text:
    Sam Soibel, Appellee, v. The Oconto Company and George J. Farnsworth, Appellants.
    Gen. No. 40,474.

      Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    Howe & Bailey, of Chicago, for appellants; Joseph A. Bailey and Henry H. Caldwell, of counsel.
    Sidney L. Pollack and Levisohn & Levisohn, all of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, an employee of the tenant, Custer, brought suit against defendants, the landlords, to recover damages for personal injuries sustained by him as a result of the floor breaking under him causing him to fall into the basement. There was a jury trial and a verdict and judgment in plaintiff’s favor for $1,000 and defendants appeal.

The record discloses that defendants owned a two-story and basement brick building located on the northeast corner of Peoria and Lake streets in Chicago; there were four stores in the building. July, 1935, R. J. Custer entered into an oral lease with defendants for one of the stores which was about 25 feet wide and probably 100 feet deep, paying a monthly rent of $40; he was engaged in the wholesale butter and egg business and continued to occupy the premises without interruption for about 15 months. October 4,1936, plaintiff was employed by Custer to candle eggs and about 8:30 on the morning of the next day Custer and plaintiff were in the store on the first floor of the premises. A small hand truck was on the floor about 25 feet from the front entrance on which there were 7 crates of eggs. Plaintiff took one of the crates from the truck apparently to take it to the back of the store, when the floor under his feet broke, causing him to fall to the basement, as a result of which he was injured. He brought suit June 24,1937.

His complaint was in two counts in which he set up the leasing of the premises by defendants to Custer; that it was the duty of defendants not to lease the premises with any latent defect or nuisance upon them, or if there was any latent defect or nuisance at the time of the leasing defendants should have notified Custer of this fact; that they negligently failed to do so but permitted the premises to be in an unsafe condition at the time of the leasing and that the first floor was broken and defective but such condition was not discernible by ordinary care or diligence of Custer, the tenant; that defendants knew or should have known of the defective condition; that plaintiff in the course of his employment by Custer was in the exercise of due care and was proceeding with his work when the floor g'ave way and he fell into the basement.

The case went to trial May 31,1938, and at that time plaintiff by leave of court filed additional counts, the basis of which was the violation of a city ordinance which required the owner or occupant of building's to fix and display conspicuously on each floor placards “stating the uniformly distributed load per square foot of floor surface, which may with safety be applied” to the particular floor. The ordinance further provided that it was unlawful to load any floor to a greater extent than that indicated on the placards; and it was alleged that defendants failed to have the placards displayed as the ordinance required, and by reason thereof neither plaintiff nor the tenant, his employer, was able to ascertain what load might be safely applied to the floor; and as a result of such violation the floor collapsed and plaintiff was injured.

Defendants in their answer denied the charge of concealment, etc., and negligence in leasing the premises, or that they had violated the ordinance. In the instant case there is no contention that there was any agreement at the time of the letting- that the landlord would keep the premises in repair. Defendants contend the court should have instructed the jury to return a verdict in their favor at the close of the evidence as requested.

The liability of defendant landlords to plaintiff, the tenant’s employee, was no greater than their liability to the tenant. Shields v. Dole Co., 186 Ill. App. 250; 1 Tiffany on Landlord and Tenant, 556. It is also the law that where premises are leased and the lessee takes possession, in the absence of concealment or.fraud by the landlord as to some defect knoivn to him and unknown to the tenant, the tenant assumes the risk of personal injury from defects. And this rule is not changed by the fact that the lessor at the time of the letting covenants to repair. Borggard v. Gale, 205 Ill. 511; Breazeale v. Chicago Title & Trust Co., 293 Ill. App. 269.

The Borggard case was an action to recover damages for personal injuries brought by the wife of the tenant. She was injured by reason of stepping into a hole in the floor of the rented store. The court there said: “The duty resting upon the landlord to notify the tenant of a defect in the premises which a careful examination would not disclose, but of which the landlord has notice while the tenant has not, we think may well be placed upon the ground, in many cases, that a failure to make such disclosure would be a fraud upon the tenant; . . . But the instruction given in this case did not require that the plaintiff should prove fraud before a recovery could be had, but only concealment of the defect.” The jury found there was no such concealment and the judgment for defendant was affirmed by the Appellate and the Supreme Courts.

In the Breaseale case we said: “The general rule is that where the right of possession and enjoyment of leased premises passes to the lessee, in the absence of concealment or fraud by the landlord as to some defect known to him and unknown to the tenant, the tenant assumes all risk of personal injury from defects, and the fact that the lessor covenants to repair does not affect this rule so far as concerns the lessor’s liability for personal injuries to the lessee due to defects, although their existence is attributable to the failure of the lessor to repair.”

In the instant case plaintiff testified he went to work the day before the accident; that the place looked like an old store; that the floor was wooden and appeared to be rotten. The floors were not even — “one was a little down and one a little higher. ’ ’ A witness for defendants testified that the building was in good condition when it was rented in July, 1935, and at all times thereafter; that the floor rests on heavy joists 4 X 14 inches, about 14 inches apart; that he measured them the day before the trial; that the joists were about 22 feet long and rested in a brick wall on each side of the building-; the floor which laid on these joists consisted of 1-inch soft wooden, tongue and groove yellow pine boards; on top of these were laid 1-inch hard maple boards which were also of tongue and groove lumber. A witness called by defendants testified that he worked at the store next door to Custer’s place of business; that he knew Custer from the time he took possession; that he occasionally saw Custer drive a good sized auto truck into the store.

Plaintiff’s counsel started to take Custer’s deposition in the Federal Penitentiary at Leavenworth. Defendants were also represented by counsel. Custer testified he was in the wholesale butter and egg business and that he rented the place from month to month, and he described the character of the building; that he conducted his business in the store until about February, 1937. He was then asked whether defendants had posted any display cards in the store showing- the load per square foot that could be safely carried; after consulting the warden he refused to testify further. He was not cross-examined.

Whether the reading of this deposition on the trial over defendants’ objection was error is of no importance for the reason that what Custer testified to is shown by other evidence which is undisputed.

Plaintiff further contends that since Custer’s tenancy was from month to month his last tenancy “commenced on October 1st and plaintiff was injured on the 5th” and therefore the jury was warranted in finding the floor was defective at the beginning of this tenancy. We do not agree with this contention. WTbile the tenancy was by the month “it does not follow that each month of occupancy created a new demise. Such a tenancy is not a reletting at the beginning of each recurring month. Hall v. Sherrod, 97 Ill. App., 298”; Strong v. Stoodvoisky, 141 Ill. App. 183.

There is no evidence that defendants concealed any latent defect when they let the premises nor at any other time, and if we assume that the ordinance requiring the placards to be posted was violated by defendants and that in some situations such violation would render defendants liable for personal injuries to plaintiff — a question which we do not decide — (Cannas v. Britton, 232 Mich. 291; Palmigiani v. D’Argenio, 234 Mass. 434; Johnson v. Carter, 218 Iowa 587) we think there could be no liability here because there is no causal relation between the absence of the placards and plaintiff’s injuries. In order to impose liability for an injury claimed to be the result of the violation of an ordinance it must appear that compliance with the ordinance would have prevented the injury. Certainly any placards that might be posted under the ordinance would not show that the floor would not safely carry the weight of one man and a case of eggs. Plaintiff failed to make out a case against defendant landlords and the court should have directed a verdict in defendants’ favor at the close of the evidence.

The judgment of the superior court of Cook county is reversed.

Judgment reversed.

McSurely, P. J., and Matchett, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Murphy

license: Public Domain

text:
    State Bank of Waterloo, Appellee, v. Potosi Tie and Lumber Company, Appellant.

      Opinion filed March 13, 1939.
    Burr S. Goodman, of Waterloo, and Green, Verme & Hoagland, of Alton, for appellant; J. F. Schlaey, Jr. and C. D. Eastman, both of Alton, of counsel.
    Harry E. Jackson, of Waterloo, and P. K. Johnson, of Belleville, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.

For some time prior to 1933 plaintiff, a banking corporation was the owner and holder of a mortgage lien on land in Monroe county owned by L. J. Cahill. Plaintiff foreclosed its mortgage and received a master’s deed which it filed for record in August, 1934. After plaintiff acquired its deed Cahill continued in possession as its tenant. Between October, 1936 and June, 1937 the defendant corporation, acting through its agent F. A. Reddick, assuming .Cahill to be the owner of the land and having the legal right to sell the standing timber bought it from him and went upon the land and cut a large number of oak trees and made them into ties. Plaintiff instituted this suit to recover the statutory penalty for cutting trees on the lands of another without the owner’s permission. Sec. 5, ch. 136, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.812], The section relied upon provides a liability of $8 per tree for oak such as were involved in this case. The defendant answered the complaint and denied that it cut the trees and that it violated the statute. On a trial without a jury the plaintiff recovered a judgment for $2,080.

On this appeal no question is raised as to plaintiff’s title to the land nor to the fact that defendant’s agents cut the timber but it contends that the statute is penal and that the evidence does not show that it knowingly and wilfully committed the wrong*.

