text:
    Steve Salaban, Appellant, v. East St. Louis and Interurban Water Company, Appellee.

      Opinion filed March 6, 1936.
    T. A. O’Connor, of East St. Louis, for appellant.
    Farmer, Klingel & Baltz, of Belleville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This was an action on the case for damages claimed by appellant against appellee for failure and refusal of appellee to furnish him water, whereby he lost his business as a restaurant and rooming house keeper.

On October 11, 1929, Steve Salaban, plaintiff, appellant, was engaged in the business of keeping a rooming house and running a restaurant at 251 North 3rd street, East St. Louis, Illinois. He made application to the East St. Louis & Interurban Water Company, a Public Utility Corporation, furnishing water to East St. Louis, Illinois, under and by virtue of its franchise from the City of East St. Louis, Illinois, and the rules, orders, and decrees of the Illinois Commerce Commission subject to a federal injunction, enjoining the Illinois Commerce Commission from attempting to establish lower rates for water furnished by the East St. Louis & Interurban Water Company than the rates then in existence.

Appellant did not pay his water bill for the months of September, October and November, 1931. There was some controversy and some conferences between appellant and the employees of appellee over the amounts of the bills for those months and also over the question as to whether there were water leaks on the premises occupied by appellant. Appellee caused an inspection to be made of the pipes on the premises and a report was returned that there was a leak of water. Appellant controverts this report and claims that independent inspection and tests were made by him and also by a plumber and that no leaks were to be found.

Some time in the month of November, 1931, appellant went away to Chicago and did not return until the seventh of the following month. In the meantime there had accrued a water bill of $15.90 for water furnished to the premises and as it was not paid, the water was shut off. On or about the 8th of December, 1931, appellant paid this bill and demanded that he again be supplied with a water meter and water service. Appellee refused this request until appellant should make his pipes free from leaks. After this each party apparently elected to stand upon the position taken by him, — the appellee that it was acting within its rights under the rules and regulations of the Illinois Commerce Commission in refusing to resume business relations with appellant until his water pipes were repaired, and the appellant insisting that his pipes needed no repairs. This status continued until June 24th when appellee placed another meter on the premises and made water available there. It is for this period of time that appellant claims damages for the reasons above indicated. The only count which is at all in harmony with the evidence is the 3rd amended count which charges that appellant was damaged while he was in the rightful use, possession and control of the premises in question. To this count appellee filed a plea of the general issue, — the pleadings whereby an issue was made being under the Practice Act of 1907. At the close of appellant’s evidence the court peremptorily instructed the jury to find defendant appellee not guilty. Judgment was entered upon the finding against plaintiff appellant for costs of suit. Appellant lias appealed to this court. Appellee has moved to dismiss the appeal under Rule 39 of our Supreme Court rules for failure of appellant to advise this court anywhere in the record of the errors he relies upon for reversal. This motion might with propriety be allowed as the record before us is clearly subject to that criticism. We have, however, elected to discuss the merits of the case.

In order for appellant to have had his case submitted to the jury it was incumbent upon him to produce evidence which, regarded in its most favorable light to him, fairly tended to show (1) that his trade left him because of lack of water supply; (2) that he was damaged thereby; (3) proof of actual damages and (4) that" he was guilty of no conduct which contributed to his damages, if any. We have looked in vain for any proof fairly tending to prove the first of these propositions. It might have been for want of water; it might have been on account of poor management; it might have been on account of changes in conditions. Many persons and corporations lost their entire business during a period of time of which the time in question here formed a part. But judgments cannot be rendered upon what might have been. There must be some proof fairly tending to establish the fact alleged.

The second proposition must, of course, be governed by our holding as to the first. So, likewise, must the third be governed; and in addition, it is subject to another most serious objection even were we to hold otherwise as to the first and second. The damages sought to be shown here are of a highly speculative character, and without foundation upon which to base them.

Profits cannot be recovered as an element of damages where they are speculative, contingent or uncertain (17 C. J. 910). Where the profits claimed are merely speculative or remote, and not capable of being correctly ascertained under the recognized rules of evidence, they have been, invariably denied by the courts (13 Cyc. 50).

