text:
    Edna Wright, Appellee, v. F. W. Woolworth Company, Appellant.

      Opinion filed September 16, 1935.
    E. H. Sohwarzenbaoh and Case, Yoyles & Stemmler, all of St. Louis, for appellant.
    Philip Gr. Listeman, of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

This is an action for slander, in which the complaint charges that plaintiff entered defendant’s store in Mt. Vernon for the purpose of purchasing a drink of root beer, and while therein, in the presence and within the hearing of divers persons, defendant, by and through its agents, falsely stated, concerning plaintiff (who is a white woman): “We can’t serve you because you are a nigger”; that a clerk of defendant, addressing the assistant manager, and referring to plaintiff, said: “Must I serve her?” and that the assistant manager replied: “No, she is a nigger.”' It was alleged that the words were false and defamatory and resulted to her damage and injury.

A motion was made to dismiss the complaint as not stating a cause of action. This motion was overruled, and defendant answered, in substance denying the utterance of the words alleged. Upon a trial before a jury, the latter awarded plaintiff the sum of $2,000, and the court, after overruling defendant’s motions for judgment non obstante, and for a new trial, rendered judgment upon the verdict.

The principal question involved is, whether the spoken words as set out in the complaint, are, per se, or of themselves, slanderous. The complaint, as "will hereafter be pointed out, does not aver any special damages as resultant from the speaking of such words, hence plaintiff’s right of recovery rests upon whether the alleged statements were, per se, slanderous. Strauss v. Meyer, 48 Ill. 385.

In considering whether a defematory charge is actionable or not, the distinction between oral and written words must be kept in mind, as the same rules of law do not apply to libel, as to slander, the law of the former being wider than that of the latter. Defamatory matter, printed and published, may be actionable per se, while the same words, orally spoken, would not be so, except they occasion special damage. Pollard v. Lyon, 91 U. S. 225; Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127; Williams v. Riddle, 145 Ky. 459, 140 S. W. 661; Ukman v. Daily Record Co., 189 Mo. 378, 88 S. W. 60; Eggleston v. Whitlock, 242 Ill. App. 379.

The reasons given for such rule are that words written or printed are in more permanent form, are susceptible of wider' circulation, and hence capable of inflicting greater injury than those merely spoken; also, that a defamation made in script or print necessitates some measure of deliberation, and so, of itself, imputes an evil intention to the writer, as a person who reduces a defamation to writing, is, by law, presumed to have convinced himself of its truth, and to have acted accordingly. Bolton v. Walker, 197 Mich. 699, 164 N. W. 420; Prosser v. Callis, 117 Ind. 105, 19 N. E. 735; Ryram v. Aiken, 65 Minn. 87, 67 N. W. 807. With such considerations in mind, the courts have declared the rule as to what spoken defamatory words are, of themselves, and, without proof of resultant special damage, actionable.

That the common law does not give a right of action for all spoken words, even though they disparage the character of another, is fully declared by courts of the highest standing and respectability, in classifying the various kinds of oral statements which are actionable without allegation or proof of special damage.

There appear to be, at common law, five classes of spoken words which give rise to a cause of action for their false utterance concerning a person, in the presence and hearing of others. They are: 1st, words imputing to the party the commission of a criminal offense; 2nd, words which impute that the party is infected with some contagious disease, where, if the accusation be true, it would exclude the party from society; 3rd, defamatory words which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such office or employment; 4th, defamatory words which prejudice such party in his or her profession or trade; and 5th, defamatory words which, though not in themselves actionable, occasion the party special damage. Pollard v. Lyon, supra; Williams v. Riddle, supra; Moore v. Francis, supra; McDowell v. Bowles, 53 N. C. 184; Barnett v. Phelps, 97 Ore. 242, 191 Pac. 502.

That the foregoing is the rule of the common law appears to be thoroughly established, and, as such, is the law of this State, save where it has been changed by statute. Ill. State Bar Stats. 1935, ch. 28, H 1 (sec. 1, ch. 28, Smith-Hurd R. S.). The classifications thus enumerated are controlling in Illinois, except as the Slander and Libel Act, Ill. State Bar Stats. 1935, ch. 126, HIT 1, 2 (secs. 1 and 2, ch. 126, Smith-Hurd R. S.), has enlarged the rule by providing that false oral accusations of fornication, adultery and false swearing, are deemed slander, and actionable as such.

That the words counted upon do not come within the first two divisions above enumerated is obvious, and that upon the complaint, as drawn, they are not included within the 3rd and 4th classes seems equally clear.

Plaintiff alleges that the words caused injury to her business. There is lacking, however, the necessary antecedent averment as to the nature of her business, and no allegation appears that she held any office or employment; hence such statement of damage is merely a conclusion, based upon no properly pleaded premises. In truth the complaint contains nothing descriptive of plaintiff, or her situation in life, except that she is a white woman and a resident of the City of East St. Louis.

Spoken words, to be actionable per se, on the ground that they affect a person in his or her office or employment, business or calling, must be such as tend to prejudice such individual therein. Campbell v. Morris, 224 Ill. App. 569; Eggleston v. Whitlock, supra; Moore v. Francis, supra. Furthermore, if recovery is sought upon such ground, the nature of the business, office or employment must be set forth in the complaint as a substantive and traversable fact. Houk v. Hicks, 11 Ind. App. 190, 38 N. E. 864; Geary v. Bennett, 65 Wis. 554, 27 N. W. 335; 13 Ency. of Pl. & Pr., p. 38. Moreover, in order to maintain an action for oral defamation, based upon words claimed to have injured a business or occupation, and as being slanderous per se, it is requisite that the complaint set forth that such words were used of the plaintiff, relative to his'or her business or occupation. Harkness v. Chicago Daily News Co., 102 Ill. App. 162; Barnes v. Trundy, 31 Me. 321; Van Epps v. Jones, 50 Ga. 238. No such averment is pleaded herein, either expressly or by implication. As such indispensable allegations are lacking in the complaint, it cannot be said that there is anything pleaded to bring it within either the 3rd or 4th classes of false spoken words which are alone and of themselves actionable.

The utterances complained of, as set forth in the complaint, not being embraced within the category of spoken words, slanderous per se, prescribed by the common law, and not included within the enlargement of same, by our statutory sections previously quoted, would not appear to be slanderous unless special damages were alleged and proved.

Plaintiff, however, insists that notwithstanding the general rule of the common law, the courts have passed upon the specific question here involved, and that the weight of authority sustains the contention that the words charged to have been uttered in the complaint, are actionable per se.

So far. as we are advised, or have been able to ascertain, the proposition has not been passed upon by the-courts of this State; hence it is an open question in this jurisdiction. The authorities are divided in their holdings, and to determine wherein the weight of authority lies necessitates a consideration of the various decisions.

In Johnson v. Brown, 4 Cranch (C. C.) 235, Fed. Cas. No. 7375, it was held that it was not actionable, per se, to say of a white man that he is a “yellow negro.”

The well considered and authoritative case of Williams v. Riddle, 140 S. W. 661 (Ky.), ruled that a verbal accusation that a white man was a negro, and his mother a mulatto, was not slanderous per se.

Barret v. Jarvis, 1 Ohio 83, note, involved an oral statement to a white person: “I understand that you are going to marry Barret’s daughter. I am sorry you should, for they are akin to negroes.” The court declared that such words were not of themselves actionable.

In McDowell v. Bowles, 53 N. C. 184, the words complained of were that plaintiff, a white clergyman, was told he had no right to vote, because he was a free negro. The words were held not to be actionable unless special damages were alleged and proven.

Plaintiff cites a number of decisions to the contrary. An examination of same reveals that Stultz v. Cousins, 242 Fed. 794, was a libel suit, wherein, as we have seen, the rules differ materially from those where the charge is slander.

Morris v. State, 109 Ark. 530, was the trial of an indictment, which made it criminal slander “to bring into disrepute the good name or character of such person so slandered.” The court’s holding that it was slanderous to speak of a white woman that she was the descendant of a negro was based upon the court’s observation of the social conditions of the State.

Eden v. Legare, 1 Bay 171, Wood v. King, 1 Mott & M., 184, and Atkinson v. Hartley, 1 McCord L., 203, all South Carolina cases, decided respectively in 1791, 1818 and 1821, held that to call a white person a negro or mulatto, was, per se, actionable, for the reason that, if true, such person would be deprived of all civil rights and denied the privilege of trial by jury. It will be noted that such cases were decided at a time in American history when the colored race had few, if any, rights before the law.

Scott v. Peebles, 2 Smedes & Marshall’s Rep., 546 (Miss.), was a case where similar words to those in question were held slanderous per se, by virtue of a local statute which gave a right of action for words spoken, “which are, in common acceptance, considered an insult and lead to violence and breach of the peace. ’ ’

Dobard v. Nunez, 6 La. Ann. 294, and Spotorno v. Fourichon, 40 La. Ann. 423, were slander suits wherein it was ruled that verbal charges that a white man was a negro, were actionable. In the Spotorno case the court stated that such words were actionable, “since such charge, in view of the social habits, customs and prejudices prevailing in this State, is calculated to inflict injury and damage. ” It is apparent that such decision rested upon local conditions existing in Louisiana.

Spencer v. Looney, 116 Va. 767, 82 S. E. 745, quotes verbatim from Spotorno v. Fourichon, supra, and adopts both its reason and conclusion, the court saying : “What was said in that case with respect to social habits, customs, etc., prevailing in Louisiana, applies with equal force to any State or locality in which the white and negro races are established as citizens.” It thus appears that the reason given by the Louisiana court in Spotorno v. Fourichon is the basis of the holding in the Virginia case.

