without further limitation or direction. It has been justly condemned as leaving the matter of plaintiff’s case to be arrived at by the jury without any rule to guide them. It does not limit the right of recovery to negligence charged in the complaint and minimizes the importance of the rule requiring plaintiffs to prove their cause of action by a preponderance of the evidence, by use of the qualifying phrase “although but slightly.” This instruction should not have been given, and when considered with other instructions in this case, in view of the sharp conflict on the facts to which the rule was to be applied, we cannot say that defendant was not prejudiced thereby, although courts of review will not set aside verdicts and judgments where the jury is on the whole fairly instructed and it does not appear that the erroneous instructions may have resulted in prejudice to the defendant. Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 166 N. E. 530; Teter v. Spooner, 305 Ill. 198, 137 N. E. 129.

Two instructions identical in language but alternately containing the names of respective plaintiffs directed verdicts in favor of the plaintiff after undertaking to set up the necessary elements of proof entitling the plaintiff to recover. In these instructions, no reference whatever is made to the complaint or to negligence therein charged, each concluding that if the jury believed “from a preponderance of the evidence that the defendant negligently, carelessly and improperly drove his automobile so that it came into collision with the automobile in which the plaintiff (naming him in each instruction) was riding, and that as a direct and proximate result of such negligent conduct on the part of the defendant, if any, the said plaintiff was damaged in person, then you should find the issues for said plaintiff.” It is a well-established rule that an instruction which directs a verdict and authorizes recovery generally, without limiting the negligence to that charged in the complaint or reference thereto, is reversible error. Garnhart v. Reeves, 288 Ill. App. 159, 5 N. E. (2d) 855; Herring v. Chicago & Alton R. Co., 299 Ill. 214, 132 N. E. 792; Molloy v. Chicago Rapid Transit Co., supra.

By given instructions Nos. 5 and 11, a verdict was directed for the plaintiffs if the jury found that the defendant had violated certain provisions of the Motor Vehicle Act. The instructions are objectionable, in that they ignore the rule, supported by the weight of authority in Illinois, that the violation of an ordinance or statute by acts, either of commission or omission, is only prima facie evidence of negligence. Miller v. Burch, 254 Ill. App. 387; Tuttle v. Checker Taxi Co., 274 Ill. App. 525; Burke v. Zwick, 299 Ill. App. 558, 20 N. E. (2d) 912. Plaintiff was not entitled to the giving of these instructions, and they did not correctly state the law.

Without further discussion of the instructions, we deem the same to have been prejudicial and to constitute reversible error under the facts and circumstances of this particular case.

Plaintiff contends that no verdict other than the one rendered could reasonably have been returned by the jury and permitted to stand by the. court, and therefore the judgments should be affirmed. The jury was presented with two diametrically opposite versions of the manner in which the collision occurred, and the defendant in view of this conflict and the necessity for the jury to pass upon the weight and credibility of the conflicting evidence, was entitled to have the applicable principles of law correctly stated in the instructions. This was not done, and we therefore reluctantly reverse and remand the above cause for retrial, free of the prejudicial errors which we have indicated herein.

It is not urged in the errors assigned that the amount of the judgments were excessive, and we are therefore not commenting upon the alleged errors in the instructions as to measure of damages.

Finding reversible error in the record, the judgment of the circuit court of Morgan county is reversed and remanded with directions to proceed in accordance with the rulings herein.

Judgment reversed and cause remanded.


author: Mr. Presiding Justice Burke

text:
    Edwin M. Shaw and Maxine Shaw, Appellants, v. Reno Carrara, Appellee.
    Gen. No. 41,677.
    Heard in the third division of this court for the first district at the April term, 1941.

      Opinion filed January 7, 1942.
    Rehearing denied January 22, 1942.
    Frederick J. Bertram, of Chicago, for appellants.
    Stanley H. Wolff, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Plaintiffs by their complaint filed in the circuit court of Cook county on April 30, 1940, sought damages for personal injuries suffered by them in Chicago on May 1, 1938, while they were passengers in a taxicab being-operated by the Yellow Cab Company, a corporation, such injuries resulting from the alleged negligence of the defendant in operating his automobile. A writ of summons was duly issued and the return of the sheriff showed that it was served on the defendant on May

3, 1940, by leaving a copy thereof at his usual place of abode with his mother, and informing her of the contents thereof, and also by mailing- a copy on the same day to the defendant at his usual place of abode. On July 6, 1940, a default order was entered against the defendant, he having failed to file an answer or otherwise make an appearance. On August 7, 1940, the court heard proofs submitted by the plaintiffs, found defendant guilty and entered a judgment in favor of Edwin M. Shaw in the sum of $600 and in favor of Maxine Shaw in the sum of $400. On October

4, 1940, an attorney retained by the defendant served notice on the attorney for plaintiffs that on October 7, 1940, he would petition the court to vacate the default and judgment and for leave to answer the complaint". On October 7, 1940, the petition was presented to the court, which thereupon vacated the judgment and granted leave to the defendant to file his appearance, answer and jury demand. This appeal is prosecuted by the plaintiffs for the purpose of reversing the order of October 7, 1940, and of restoring the judgment entered on August 7, 1940.