The section of the statute pleaded has been incorporated in the statutory law of this State for more than a century. In the early history of the State it was given frequent application and in the few cases that reached the Supreme Court it was construed as a penal statute the object of which was to punish the wrongdoer as well as to recompense the injured individual. Cushing v. Dill, 2 Scam. (3 Ill.) 460; Whitecraft v. Vanderver, 12 Ill. 235; Watkins v. Gale, 13 Ill. 152; Gebhart v. Adams, 23 Ill. 397; Cushman v. Oliver, 81 Ill. 444.

In Cushing v. Dill, supra, the court said, “This action is brought upon a penal statute, the object of which is to punish the wrong doer, as well as to recompense the injured individual. To subject any one, therefore, to the penalty of the act, it must be shown to have been wilfully violated, by proof that the party charged, committed the forbidden act himself, or caused another to do it by his command or authority. The statute gives the penalty against the actual trespasser only; it would be a violation of legal principles, therefore, to extend it so as to embrace another by implication.”

In Whitecraft v. Vanderver, supra, it was said, “To subject a party to such punishment he must have committed the wrong knowingly and wilfully or under such circumstances as show him guilty of criminal negligence.”

In Cushman v. Oliver, supra, the court referring to the Cushing case said, “It was said in Cushing v. Dill, supra, where this statute for the first time came up for construction, that to subject anyone to its penalties, it must be shown to have been wilfully violated, by proof that the party charged committed the forbidden act himself or caused another to do it by his command or authority.”

The evidence shows that defendant, a Missouri corporation, had in its employ one F. A. Reddick, who was its territorial manager for several counties in this State, including Monroe, and that a part of his duties was to buy standing timber, cause it to be cut and made into ties. His employment for these duties was general, he selected the timber and made the purchase -without special direction or authorization from the defendant. He used his judgment in the performance of these duties. He wrote checks on the defendant in payment for the timber. It does appear in the evidence that he had a specific direction from the defendant to always examine public records to ascertain the ownership of the timber before making a purchase.

The evidence further discloses that Reddick dealt with Cahill the tenant in possession of the property and made the purchase from Cahill and issued checks to him in payment. Cahill cashed one of the checks but the others he tendered to plaintiff which it declined to accept. Plaintiff had no knowledge of the transaction with Cahill and did not know of Reddick’s entry into the premises until after the trees were all cut. It is not claimed that Cahill had any authority to act for the plaintiff.

Reddick admits he did not cause the records to be examined to ascertain the title but says he relied upon the fact that Cahill was in possession and had been for many years and also upon what Cahill said to him as to his right to sell the timber. There is a conflict in the evidence as to what Cahill said but taking as true the evidence most favorable to defendant, Red-dick asked him if he had the right to sell the timber to which Cahill replied that he had owned the land for years and had the legal right to sell anything that was on there.

When Reddick was negotiating with Cahill for the purchase of the timber, plaintiff’s deed showing its ownership of the land was a matter of public record and the duty rested upon Reddick to examine the records and ascertain the ownership. Clark v. Leavitt, 335 Ill. 184. He was chargeable with notice of all matters affecting* the chain of title which appeared of record. Blake v. Blake, 260 Ill. 70. A proper examination of the record would have disclosed plaintiff’s interest in the timber but in utter disregard of the duty resting upon him he elected to rely upon Cahill’s possession and what Cahill said to him.

Cahill’s possession was, as far as notice to Reddick was concerned, only the equivalent of the recording* of the instrument under which Cahill claimed the right to possession. Cahill’s occupancy being that of a tenant his possession did not serve to give notice to Reddick of any rights other than that of a tenant, Garlick v. Imgruet, 340 Ill. 136, and as a tenant he had no right to sell or cut the standing timber. Nothing that Cahill said to Reddick as to his ownership of the land or his right to sell the timber would be binding upon plaintiff or operate to the prejudice of its rights in the timber, statements of Cahill that he had the right to sell the timber even though made while he was in possession did not serve to increase his rights in the land from that of a tenant to a greater title with the power to sell the standing timber. There was nothing-in the fact that Cahill was in possession and claimed to have the right to sell the standing- timber that released Reddick from the duty of examining the records to determine the holder of the record title. Under the circumstances Reddick’s trespasses into the premises and the felling of the trees was in utter disregard of plaintiff’s rights and must be held to have been knowingly and wilfully committed.

The remaining question is whether the penalty imposed by statute for such an act when knowingly and wilfully committed by the agent of a corporation can be imposed upon the principal.

The Supreme Court has said that the section relied upon has a two-fold purpose viz., compensation to the one injured and punishment of the wrongdoers. That which is imposed as a punishment is in effect a statutory provision for the allowance of punitive damages. Punitive damages and the penalty imposed by the statute possess the same basic principle in that both are penal and intended to deter others from the commission of like offenses.

To establish a liability under the statute or a liability in a civil action for punitive damages it must appear in each case that the wrong was knowingly and wilfully committed. The action is authorized by the statute, to be brought by the plaintiff and the amount recovered is payable to him. We cannot make any distinction between a civil action for punitive damages and an action to recover this statutory penalty.

It has been repeatedly held that corporations may be held liable for punitive damages where the wrong was committed by a servant while acting within the scope of his employment. 15 Am. Jur. 733, sec. 291; Pullman Palace Car Co. v. Reed, 75 Ill. 125; Chicago City Ry. Co. v. McMahon, 103 Ill. 485.

In this case Reddick was in the exercise of a corporate power, engaged in the performance of a duty delegated to him by the company, and in the performance of that duty he knowingly and wilfully committed the wrongful act to the injury of the plaintiff. He did not commit the wrongful act in the furtherance of his own interest but in the course of legitimate and authorized business of the company. It is true he violated the instruction of the defendant to examine the records but such violation was in his capacity as agent acting for his principal in matters he had been expressly authorized. We believe the liability of the defendant was established.

The judgment of the circuit court is correct and is affirmed.

Judgment affirmed.


text:
    Paul Bensman, By William Bensman, His Father and Next Friend, Appellant, v. Edgar M. Reed, Appellee.

      Opinion filed March 13, 1939.
    Jacoby & Daly and Emerson Baetz, both of Alton, for appellant.
    G-eers & Geers, of East St. Louis, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.

Plaintiff, a minor, by his next friend instituted this suit against Edgar M. Reed and John W. Reed, to recover damages for personal injuries sustained when the automobile driven by John W. Reed, but owned by Edgar M. Reed collided with a motorcycle upon which plaintiff was riding as a guest. Plaintiff dismissed the suit as to John W. Reed before trial, and the case proceeded against Edgar M. Reed. Plaintiff secured a verdict for $4,500 but the court entered a judgment for defendant non obstante veredicto.

John W. Reed is the son of defendant Edgar M. Reed. At the time of the accident John was 21 years of age and resided with his father. With the consent of the father he drove the father’s automobile for purposes of his own and at the time of the accident was engaged on such a trip. At the age of 6 John suffered the complete loss of his left eye and serious damage to the right.

Plaintiff does not contend that there was any relationship of master and servant or principal and agent existing between the defendant and John and concedes that the “family purpose” doctrine is not the law of this State. Plaintiff’s theory is that the accident was caused by John’s negligence and that he committed the negligent act by reason of his defective vision; that the defendant knew of John’s defective vision and knew that it rendered him an incompetent driver and that having permitted John to drive his automobile under such conditions he is now answerable to plaintiff in damages.

The only question presented is as to the correctness of the court’s ruling entering a judgment for defendant non obstante veredicto.

It is well established that an automobile is not so dangerous an agency as to make the owner liable for injuries caused by it regardless of the agency of the driver and that it is not dangerous per se, Arkin v. Page, 287 Ill. 420 and the owner who merely permits another to use it for his own purpose is not liable for the negligence of the person so using it, White v. Seitz, 342 Ill. 266; Andersen v. Byrnes, 344 Ill. 240.

The question presented involves other considerations. It must be recognized as an undisputable fact that an automobile with all its capabilities for power and speed does when being driven by an incompetent or reckless driver become an instrument of potential danger.

If an incompetent or reckless driver while driving the automobile of another for his own purposes commits an act that causes the automobile to damage another, the action or movement or the failure to act that caused the automobile to commit the injury was the act of the driver, but the owner’s permission for the incompetent driver to drive his automobile supplied the instrumentality, the use of which combined with the negligent act of the driver caused the injury. The permission of the owner sets in motion one of the agencies which makes possible the commission of the negligent act.

There is a well-founded principle of law that an owner of property has a duty to use his property so as not to injure another and it is but a sequence of that rule that places the duty upon the owner to deny permission to another to drive his automobile for his own purposes when he knows such person is an incompetent or reckless driver or by the exercise of reasonable diligence he could have known of such incompetency or recklessness.