In Bagwell v. Rice & Hutchins Atlanta Co., 38 Ga. App. 87, 143 S. E. 125, the point in issue was whether the action was barred by the statute of limitations, and the question presented in the instant case was not there involved or considered.

In 36 Corpus Juris, p. 1172, sec. 50, citing most of the reported decisions herein referred to, the rule is declared to be that to write or print of a white man that he is a negro is libelous per se, but that the general rule is that to orally call a white person a negro or mulatto is not of itself slanderous, and is only actionable where special damages are resultant therefrom. The decisions to the contrary are therein stated to be because of the social habits, customs and prejudices in such jurisdictions.

The authorities which hold such spoken words are not, per se, slanderous, are found, upon examination, to rest upon the principles of the common law governing the action of slander; while those which rule otherwise are based upon local conditions or local statutes, or rendered at a time when the colored race was without civil rights.

The principles of the common law, as to the classes of spoken words which are slanderous per se, together with their enlargement by our statutes, are the law of this State, and as such binding upon us. The words complained of do not come within such limitations, and hence, in our opinion, are not actionable without allegations and proof of special damage.

The charges of the complaint, as to plaintiff’s damage, were that the premises “tend to exclude her from society, and by reason of said false and defamatory publication this plaintiff has been injured in her reputation as well as in her business, and has sustained mental suffering, to her damage. . . .” Such allegations have been held to be “descriptive only of general, and not special damages.” Craig v. Proctor, 229 Mass. 339, 118 N. E. 647; Reporters’ Ass’n of America v. Sun Printing & Publishing Ass’n, 186 N. Y. 437, 79 N. E. 710.

No special damage having been averred, and the words set forth not being slanderous per se, the complaint failed to state a cause of action, and the court erred in overruling the motion to dismiss.

The complaint not stating a cause of action, the defendant did not, by pleading over after its motion to dismiss was overruled, waive its rights to urge the question upon appeal. People v. Powell, 274 Ill. 222 ; Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164.

For which reasons we are constrained to reverse the judgment, and under the authority conferred upon this court by section 92 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, If 220, judgment is rendered herein for the defendant, with costs.'

Judgment reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Edwards

license: Public Domain

text:
    C. I. T. Corporation, Appellant, v. Mollie Blackwell, Appellee.
    Opinion filed September 16, 1935.
    Meyer & Meyer, of East St. Louis, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

In this cause the appellant has fully perfected its appeal and complied with all the requirements of the statute as well as the rules of court. Appellee has filed no brief or argument to sustain the judgment. Where such is the case, under the authority of Eichelberger v. Robinson, 233 Ill. App. 579, decided by this court, the judgment may he reversed, without a consideration of the cause on its merits.

Wherefore we are constrained to reverse the judgment.

Judgment reversed.


text:
    H. Kovar, Appellant, v. Julius W. Bremer et al., Appellees.

      Opinion filed September 16, 1935.
    W. A. Middleton, of Paducah, Ky., and George E. Martin, of Mound City, for appellant.
    Walter Roberts and H. A. Evans, both of Metropolis, for appellees.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellant brought an action for damages against appellees in the circuit court of Massac county. The latter moved to dismiss the amended complaint of appellant, and the court sustained the motion. Appellant electing to stand by his pleading, judgment was entered against him in bar of the action, and for costs, from which he appeals.

The complaint, consisting of five counts, charges, in varying language, that appellant was a minister of the gospel, and pastor of St. John’s Lutheran Church at Metropolis; that same was his business and profession; that thereby he acquired gains, profits and advantages, and that he conducted himself therein with uprightness and probity. It is further averred therein that appellees, well knowing such facts, and maliciously intending to injure him and wholly ruin his said business and profession, unlawfully and maliciously did agree, confederate and form themselves into a conspiracy to defame him and accomplish his ruin as a minister of the gospel; that as a part of their common plan, and in pursuance of the said conspiracy, they, or certain of them, did overt acts and made utterances against appellant, intending to destroy his business and good name; that as a consequence he lost his position as pastor of said church, was suspended from the ministry, lost his salary of $1,200 annually as such clergyman, and was otherwise injured in name, reputation and credit.

That each count was intended to, and did, charge a conspiracy to ruin appellant in his calling and profession seems self evident, and we think it clear that no attempt was made to charge slander therein as a substantive ground of recovery, as contended by appellees, respecting some of the counts.

It is averred in each count that appellees confederated, combined and formed themselves into a conspiracy to defame and ruin the business of appellant. In People v. Smith, 147 Ill. App. 146, this court held that such an allegation was sufficiently technical, in an indictment, to charge the crime of conspiracy; hence, with greater reason, adequately charges an unlawful combination in a civil complaint.

That the complaint charges an actionable tort is fully sustained by the authorities. In Purington v. Hinchliff, 219 Ill. 159, it was held: “No person or combination of persons can legally, by direct or indirect means, obstruct or interfere with another in the conduct of his lawful business, and any loss willfully caused by such interference will give the party injured a right of action for all damages sustained. ’ ’ And to the same effect are Doremus v. Hennessy, 176 Ill. 608; O’Brien v. People, 216 Ill. 354; 12 Corpus Juris, p. 589, sec. 114.

Appellees insist that it is not alleged that the acts of appellees were illegal or unlawful. In such sitúation, same was not necessary. The averment that they conspired to destroy appellant’s business was a sufficient allegation that the combination was for an illegal purpose, and that the acts done or words spoken in pursuance thereof, were because thereof, and of themselves, illegal. Purington v. Hinchliff, supra.

The case of White v. White, 132 Wis. 121, 111 N. W. 1116, states the rule to be: “The claim made that the complaint does not charge the use of unlawful means is answered by the rule that where the combination itself has for its purpose the doing of an unlawful act, the means as regards whether they are in themselves actionable civilly or criminally are not material.” We think the objection is not well taken.

Appellees further claim that “the test of the conspiracy charges should be, and is, the overt acts of each individual defendant, and it should be alleged so it could be either sustained or refuted by proof.”

Where a charge is made that a number of persons enter into a conspiracy, and that, to effectuate same, overt acts are done by certain of the conspirators, the requirements of the law are satisfied, and it is not necessary to aver that every one of the parties to the combination committed an overt act in furtherance of the common plan; as in such situation the overt act of one is held to be the act of all.

“The conspiracy being established, everything said, written or done by either of the conspirators in execution or furtherance of the common purpose is deemed to have been said, written or done by every one of them, and may be proved against each.” Lasher v. Littell, 202 Ill. 551, 555.

In Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 421, 452, the rule is stated to be: “After an unlawful combination is formed, the acts of the different parties to the combination, which tend to further its purposes, bind all parties to the combination. ’ ’

The leading case of Franklin Union v. People, 220 Ill. 355, 377, holds: ‘ ‘ The law is well settled that when a conspiracy is once entered into, each conspirator then becomes liable for all the acts of his co-conspirators done in furtherance of the objects of the conspiracy. ’ ’

The recent and well considered case of Tribune Co. v. Thompson, 342 Ill. 503, 530, declares: “This combination of persons in a common design to accomplish an unlawful purpose, constitutes such unity of action that when the fact of conspiracy is established, the acts and declarations of one co-conspirator are considered in the law as the acts and declarations of the others.”

It is also insisted that some of the counts charge that different appellees named therein uttered slanderous words concerning appellant; that each such utterance constituted an independent slander, and hence that such counts are repugnant to the rule against duplicity. The answer to this argument is that such spoken words are charged to be acts done in furtherance of the combination, and are matters arising out of and part of the same transaction, each one being a link in the chain of events, following* in sequence, from the entering into of the conspiracy to wreck the business and profession of appellant, until the accomplishment of its unlawful purpose. Hence such utterances, growing out of the common transaction, to wit: the conspiracy, are properly joinable in the same count, as provided by No. 12 of the Buies adopted by the Supreme Court to supplement the Civil Practice Act, and are treated as a single cause of action. Also so held by this court in Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350.

Moreover, each count is, in law, a separate complaint, and must in itself state a complete cause of action. It has been held that where a number of slanders are uttered by different parties, pursuant to a common agreement or conspiracy,' each is jointly liable with the others for their utterance, and separate causes of slander may be set out in the same complaint. Green v. Davies, 182 N. Y. 499, 75 N. E. 536; May v. Wood, 172 Mass. 11, 51 N. E. 191.

In Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522, an action alleging a conspiracy to injure plaintiff’s business and reputation, where the complaint was attacked as insufficient, the court, on page 528, stated: “The complaint seeks to set out, byway of inducement, the circumstances under which the injury complained of was committed, — the conspiring together and common purpose of the defendants, the means used to accomplish their common purpose, the object to be attained, the overt acts of one or more of the defendants in pursuance of such common purpose, and, lastly, the resulting injury and damage to the plaintiff. The complaint in form would seem to be sufficient, and answer the requirements of an action for conspiracy. ’ ’

Each count of the complaint in the instant case seems to conform to the rule as stated, and in our judgment is sufficient. The court should have overruled the motion to dismiss.

The judgment is reversed, and the cause is remanded with directions to the trial court to overrule appellees ’ motion to dismiss and for judgment.

Reversed and remanded with directions..


text:
    Mary Lynch, Appellee, v. Central States Life Insurance Company, Appellant.

      Opinion filed September 16, 1935.
    Wheeler, Oehmice & Dunham, of East St. Louis, for appellant.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On December 5, 1928, defendant issued its group policy of insurance to the fire department of East St. Louis, by which the life of each member was insured for $1,000, the premium of which was paid by the department. The policy provided that the insurance upon any employee should cease upon the termination of his employment.