The motion to vacate the judgment was decided on the facts set up in the petition. The court and the parties treated.the argument of plaintiffs in opposing the petition as a motion to dismiss. Such oral motion to dismiss admitted whatever was well pleaded in the petition. It did not, of course, admit conclusions. As the plaintiffs did not file an answer to the petition, the court was required to consider as true all the facts that were well pleaded. Plaintiffs urge that the court had no right to act under section 72 of the Civil Practice Act (par. 196, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.072]). Defendant declares that his petition was not filed under the provisions of that section, but was based on the theory that the judgment was obtained without service on him; that the court was without jurisdiction to enter the judgment and that hence the court had the power to vacate the judgment, even after the expiration of the thirty-day period contemplated by paragraph 7 of section 50 of the Civil Practice Act (subpar. 7, par. 174, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.050]). Defendant seeks to come within the. procedure followed in the case of Nikola v. Campus Towers Building Corp., 303 Ill. App. 516. Regardless of the procedure followed the petition is required to set out sufficient ultimate facts to warrant the relief sought. The relevant portion of the , petition reads:

“That he has a good and meritorious defense to the whole of Plaintiff’s claim, in that he was not guilty of negligence as charged in the Plaintiff’s Complaint, and that if given leave to appear and defend, he verily believes that he will be able to establish that fact, by competent evidence; that he was never served with summons in the above entitled cause; that his first knowledge that a judgment was entered against him was given him by the Operators License Department of the Secretary of State in a letter received by him on September 2,1940; that, therefore, his failure to plead was not due to any negligent action on his part; that the court had no jurisdiction of the defendant either by appearance or otherwise; that the return of summons by the Sheriff fails to show any service on the defendant, but that service was had on the defendant’s mother at her own place of abode, which is a household separate and apart from that of the defendant; that defendant’s mother is a foreign born Italian, and can neither read nor write, and did not in any way notify defendant of such services; that your petitioner is a married man, living with his wife, and maintaining and operating an apartment for himself and his wife at 715 West Briar Place in the City of Chicago, living therein separate and apart from any of the other members of his family; that there are no other occupants of his household other than his wife and himself. ’ ’

The defendant and his wife lived at 715 West Briar Place, Chicago. His mother resided in the same building. Their households are separate and apart. The petition is silent as to the parts of the building that are occupied by the mother and by the defendant. The petition is susceptible to the interpretation that the mother and defendant lived in the same apartment, but in separate households. The petition does not question the fact that the deputy sheriff delivered a copy of the summons to his mother. It does allege that she did not notify him of such service. It does not say that he did not receive a copy of the summons. The allegation that he was “never served with summons” is a mere conclusion. Defendant alleges that his first knowledge of the judgment was acquired on September 2, 1940, when a letter telling him about it was received from the Secretary of State. He does not, however, say that prior to September 2, 1940, he did not have knowledge that an action was pending. The return of the deputy sheriff shows that a copy of the summons was sent to him through the United States mail, directed to the place where he resided at 715 West Briar Place, Chicago. The petition is silent as to whether this summons was received. As the petition is construed most strongly against him, we are bound to assume that he did receive the copy of the summons so mailed to him. Despite the fact that he did receive the copy of the summons which was mailed to him on May 3,1940, and that on September 2,1940, he had knowledge of the judgment, he did not present his petition to vacate such judgment until October 7, 1940. It will be observed that when he received the letter from the Secretary of State on September 2, 1940, there remained five days in which he could move to vacate the judgment before the expiration of the thirty-day period within which the court had discretionary power over the judgment under paragraph 7 of section 50 of the Civil Practice Act. He did not present his petition until 34 days after he learned that a judgment had been entered against him. The burden of showing that the judgment should be vacated was on the defendant. The petition that he presented and on which the court acted falls far short of showing that he acted with due diligence. In fact, the petition shows that he was not diligent. The defendant’s brief calls our attention to several matters extraneous to the record. These we have, of course, ignored.

For the reasons stated the order entered by the circuit court of Cook county on October 7, 1940, which vacated the judgment entered on August 7, 1940', is reversed, and the judgment of August 7, 1940, is restored.

Order of October 7,1940, reversed and judgment of August 7, 1940, restored.

Hebel and Kiley, JJ., concur.