An estimate of profits by an interested witness does not constitute such evidence as will support a judgment for damag'es. (Podlaski v. Bender, 150 Ill. App. 312.) The evidence here is that appellant had made as high as $350 per month out of his business. This is his testimony standing alone, uncorroborated by statement, exhibit or circumstances.

The loss of probable profits constitutes no part of the general damages. Such, damages are too remote. (Green v. Williams, 45 Ill. 206.) There may be no recovery of damages which are remote, imaginative, conjectural, speculative or contingent. Damages which are merely possible are speculative. (8 Thompson on Negligence, sec. 7195; 6 Thompson on Negligence, sec. 7202.)

The fourth proposition, while not necessary for a decision of this case, may be noticed particularly in connection with the claim for vindictive damages. For six months or more appellant gave no notice to appellee that he had made the improvements requisite to receiving their service. He made no demand or even a request that they again assume business relations with him. One may not sit idly by and see himself damaged without raising a hand to prevent it and then claim that such damages came about through the neglect or wrongdoing of the other fellow. Neither can we quite understand how one would sit by and see a business worth $350 per month leaving him without making some effort to prevent it. This is even more forcible in reference to vindictive damages. The law does not allow a recovery for damages which might have been prevented by reasonable efforts on the part of the person injured. (White Supplement to Thompson on Negligence, sec. 7209.)

Appellee had a right under its rules and regulations to shut off appellant’s water supply until he complied with its reasonable request to make such improvements as its investigation showed to be necessary. Having failed to comply with such request he cannot now be heard to say, for that reason alone, that he was damaged by the unlawful conduct of appellee.

The trial court rightly took this case from the jury and entered judgment against appellant for costs, and its judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    Leon Ogent, Plaintiff in Error, v. Louis Beasley and Edward C. Zulley, Defendants in Error.
    Opinion filed March 6, 1936.
    Harold J. Bandy, of Granite City, for plaintiff in error.
    Louis Beasley and Edward C. Zulley, of East St. Louis, pro se.

   Mr. Justice Stone

delivered the opinion of the court.

This writ of error is prosecuted to reverse a decree of the city court of East St. Louis rendered in favor of appellees and against appellant.

The bill alleges that at the March term, 1933, of said city court, appellees recovered a judgment against appellant in the sum of $3,250 and costs of court; that said judgment was obtained through fraud and circumvention; that the fraud consists in this: That after appellant was served with summons in the said cause, one of appellees, Edward C. Zulley, conferred with appellant and informed him that said action in law against him would be dismissed; that he would not be required to plead or in any way answer said declaration; that appellant was not in any way indebted to the said appellees; that on the contrary appellee, Edward C. Zulley, was indebted to appellant; that appellant believed the representations of said Zulley, followed his advice, filed no answer therein and made no defense thereto; that the appellant was lulled into a feeling of security by said representations; but that appellees notwithstanding said representations took judgment in said court by default in the sum of $3,250, on the 6th day of April, 1933, without the knowledge or consent of appellant; that appellees afterwards caused an execution to be issued on said judgment and the same to be served upon appellant.

Said bill further alleges that at the time of the rendering of the said judgment, appellant was in no way indebted to appellees, but that on the contrary appellee, Zulley, was indebted to appellant in the sum of $1,300 for borrowed money. Said bill then alleges a number of items of service which appellees as attorneys at law performed for appellant and the fees charged therefor. It then alleges that said judgment was erroneous, was obtained by fraud and misrepresentation as above set forth, and also by mistake of fact; that the same ought to be reviewed, reversed'and set aside. Said bill further calls for an accounting from said appellees with appellant. It is verified on information and belief and waives answer under oath.

Appellees filed their joint and several answer to said bill of complaint, but not being under oath. Said answer admits the obtaining of the judgment, denies the conversation set up in the bill between appellant and appellee, Zulley, in toto, but states upon the contrary that said Zulley when he was approached by appellant advised him to hire a lawyer without delay; that thereupon appellant stated he would get Mr. Lindauer to look after the case; that that was all the conversation had between the said appellant and appellee, Zulley, and that afterwards the name of Lindauer was placed on the records as attorney representing appellant.