As a part of the contract, it was stipulated: “Any employee of the employer covered under this group policy shall, in case of the termination of employment for any reason whatsoever, be entitled to have issued to him by the Company, without evidence of insurability, upon application to the Company, made within thirty-one days after such termination, and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance in any one of the forms customarily issued by the Company, except term insurance, in an amount equal to the amount of protection under such group insurance policy at the time of such termination.”

John H. Lynch, deceased, husband of plaintiff, was a captain in such fire department. A certificate was taken by him, payable at his death to appellee. In the census sheet attached to the group policy, Lynch’s birthday is stated as May 4, 1869, though it does not appear who furnished the information therefor. On October 26, 1933, Lynch, being in the last stages of a cancerous condition upon his neck, and being eligible for a pension, asked to be placed upon the retired list. His request being granted, he was placed upon such list and thereafter, until February 19, 1934, the date of his death, drew a pension.

On October 29, 1933, Harry M. Cryder, an agent of defendant, called upon Lynch and took his application for a policy under the conversion clause before set out. On this application the date of his birth was stated to be May 4, 1870. Cryder did not again see Lynch until November 21, 1933, when he called upon and collected from Lynch the sum of $20 as a deposit on the premium. C. R. Goodrich, an. actuary for defendant, testified that this payment of $20 was the correct amount to pay the premium for three months, or until February 21, 1934, assuming that the date of birth was correctly stated in the application.

On December 1, 1933, Cryder ceased his connection with defendant and became employed by the Ohio National Life Insurance Company. He testified that after accepting the $20 payment, he again called upon Lynch and informed him that there was a discrepancy as to the date of his birth, between the census sheet attached to the group certificate and his application for the conversion policy, and that the defendant required certain proof of such date; also, that at the suggestion of Lynch, he took the latter’s application for a $2,000 policy in the Ohio company.

Plaintiff testified that she was present on said last mentioned date; that Cryder requested Lynch to make such application; that she followed the former out of the room and stated to him that her husband had a cancer and could not pass the medical test of the Ohio company, and that Cryder said it would make no difference, he would have Dr. Winning, his next door neighbor, make the examination and there would be no trouble in getting the insurance. She further stated that she was present at all conversations between Cryder and Lynch, and that at no time did the former state that defendant required any further proof of her husband’s age, but that he said that defendant would not issue the policy because of Lynch’s ailment, and that the latter must have some enemies in the fire department who had given out information as to his condition. Cryder did not deny making any of these statements, and we think the jury was justified in believing that Mrs. Lynch told the truth regarding same.

On January 3, 1934, Cryder and one Christian Breidecker, another agent of defendant, together went to the Lynch home. Both testify they met by accident shortly before, and without previous arrangement went there. Breideeker then conversed with Lynch, and both he and Cryder testify that the former asked Lynch to remain in defendant company and furnish evidence of the date of his birth; that the latter repeatedly stated that he was going into the Ohio company and no longer desired the insurance of defendant; that thereupon Breideeker prepared a receipt and release as follows: “I, John Lynch, of E. St. Louis, Ill., hereby acknowledge return of all settlements made by me in connection with my application for life insurance to the Central States Life Insurance Co., under date of Oct. 29, 1933, and in consideration of said return, hereby release the Company from all liability under its receipt No. 158034, which I have lost or mislaid, and agree to hold the Company harmless from any claim which may be set up under the same if found. ’ ’ Which instrument Lynch signed. Breideeker then made out and delivered to Lynch a check for $20, and the latter indorsed same and delivered it to Cryder, who took and cashed it.

Lynch died February 19,1934; payment was refused by defendant, and this suit instituted to enforce the claim. There was a jury trial, a verdict for plaintiff in the sum of $1,000. and interest from the date of Lynch’s death, amounting to $32.50, upon which judg-" ment was rendered, and from which this appeal has been taken.

Plaintiff claims that her husband was only temporarily off the force, and hence the original policy was in force at his death. With this we do not agree. We think it clear, from all the proof, that he permanently retired and thereby terminated his employment, and that thereafter whatever rights he had in the premises were under and by virtue of the said conversion clause.

Defendant insists that it was not obligated to deliver the policy to Lynch until the correct date of his birth was furnished, and that same was never done. Upon this record we do not think that defendant can raise such question. It appears that on October 29 the application was taken, and which Goodrich, the actuary, testified reached the defendant company ,on or about November 1. The latter then had in its possession the original census list appended to the group policy. On November 21 its agent collected of the deceased the quarterly premium based upon the classification represented by the age stated in the application. It had the opportunity to compare the two statements, and when it sent or permitted its agent to visit Lynch and collect the premium, based upon the fact that he was born May 4, 1870, it thereby, with knowledge of the facts, or chargeable with same by the files in its possession, put him into the class called for by his application, and acknowledged the statement therein as the correct date of his birth.

It is our opinion, because of such facts, that defendant is not in position to raise such question. It is further our belief that by such payment of $20, Lynch became entitled to the issuance of the conversion policy, as paid up until February 21, 1934, and that same was in force until such last mentioned date, unless Lynch had waived or released his rights thereunder as a result of the instrument which he signed on January 3, 1934. We deem this the decisive and controlling question in the case.

It appears from the testimony of Dr. Grotty, who attended Lynch, that from October, 1933, to the date of his death, he was racked with pain, and that it was necessary to keep him under the influence of morphine, which had a dulling effect upon his power of thought and tended to make him drowsy; further, that his neck, on the left side, was swollen from the jaw to the collar bone, and that there was a sore spot at the site of the cancer, which was kept bandaged. The proof also shows that during such period Lynch had delusions, and at times talked incoherently, and that he was steadily growing weaker both physically and mentally.

Cryder and Breidecker testify that on said day Lynch appeared to be in good health; that all they observed to the contrary was a small patch on his neck which, they say, he stated was where he had a boil removed. They were within 3 or 4 feet of him, yet neither testify to seeing the bandage upon his neck; Cryder stating that he did not observe same. It seems strange that with Lynch in the condition in which he manifestly was, under opiates, dying of cancer, and within a few weeks of his death, that witnesses, observing him at a distance of scarcely more than arm’s length, should not observe the bandage on, or the swelling of his neck; and that they should express the opinion that his general appearance as to health was good.

Moreover, the document which Breidecker prepared, and which Lynch signed, contained false statements. It recited that the receipt previously issued to him for the premium paid was missing; containing the following language: “which I have lost or mislaid, and agree to hold the Company harmless from any claim which may be set up under the same if found. ’ ’

Both Breidetíker and Cryder admit that such statement was untrue, the latter testifying that such receipt was present at the time of the interview, and that it was then taken by Breidecker, and was not lost or mislaid. Breidecker also stated that Lynch did not lose or mislay it. He said it referred to a receipt attached to the application, and which, obviously, was all the time in the possession of defendant.

These men testify that the release was first read by Lynch, then by Mrs. Lynch, and lastly, that Breidecker carefully read it aloud to both of them. It seems incredible that Lynch, if mentally competent, would, after same was so read, have certified that he had lost the receipt which Cryder stated was then present and delivered to Breidecker. That the latter should have prepared a release which contained a recital of falsehood, as he well knew, did not comport with honesty, nor is it in consonance with good intentions or fair dealing.

Besides this, both Cryder and Breidecker, while agreeing that snch recital was nntrne, and known to them to be such, disagree as to what it referred. Cryder stated that it related to the receipt which he gave Lynch for the $20 payment, and which was retained by the latter, while Breidecker said it referred to a receipt attached to the application, which the defendant had in its possession, and which by no possibility could Lynch have lost or mislaid. These facts, coupled with the further improbable statement of these agents that they, representing at the time different companies, met by. chance, and then together repaired to the Lynch home, under the circumstances shown by the proof, justified the jury in concluding that their account of what thereafter occurred was unworthy of belief.

The execution of such release was set up in defendant’s answer, as an affirmative defense, hence it had the burdeii of showing that it was voluntarily executed by Lynch, with full understanding, and as his conscious act. Abhau v. Grassie, 262 Ill. 636; Jones on Evidence, sec. 180. Under the proof, we think the jury was warranted in finding that such was not the case, and that the purported release was without legal effect.

Objection was made to the competency of Mrs. Lynch as a witness, on the ground that she was, at the time of the events concerning which she testified, the wife of the insured, and as such disqualified under the statute.

There is evidence which tends to show that she was, during the negotiations for the insurance in question, transacting the business for her husband, as his agent, and hence came within one of the exceptions of section 5 of the Evidence Act, Ill. State Bar Stats. 1935, ch. 51, 5. Pain v. Farson, 179 Ill. 185; Robertson v. Brost, 83 Ill. 116. She was properly permitted to testify.

Objection was made by defendant to a portion of the court’s charge to the jury, specifically as follows: “The insured had thirty-one days grace to pay the next premium installment, which became due on the 26th day of January, 1934.” This provision was a part of the group policy, which, as we have observed, terminated by Lynch’s retirement from the fire department, and his rights to insurance thereafter were dependent upon the said conversion clause. This portion of the charge should not have been given, as it had no relation to any insurance under the conversion clause.

As we have seen, it was clearly shown that Lynch had fully complied with the terms of the policy which entitled him to the reinsurance under the conversion clause, and that same was fully paid until February 21, 1934, or two days after his death, and was in force at such time unless it had been canceled by the instrument executed on January 3, 1934. For the reasons before given we are of opinion that the jury properly found there was no cancellation of such insurance.