The only Illinois case cited or that we have been able to find bearing upon this question is Union Bank of Chicago v. Kalkhurst, 265 Ill. App. 254 where the court said, “Where the owner intrusts such a machine to an inexperienced or incompetent person, liability for damages may arise.” The weight of authority as shown by the following cases supports these conclusions: Robertson v. Aldridge, 185 N. C. 292, 116 S. E. 742; Crowell v. Duncan, 145 Va. 489, 134 S. E. 576, 50 A. L. R. 1425; Elliott v. Harding, 107 Ohio St. 501, 140 N. E. 338, 36 A. L. R. 1128; Priestly v. Skourup, 142 Kan. 127, 45 P. (2d) 852; Brady v. B & B Ice Co., 242 Ky. 138, 45 S. W. (2d) 1051; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Tanis v. Eding, 265 Mich. 94, 251 N. W. 367; Gardiner v. Solomon, 200 Ala. 115, 75 So. 621; Mitchell v. Churches, 119 Wash. 547, 206 Pac. 6.

The liability of the owner does not arise by merely proving that he gave permission to an incompetent driver to drive his automobile but it must also appear that the incompetency alleged was the proximate cause of the commission of the negligent act which caused the injury. In this case the incompetency alleged is John’s defective vision and as one of the elements of a cause of action it was incumbent upon plaintiff to prove that John’s negligent act in the management of the car was caused by his incompetency arising out of defective vision.

In the consideration of this question the trial court and this court cannot weigh and determine controverted questions on the weight of the evidence. We are limited to a consideration of whether there is evidence to sustain plaintiff’s case and to give the plaintiff the benefit of all the facts that the evidence tends to prove and all just inferences that can be drawn therefrom and to consider as true the evidence which is most favorable to plaintiff. Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312; Libby, McNeil & Libby v. Cook, 222 Ill. 206; Blumb v. Getz, 366 Ill. 273.

The evidence shows that from the time of John’s injury and the complete loss of the left eye at the age of 6 until he was 15 the vision of the right eye was impaired. During that period he studied and took his school work by means of the Braille system. At 15 his eye had improved and he attended the public schools and took his school work from books in common use. After he was 15 and continuing until the time of the accident he drove automobiles on various occasions, not only in his home, city of Alton, but made a trip or two to St. Louis and various other places.

Plaintiff introduced the evidence of two of John’s schoolmates who testified that they had seen him walk fast and “bump” into other students. One who lived near John’s home testified to having seen him backing an automobile out of his yard and that he came near backing into him.

During- the trial plaintiff’s attorney propounded certain questions which were in the nature of a test as to his ability to discern and correctly describe certain objects in the courtroom. Some of these tests were made without glasses and it is apparent that without glasses the vision of his right eye is impaired. The tests made with glasses appear to have been as accurate as would be expected from a person with one eye. With glasses he readily told the number of spectators in the first row, t-he number of jurors in a certain row, the color' of their clothing and the color of the clothing worn by the attorney examining him.

The accident happened about 10:30 at night on an east and west street in Alton. The parties were going in opposite directions. Just before the collision John was driving in an easterly direction some distance from the curb on his right. He was following a car and he suddenly turned to his left, crossed the center line of the pavement and collided with the motorcycle. The motorcycle had 3 lights. John testified he saw these lights more than a half a block away. There is no evidence contradicting him on that point. He testified that he saw the car ahead, also a car parked near the curb to his right, that the lights were burning on it and that he thought it was leaving the curb and that he turned his car to the left to avoid a collision with it.

Dr. Middleton, an eye specialist, testifying for defendant stated that he examined John’s eye about 6 months prior to the accident and he gave it as his opinion that the vision of John’s right eye with glasses was almost normal and that he could read at a distance of 20 feet the same letters that the normal eye could read. He stated that his vision for driving was equal to that of any one-eyed person with a normal eye. It appears that John always wore glasses.

It is our conclusion thay there is no evidence which tends to prove that John’s defective vision was the cause of his negligent act. It may be conceded that he was negligent in making the turn at the time and under the circumstances he did but this does not establish that such negligent act was caused by defective vision.

For the reasons given the judgment of the trial court is affirmed.

Judgment affirmed. -.


author: Mr. Justice Edwards

text:
    Sidney J. Allen and Claude E. Allen, Administrator of Estate of Ida C. Allen, Deceased, Appellants, v. Illinois Mineral Company et al., Appellees.

      Opinion filed March 13, 1939.
    Joe Crain, of Mound City, and Miller & Miller, of Cairo, for appellants; C. 8. Miller, of counsel.
    Dewet & Cummins, of Cairo, for appellees; William S. Dewet, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

This is a suit in chancery brought by Sidney J. Allen and Ida C. Allen, his wife, against International Silica Company, Illinois Mineral Products Company, And M. Davis and Jesse Rhymer, defendants, in which plaintiffs ask for an accounting for silica said to have been taken from certain lands, which they claim to own, by virtue of a lease entered into between plaintiffs and defendant And M. Davis, which was assigned by Davis to the International Silica Company, and by the latter assigned to the Illinois Mineral Company. The suit was subsequently dismissed as to the International Silica Company. Following the trial Ida C. Allen died, and Claude E. Allen, administrator of her estate, was substituted as a party plaintiff.

Defendants admit the execution of the lease and title of plaintiffs to the land which it covered, but deny that any silica was mined under such premises or that an "accounting was due, or that they were indebted to plaintiffs on such account. A decree was entered dismissing the complaint for want of equity, and plaintiffs seek by this appeal to reverse such order.

It is conceded by both parties that the silica mined by defendants was not taken from below the surface of the land to which plaintiffs had record title, but from under an adjoining tract which plaintiffs claim to own by adverse possession, which ownership is disputed by defendant Rhymer who asserts that he is the owner of same. In addition to the prayer for accounting, plaintiffs sought an injunction to restrain defendants from taking any more silica from such premises.

Plaintiffs’ case is based upon their claim of adverse possession to the strip of land under which the silica was mined, and if they had not acquired title thereto by prescription their case falls. It will thus be seen that the foundation of plaintiffs’ case is based upon the determination of the legal title to such land, which is a matter ordinarily to be decided by a court of law in an appropriate proceeding, and not to be heard in equity; Livingston County B. & L. Ass’n v. Keach, 219 Ill. 9. The only way in which plaintiffs can invoke the aid of a court of chancery in such situation is upon the theory that an accounting of rents and royalties is necessary and of a character that will justify a court of equity in hearing same.

Defendants did not by motion, nor in their answer, set up a lack of jurisdiction of the trial court to entertain the cause, nor did they assert that plaintiffs had an adequate remedy at law in the premises. However, it appears to be the settled law of this State that such defense may be raised, though not claimed by motion or answer, where the proofs clearly establish that such accounting was unnecessary; Toledo St. L. & N. O. River R. Co. v. St. Louis & O. River R., 208 Ill. 623; Hogg v. Hohmann, 330 Ill. 589. The rule is based upon the familiar principle that if a court has no jurisdiction of the subject matter of a suit the parties cannot, by consent or act, invest the court with such authority, and that lack of jurisdiction to hear a cause is a question which can be raised at any time it becomes manifest, whether proposed by the pleadings or not.

It is not every matter of account which is cognizable in equity. Corpus Juris Secundum, vol. 1, p. 646, sec. 14, states the law relative thereto as follows: “The true rule is that the mere existence of an account will not confer jurisdiction, and that to warrant the interference of equity there must be a fiduciary relation, or mutual or complicated accounts or a need of discovery, or some other special ground of equitable jurisdiction, such as fraud, unless the circumstances of the fraud are such that adequate relief could be had in a court of law. ’ ’

In County of Cook v. Davis, 143 Ill. 151, an accounting suit, in passing upon this proposition the court ruled: “Where a court of law is competent to afford an adequate and ample remedy, courts of equity will remit the parties to the courts of law, where the right of trial by jury is secured to them. In such cases either party has a right to demand that the matter of the defendant’s liability be submitted to a jury according to the course of the common law, and unless some special and substantial ground of equity jurisdiction be alleged, and, if necessary, proved, such as that a lien exists for the money demand which cannot be adequately enforced at law, or that discovery is necessary to a recovery by complainant, or other like equitable considerations affecting the adequacy of the remedy at law, courts of equity will decline to interfere. ’ ’

Also, in the same case, on page 155, the court says: “In actions cognizable at law the mere fact that an accounting is necessary, even when there are cross-accounts, is insufficient to give a court of equity jurisdiction, (Hadley v. Morrison, 39 Ill. 392,) ‘the general rule being that a proper case is presented whén the remedies at law are inadequate.’ ” And to the same effect are, People v. Small, 319 Ill. 437; Farrar v. Pillsbury, 217 Mass. 330, 104 N. E. 737; City of Iron Mountain v. Iron Mountain Waterworks, 206 Mich. 537, 173 N. W. 612; Becker v. Frederick W. Lipps Co., 131 Md. 301, 101 Atl. 783; Diehnelt Inc. v. Root, 183 Wis. 535, 198 N. W. 388.

The complaint must show that plaintiff has no adequate legal remedy and must allege some special and substantial ground of equity jurisdiction such as fraud, the need of a discovery, the mutuality or complexity of accounts, or the existence of a fiduciary relation; Custis v. Serrill, 303 Pa. 267, 154 Atl. 487; Duncan v. Dazey, 318 Ill. 500; Boriss Const. Co. v. Deasey, 212 Ala. 528, 103 So. 470; Croft Land Co. v. Royal Block Coal Co., 87 W. Va. 570, 105 S. E. 799; Reynolds v. Hook, 109 Cal. App. 226, 292 Pac. 1000. None of these elements are charged in the complaint, except the averment that defendants International Silica Company, Davis and Rhymer, conspired to defraud plaintiffs out of the silica so mined. This, however, is but the conclusion of the pleader, and sets forth no facts from which a conspiracy to defraud might be inferred, hence as an allegation of fraud is wholly insufficient; Dickinson v. Dickinson, 305 Ill. 521.