The answer further denies that the appellant believed any of the said alleged representations of the said Zulley, or had confidence in said defendant or said alleged representations, or that he followed the advice of the said Zulley to pay no attention to said action at law or to file no answer or to make no defense; that said representations by appellant are wholly false and untrue. Said answer further denies that the complainant was in any manner lulled into a feeling of security by said representations of the said Zulley for the reason that no such representations were made. It further alleges that appellant had sufficient time in which to employ counsel and file his pleas in said cause if he saw fit; that on April 6, 1933, there being no plea on file, appellees appeared before the city court, proved their demand and obtained the aforesaid judgment; that said amount was justly due to them. Appellees deny that said judgment was entered without a knowledge or consent of the appellant, but allege that on the contrary appellant before the March term of court had expired informed appellees that he wuuld like to effect a settlement of said judgment and to pay the same, but was unable to do so because of his trouble with the State’s attorney of St. Clair county, who had obtained a bond forfeiture of $5,000 against appellant as surety in a criminal case; that his properties were tied up, but that he believed he would be able to adjust his difficulties and that if appellees would wait a while he would raise a sufficient amount of money to pay said judgment; that said appellees waited until the 9th day of August, 1933, and having-learned in the meantime that appellant had conveyed all his property and real estate to some other person in his attempt to place the same beyond the reach of the process of the court, and having learned further that the State’s attorney of St. Clair county had taken steps to set aside said conveyances as fraudulent, appellees caused an execution to be issued on said judgment.

The answer further denies that appellant is not indebted to appellees in the sum of $3,250, but on the contrary say that he is so indebted to them in the full amount of said judgment together with costs of suit. The answer denies the borrowing of the $1,300 by Zulley from appellant. Said answer then admits a number of services performed by appellees for appellant and sets up a certain amount for such services respectively as make up the sum of $2,420, and allege that appellees performed a number of other services for appellant, all of which amount to the amount of the judgment. Appellees deny in their answer that any fraud was practiced upon appellant or that the judgment was obtained through fraud.

On the 17th day of November, 1933, the trial court entered a rule on appellant to file replication to the above and foregoing* answer within 10 days. Appellant did not comply with the rule and said cause was called for hearing on the 13th day of December, 1933, on bill and answer, at which time the trial court dismissed the bill of complaint for want of equity and decreed that appellant pay the costs in the case.

Appellant afterwards, in December 1934, filed his motion to set aside and vacate said decree on the ground that said decree docs not constitute a decree; that there was no hearing upon the merits of the case; that complainant was given no notice of the hearing of said cause; that the allegations of the hill of complaint are untrue; that said bill could not be dismissed for want of equity because of the failure of complainant to file a replication; that the answer of defendant could not be taken as true under the circumstances. To this motion appellant attached his affidavit which in large measure denies the truth of the matters and things alleged in appellees’ answer; and alleges appellees’ charges are exorbitant, unreasonable and unjust. Defendants moved to strike this motion and upon hearing by the court, said motion to strike was allowed.

Appellant contends that the trial court had no authority under the statute to render the decree in question on bill and answer. The applicable statute is as follows:

“After replication is filed, the cause shall be deemed at issue and stand for hearing, or in default of filing such replication, the cause may be set for hearing upon the bill and answer; in which case the answer shall be taken as true, and no evidence shall be received, unless it be a matter of record to which the answer refers.”

Our Supreme Court has interpreted this statute as the trial court did. When no replication is filed and the hearing is on bill and answer alone, the answer is to be taken as true. Headen v. Cohn, 292 Ill. 210; Roach v. Glos, 181 Ill. 440; Sheahan v. Madigan, 275 Ill. 372. These cases seem to make no distinction between an answer under oath and an answer not under oath where answer under oath is waived. In our judgment the trial court properly applied the above rule. Not only was there no replication filed to appellee’s answer, but appellant refused to file one after specific order of court to do so. Under these circumstances appellees had a right to demand of the court that it follow the law and render its decree, — assuming the matters alleged in the answer to be true. That portion of the statute which provides “No evidence shall be received unless it be matter of record to which the answer refers” creates a right in the court to receive that character of evidence, but not an obligation. It creates an exception to that part of the above section which provides that “the answer shall be taken as true,” and gives the power to the court to hear that character of evidence, should it, in its discretion, deem it advisable.