In view of the situation as disclosed by the record, we do not think the giving of this portion of the charge worked any injury to the defendant; hence is no ground for reversal. Chicago City Ry. Co. v. Cooney, 196 Ill. 466.

Being of opinion that the judgment was warranted, it will be affirmed.

Judgment affirmed.


text:
    Charlotte Roedler, a Minor, by Chas. F. Listeman, her Guardian, Appellee, v. Vandalia Bus Lines, Inc., Appellant.

      Opinion filed September 16, 1935.
    Wheeler, Oehmke & Dunham, of Bast Louis, for appellant.
    Philip Gr. Listeman and John M. Karns, both of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee, a minor, suing by guardian, recovered a verdict and judgment for $28,500 in the city court of East St. Louis, against appellant, for personal injuries sustained by her as the result of a collision between a bus owned by the latter and a car in which appellee was riding as a passenger.

Numerous grounds are assigned for a reversal of the judgment. Appellant, previous to the trial, filed a motion to dismiss the suit, alleging that it was a corporation engaged in carrying passengers for hire; that its principal office was located in Madison county, Illinois, and had never been located in the city of Bast St. Louis, in the county of St. Clair; and for which reason the said city court was without jurisdiction to hear the cause. The motion was overruled, and appellant, in its answer, incorporated the grounds thereof as a defense to the action. Appellee made no objection to this being done.

The argument in support of the contention is that appellant is a quasi-public corporation, and hence can only be sued under the terms of paragraph 3, sec. 8, art. 2, of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110,¶ 136, which is: “Actions may be brought against any public, municipal, governmental or quasi-public corporation in any county where the corporation is located”; and that its principal office being in Madison county, action against it can only be brought in such county.

Assuming that appellant is a quasi-public corporation, without, however, expressing any opinion" as to whether such is the fact, it seems that the section does not support the claim of, appellant. It will be observed that it provides that the action may be brought “in any county where the corporation is located.”

In construing statutes, similarly worded, courts have held that the word “any,” so used, is equivalent to and has the force of “every” or “all.” People v. Van Cleave, 187 Ill. 125, 134; Hopkins v. Sanders, 172 Mich. 227,137 N. W. 709; Heyler v. City of Watertown, 16 S. D. 25, 91 N. W. 334. Hence it would appear that the legislative intent was that such corporation could be sued in every county in which it was located. Had it been the intent that suit could only be brought in the county where the principal office was located, it would seem that the legislature would have used the word “the” instead of “any” preceding the word “county.”

The word “located,” as we view the matter, used in conjunction with the expression ‘ ‘ any county, ’ ’ refers to all counties in which the corporation has a place of business or exercises its corporate powers; and as the proof shows that appellant was operating in St. Clair county, we think the particular argument made, as to jurisdiction is untenable.

It is urged that the verdict is against the manifest weight of the evidence, and that it should have been set aside by the trial court. We have examined the evidence with care, and while constrained to say that the proof on the question of liability was close, and the jury might have found for either party, depending upon which testimony they believed, we think a fair question of act was raised by the proof, and that the court did not err in refusing to set aside the verdict as contrary to the manifest weight of the evidence.

Claim is made that the court erred in admitting medical testimony that appellee, as a consequence of injuries received in the accident, could never bear children in the normal way.

Such was claimed, in the amendment to the complaint, as one of her damages, and is recognized by the law as a proper element thereof. Budek v. City of Chicago, 279 Ill. App. 410. Appellant urges that such was not competent until there was antecedent proof that she had, previous to the injury, possessed the capacity to normally bear children, and bases its contention upon the theory that if she did not possess such ability, she could not lose it; hence, before showing that she lost such function, it must first appear that she had possessed such power.

In 9 Encyclopedia of Evidence, 894, the rule is stated: “In the absence of circumstances showing the contrary, a person is presumed to be in the possession of the normal faculties of mind and body.” One of the normal faculties of womanhood is the ability to bear children in the ordinary way; consequently, within the rule as stated, the presumption existed, in the absence of countervailing proof, that appellee, previous to the injury, possessed such capacity. We think the proof was properly admitted.

The trial court overruled appellant’s.motion to withdraw from the jury the ninth paragraph of the complaint as amended, which was to the effect that at the time of the accident there was in force in this State, par. 41 of ch. 95a, Cahill’s Revised Statutes, and that appellant negligently disregarded same and drove its bus to the left of the center of the beaten track of the highway in question, and against the automobile in which appellee was riding. The section so set forth requires that whenever a motor vehicle on a public highway meets any other vehicle, each shall be turned seasonably to the right of the center of the beaten track of such highway, so as to pass without interference.

The ruling is assigned as error, for the reason that there was no evidence justifying such paragraph being considered by the jury. The answer to this contention is that the court, in its charge to the jury, informed the latter that appellee relied upon the provisions of such paragraph as one of the grounds of recovery. Appellant made no objection to this portion of the instructions, and by the terms of sec. 67 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, T¡ 195, thereby waived its right to question same as a proper element of the charge. Having permitted the court, without objection, to advise the jury that the paragraph in question was, one of the grounds upon which appellee depended to prevail in the suit, we think appellant cannot now claim to have been harmed by the overruling of its motion to strike such portion of the complaint.

The failure of the court to incorporate in its charge four suggestions of appellant is also urged as error; the first of which, defining the duty of a guest passenger to use ordinary care for her own safety, advised that if the driver of the car, at the time of and just before the accident, was negligent and thereby caused or proximately contributed to the injury, that appellee knew of such negligence, “and had an opportunity to do so but did not take precautions to guard against injury,” and thereby as a consequence sustained damages, she would not be entitled to recover.

It will be noted that the suggestion recites that if appellee, knowing of the situation, “did not take precautions to guard against injury.” The precautions required, under such circumstances, were reasonable and prudent efforts to avoid danger. Grifenhan v. Chicago Rys. Co., 299 Ill. 590, 595. The suggestion did not define the degree of precaution. It should have done so; hence the court properly rejected it.

Number two, among other things, provided that if appellee knew, or, by the exercise of ordinary care, could have known, that the car in which she was riding was being negligently driven, and notwithstanding rode on without objection as to the manner of driving and was thereby injured, and that in so doing she failed to exercise ordinary care for her own safety at the time of and just before the. collision, then the verdict should be for the defendant.

It is only the negligence of appellee, which contributed or proximately contributed to the injury, which would prevent her recovery. The. suggestion fails to contain such essential element. “Where the court directs a particular verdict, if the jury find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict.” Illinois Iron & Metal Co. v. Weber, 196 Ill. 526. This the suggestion did not do, and the court was not bound to adopt it.

The third defined the duty of a guest passenger in an automobile, where she has opportunity to learn of danger and avoid it, to warn the driver of the vehicle of such danger, and that she has no right to omit reasonable and prudent efforts to avoid danger; and then requires that if the jury find that the driver was operating the car negligently, that appellee, in the exercise of ordinary care, would have known such, ‘ ‘ and if she failed to warn the driver of the Chevrolet of such danger, and if her failure to warn the driver of the Chevrolet was negligence on her part,” and as a result it caused or proximately contributed to cause the accident, the jury should find the defendant hot guilty. This suggestion is also peremptory in its character, and directs a verdict upon a finding of certain facts. It required appellee to warn the driver, if she, in the exercise of ordinary care, would have known that the car was being negligently driven, “of - such danger.” It did not limit the jury to danger of collision with appellant’s bus, but left them to conjecture what danger was intended. Moreover, it did not require the jury to find that any danger, in fact, existed, but assumed that danger was present. The mere fact that the car was being negligently driven did not create any necessary inference of danger. We think it should have required the jury to find that danger in fact existed; that being peremptory, and lacking an essential element, it was properly refused. Illinois Iron & Metal Co. v. Weber, supra.

The last rejected suggestion was to the effect that even if the bus driver was negligent, yet if the jury further found that appellee, by the exercise of ordinary care in looking out for danger, could have avoided the accident complained of, and negligently failed to do so, and thereby caused or proximately contributed to cause the injury, then appellee could not recover. This suggestion correctly stated the law. The principles contained therein, however, were embodied in the charge as given. “A legal principle suggested for an instruction may properly be refused where the same has been repeatedly stated in the charge. ’ ’ England v. Fawbush, 204 Ill. 384; Shorb v. Webber, 188 Ill. 126.

In our opinion the court did not err in refusing to amend its directions as to the law of the case.

As previously observed, the verdict upon which the judgment is based was for $28,500; and appellant earnestly insists that this amount is so excessive as to indicate that the jury were moved by sympathy or prejudice, and that the verdict did not reflect their unbiased judgment.

Appellee, as a result of the accident, sustained five pelvic fractures, and suffered much pain. The proof shows that for six months following the injury she would be obliged to remain in bed, a considerable portion of the time in a cast, and that thereafter she could take light exercise for another six months, following which she would be able to walk freely. It appeared that the bones have united, with no permanent effects therefrom, and that the pelvic area will be decreased and the contour of the body will be somewhat flatter, not noticeable, however, through clothes.

As to the loss or impairment of bodily functions, the proof is sharply conflicting, and expert medical witnesses, who testify for appellee, are at variance and disagree as to same.