Plaintiffs’ case, as thus stated, is but a money demand for silica mined and unpaid for, based upon the contention that it was taken from land to which they had acquired title by adverse possession, the determination of which question was precedent to establishing their right of recovery. Within the rule of the authorities cited the complaint did not state a cause of which a court of equity would have jurisdiction. Upon the hearing the proof failed to show any reason why a court of law could not hear and adjudicate the cause as well as one in chancery; no fraud was proved, no fiduciary relation was shown, there was no mutuality of accounts, and nothing appeared to indicate a need for discovery. There were numerous items shown of the taking of silica, which, if -plaintiffs’ claim is well founded, would give rise to a recovery; however, the mere fact that the account involves a great number of items does not alone and of itself present a case of complexity of account which justifies or requires the aid of equity; American Spirits Mfg. Co. v. Easton, 120 Fed. 440; Church v. Anti-Kalsomine Co., 118 Mich. 219, 76 N. W. 383.

The Appellate Court of the First District, in Calumet Nat. Bank v. Friendship B. & L. Ass’n, 250 Ill. App. 322, at page 328, in passing upon this proposition, held: “The fact that 211 checks are involved in the proceeding does not necessarily, of itself, constitute an action so complicated and involved that it cannot be tried at law. ’ ’

Here no special grounds of equitable jurisdiction are either averred or proven, which are necessary to confer power upon a court of chancery to decree upon an accounting. The most that can be said is that it is an action to collect a debt, which can be as well heard and determined in a court of law where plaintiffs would have a complete and adequate remedy for the enforcement of their rights; hence the chancellor rightly dismissed the complaint for want of equity.

The decree is affirmed, without prejudice to plaintiffs to bring an appropriate action at law if they be so advised.

Decree affirmed.


text:
    Gordon Pillow, Appellee, v. Rollin Long and Harold Pangborn, Copartners, Trading as The Radio Shoppe, and La Verne Spiller, Appellants.

      Opinion filed March 13, 1939.
    Loyd M. Bradley, of Carbondale, and D. L. Duty, of Marion, for appellants.
    Store & Fowler, of Marion, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff sued defendants Rollin Long and Harold Pangborn, copartners, doing business under the firm name of The Radio Shoppe, and La Verne Spiller, to recover for injuries claimed to have resulted from his being struck by an automobile owned by Long and Pangborn and driven by their servant Spiller, on August 16, 1937, upon the public street abutting the court house in the city of Marion. A jury found for defendants; the trial court awarded plaintiff a new trial, and this court granted defendants leave to appeal therefrom.

The record fails to show the reasons of the trial judge for his action in setting aside the verdict. When a new trial is granted, the views of the trial judge expressed in sustaining the motion therefor should be incorporated in the record in order that the reviewing court may know what prompted his action; Couch v. Southern Ry. Co., 294 Ill. App. 490.

The-complaint consisted of two counts, the first of which charged wilful and wanton conduct as the cause of the accident, while the second count was based upon ordinary negligence.

Defendants insist that their motion for a directed verdict under the first count should have been sustained. In the consideration of such motions, if it appears that the record contains any evidence which, considered by itself most strongly, reasonably tends to support the plaintiff’s claim, the motion must be denied; Blumb v. Getz, 366 Ill. 273. We have considered such proof and are of opinion that upon the evidence submitted by plaintiff, tested by the rule as declared by this court in Layton v. Ogonoski, 256 Ill. App. 461, the court properly overruled such motion.

Plaintiff contends that the instructions upon behalf of defendants were to a considerable extent erroneous, and operated to his prejudice.

Instruction No. 18 told the jury that the burden was not upon the defendants to show that they were not guilty of the negligence charged, but was upon the plaintiff to prove that defendants were so guilty, and also to establish that plaintiff was in the exercise of ordinary care for his own safety, and that “this rule as to the burden of proof is binding in law, and must govern the jury in deciding this case. ’ ’

It will be observed that the direction was not confined to the second count of the complaint which charged ordinary negligence, and to which it was applicable. The first count alleged wilful and wanton conduct, against which plaintiff’s lack of due care would be no defense, and to sustain which charge he was not bound to prove such care on his own part. The instruction was not limited to the second count, hence its giving was erroneous, as it in effect required plaintiff to prove due care on his part in order to recover; a burden he was not bound to assume under the first count; Hurzon v. Schmitz, 262 Ill. App. 337; Mantonya v. Wilbur Lumber Co., 251 Ill. App. 364.

Defendants’ instructions numbered 6, 7, 8, 9 and 11, relate to contributory negligence on the part of plaintiff, and all but one of them refer to the question of whether he looked for approaching vehicles before he started to cross the street. These placed an undue emphasis upon such proposition and called the jury’s attention repeatedly to one item of proof.

Such repetition of instructions upon a single point in a case has been held to be error, as giving undue prominence to such matter. In City of Lake Forest v. Janowitz, 295 Ill. App. 289, where seven instructions were given on the question of contributory negligence, the court held that by the giving of such number upon the same proposition, too much emphasis is placed upon one question of law and is misleading to the jury, and held same to be reversible error; and to the same effect is Watson Orchards, Inc. v. New York C. & St. L. R. Co., 250 Ill. App. 22. Here the trial court improperly gave so many charges upon the matter of plaintiff’s exercise of ordinary care, and especially so in view of the fact that it was not necessary for him to prove such matter in order to recover under the wilful and wanton count.

Instruction No. 12, upon the subject of wilful and wanton conduct, directed the jury that “plaintiff cannot recover in this suit unless' the jury further find from the evidence that the conduct of this defendant was malicious and willful, or wantonly reckless. ’ ’ This was wrong, as it was not necessary to prove the conduct of defendant to be malicious and wilful. It was, as a matter of law, sufficient to establish by proof that the acts of defendants were wilful, as held in Gannon v. Kiel, 251 Ill. App. 389.

Instruction No. 14 is substantially like No. 12, and is subject to the same objection.

The court, in instruction No. 16, charged the jury that though they “may believe from the evidence that the accident in question is attributable to the want of ordinary care on the part of the defendants, the plaintiff cannot recover in this suit unless the jury further believe, from the evidence, that the defendant was guilty of such gross negligence as implies willful and wanton injury. ’ ’

It is observed that the jury are thus directed that “plaintiff cannot recover in this suit” unless the jury further believe that defendants were guilty of wilful and wanton conduct. To recove^ under the negligence count it was not necessary to make such further proof, yet the instruction placed such burden upon the plaintiff. It was incorrect as a statement of law applicable to the second count, and its giving was error, both serious and prejudicial; Hurzon v. Schmitz, supra.

The proof was conflicting upon the vital questions in the cause and "it was important that the jury be accurately instructed. Such was not done, and it is manifest that the trial judge could not have properly done otherwise than- award a new trial.

Order affirmed.


text:
    Harold Larimore, Appellee, v. Nellie Larimore, Appellant.
    Opinion filed March 13, 1939.

      Matheny & Welker, of Vandalia, for appellant.
    J. Gr. Burnside, of Vandalia, and Parker, Bauer & Parker, of Effingham, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

In November, 1935, plaintiff and defendant were married and took up their residence on a farm owned by plaintiff, his mother living with them as a member of the family. Defendant and her mother-in-law did not get along pleasantly and in May, 1936, after a disagreement, the former left the house and did not return. Plaintiff filed suit for divorce, alleging desertion. Defendant in her answer denied the charge and filed a countercomplaint asking for separate maintenance, also a decretal order that plaintiff refund to her certain moneys she claimed to have loaned him. Issues being joined, the cause was heard before a jury who found for defendant upon the questions of fact. Plaintiff filed a motion for judgment notwithstanding the verdict, which the court sustained and entered a decree granting plaintiff a divorce upon the ground of desertion, from which defendant has appealed.

Defendant insists that there is evidence in the record tending to support her defense against the charge of desertion, and that such being the case the trial court was without authority to do more than award a new trial if he was of the opinion that the verdict was contrary to the weight of the evidence.

A motion for judgment notwithstanding the verdict is, in effect, the same as one to direct a verdict (Synwolt v. Klank, 296 Ill. App. 79), and as such is tested by the same rule, which is that the motion raises a question of law and all the trial court is empowered to do is determine whether there is, or is not, evidence which construed in its light most favorable to the party against whom the motion is directed, reasonably tends to prove the contention of such party. If there be such proof the court is bound to overrule the motion, even though of the opinion that the greater weight of the evidence may appear to be on the other side; Mirich v. Forschner Contracting Co., 312 Ill. 343; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471.