In December, 1934, a year after the decree in this cause was rendered, appellant moved to vacate and set it aside. Attached to said motion is an affidavit of appellant which recites substantially that the matters charged in his bill are true. Just why he did not set these matters up by replication, within the court’s rule, we are not advised. If this had been done it would have entitled him to a hearing which he now complains he did not have. Several terms of court may have opened and closed between the time of the decree and the motion to vacate it. But regardless of that, and regardless of the question of the court’s right to vacate and set aside a decree on motion, the trial court was warranted in striking this motion on the theory that it came too late.

We find no reversible error in this record. The decree is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Hall

text:
    Marion G. Wilson, Executrix of the Estate of William Garnett, Deceased, Appellee, v. Raymond E. Prochnow, Appellant.
    Gen. No. 38,249.
    Opinion filed March 26, 1936.
    Rehearing denied and opinion modified April 7, 1936.
    Altheimer, Mayer, Woods & Smith and William F. Struckmann, all of Chicago, for appellant.
    Thomas G. Vent, of Chicago, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal by Raymond E. Proehnow from an order of the circuit court of Cook county, sustaining the demurrer of Marion G. Wilson, executrix of the estate of William Garnett, deceased, to Proehnow’s petition to be released from imprisonment in the county jail, and from an order dismissing his petition and awarding costs.

On May 24, 1932, a decree nunc pro tunc as of May 23, 1932, was entered in the circuit court of Cook county after a trial de novo in that court, on an appeal from the probate court, in the matter of the estate of William Garnett, deceased, of which estate Marion G. Wilson is now and was at the time of the entry of said decree, executrix. In this decree it is recited inter alia that the court had examined Raymond E. Prochnow, the petitioner here, in open court under oath, and had heard and examined evidence, oral and documentary, offered and received in said circuit court in the matter of a petition and citation issued against Prochnow. The court found among other things, that in the year 1922 Prochnow became a member of an incorporated firm, known as Borregaard, Prochnow & Co., and that thereafter he acquired the interest of certain other persons in such corporation, and in January, 1926, changed the corporate name to Raymond E. Prochnow & Co., Inc.; that Prochnow owned all the common stock, except a few shares owned by his brother and his wife, and that he owned all the preferred stock, except 57 shares thereof which he sold to William Gar-nett, now deceased; that Prochnow, either personally, or as a member of this firm, was a dealer in bonds, and that Garnett transacted business with Prochnow from the year 1921 until July 13,1930, the date of Garnett’s death, at which time Garnett was upwards of 73 years of age. In this decree, after reviewing in detail the transactions between Prochnow and Garnett, and the certain lists of properties belonging to Garnett, which the court found Prochnow had appropriated to his own use, the court ordered that Marion G. Wilson, as such executrix, recover from Prochnow the sum of $30,280.61, together with certain bonds and stocks and other evidences of indebtedness, the property -of Gar-nett, deceased, held by Prochnow, within 20' days from and after the date of the decree, and that in default thereof, Prochnow be committed to the county jail of Cook county and State of Illinois, until he should comply with the order and decree of the court. The order further contains the following provision: “And jurisdiction of this cause and proceeding hereby is expressly reserved so that this order and decree may be made effective.”