Dr. Kaeser, for appellee, the attending physician, testified that in the course of time he was of opinion that she would walk without limping. Dr. Hurd, called at her instance, stated that he thought she would limp, and that such would be permanent. He, however, had not seen the patient, and only testified from an examination of the X-ray plates as to her injuries. Dr. Harrison, a witness for appellant, from a reading of such plates, stated that he saw nothing therein which would cause him to believe that appellee would walk with a limp. Dr. Rives, for appellee, who visited her once, at the instance of her attorneys, evidently for the purpose of qualifying as a witness, and made an examination while she was still in the cast, and who also examined the X-ray pictures, gave it as his opinion that due to the decreased diameter of the pelvis, she would never be able to bear children in a normal way. Dr. Kaeser, appellee’s witness, testifying on this proposition, stated that while the pelvic room was decreased as a result of the injury, it would be problematical as to whether such fact would interfere with childbirth.

Thus it is seen that the medical proof, on the two principal items of the claimed damage, is not in accord, and that the doctors differ in their opinions as to the future effects of same.

While the determination of the jury, as to the amount of unliquidated damages, is entitled to much weight, and is not to be lightly disturbed, a verdict fixing the compensatory damages at so large a sum should not rest upon uncertainty or conjecture; but it must appear that the effects claimed are the probable consequences of the injury, and are reasonably certain to result. Lauth v. Chicago Union Traction Co., 244 Ill. 244; Lake Shore & M. S. Ry. Co. v. Conway, 169 Ill. 505; Chicago City Ry. Co. v. Henry, 62 Ill. 142.

In view of the uncertainty as shown by the evidence, we feel that the verdict is excessive, and that the court should have sustained the motion for a new trial. Where the damages allowed are so excessive as to indicate they were found as the result of sympathy, prejudice or some other improper consideration, the error cannot be cured by a remittitur, for the reason that the finding of other material facts, essential to the issue, if not the issue itself, may have been influenced by such improper elements. Wabash Ry. Co. v. Billings, 212 Ill. 37; and as held by this court in Lindenberger v. Klapp, 254 Ill. App. 192.

For which reason the judgment is reversed, and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Murphy

text:
    Roy Smith et al., Appellees, v. W. T. Courtney et al., Appellants.

      Opinion filed September 16, 1935.
    Warder & Zimmerman and D. L. Duty, of Marion, and J. Gr. Burnside, of Vandalia, for appellants.
    Matheny & Welker, of Vandalia, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.

Boy Smith and four others, appellees, herein referred to as plaintiffs, instituted a suit against appellants, herein referred to as defendants, to recover damages alleged to have been sustained in a collision between Smith’s automobile in which all the plaintiffs were riding and defendants’ bus, driven by defendant Lowe as an agent of Courtney.

The negligence charged in the complaint is that the defendants negligently, carelessly and recklessly drove said bus so that it ran against and into the automobile in which plaintiffs were riding and thereby injured them. Defendants answered denying the charge of negligence and defendant Courtney filed a counterclaim alleging damages to his hus.

At the close of plaintiff’s evidence and at the close of all the evidence, the defendants made a motion for directed verdict. The court reserved a ruling on the motion until after the verdict.

The jury returned a verdict for the plaintiffs assessing the damages as follows: Smith, $1,032; Beeves, $70; Cocagne, $675; Woolsey, $174; and Pope, $275. After overruling the motions for a directed verdict and a new trial, judgments were entered on the verdict and defendants appealed.

As grounds for reversal, the defendants urge that the court erred in not directing a verdict for defendants for the reasons that plaintiffs did not prove that they were in the exercise of due care; that the court erred in not granting* the motion for a new trial and error in giving of instructions.

The evidence shows that at about 2:30 a. m., February 5, 1934, plaintiffs were traveling north on State Highway Route No. 2 towards Vandalia in an automobile. Plaintiff Smith owned the automobile and was driving at the time of the accident. Earlier in the evening, they had attended a convention at Bridgeport and at the time of the collision were returning* to their homes in Vandalia. On their way home, they had stopped at various roadhouses for the purpose of advertising* a dance to be held in Vandalia. Defendant Lowe was driving Courtney’s bus in a southerly direction on the same highway, transporting* 29 boys from Peoria to Marion, the boys being members of a Civil Conservation Camp.

Plaintiff Smith testifies that he was driving 25 to 30 miles per hour; was on the right hand side of the black line that marked the center of the pavement; that he did not pay much attention to the bus until it was within 35 or 40 feet of him and that when he saw it, the bus was coming into the north-bound traffic lane. The right front of his car collided with the right front of the bus.

Plaintiff Pope who was riding on the back seat and was awake corroborates Smith and testified that he saw the bus light coming down the road and that when it was 50 feet away, it was coming* into the northbound traffic lane and had the road blocked.

Plaintiff Woolsey testified that he was riding in the back seat and was awake until a short time before the accident; that at Shobonier two miles south of the accident he talked to the driver; that after leaving Shobonier he went to sleep and did not see the bus and did not know how it happened.

Plaintiff Cocagne testified that he was riding in the front seat and that he went to sleep about 30 minutes before the accident and the last he knew before he fell asleep, they were driving through Patoka seven or eight miles south of the scene where the accident occurred.

Plaintiff Beeves testified that he was asleep in the back seat; that he was awake at Sanoval about 25 miles from the accident and did not remember anything after that and did not know how the collision occurred.

Defendant Lowe testified that he was driving the bus 35 to 40 miles per hour and that as plaintiff approached him, they were going 50 miles per hour; that he saw plaintiff’s automobile some distance south of the point of collision and that it was over part way in the southbound traffic lane; that when it was 500' feet away, he sounded his horn three times; that as the automobile and bus approached each other, plaintiff’s automobile continued north on the wrong side of the black line; that when it was within 100 feet of the bus, to avoid a collision, he turned the bus sharply to the left; that immediately before the collision the left wheels of plaintiff’s automobile were off the slab on the west side; that at the time of the collision, the left front wheel of the bus was east of the black line. Lowe is corroborated in his testimony by four of the boys who were passengers in his bus.

There is other evidence in the record as to the location of the cars immediately after the accident, -marks and oil -spots upon the pavement and the parts of the cars damaged and evidence of an impeaching nature but none of it serves to clarify the conflict in the evidence of the witnesses as to how the accident happened. There is such a sharp' conflict in the evidence as to how the accident occurred and whose negligent act was the cause thereof that we cannot say that the verdict of the jury is not supported by a preponderance of the evidence. It was for the jury to say whose evidence they would believe as true and since they have adopted the evidence of the plaintiff as being the more credible and the same having been approved by the trial court, this court would not be warranted in reversing the judgment on the grounds that the verdict was not supported by a preponderance of the evidence.

Defendant’s further contention is that the court erred in not directing a verdict for the defendant for the reason that plaintiffs had not proven that they were in the exercise of due care for their own safety. The basis of their argument is that since Smith and Pope did not see the bus until it was within 40 or 50 feet of them and the other three plaintiffs were asleep and did not see it at all, therefore' this amounts to negligence per se and bars their right of recovery.

There is no evidence that in any way tends to prove that there was anything in the conditions of the traffic, the roadway, the conditions of the weather, Smith’s driving of the automobile or the operation of the automobile that could reasonably cause any one to anticipate that there might be danger ahead.

The question of contributory negligence is ordinarily one of fact for the jury, which must be determined from all the facts and circumstances surrounding the injury. It is a question of law for the court to determine whether under the facts and circumstances of each particular case there is any evidence tending to prove due care, and if there is such, then the case should be submitted to the jury and the court cannot say, as a matter of law, that the plaintiff has been guilty of such contributory negligence as to bar the right of recovery.

In Stack v. East St. Louis & Suburban Ry. Co., 245 Ill. 308, the court said, ‘ ‘ There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger. In the variety of circumstances which constantly arise, it is impossible to announce such a rule. The only requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances. ’ ’

The negligence of Smith could not be imputed to the other plaintiffs. However, this rule did not relieve the plaintiffs who were guests from the burden of proving that they were, immediately prior to and at the time of the accident, in the exercise of due care and caution for their own safety. Opp v. Pryor, 294 Ill. 538; Flynn v. Chicago City Ry. Co., 250 Ill. 460; Pienta v. Chicago City Ry. Co., 284 Ill. 246. 11A passenger riding as an invited guest in an automobile is only bound to exercise such care as the exigencies of the situation require.” Waitrovich v. Black, 254 Ill. App. 49; Fredericks v. Chicago Rys. Co., 208 Ill. App. 172.

Since the jury found the issues for the plaintiffs, we must assume that they adopted plaintiffs’ version of the cause of the accident. Under the evidence, it would appear that the defendant’s bus when within 40 or 50 feet of plaintiffs’ automobile suddenly and without warning drove directly in front of plaintiffs. Whether Smith acting, under such a condition did all that a reasonable and prudent person would do under like circumstances was a question for the jury.

Plaintiff Pope who was awake and riding on the back seat had no control over the car. It appears that he saw the bus shortly before it crossed the pavement but it does not appear there was anything in its approach or the way it was being driven that would cause one to anticipate that it would suddenly turn from its line of travel into plaintiff’s traffic lane. After the bus began to turn across the road his observations would be substantially the same as the driver and there is no reason to hold him to the exercise of any greater diligence as a result thereof than is imposed upon the driver. As to Pope, the question whether he used ordinary care under the circumstances was one of fact for the jury.

There are cases in other jurisdictions where under the facts of those cases a distinction is made as to the degree of care required by a guest riding in the front seat of an automobile and one riding in the rear seat but under the circumstances of this case no distinction can be drawn between Cocagne asleep in the front seat and Woolsey and Beeves asleep in the rear seat. Had plaintiffs Cocagne, Woolsey and Beeves been awake, under the circumstances of this case, the law would not have imposed any greater degree of care upon them than upon Pope who was awake. The question is, Does the fact that they were not awake and keeping a lookout for dangers which were not then apparent constitute negligence per sef

In Kilpatrick v. Philadelphia Rapid Transit Co., 290 Pa. 288, 138 Atl. 830, the guest was reading a newspaper when the automobile in which he was riding collided with a street car and it was held that his conduct was a question for the jury.