Plaintiff, to establish the charge of desertion, was required to prove that defendant had absented herself and remained away from him without any reasonable cause and against his will; Garvy v. Garvy, 282 Ill. App. 485. It is also the law that if married parties separate by mutual consent, and so remain apart, there is no such legal desertion on the part of either as constitutes ground for divorce; Lyons v. Lyons, 231 Ill. App. 568.

Where the complainant in a divorce proceeding has, either expressly or impliedly, consented to the original separation or its continuance, and has not revoked such consent, he is not entitled to a divorce for desertion; 19 Corpus Juris, p. 64, sec. 120; and if such appears in defense, it is a bar to the action.

Defendant testified that the night before she left she informed plaintiff that she could no longer stand living in the same home with his mother; that he told her to stay with her parents; that he would provide a new home for his mother; and that when she had gone he would come and get defendant. That pursuant to such advice she left, went to the home of her parents, and for several days thereafter visited her husband each day at the place where he was working in the field, and that on each occasion he stated that his mother was about to leave, or arranging to do so, and that as soon as she left he would come and take her back to his home, and that she told him she was willing to go. The father of defendant stated that shortly thereafter plaintiff came to his home and informed Mm that he had come to the place where he must choose between Ms wife and his mother and had chosen Ms mother; that he said he would bring his wife’s clothes over, which he did 2 days later, and that he (the father) communicated this information to the defendant. Defendant further testified that her husband never thereafter asked her to return or live with him.

A. E. Kretzger, a bank cashier, testified that plaintiff, in conversation with him, said they had him in a spot; “I had to make a choice and I chose my mother, and I am not sorry for it. ” S. S. Miller deposed that he went with defendant’s father to get her belongings; that her father asked plaintiff to state why he and defendant were not living together, and that plaintiff replied that Nell was a nice girl but that he had to choose between her and his mother. Finnis Payne, present at the same conversation, testified that plaintiff said he couldn’t give up his mother for Nell, and that if he had to make a choice he would give up Nell. Lawrence Ohlinger stated that he heard plaintiff say he had to choose one or the other and that he chose his mother.

Plaintiff, interrogated as to such conversations, did not in terms deny them but said he did not recall having made such admissions, and further stated: “I don’t know what I said to them.” Defendant’s mother also testified that she heard him say he had to give Nell up for his mother and that he did not want her any more. Plaintiff did not contradict this. Plaintiff denied that he and his wife separated by agreement or that he told her to stay at her parents’ home until he could make a new home for his mother.

It is thus apparent there was ample testimony which warranted the jury in believing that the separation was with the consent, if not by the connivance, of plaintiff, and that after he sent word to her that he had chosen his mother in preference to her, and had told same promiscuously to others, she was justified in the belief that he did not desire her return. If such be true, it cannot be said that she “wilfully deserted” her husband, or that she absented herself from him “without any reasonable cause.”

We think the jury were warranted in finding the issues for defendant and that the court erred in sustaining plaintiff’s motion for judgment non obstante veredicto.

Plaintiff asserts no error at the trial which would have entitled him to a new trial had his motion for judgment notwithstanding the verdict been overruled, hence under clause (c), paragraph 3, of section 68, of the Civil Practice Act [ch. 110, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 104.068], it is incumbent upon us to order the trial court to enter its decree in accord with the jury’s finding.

Reversed and remanded with directions to enter a decree in conformity with the verdict.

Reversed and remanded.


text:
    Pearl Jones, Appellee, v. Glen Esenberg, Appellant.

      Opinion filed March 13, 1939.
    Burroughs, Simpson & Reed, of Edwardsville, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Pearl Jones brought suit against Glen Esenberg and Edward Esenberg to recover damages for injuries sustained by her in an automobile collision, occasioned, as she claimed, by the negligent driving of a car by Glen Esenberg. The suit was dismissed as to Edward Esenberg and the cause proceeded against the remaining defendant.

Upon the trial a jury found for plaintiff and assessed her damages at $2,500, upon which judgment was entered and from which defendant appeals. The usual motions for directed verdicts and for a new trial were made and overruled by the court, and such rulings form the basis of this review.

The principal contention of defendant is that the verdict is contrary to the manifest weight of the evidence.

The proof discloses that on June 13, 1937, at about 10:30 p. m., plaintiff was riding with Virgil Schrepferman in his car along State Highway No. 40, traveling southerly toward Collinsville, at a speed of something like 25 miles per hour. On the west side of the highway, at the outskirts of Collinsville, is an amusement place or tavern known as Russian Tony’s; southerly and on the east side of the pavement is a filling station, while still further to the south of the filling station, and on the west side of the highway, is a business house known as Ullman’s store.

At the time mentioned there was in progress at Russian Tony’s a celebration attended by a large crowd of people. Defendant, in company with some young friends, Clarice Dixon, Evelyn Fleschsig and Harold Hanke, had parked their car in the premises of the filling station. After attending the festivities at the tavern they departed at about 10:30, went to the filling station, got into their car, and with defendant driving backed it around and turned into the highway. Each of them states that defendant, as he came to the street line, stopped Ms car for 5 or 10 seconds, looked both ways for approaching cars, then started westerly over the cement pavement of 3 traffic lanes until he reached the one furtherest west, when he turned south, proceeded sometMng like 150 feet, and when in front of Ullman’s store and entirely in the west line of traffic, a northbound car driven by Dorothy EtcMll, accompanied by her husband Bernard EtcMll, came across from the east side of the cement slab and struck defendant’s car, crippling it and causing it to stop.

Mrs. Etchill states that as they came northerly, defendant’s car, without stopping, shot out from the filling station and crossed the pavement in a southwesterly direction; that she thought defendant was going to stop, and pulled to the center of the highway; that when she realized he would not do so she tried to turn behind his car, and that his auto then struck the left fender of her car, causing it to swerve to his rear, in the path of the southbound car in which plaintiff was riding, colliding with it and occasiomng the injuries to plaintiff. The husband’s testimony is corroborative and to the same effect as her statements.

Plaintiff and her escort, Schrepferman, both testified that as they drove southerly they were at all times on the west side of the pavement; that they saw defendant’s car pull out from the filling station; that it did not stop before entering the roadway; that it proceeded southwesterly and struck the EtcMll car, and that thereupon it swerved in front of their car and caused the collision. Both further stated that defendant’s car and the one driven by Mrs. Etchill collided on the east side of the-pavement, and that defendant’s car was never over the black line until it struck the one driven by her.

Witnesses Schurmann and Meadows deposed that the Etchill car, just previous to the accident, was traveling'" northerly on the center or west side of the pavement, and that defendant was in the west lane until the collision. Two police officers and a garage man testified mainly as to estimates of distances and locations. The police magistrate of Collinsville gave evidence that shortly after the occurrence the defendant stated to him: “The accident was all my fault; I came out of the filling station without stopping.”

The foregoing epitome of the testimony reveals that the proof on the questions of negligence and proximate cause of collision was in conflict, and where such is the fact the trial court is without authority to weigh the evidence and direct a verdict for the defendant; Mirich v. Forschner Contracting Co., 312 Ill. 343.

There is earnest insistence that the verdict is against the manifest weight of the proof, and that the trial court should have awarded a new trial for such reason. Courts of review are reluctant to substitute their judgment for that of a jury upon controverted questions of fact, and while they have the power, and it is their duty to do so when convinced that the verdict is palpably against the weight of the evidence and that the jury in its rendition must have been moved by some ulterior and improper motive, yet such fact must clearly and unmistakably appear before the finding will for such reason be disturbed; People v. Hanisch, 361 Ill. 465; Carney v. Sheedy, 295 Ill. 78.

It is primarily for the jury to weigh the testimony, test the credibility of the witnesses, determine who are the more worthy of belief, and give credit accordingly; Oswald v. Grand Trunk Western Ry. Co., 283 Ill. App. 86; Voellinger v. Kohl, 261 Ill. App. 271.

Defendant asserts that more witnesses testified in support of his contention than deposed for the plaintiff. While this is a circumstance to be considered in determining the weight of the evidence, it is not, alone and of itself, conclusive, as it is conceivable that there may be something in the appearance or demeanor of the witnesses, or the attending circumstances, which will cause the mind to believe that the truth lies in the statements of the lesser number; Kravitz v. Chicago City Ry. Co., 174 Ill. App. 182.

There were circumstances in the proof which bore upon the credibility of the different witnesses. Defendant urges that plaintiff, Schrepferman and the Etchills all admitted that they were interested in the outcome of the suit and are thereby discredited. We do not agree; their frankness in admitting such fact seems to us a badge of honesty.

Defendant and his three youthful companions, after an evening of enjoyment at Russian Tony’s, state with one accord the details of all that happened after they re-entered the car at the filling station; all agreeing that defendant stopped at the street line for 5 or 10 seconds before starting over the pavement. That four young people, after spending some hours at a tavern and starting homeward with the exuberance and carefreeness of youth, should remember with precision each detail of events prior to the collision and fully agree with respect to same, where there had been nothing before the accident to impress such matters upon their minds, is rather singular and no doubt was so regarded by the jury.

We think there was sufficient in the record bearing upon the credibility of the witnesses for both sides to justify the finding of the jury that the negligence of defendant was the proximate cause of the injury.