On June18, 1932, a supplemental decree in the cause was entered, wherein the court found that the assets belonging to the said estate had been concealed, converted or embezzled by Prochnow; that more than 20 days had elapsed since the entry of the final decree; that Prochnow had failed to make payments and deliver the securities prior to the date of the decree, as originally entered, and had failed to comply with the provisions of the decree either in whole or in part; that he had not presented or filed an appeal bond for the approval of the court wherewith to effect an appeal, and that the decree and order had become final. In this supplemental decree it was ordered “that a body attachment or capias be forthwith issued herein to attach the body of said respondent, Raymond E. Prochnow; and that a mittimus forthwith issue for said Raymond E. Prochnow, and that he be committed to and confined in the county jail in and for said county of Cook and State of Illinois until he shall comply with said final order and decree of this court, as by said statute, Illinois Revised Statutes, chapter 3, sections 81 and 82, made and provided; and jurisdiction of the cause and proceeding hereby is expressly reserved so that said final order and decree and this supplemental decree may be made effective. ’ ’ After the entry of this decree, and on March 30, 1933, Prochnow filed a verified petition in the circuit court of Cook county in the nature of a writ of error coram nobis of various matters which had been adjudicated by the court in the decree entered May 24, 1932, and asked that the orders of the circuit court hereinbefore referred to be set aside and vacated. Opposition thereto was presented by the • executrix, and the prayer of the petition was denied. Thereafter Prochnow sued out from the Supreme Court a writ of error to review the alleged error of the circuit court, and that court, finding no question involved which would give it jurisdiction on direct review, transferred the cause to the Appellate Court of the First District. After a hearing in the Appellate Court, this court affirmed the circuit court (Wilson v. Prochnow, 275 Ill. App. 629 [Abst.]) and in order that a complete understanding may be had of the issues involved here, the opinion of this court in that proceeding is set forth in full, as follows:

“This cause was before the Supreme Court of Illinois upon a writ of error, which court transferred the cause to this court for the reason that in order to warrant a direct appeal to the Supreme Court, the validity, and not merely the construction, of a statute must he involved. Wilson v. Prochnow, 354 Ill. 98.
“The defendant Raymond E. Prochnow was committed to the County Jail of Cook County by virtue of certain orders entered by the Circuit Court of Cook County in a proceeding there tried upon appeal from an order entered in the Probate Court of Cook County, which proceeding was originally instituted under secs. 81 and 82 of Chap. 3 of an act entitled, ‘Administration of Estates.’ Cahill’s Ill. Rev. Stats. 1933, Sec. 81, is in part as follows:
“ ‘If any executor or administrator, or other person interested in any estate, shall state . . . that he believes that any person has in his possession, or control, or has concealed, converted, or embezzled any goods, chattels, moneys or effects, books of accounts, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person or the executor or administrator, or the estate of any deceased person . . . the court shall require such person to appear before it by citation and'may examine him on oath . . . and make such order in the premises as the case may require. . . . ’ Sec. 82 provides for the commitment of a person and the enforcement of judgment recovered against a person under the act for failure to pay, and is substantially as follows:
“ ‘If such person . . . refuses to deliver up such property or effects, or in case the same has been converted, the proceeds or value thereof, upon a requisition being made for that purpose by an order of the said court, such court may commit such person tó jail until he shall comply with the order of the court, therein. . . . ’
‘ ‘ The executrix of the Estate of William Garnett, deceased, filed a statement under oath, as provided by sec. 81, and thereupon a citation was issued, and the defendant Raymond E. Prochnow responded and was examined in the Probate Court, and again in the Circuit Court of Cook County. Certain findings of fact appear in the order entered by the court in the cause.
“On March 30, 1933, Prochnow, upon motion, obtained leave to file his verified petition in the nature of a writ of error coram nobis, setting up the condition of the record in the instant case, and requesting that the commitment order entered without jurisdiction confining the defendant in the County Jail be vacated, and that the prayer of the petition be granted. To this petition, the attorney for the estate presented to the court his counter affidavit, and upon the face of the pleading, the motion of the defendant was denied.
“From the petition it appears that the petitioner had been confined in the County Jail for more than six months, pursuant to the order of the Circuit Court entered in a supplemental decree. It also appears from the petition that Raymond E. Prochnow appeared in court, and as a witness was questioned regarding certain exhibits; that the petitioner was not present when the decree was entered by the court on May 24, 1932, and had no knowledge that the decree had been entered until after the time had expired in which to file a certificate of evidence; that his attorney endeavored to obtain a transcript of the evidence, but was refused the same by the court reporter who appeared in court and reported the proceedings by her shorthand notes; that he was also refused a transcript by the attorney of the estate, who informed petitioner’s attorney that the shorthand notes were destroyed by his order, and that the attorney for the estate did not have a copy thereof in his possession.
“It is also stated in the petition that Raymond E. Prochnow was in the County Jail and received no notice of the move to obtain a supplemental decree; that if given an opportunity to be heard, he would have presented a meritorious defense. It is also stated in the petition that at the time of the filing of said petition and at the time of the proceedings, and at all times since, he had no property or income, and was the owner merely of the clothes upon his back and a few personal belongings not exceeding $25.00 in value, and that his wife and children were dependent upon relatives and charity for support.
“It also appears from the petition that there were several accounts appearing in the decree entered in this cause, which for convenience are designated by the attorney for the petitioner as ‘ Trading Account, ’ ‘Holmes Deal,’ and ‘.Collateral Account.’
“It appears from the petition that the finding of the court as to what is designated ‘ Trading Account, ’ is in part as follows: That in the year 1916 said Raymond E. Prochnow, the petitioner, was a salesman for the investment firm of E. Naumberg & Company; that in August, 1925, Raymond E. Prochnow acquired the interest of Knud C. Borregaard, and in October, 1925, he acquired the interest of Louis E. Borregaard; that on January 1, 1926, he changed the name to R. E. Prochnow & Company, Inc., that Prochnow owned all of the common stock, except a few qualifying shares held by his brother; that he also owned all the preferred stock, except 57 shares which he sold to William Garnett; that R. E. Prochnow & Company, Inc., is and always has been the personal corporation of said Raymond E. Prochnow, and except for said 57 shares of preferred stock sold to William Garnett, is strictly a ‘family affair’; that all of the transactions were conducted by said petitioner in his own behalf and were in fact his personal transactions; that said Raymond E. Prochnow was a dealer in bonds and, as such, transacted business with and for the decedent, William Garnett, continuously from the year 1921 to the date of. his death on July 13, 1930, at the age of 74 years; and