In D. & H. Truck Line v. Hopson (Tex. Civ. App.), 4 S. W. (2d) 1013, it was held that an occupant of an automobile sleeping when the car in which he was riding collided with an unlighted truck was not guilty of contributory negligence.

As to the necessity of some affirmative proof of care by a guest, the court in Rhoden v. Peoria Creamery Co., 278 Ill. App. 452, said, “The fact that defendant in error did not do or say anything as the car approached the truck did not, in our opinion, show, as a matter of law, that she was not in the exercise of ordinary care for her own safety. The question whether she did or failed to do all that a reasonable person in like circumstances would have done was properly submitted to the jury by the trial court. ’ ’

In St. Clair Nat. Bank v. Monaghan, 256 Ill. App. 471, where appellant contended that there was no affirmative proof that the guest had said or done anything, this court said, “Under the facts in this record it was clearly a question of fact for the jury to determine whether or not the driver of the car was exercising due care at and prior to the accident. If the driver of the car was exercising due care then undoubtedly it would be a fair inference that the deceased as a passenger in the rear seat was also in the exercise of due care. The fact that appellant’s car was approaching the street intersection in question is not analogous to that class of cases cited by appellee which make it the duty of a passenger to be on the lookout for approaching trains at a known dangerous place.”

We are of the opinion that the facts of this case distinguish it from that line of cases where there is a duty upon a guest in an automobile to be on the lookout for danger at places where it is known that danger is likely to exist and that the question of the contributory negligence of the three plaintiffs who were asleep was for the jury.

Defendants contend that the court erred in giving instructi'ons on the question of negligence, the point being that the negligence referred to in the instruction did not limit the jury to the negligence charged in the complaint. The only charge of negligence in the complaint was that the defendant negligently, carelessly and recklessly drove the bus. This was a general charge of negligence and the instruction substantially followed the same charge. There was no error in the giving of this instruction.

Defendant’s final contention is that the fact that the claims of five plaintiffs were tried before one jury caused confusion and that the jury could not understandingly consider the claims of the several plaintiffs and the defenses interposed as to each of those claims. The claims of the five plaintiffs all grew out of the same transaction and under the authority of section 23 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, H151, they were properly joined in the same suit. The evidence on the question of negligence and due care on the part of the plaintiffs was substantially the same for each of the plaintiff’s claims, the only difference was as to the amount of the damages sustained by each plaintiff. From a study of the evidence as to the extent of the injuries sustained, we are satisfied that the jury was not confused in the trial of the issues and that the several verdicts as to damages are supported by the evidence.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    George E. Whitten, Administrator of the Estate of Paul Durgala, Deceased, Appellee, v. John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Appellant.

      Opinion filed September 16, 1935.
    Kramer, Campbell, Costello & Wieohert and John C. Roberts, all of East St. Louis, for appellant.
    John B. Harris, of Granite City, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Paul Durgala disappeared from his home in Granite City on or about October 30, 1924, and has not been heard from since. Appellant issued two policies of insurance on his life, one dated May 22, 1918, for $167; the other dated July 16, 1924, for $260. The policies show Paul to have been about 15 years of age at the time of his disappearance. His mother was named as beneficiary in each of said policies. She died in December, 1930. In November, 1932, appellee was appointed administrator of Paul’s estate on the presumption of death that arises from seven years’ unexplained absence. Appellee seeks to recover on said policies. The case was tried with a jury, resulting in a verdict and judgment for appellee.

The errors relied upon for reversal are the rulings of the court in overruling appellant’s motion for a directed verdict, in permitting appellee to reopen the case after the evidence had been closed and amend his pleadings, the giving of instructions and in overruling appellant’s motion for a new trial.

The evidence shows that Paul Durgala’s father died in May, 1922; that his mother remarried in June following; that he made his home with his mother, stepfather and his sister, who was at the time of his disappearance about eight years of age. In August, 1922, Paul had been committed to the school for delinquent boys at St. Charles and was paroled from that institution to his stepfather in January, 1923. After he was paroled, he worked one month at the National Lead Company where his stepfather was employed. At the time he quit his employment, he owed a company commissary a small account. His stepfather paid it and it does not appear that he had any other trouble at the factory. His mother and stepfather were both employed and Paul and his sister were left at home alone the greater portion of the day. Paul would not attend school and his general conduct was such that he required more discipline than a normal boy of his age. It does not appear that his stepfather took any part in disciplining him. His mother punished him, at one time hitting him on the head with a flashlight. It does not appear that the punishments he received or the discipline in any way changed his conduct or that he resented it. Prior to his disappearance, he took his sister’s bank book and presented it at the bank and drew her savings of $12.90' and took his stepfather’s overcoat.

Appellant contends that surroundings in Paul’s home life and his taking property which did not belong to him explain his disappearance and continued absence as a matter of law and overcomes the presumption of death that arises from seven years’ absence.

The law is well settled in this State that where a person leaves home with the expectation of returning thereto within a short time and he remains away and his absence is unexplained and unaccounted for and no intelligence is received from him and he is not heard from, and his whereabouts cannot be ascertained although diligent search and inquiry are made in the vicinity of his home and at such places as he would be likely to go and from such persons as he would be likely to meet and know and nothing is heard from or of him, and he remains away from his family and home for the period of seven* years, a presumption arises from these facts that he is dead, unless there are other facts and circumstances shown which will rebut and overcome such presumption of death. Whiting v. Nicholl, 46 Ill. 230; Johnson v. Johnson, 114 Ill. 611; Reedy v. Millizen, 155 Ill. 636; Hitz v. Ahlgren, 170 Ill. 60; Policemen’s Benevolent Ass’n v. Ryce, 213 Ill. 9.

In Gayton v. Equitable Life Assur. Soc., 245 Ill. App. 432, on page 438, the court said, “It is always a matter of proper inquiry to investigate whether such person was in comfortable or disturbed circumstances ; whether he was free from suspicion of guilt of any crime; whether his domestic life was peaceful or turbulent; whether he was a man of rectitude and of good esteem or one who was guilty of moral turpitude and subject to humiliation or disgrace. In fact an inquiry can be made into all of the circumstances then surrounding him. ’ ’

“The fact that the absent person is a fugitive from justice does not prevent the presumption from arising, but is admissible to rebut the presumption of death.” 8 R. C. L. 708, 709; Ewing v. Metropolitan Life Ins. Co., 191 Wis. 299, 210 N. W. 819; Ashbury v. Sanders, 8 Cal. 62, 68 Am. Dec. 300; O’Kelly v. Felker, 71 Ga. 775.

The proof that Paul’s home life was unpleasant, that he was disciplined by his mother and that he disappeared under circumstances indicating he had committed a crime does not as a matter of law overcome the presumption of death. Equitable Life Assur. Soc. v. James, 73 Ind. App. 186. Whether such evidence is sufficient to explain his absence thereby overcoming the presumption is a question for the jury. Kennedy v. Modern Woodmen of America, 243 Ill. 560.

We have examined the instructions given and those refused and find that the jury was fairly instructed as to the law, that the instructions were clear and not subject to the criticism directed against them.

It is further contended that the court erred in allowing appellee to reopen the case after evidence had been submitted and file a reply alleging* waiver of notice. Appellant does not contend that he was surprised by the amendment or proof offered and did not ask for a continuance on that ground. It is within the discretion of the trial court to permit a case to be reopened for further proceedings or evidence after the case has been closed. Montag v. Linn, 23 Ill. 551; Maxwell v. Durkin, 185 Ill. 546. It may even permit a case to be reopened for the taking of further evidence after the arguments to the jury have begun. Schwitters v. Springer, 236 Ill. 271.

There is no reversible error in the record and the judgment of the lower court is affirmed.

Judgment affirmed.


author: Mr. Justice Stone

text:
    Fleshia Isabel Phegley, Appellee, v. Kroger Grocery and Baking Company, Appellant.
    Opinion filed September 16, 1935.
    Leahy, Saunders & Walther, of St. Louis, and Chester H. Farthing, of East St. Louis, for appellant.
    Manuel M. Wiseman, of Alton, and Philip Gf. Listeman, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is a civil action at law for $3,000 damages for injuries to the health of the plaintiff Fleshia Isabel Phegley, alleged to have resulted from eating boiled ham purchased at the retail store of defendant Kroger Grocery and Bailing Company in Alton. It is claimed that the ham was unwholesome, impure, diseased and unfit for human consumption.

This cause comes to this court on appeal from an order denying a motion of the defendant to set aside an order of default, vacate a judgment and allow defendant to plead.

The complaint, request for summons and demand for jury trial were filed June 9,1934, and on that day summons was issued, returnable on the first Monday in July, 1934, or, in the alternative, on the third Monday in July, 1934. The summons was filed June 12, 1934, the return of the sheriff of Madison county being as follows:

“I have duly served the within by reading the same to the within-named defendant Kroger Grocery and Baking Company, a corporation, by reading the same to and leaving a true copy thereof with R. M. Sampson, manager of the meat market of said Kroger Grocery and Baking Company, a corporation, and at the same time delivering a true copy thereof this 11th day of June, 1934.”