Complaint is made of two instructions given at the instance of plaintiff. No. 3 told the jury among other things that “the plaintiff is not required to prove her case beyond a reasonable doubt; a preponderance of the evidence in her favor is sufficient.” It has been repeatedly held that such an instruction is a proper charge to the jury; Pierson v. Lyon & Healy, 243 Ill. 370; Chicago Consolidated Traction Co. v. Schritter, 222 Ill. 364.

It is also urged that the instruction is erroneous because it refers to her case without advising the jury what elements she must prove prior to establishing her case.

The first instruction given for defendant enumerated the various propositions which plaintiff must prove, and charged that if she failed to establish any one of them she could not recover. The instructions are considered as a series, and a deficiency in one may be supplied by the contents of another. If there was a lack of necessary elements in instruction No. 3, defendant’s first instruction included and covered the deficiency and, as a series, the direction as to this proposition was sufficient; Minnis v. Friend, 360 Ill. 328; People v. Falley, 366 Ill. 545.

Plaintiff’s instruction No. 4 told the jury, among other matters, “she was not required to exercise extraordinary care and diligence for her own safety,” and such is charged as error as tending to minimize the degree of care plaintiff was bound to have shown for her own safety. This instruction correctly defined the degree of care required of plaintiff, and concluded with the quoted sentence. Such an instruction has met with the approval of the Supreme Court (West Chicago St. R. Co. v. McNulty, 166 Ill. 203; Walsh v. Chicago Rys. Co., 303 Ill. 339), and it was properly given.

We find no reversible error in the record and the judgment will be affirmed.

Judgment affirmed.


text:
    Leona Burke, Appellee, v. Leon Zwick, Appellant.

      Opinion filed March 13, 1939.
    Warford & Franklin, of Marion, for appellant.
    D. L. Duty, of Marion, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff, Leona Burke, brought suit against Leon Zwick, defendant, in the circuit court of Williamson county to recover for. injuries sustained, as she alleged, from being struck by an automobile owned and driven by defendant. There was a trial by jury, a verdict for plaintiff in the sum of $5,750, upon which judgment was rendered, and to reverse which this appeal has been taken.

The' proof bearing upon the matter of liability was conflicting, and as we view the matter was close upon the question of liability. Where such is true it is essential that there be no serious error in the ruling of the trial court upon matters of evidence, and that the jury be accurately instructed as to the law of the case; Franks v. Matson, 211 Ill. 338; Monroe v. Wear, 276 Ill. App. 570.

Defendant complains of the court’s ruling in one matter of evidence. It appears that the chief of police of the city of Herrin was called to impeach the testimony of Thomas Triplett, a witness for plaintiff. After he had stated that the general reputation of Triplett for truth and veracity was bad, he was asked the further question whether or not from that reputation he would believe him under oath. The court sustained plaintiff’s objection, and the ruling is assigned as error.

Where a witness has testified that another bears a generally bad reputation for truth, he may be asked whether from such reputation he would believe such person under oath; Laclede Bank v. Keeler, 109 Ill. 385; Eason v. Chapman, 21 Ill. 33.

We do not, however, think that plaintiff can, upon this record, complain of such ruling. It further appears that upon cross-examination the witness stated that he was giving his own private opinion, whereupon the court, at the request of plaintiff, properly instructed the jury to disregard the evidence. This amounted to striking it from the record in its entirety. The witness, upon redirect examination, stated that he did not comprehend the question, and that what he wished to be understood as saying was that his opinion was based upon the common speech of the people who lived in the community with Triplett. He was not, however, again asked whether he would believe him under oath from such reputation, hence the question is not properly presented for review.

It is urged that certain of plaintiff’s given instructions were erroneous.

Instruction No. 4 was: “Every sane person must, under the law, be held liable for all those consequences which flow naturally or directly from his acts or omissions to act which might have reasonably been foreseen or expected, as a result of his acts or omissions to act, when such acts or omissions to act are unlawful. ’ ’

The instruction is an abstract legal proposition. The practice of giving such has been repeatedly disapproved by the courts of this State because of the tendency of such charge, not made applicable to the evidence, to mislead the jury; Mayer v. Springer, 192 Ill. 270; Smith v. Illinois Power Co., 279 Ill. App. 505. As said in Mayer v. Springer, supra: “It is the duty of the court to give to the jury, in its instructions, rules of law which are applicable to the evidence in the case, and to make the application so that the jury may understand the relation of the rules to the evidence.”

Here the complaint charged defendant with violation of at least two statutory provisions governing automobile traffic. No doubt such was argued to the jury, who, attempting to apply the instruction to the evidence, would likely gather the impression that the court was of the opinion that defendant had violated the statute, and be misled thereby. Under such circumstances its giving was error; Garvey v. Chicago Rys. Co., 339 Ill. 276; Williams v. Stearns, 256 Ill. App. 425.

Instruction No. 5, given at plaintiff’s instance, relating to the measure of damages, told the jury that they might consider “all the facts and circumstances bearing upon the question of damages,” also certain enumerated items of damage, and then directed them: ‘1 and from all these things, together with all the other evidence and facts and circumstances in evidence, you are to determine the amount of damages which the plaintiff is entitled to recover, if any.”

An instruction on the amount of damages should limit the juiy to a consideration of the evidence which bears upon such question, and not proof relating to some other branch of the case. Here they were directed to consider the evidence relating to such question, also specific items which amount to damage, and in addition were peremptorily ordered to take into account all the other evidence in the case, that which regarded the matter of liability as well as to the amount of injury. Instructions such as this have been repeatedly condemned; Garvey v. Chicago Rys. Co., supra; Levitan v. Chicago City Ry. Co., 203 Ill. App. 441. The instruction was erroneously given.

Plaintiff’s given instruction No. 8 was a copy of a part of a statutory section of the Motor Vehicles Act, and was as follows: “You are instructed that the statutes of this State provide as follows: ‘Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding a horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon any roadway. ’ ” This is an abstract legal proposition, not by its terms made applicable to the facts, and as such is liable to confuse the jury; Williams v. Stearns, supra; City of Chicago v. Sutton, 136 Ill. App. 221. We think it should have been refused.

With the evidence close upon the essential questions involved, we are of opinion that the giving of such instructions constituted such- error as to necessitate a reversal of the judgment.

Plaintiff’s given instruction No. 10 is also criticised. We do not think it was a proper charge, and inasmuch as the cause will be remanded we shall here state our views in respect thereto. In the instruction three charges of negligence are made against defendant, as being the direct cause of her injuries; first, that he was driving at a rate of speed greater than was reasonable and proper; second, that he failed and neglected to keep a proper lookout for pedestrians; third, that he failed to give warning of his approach, when necessary, by sounding a horn or otherwise; and that if the jury believe from the greater weight of the evidence that plaintiff has proven all or either one of these charges, and that at and just prior to the accident she was in the exercise of due care for her own safety, then the verdict should be for the plaintiff.

It is thus seen that three charges of negligence are alleged against defendant and specifically enumerated. The acts or omissions complained of, or at least a part of them, are violations of the Motor Vehicles Act, and the effect of the charge is to direct the jury that if they, or any one of them, are proven, such statutory violation would per se amount to negligence. Such is not the law of this State.

In Brackett v. Builders Lumber Co., 253 Ill. App. 107, where a similar direction was given, the court said: “The mere failure to perform a statutory duty would not necessarily be negligent; failure to perform a statutory duty may be negligence if the circumstances under which the failure to observe the statute indicate a neglect of the duty; but mere failure to perform a statutory duty may not be negligence.”

In Miller v. Burch, 254 Ill. App. 387, a motor vehicle accident case, the court held: “Whatever the rule in other States may be, the rule supported by the weight of authority in Illinois is that the violation of an ordinance or a statute by acts, either of commission or omission, is only prima facie evidence of negligence.”

For which reasons the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Stoke

text:
    Harvey Isley, Administrator of Estate of Leo Isley, Deceased, Appellant, v. Fred R. McClandish, Appellee.

      Opinion filed March 13, 1939.
    Albert E. Islet and Kassermak & Kassermak, all of Newton, for appellant.
    Milo D. Yelvikgtok, of Newton, and Parker, Bauer & Parker, of Effingham, for appellee.
   Mr. Justice Stoke

delivered the opinion of the court.

This is an appeal by Harvey Isley, administrator of the estate of Leo Isley, deceased, plaintiff, from a judgment in his favor for the death of his intestate, a 7-year-old child, and against Fred R. MeClandish, defendant. The judgment on the verdict in the plaintiff’s favor was in the sum of $300. Plaintiff, appellant, complains of the inadequacy of the damages, of evidence said to be improperly admitted, and of instructions said to be improperly refused.

The evidence showed that the injury occurred when defendant’s car ran over plaintiff’s intestate on a straight road which ran alongside the farm of Harvey Isley, at the point where the driveway from the barnyard of the Isley farm joined the road. The road was well traveled, and had a beaten track some 8 or 9 feet wide. The right of way from fence to fence was 42 feet. There was a ditch between the fence and the well traveled portion of the road.