On July 31,1934, no appearance having been made by the defendant and no pleading having been filed by it, the plaintiff appeared by counsel, and the court entered an order that the defendant answer the complaint instanter.

Without waiting until the next court day, but immediately thereafter and on the same day, an order of default was entered against the defendant, plaintiff was allowed to withdraw her request for a jury trial, evidence was heard by the court, a judgment was entered against the defendant for $2,000 and costs of suit, and execution was ordered to be issued thereon. It is claimed that orders in other cases were entered by the court after this judgment before the end of that court day.

The defendant was not present in court on that day, was not represented by counsel and had no notice of the rule to plead instanter.

On August 21,1934, within 30 days after said default and judgment, defendant filed its motion to set aside the order of default, vacate the judgment and for leave to file its answer to the complaint. An answer was tendered with said motion.

On its motion to vacate the judgment defendant-appellant went far to procure evidence that it was free from negligence in the premises and that it had a meritorious defense to the whole of plaintiff-appellee’s demand. As this case must be disposed of on other grounds, it is unnecessary to go into those subjects.

On the 31st day of July the following among* other proceedings were had:

“Rule on defendant-appellant to plead instanter, order of default and judgment. Follows the judgment. ’ ’

two lawyers make affidavits that they were in court when the above judgment was rendered; and that they thereafter transacted business with the court that same day. It appears, without question, that after the rule to answer instanter was entered, defendant-appellant was not given the remainder of that court day in which to answer. This it was entitled to. This same question was before this court in Mercer v. Mercer, 271 Ill. App. 307. We there said:

“Before any default was taken a rule was entered upon appellant to answer instanter. Since she was not in court and no one appeared- for her, appellant under this rule had the entire day in which to answer and appellant could not be held in default until the expiration of a rule upon her to plead. A rule to plead ‘instanter’ requires a plea ‘before the rising of the court.’ A. W. Stevens Co. v. Kehr, 93 Ill. App. 510; Northrop v. McGee, 20 Ill. App. 108; Risedorf v. Fyfe, 250 Ill. App. 122.

“Appellant not being in court, and having no notice of the rule, had until the end of the judicial day in which to plead. The court was without power to order the default taken, to hear testimony and to enter the decree before such time expired. ’ ’

It is claimed that there is a distinction because the Mercer case came under the Practice Act of 1907 while the case at bar is under the Civil Practice Act. Section 57 of the old act reads as follows:

“57. Judgment by default. For want of appearance the court may give judgment by default, except in cases where the process has not been served, or declaration filed, ten days before the term of the court.” Paragraph 6 of section 50 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, !f 178, reads as follows :

“ (6) Judgment by default or a decree pro confesso may be entered for want of an appearance, or for failure to plead, but the court may in either case, require the plaintiff to prove the allegations of his complaint. ’ ’ We fail to note any distinction. Neither is there force in the other argument presented that it is any more the duty of the court to see that all parties are before the court in divorce cases, such as the Mercer case, supra. The obligation in a divorce case is no more solemn than in case of a judgment at law.

The law is well settled in this State that a rule to plead instanter gives the defendant against whom the rule is taken, the rest of that court day in which to plead. Manifestly with defendant having all the court day on which the rule to answer instanter was entered to file its answer, the court had no authority to enter default and judgment against it that day.

The judgment of the city court is reversed and this cause is remanded with instructions to that court to allow defendant-appellant’s motion to vacate the judgment and for leave to answer.

Reversed and remanded with directions.


author: Mr. Justice O’Cohhor

text:
    A. Daigger and Company, Appellee, v. Maurice M. Kraft et al., Trading as Almar Chemical Company, Appellants.
    Gen. No. 38,413.
    Opinion filed October 4, 1935.
    David H. Kraft and Jaffe & Green, all of Chicago, for appellants; David H. Kraft and Jaffe & Green, of counsel.
    Jones, Addington, Ames & Seibold, of Chicago, for appellee; Albert F. Meoklenburger, of Chicago, of counsel.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

June 18, 1935, plaintiff filed its verified bill against defendants praying that they be enjoined from using trade lists, lists of customers, and other data and information which it was alleged that Maurice M. Kraft, one of the defendants, had surreptitiously abstracted from plaintiff’s files while he was employed by plaintiff. The bill further prayed that defendant Maurice M. Kraft be enjoined from prosecuting a suit which he had brought against plaintiff in the municipal court. The prayer was that a temporary injunction issue immediately and without notice and that after hearing it be made permanent. On the same date an order was entered without notice to defendants, as prayed for. On June 24th defendants moved to dissolve the injunction on the sole ground that no notice of the application for the injunction was given, as required by statute. The motion was overruled and the defendants prosecute this appeal.

Section 3, chapter 69, Ill. State Bar Stats. 1935, provides: “No court, judge or master shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear from the complaint or affidavit accompanying the same that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without such notice.”

In Chicago City Ry. Co. v. Montgomery Ward & Co., 76 Ill. App. 536, the court said (p. 541): “The extraordinary remedy of injunction without notice should not be allowed except in extreme cases, and as a general rule may he avoided where there is apprehension on the part of a complainant that he may be deprived of the benefits of the injunction he seeks by some action of defendant after notice is served and before the application can be heard, by giving notice of an immediate application to the chancellor, when, if there can not- be a hearing at once, the chancellor may require matters to remain in statu quo pending the hearing, by a stay order, or issue the injunction instanter, and give defendant a hearing upon motion to dissolve. There appears to us no reason why such a course could not have been pursued in this case.”

Rule 31 of the Supreme Court and Rule 21 of this court are identical. The pertinent portion of these rules is as follows:

“Where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree to the trial court entering such order or decree. Appeal may be taken if the motion is denied. ’ ’

Counsel for defendants followed this provision of the rules by making a motion to dissolve the injunction, but limited their motion to the sole ground that notice had not been given defendants of the application for the injunctional order. But counsel for plaintiff say that the allegations of fact in the bill and in the affidavit accompanying it are sufficient to excuse the giving of the notice, because the Statute above quoted provides that no notice need be given where the facts disclose that if such notice were given plaintiff’s rights would “be unduly prejudiced.”

The allegations of the bill, so far as it is necessary to state them for the purpose of this opinion, are that plaintiff is a corporation engaged in the business of manufacturing, buying, selling and dealing in chemicals, colors, oils, and similar products, and that it has been in such business in Chicago for more than 40 years; that defendant Maurice M. Kraft was in its employ for more than 12 years; that Kraft, by virtue of his employment, had access to plaintiff’s files and was familiar with plaintiff’s system' and method of doing business, and that his work was of a highly confidential nature; that during part of his employment he was paid $8,750 per year as well as expenses, and at the time in question he was drawing a salary of $100 a week and expenses; that up to about May 20, 1935, plaintiff had implicit confidence in Kraft; about that time it learned that Kraft had been betraying’ the confidence imposed in him, and that for a long period of time prior to that date he had surreptitiously, without plaintiff’s knowledge, removed a great many of plaintiff’s confidential records, including its lists of customers, report sheets, and other records; that Kraft was setting up a rival business and had with him in that undertaking defendants Fred Harris and Joseph Kaneski, two other former employees of plaintiff; that Kraft was using the records he had abstracted, soliciting customers for a rival business conducted by him and his wife, Alice A. Kraft, under the name of the Almar Chemical Co.; that Kraft demanded payment of $100 which he claimed to be due him for weekly salary, which plaintiff refused to pay on the ground that Kraft had surreptitiously abstracted the records while he was in plaintiff’s employ, and that shortly thereafter Kraft brought the suit in the municipal court of Chicago to recover the $100.

The affidavit of plaintiff’s vice president, who was general manager, which accompanied the bill, set up substantially the same facts as alleged in the bill and in addition charged that when Kraft was accused of having surreptitiously removed the records, he at the same time demanded the $100, which plaintiff refused to pay, Kraft assaulted plaintiff’s manager.

There are other matters in the bill and the accompanying affidavit, all to the effect that Kraft had surreptitiously abstracted plaintiff’s records while he was employed by plaintiff, was setting up a rival business and soliciting business from plaintiff’s customers and endeavoring to undersell it.

It is further alleged that after plaintiff learned some of its records had been taken, as above stated, it brought an action of replevin in the municipal court against Kraft to recover them, but that the bailiff was unable to obtain service upon Kraft.

Counsel for plaintiff, in support of its contention that the injunction was properly issued without notice, say: “The giving of notice of the application for injunction in this case would have served only to effect delay and to afford to these appellants opportunity to devise ways and means for making and preserving for future use copies of these records of their former employer. It could not be foretold what amount of time would be -lost in the vain attempt to give notice. Meanwhile appellants would have been unhampered in the use of appellee’s records and, as the bill alleges, the good will and esteem of plaintiff’s customers would be seriously impaired, the value of its trade lists, acquired through many years of business activity, would be greatly damaged, and defendants would acquire the benefit thereof without compensation to plaintiff and to its irreparable damage.”

We think this contention — that defendant Kraft or some of the defendants could not have been conveniently served with a notice of the application for the injunction as required by the statute — is not borne out by the record. The affidavit of plaintiff’s executive vice president and manager, which accompanied the bill, as above stated, set forth that on May 27, 1935, he received a telephone inquiry from E. Gr. Dun & Company with regard to Kraft, and was then informed by Dun & Company’s representative that some three weeks prior to that date Kraft had initiated a business of his own or in association with others, under the name of Almar Chemical Co., at 2016 West Lake street, Chicago, and was there engaged in buying, selling, or dealing in chemicals, colors, oils and similar products, being the same line of business in which plaintiff was engaged, and that Dun & Co. could not get in contact with Kraft.