Plaintiff’s intestate, Leo Isley, was in the road somewhere between the ditch and the well traveled portion. Clara Belle Isley, the only eyewitness to the boy’s position immediately prior to the accident, was unable to give his exact position but stated that he was “pretty close” to the beaten track. She was unable to state what part of the defendant’s car came in contact with the boy. She stated that she and her brother had been playing in the barn lot; that he had been out on the road one time shortly before the car came and then started toward the road again.

Harvey Isley, the father of the intestate, Leo Isley, was working on a hayrack in the field about 80 feet from the scene of the accident. There was nothing to obstruct his view of his son except the 10-year-old daughter, Clara Belle Isley, who was playing with the boy just before the accident. Harvey Isley noticed the car prior to the accident and states that it was traveling at a moderate rate of speed. He did not see the accident. He had looked down the road to see if it was clear, or whether the children were in the road. He did not see them “and couldn’t tell but what the road was clear.”

The accident occurred at 5:45 p. m. on September 6, 1937. The sun was still shining, about 30 minutes high.

The defendant testified that he was driving about 25 miles per hour by the Isley farm. As he was going by the home a little boy pulling a wagon suddenly appeared at his left-front fender. It was a fraction of a second from the time he saw the boy until the fender struck the boy or the boy struck the fender. Defendant stopped ".his car within 20 feet. Defendant stated that his car was in the beaten track.

There was some testimony by other witnesses to the effect that the children were accustomed to playing in the road. Two witnesses said they had stopped their car in the road to avoid hitting the children. A third witness said he had seen Leo Isley playing in the road. The defendant was permitted to testify that Mr. Harvey Isley said at the time of the accident, “If I had only hired a guard to guard these children. ’ ’ Another witness was permitted to testify that Mrs. Isley said at the scene of the accident, “Harve, I have expected something like this for a long time. I thought it might be the stock or the children, you know though, we have let the children grow up in the road. ’ ’

It is not clear whether the boy walked or ran into the car or whether the car hit him. There is nothing in the evidence to show how long the boy was on the road before the accident, and consequently it does not appear that he had been there for a sufficient length of time for one driving a car to see him. The evidence does show that the boy’s father, who, at a distance of 80 feet from the accident, glanced up and down the road, did not see him.

Plaintiff complains of the admission of evidence with respect to the,habits of plaintiff’s intestate, Leo Isley-. The testimony with respect to the boy playing in the road and the admissions, of the next of kin with respect to the same subject matter were undoubtedly introduced • for the purpose of showing contributory negligence on, .the part óf the next of kin. The rule is well established in this State that contributory negligence on the part of the next of kin will bar recovery by the administrator .on. behalf of the next of kin. Thomas v. Anthony, 179 Ill. App. 463; Follett v. Illinois C. R. Co., 288 Ill. 506; Ohnesorge v. Chicago City R. Co., 259 Ill. 424. We-think it was proper for the jury to consider whether action of parents- in permitting a 7-year-old- child to play in a public road constituted-negligence which contributed to the injury.

Plaintiff complains of certain instructions refused by the court. In substance the instructions charged that it was the duty of the driver to keep a lookout for persons on the highway, to anticipate the presence of others on the highway and to keep his machine under such control as would enable him to avoid injury to others on the highway using proper care and caution. A great deal of discretion as to form of instructions must be left to the trial court. The trial court may have believed that the instructions unduly emphasized the duties of the defendant with respect to maintaining the car under such control that he could stop it and unduly minimized defenses which the evidence in this case might warrant. There is no evidence that the child was in view at a time when the defendant’s car might have been controlled to avoid the accident. The record is barren of evidence as to the circumstances of the impact. While we find no major defect in the rule set forth in the instructions we cannot say that their refusal was reversible error in this case.

The most serious contention of the plaintiff and the one he relies most heavily on is that the trial court erred in refusing to grant a new trial for the reason that the damages awarded were inadequate.

It is true that courts have permitted large verdicts to stand in cases of wrongful death to minor children. It is also true that verdicts have been set aside for inadequacy of damages awarded. The clearest principle that can be derived from the cases on the subject of inadequate and excessive damages is that the courts are very slow to interfere with the judgment of the jury in such matters. A difficult question would be presented if we were compelled to say whether the jury were demonstrably wrong in concluding that the loss of this 7-year-old child, taking into consideration the expense of keeping the child, would be no greater than $300. However, other considerations presented by this record make it unnecessary for us to determine that question.

At common law, verdicts could not be set aside for insufficiency of damages awarded by the jury. Hackett v. Pratt, 52 Ill. App. 346; Belles v. Bloomington & N. Ry. Electric & Heating Co., 130 Ill. App. 263. Now the general rule is that a verdict will not be set aside and a new trial granted for inadequacy of damages unless it is clear that injustice has been done. Hackett v. Pratt, supra; Bolles v. Bloomington & N. Ry. Electric & Heating Co., supra. A new trial will be granted where nominal damages are awarded in place of substantial damages. A new trial will also be granted where the award of damages is so small as to make it wholly inconsistent with a verdict of guilt, if the verdict of guilt is proper. In cases where the damages are very small the court will look to the merits of the plaintiff’s case and will not declare a new trial unless such action would work substantial justice. Hackett v. Pratt, supra; Bolles v. Bloomington & N. Ry. Electric & Heating Co., supra; O’Malley v. Chicago City Ry., 33 Ill. App. 354, also reported in 30 Ill. App. 309; Scott v. O’Hair, 188 Ill. App. 26.

In O’Malley v. Chicago City Ry., supra, the principle involved is well stated, as follows:

“It may be conceded that the action of the jury was inconsistent, but the concession would furnish no consistent reason for inconsistency in the action of the court. If this case had come here with the reasons of the Judge of the Superior Court for denying the new trial, stating that he would grant it on the authority of Peaslee v. Glass, 61 Ill. 94, if the defendant would apply for it, but that on the application of the plaintiff he could not grant it, as she already had more than she was entitled to, could this court, which as to verdicts, has authority only to correct errors of the court, say that such decision was in error? And that is what this record, by fair inferences, says. A plaintiff not entitled to recover at all, has no right for any reason to have a verdict for the defendant set aside. Garland v. C. & N. W., 8 Ill. App. 571; nor one in his own or her own favor, because the damages awarded are less than the pecuniary injury. Hubbard v. Mason City, 64 Iowa 245. ’ ’

We have carefully reviewed the evidence presented on behalf of the plaintiff. There is no evidence of negligent conduct on the part of the defendant except such as can be obtained from inferences which are highly questionable. It would be necessary to infer that the car struck the child rather than that the child ran into the car, the record being barren of proof on the subject. It would be necessary to infer that the child was in a position to be seen for a sufficient time to enable the defendant to bring his car under control. The record does not warrant that inference. In fact the evidence shows that the father looked to see if the road was clear and did not see the child. To permit a verdict of guilt to stand as against objection of the defendant would in effect require the defendant to prove freedom from negligence rather than to require the plaintiff to prove negligence on the part of the defendant.

The defendant has not asked for relief from this judgment. We are not directly called upon to decide whether the facts present a proper case for the jury. We are asked by the plaintiff tó set aside the verdict and judgment as contrary to law and the manifest weight of the evidence. For the reasons set forth we feel that substantial justice would not be accomplished by such action.

The judgment of the circuit court of Jasper county will therefore be affirmed.

Affirmed.


author: Mr. Justice Stone

text:
    Marie Benoist, Appellee, v. Business Men’s Assurance Company of America, Appellant.
    Opinion filed March 13, 1939.
    Curtis Williams, of Mt. Vernon, and Solon T. Gilmore, of Kansas City, Mo., for appellant.
    Gilbert & Gilbert, of Mt. Vernon, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On July 31, 1926, defendant appellant issued its insurance policy to Charles G. Benoist, husband of plaintiff appellee. The pertinent provisions of said policy are as follows:

“Business Men’s Assurance ^Company of America hereby insures Charles G. Benoist, whose occupation is Partner Hardware Store against loss resulting from bodily injuries, effected solely through accidental means, and against loss resulting from sickness contracted after fifteen days from the date hereof, subject to the provisions and limitations hereinafter contained. . . . Article III . . . Principal Sum $5,000.00. . . . For Loss of Life. . . . The Principal Sum.

“Additional Provisions . . . Article XII. 1. This insurance is issued in consideration of the application hereof, a copy of which is attached hereto and made a part hereof, and the payment in advance of $13.50, as the premium covering the period ending November 1, 1926. The insured may, with the consent of the Company, renew the policy for a period of twelve months by the payment of an annual premium of $46.00, or for a period of six months by the payment of a semiannual premium of $23.00, or for a period of three months by the payment of a quarterly premium of $11.50. Annual premiums shall be due on the first day of November; semi-annual premiums on the first day of November and May and quarterly premiums on the first day of November, February, May and August of each year, beginning with November 1, 1926. A grace period of fourteen days, during which period the insurance hereunder shall remain in full force and effect, will be allowed in payment of all premiums after the first. If any premium has not been received at the Home Office of the Company in Kansas City, Missouri, or by a duly authorized agent of the Company, by 6:00 o ’clock P. M. Standard Time, on the fifteenth day of the month in which it was due, this policy shall expire at that hour. ’ ’

Standard Provisions . . . Article XI. ... 3. If default be made in the payment of the agreed premium for this policy, fhe subsequent acceptance of the premium by the Company, or by any of its duly authorized agents, shall reinstate the policy, but only to cover accidental injuries thereafter sustained, and such sickness as may begin more than ten days after the date of such acceptance.”

“Principal Sum Benefits Increase Annually— Maximum Increase 50%. Article V. After this policy has been in continuous effect for one year, there shall be added during each year thereafter that it is kept in continuous effect, ten per cent of the Principal Sum until such additions equal fifty per cent of the Principal Sum. Thereafter as long as the policy is kept in continuous effect the amount insured shall be the amounts specified under Article III., plus the fifty per cent accumulations.”

Insured died February 8, 1937, from accidental means.

Insured paid the premiums provided for in the policy in quarterly instalments of $11.50 each. During the life of the policy from July 31,1926, until February 8, 1937, the time of the death of the insured, there were 43 of these instalments due and all were paid. Thirty-one of these quarterly payments were received on or before the 15th day of the month in which they were due. Twelve of these quarterly premiums were received by the company after the 15th day of the month in which they were due. These last 12 payments were those for the months of November, 1926, February and May, 1928, November, 1930, May, 1931, May and November, 1932, February and May, 1933, May, August and November, 1934. The policy, accordingly, lapsed on the 15th day of each of these months, and on each occasion was subsequently reinstated when the late premium was received by the company.

Suit was brought by plaintiff appellee in the circuit court of Jefferson county for the amount of $6,769.57, being the face of the policy with its claimed accumulations. Before judgment $6,000, the amount of the face of the policy and $1,000 of accumulations, — the amount defendant claimed it owed, was paid into court and received by plaintiff appellee. The case was tried before the court without a jury as to the balance claimed by plaintiff by reason of accumulations on the policy, to wit, $1,769.57, being, as claimed, the sum of $1,500 due under the policy with interest on the sum of $6,000 from May 1, 1937 to December 29, 1937, at the rate of 5 per cent, amounting to $198.33; and interest on the sum of $1,500 from May 1, 1937 to April 13, 1938, at the rate of 5 per cent amounting to $71.24.

The court found the issues for plaintiff appellee and assessed her damages at the sum of $1,769.57. Judgment was rendered thereon, and defendant appellee brings the case here by appeal.

These 12 quarterly payments which were paid by the insured and accepted by the defendant appellant would make a period of about 3 years. Running over that length of time, and accepting the payments when they were past due without any apparent objection and without any word to the insured looking towards forfeiture, or any steps in that direction, seems to us by consent and agreement and practice to establish a different system of payment than that provided in the policy. We are, therefore, of the opinion that the defendant waived the payments as provided in the policy and consented to a different system of payment which would estop it from saying now that the policies were not in continuous force. This conclusion finds support in the case of Illinois Life Ass’n v. Wells, 200 Ill. 445, in which it was said “if payment was actually made, even though not according to the terms of the policy, the company could certainly not thereafter insist upon a forfeiture for failure to pay promptly.” A case directly in point is Davis v. National Casualty Co., 115 Minn. 125, 131 N. W. 1013. The Supreme Court of Minnesota in that case used the following language with reference to a policy which is substantially, if not exactly, like the one on which this suit is based:

“We hold that the defense is without merit. The company, by accepting the past-due premium, waived, at least as to such premuim, the condition of the policy requiring payments to be made before the 10th day of the month and waived the provision that nonpayment rendered the policy null and void and we cannot hold that there was a delinquency, or that the policy was not in continuous force within the meaning of the clause in question, ’ ’

We are of the opinion, all things considered, that this policy must be held to have been in continuous effect from the time of its issuance until the death of the assured. It necessarily follows, therefore, that defendant owes to plaintiff the amount found to be due by the trial court. The judgment of the trial court is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. Augustus F. Cheatham, Appellee, v. Board of Supervisors of the County of Bond et al., Appellants.
    Opinion filed March 13, 1939.
    Stanford S. Meyer, State’s Attorney, for appellants.
    Combe & Smith, of Greenville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

Relator filed his petition for the writ of mandamus to be directed against the county clerk, county treasurer and board of supervisors of Bond county, commanding them to certify him as one entitled to a pension for the blind and to issue to him warrants for the amount now due him thereunder.. By the petition relator has brought himself wholly within the scope and class of those persons who are entitled to blind relief. The intervening officers, according to the petition, such as the county clerk and the examiner for the blind of the said county have done all that the law required of them in the premises with reference to petitioner. The board of supervisors, as the petition shows, has arbitrarily failed and refused to pay the amount prescribed by the statute to relator. Appellants moved in the court below to dismiss this amended petition, alleging that petitioner’s right was not clear and unequivocal; that he must have a judgment against the county before mandamus will lie to compel the things prayed for in said petition.

. The trial court overruled this motion and awarded the writ of mandamus. The case is brought here on appeal by appellants, and here they allege the same matters as they alleged in the court below.

This statute with reference to the duty of the board of supervisors is just as plain and unequivocal as the English language can make it. When one brings himself within this act the board of supervisors of the particular county has no discretion in the matter; their duties are plain; they are mandatory and they are ministerial. The act creating such duties and prescribing the amount to be paid is just as solemn as any judgment could possibly be. There is nothing left to do in the whole matter except for the board of supervisors to do the ministerial acts which are asked for in the petition and prescribed by the statute; no judgment is necessary, and even if suit at law under this act might result in a judgment against the county, relator would be presented with the same condition which he now is, — that is, would the board of supervisors act?

In onr view of the matter relator’s right to mandamus is clear and unequivocal within the meaning of those terms as they have been interpreted by our courts. Therefore, no judgment is necessary before appellants should perform the duties enjoined upon them. (People ex rel. Hamilton v. City of Chicago, 274 Ill. App. 206.) People ex rel. Campbell v. Kapp, 295 Ill. App. 92.

The action of the board in refusing to issue its warrants to relator seems to us to be arbitrary, capricious and a refusal to perform a solemn duty which the law places upon them without question.

The trial court did not err in overruling the motion to dismiss the amended petition and in awarding the writ of mandamus. Its judgment in that regard is affirmed.

Judgment affirm,ed.


text:
    Mary Briggs, Appellant, v. Webster W. Briggs, Appellee.
    Opinion filed March 13, 1939.

      Beasley & Zulley, of East St. Louis, for appellant.
    McGlynn & McGlynn and Robert Rutledge, all of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

In November, 1931, the parties to this action were divorced by decree of the city court of East St. Louis. The decree made certain recitals and orders with reference to the payment of alimony. On August 30,1937, the defendant appellee filed his petition to modify the decree, in which he asked to be relieved of further payments of alimony. On September 17, 1937, the trial court entered an order allowing this petition and leaving defendant appellee free from further payments. On September 28th, — 12 days after said order, plaintiff appellant filed her motion to set aside the said order of September 17, 1937. On October 16, 1937, the court took up this motion for consideration, heard evidence on the same and ordered that the cause be continued until October 23, 1937. On October 23, 1937, the motion to set aside the default and order of court entered on September 17, 1937, was allowed and the same set aside and vacated and the cause continued as to the motion to modify the decree. On the 16th day of July, 1938, the court entered its order nunc pro tunc as of October 16, 1937, modifying the decree and reducing the alimony to be paid to the sum of $25 per month.

The route by which the trial court reached its destination is so palpably out of line with all recognized procedure that it renders unnecessary any decision by us upon what would be the effect of this last so-called order with reference to the merits of the case. It is obvious at a glance that the minutes made by the court on October 16, 1937, do not amount to a judgment. It is equally obvious that on October 23, 1937, the court vacated and set aside the order it had made on September 17, 1937, defaulting plaintiff appellant and allowing the petition of defendant appellee to modify the decree. It is clear that the court was without authority or jurisdiction to enter a nunc pro tunc judgment as there was nothing to even suggest a judgment in the proceedings of the court to which the nunc pro tunc order refers. Indeed the record affirmatively shows that no judgment was entered or intended. In Wiggins v. Union Trust Co., 266 Ill. App. 560, we said:

“The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record. If an order is actually made by the court, but there is a failure to enter it, the court may correct the mistake in failing to enter the order, and make the record show the order which the court actually made as of the time it was made, bio court has a right to create an order by that method or to supply an order which was never in fact made. A nunc pro tunc order cannot be made to supply an omission to make an order, but only an omission in the record of the order. Lindauer v. Pease, 192 Ill. 456; People v. Rosenwald, 266 Ill. 548, 554.”

The order of October 23rd vacating and setting aside the former order of September 17, 1937, left in full force and effect the decree as it stood at that time with reference to the payment of alimony and all other matters.

If this matter is hereafter presented to the court properly the court will doubtless exercise its sound discretion with reference to the merits of the case in harmony with section 18 of the Divorce Act [Ill. Rev. Stat. 1937, ch. 40, § 19; Jones Ill. Stats. Ann. 109.186], and the numerous cases by our Appellate and Supreme Courts construing that section.

The present record cannot stand. The judgment of the trial court is reversed.

Judgment reversed.