There is no showing that plaintiff could not have served Kraft or some of the defendants at the Lake street address or that it could not have left or mailed a notice, as Kule 17 of the circuit court provides.

Courts of Cook county are in session at all seasons of the year, where an application for an injunction can be had within a few minutes, or at most a few hours. But the order entered, from which this appeal is prosecuted, does not enjoin the defendants from engaging in a competing business nor from using the knowledge obtained by defendants Kraft, Harris and Kaneski while they were employed by plaintiff. Defendants have been enjoined only from using plaintiff’s lists of customers and other written data which was surreptitiously abstracted from plaintiff’s files. Obviously, defendants had no right to use such lists obtained by them in the manner alleged in the bill, and the use of such lists by defendants would tend to irreparably damage plaintiff. If notice had been given of the application for the injunctional order, defendants might make away with the lists and other data so that the injunction would have been of little or no value.

Where the giving of a notice for the application for a preliminary injunction may be productive of the mischief apprehended by inducing the defendant to accelerate the act in order that it may be completed before the time of making the application arrives, an injunction will be awarded without notice. Chicago Exhibition Co. v. Illinois State Board of Agriculture, 77 Ill. App. 339; 2 Daniell’s Chancery Pl & Pr., 6th Amer. Ed., p. 1665. Daniell’s, on the page cited, says: “where the mere act of giving notice to the defendant of the intention to make the application might be, of itself, productive of the mischief apprehended, by inducing him to accelerate the act, in order that it might be complete before the time for making the application should have arrived, the Court will award the injunction without notice.”

The order of the circuit court of Cook county is affirmed.

Order affirmed.

McSurely, P. J., and Hatchett, J., concur.


author: Mr. Justice Friend Scanlan, P. J., and Sullivan, J.,

text:
    Lillian Akehurst, Appellant, v. Ray W. Summe and Frank C. Voisinet, Appellees.
    Gen. No. 38,423.
    Opinion filed October 22, 1935.
    C. J. Loftus and W. J. Gleason, both of Chicago, for appellant.
    A. D. McMahon and L. A. Wescott, of Chicago, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff seeks to appeal from an order entered June 20, 1935, granting defendants a new trial. July 19,1935, 29 days after the entry of the order, this court extended, for a period of 30 days from July 19, the time within which plaintiff might file a record, abstracts and petition for leave to appeal.

Thereafter, August 16, 1935, during vacation, plaintiff moved for a further extension of 60 days from August 18, 1935, to file her record, abstracts and petition. The first division of this court ordered the motion held, and subsequently, October 1, 1935, it was assigned to this division of the court for determination.

The novel question presented by the motion is whether this court has jurisdiction within the extended period, but more than 30 days after the entry of the order granting a new trial, to allow a further extension of time for filing a record, abstracts and petition for leave to appeal.

The right of appeal is purely statutory. (Bondurant v. Bondurant, 251 Ill. 324, 327.) Prior to the enactment of the Civil Practice Act (eh. 110, U129 et seq., Ill. State Bar Stats. 1935) the statute afforded litigants no right to appeal from an order granting a new trial. Under sec. 77 of the act, governing appeals, an order granting a new trial is now deemed to be a final order, but “no appeal may be taken therefrom, except on leave granted by the reviewing court, or by a judge thereof in vacation within thirty days after the entry of the order, on motion and notice to adverse parties. ’ ’

The foregoing section of the act makes no provision for extending the time within which to file the record, abstracts and petition beyond the 30 days following the entry of the order. It is urged by plaintiff, however, in the suggestions filed with her motion that the further extension here sought may be allowed under par. 2, Rule 20, of this court, which provides that:

“Upon notice and motion, made within 30 days after the entry of the order granting the new trial, the reviewing court, or any judge thereof in vacation may extend the time for filing the transcript of record and the abstract, and for the granting of leave to appeal.”

This rule does not help plaintiff, for it is reasonably clear from a consideration of the rule in connection with the statute that a petition for leave to appeal from an order granting a new trial must be filed within 30 days from the entry of such order, or within such extended time as the reviewing court may allow during said 30 days. Cases will undoubtedly arise in which an extension may become necessary, and the rule quoted makes ample provision therefor, with the limitation, however, that the extension must be granted within 30 days from the entry of the order. It does not specify or contemplate that a further extension may be allowed -within the extended period, and after the 30 days following the entry of the order granting the new trial have expired. If the record in a case be voluminous and there are questions involved which require a lengthy extension of time for preparing the transcript of record, abstracts and petition, the litigants, who are presumed to be familiar with all the circumstances of the case, may request an extension that wall give them ample time and opportunity to prepare their record and petition, but the motion to extend the time must obviously be made within the 30 days following the entry of the judgment as provided by Bule 20.

The common practice in reviewing courts of granting successive extensions of time to file abstracts and briefs in ordinary appeals has no analogy to the situation before us, because there is no statutory limitation imposed on the court for allowing extensions, or anything in the rules of court which prohibits them.

The Civil Practice Act and the rule quoted being of recent enactment, the precise question is here presented for the first time. However, a similar situation arose under the original Municipal Court Act governing the preparation of records for review in fourth class cases. Par. 6 of sec. 23 (Cahill’s Ill. Stats. 1931, 411, p. 955) provided that:

“Upon application made at any time within thirty (30) days after the entry of any final order or judgment, or within such further time as may, upon application therefor within said thirty days, be allowed by the court, it shall be the duty of the judge by whom such final order or judgment was entered, to sign and place on file in the case ... a statement of the facts appearing upon the trial . . . or a correct stenographic report of the proceedings at the trial. . . . ”

In Lassers v. North German Lloyd S. S. Co., 244 Ill. 570, defendant sued out a writ of error to review a judgment entered against it in the municipal court in a fourth class case on June 5, 1909. July 1, 1909, the municipal court extended the time for filing a bill of exceptions to July 15. On July 14 an order was entered allowing a second extension, for an additional period of 10, days, and on July 21 there was filed a bill of exceptions in the cause. The Appellate Court struck the bill of exceptions and stenographic report from the record, on plaintiff’s motion, because it was not signed or filed within the time allowed by the statute, affirmed the judgment and allowed a certificate of importance to the Supreme Court. The latter, in affirming the Appellate Court, said (p. 572):

“Paragraph 6 of section 23 of the Municipal Court Act makes it the duty of a judge entering a final order or judgment, within thirty days thereafter, or within such further time as may, upon application therefor within said thirty days, be allowed by the court, to sign and place on file, at the request of either party, either a correct statement of the facts appearing upon the trial and of all questions of law and the decisions of the court thereon, or a correct stenographic report of the proceedings at the trial, and a correct statement of such other proceedings in the case as the party may desire to have reviewed. This statement or report, with a certified copy of the judgment, and such other papers as may be specified by the judge, if any, constitute the record to be considered upon the review of said cause by the appellate court. The statement in this case was not signed or filed within any extension of time allowed by the court within thirty days of the entry of judgment. The only extension allowed within said period of thirty days expired July 15.

“It is claimed on behalf of appellant that having within the period of thirty days extended the time, the court might within the extended period again extend it. This claim has no basis in the statute. By express provision the extension must be granted within thirty days. After that time the power to grant an extension does not exist. Cases cited as to the practice in the circuit courts in reference to the signing of bills of exceptions and extensions-of time therefor are not in point. The practice prevailing in those courts is well known but furnishes no guide to that of the municipal court, which depends entirely upon the statute.”

In Wurlitzer Co. v. Dickinson, 247 Ill. 27, the same question was involved. A writ of error was sued out to review a judgment entered June 26,1908. By stipulation of the parties an order was entered extending the time to file the bill of exceptions 20 days from July 26, 1908, and thereafter several further extensions were granted upon stipulation of the parties. The Supreme Court ag-ain held that under par. 6, sec. 23 of the Municipal Court Act, no jurisdiction was vested in the 'court to grant the extension beyond 30 days following the entry of the judgment, and Lassers v. North German Lloyd S. S. Co., supra, was cited and quoted. In reply to appellant’s contention that the Lassers case had no application because in the Wurlitzer Co. case the extensions were allowed pursuant to stipulation of the parties, the court said that the provisions of the statute could not be waived by stipulation, and that “the reasoning in the Lassers case is conclusive on the facts here. ’ ’

The right to appeal from an order granting a new trial is a privilege not heretofore given litigants, and it was clearly the intent of the act, and the rules adopted supplementary thereto, that the right should be exercised promptly. This is evidenced by comparison of Rule 20 with Rule 9, which provides for extensions of time for filing records, abstracts and briefs in ordinary appeals, upon good cause shown, within the court’s discretion. Under Rule 20, appeal from an order granting a new trial is treated separately and is similar to Rule 21 governing interlocutory appeals, in that it contemplates prompt action on the part of litigants. In conformity with these views, we hold that under the provisions of the act and rules of this court the extension must be granted within 30 days after entry of the order granting a new trial; after that the power to grant a further extension does not exist.

The motion is denied.

Motion denied.

Scanlan, P. J., and Sullivan, J.,

concur.

Justices oe the Appellate Court Specially Concurring :

We concur in holding that under the provisions of the Civil Practice Act and the rules of this court any extension of time for the filing of records, abstracts and petition for appeal from an order granting a new trial must be granted within 30 days after entry of the order by the trial court; that the court has no power to grant a further extension after the expiration of such 30-day period.

William H. McSurely David F. Hatchett John H. O’Connor Ross C. Hall Oscar Hebel Denis E. Sullivan