“That Raymond E. Prochnow reported by letter to the decedent, William Garnett, in his lifetime, that they held for him in safe-keeping $3,000 Washington Coast Utilities Company 6 per cent bonds, $2,000 Tad-kin River Power Company 6 per cent bonds, and $3,000 Market Street Railway Company 7 per cent bonds; that on April 23, 1924, a so-called ‘trading- account’ was established, by agreement, whereby the above $5,000 of bonds and $5,000 of other bonds were delivered to said petitioner by said decedent to be placed in a $10,000 ‘trading’account’ for said William Gar-nett; that the bonds in said so-called ‘trading account’ totaled the sum of $9,767.30; that the terms of this agreement were that the above $10,000 of bonds would be placed by petitioner in a ‘trading account’ for the decedent, William Garnett; that these or equivalent bonds would be returned to him and that, in the meantime, said Garnett would receive from the petitioner a check for $60 each month on the 23d day of the month, commencing May 23, 1924, until December 23, 1924, and that it was agreed by Raymond E. Prochnow that ‘the above' bonds, or any others traded therefor are held in a separate package marked with William Gar-nett’s name’; and thereafter said‘trading account’was extended six months and the petitioner wrote to William Garnett that—
“ ‘In accordance with our conversation, the plan is hereby extended for six months, until June 23, 1925, and will be in full force until that date, when we will turn over to you $10,000 par Value of bonds; in the meantime, you will receive, on the 23d day of each month, a check for income in the amount of $60, as heretofore.’
“That instead of holding said bonds in a separate package marked with William Garnett’s name, petitioner testified that immediately after these $10,000 bonds were received they were mixed with their own inventory of bonds on hand, although accountants employed by claimant could find no record whatever of this ‘trading account’ on the books of petitioner’s company.
“It also appears from the decree referred to in the petition of Raymond E. Prochnow that Raymond E. Prochnow testified that William Garnett gave him a note for $8500, dated March 8,1924, which was offered in evidence in the Circuit Court, and that on June 23, 1930, William Garnett wrote petitioner a letter that—
“ ‘We agree between us that the so-called “Trading Account” which pays $60 per month shall cease today — this also cancels my note for $8500 held by you. ’
“The court in said decree further found that the alleged letter was a false, fraudulent and forged document, and that the signature purporting to be the handwriting and signature of William Garnett was not his signature, and that the document was a fraudulent and forged instrument. It also appears from the finding that Prochnow testified that on April 25, 1924, the day after he received the $10,000 of bonds to place in said ‘trading account,’ he sold them on the open market, and obtained therefor $9,955.00, and that • Prochnow converted the proceeds to his own use.
“With reference to what has been designated the ‘Holmes Deal’ it appears from the decree that the petitioner Raymond E. Prochnow, proposed to William Garnett, that each of them should furnish $6,000 par value of bonds on a so-called ‘special deal’; that Prochnow would then borrow $10,000 to give to an unnamed New York stock market operator, whose name was not made known to Garnett, to be used by the petitioner for ‘organization purposes,’ to buy 31 shares of stock from said New York stock operator, Prochnow to have one-half and Garnett to have one-half, and that Prochnow and Garnett were to receive out of this New York Stock market operator’s earnings, a sum equal to the amount they had advanced, and, in addition, as a bonus an interest in this company for five years, this bonus to be roughly in the nature of 1,000 shares of stock in this New York operator’s company, when he formed it.
“It also appears from the finding of the court in the decree that as William Garnett’s part of the transaction, he should and, on September 3, 1929, did furnish to Raymond E. Prochnow certain bonds, of the par value of $6,000, specially selected by Raymond E. Prochnow, because there was ‘the least likelihood of any of these bonds being called, having a very high call price or in some cases being- uncallable. ’
“It also appears that not until after Garnett’s death did Prochnow allege that this stock market operator’s name was Holmes, either J. H. or J. K. he did not know which; that Prochnow did not in fact furnish any bonds or cash of his own in this deal; that on September 3, 1929, the day Prochnow obtained delivery of said bonds from Garnett, Prochnow borrowed the net sum of $4,889.86 from the Continental Illinois Bank and Trust Company, of Chicago, on his personal collateral note for 90 days, and deposited said $6,000 par value of William Garnett’s bonds as collateral security therefor.
“It also appears that Raymond E. Prochnow caused said bonds to be sold and the proceeds converted to his own personal use, and no accounting has ever been made to Garnett or his estate; that said bonds and the proceeds thereof remained the property of Garnett and are now the property of his estate.
“It appears from the finding in what is designated as ‘Collateral Account’ that Prochnow converted bonds of the value of $1,857.93, and that the total conversion value and accrued interest amounts to $2,082.11.
“The name of the bonds and the dates of maturity are specifically described in the finding of the court. It further appears from the decree and is called to the attention of the court by the petition of Prochnow, that he, obtained possession, but not title or ownership, from said William Garnett of $16,000, par value, of miscellaneous other bonds which he previously sold to said Garnett, and which have never been returned or accounted for to said Garnett or his estate, and that the total price of the bonds enumerated in the decree is $11,862.00, and from the evidence it appears that Prochnow sold the bonds and the proceeds were used for his personal advantage, and that he did not account to Garnett for the bonds or the money received therefor.
“It further appears from the decree referred to by the petitioner that the judgment order of the court upon which the decree is based, is in words and figures as follows:
“ ‘It is further ordered, adjudged and decreed, that said petitioner, Marion G. Wilson, do have and recover from said respondent, Raymond E. Prochnow, the sum of thirty thousand two hundred and eighty-two dollars and sixty-one cents ($30,282.61) hereinabove found to be due and owing from said respondent to said petitioner and said estate; also that said petitioner do have and recover from said respondent said two thousand dollars ($2,000), par value, of General Vending Corporation 10 yr. Sec. Sinking Fund 6% Bonds due August 16, 1937, with August 15, 1930, and all subsequent interest coupons attached thereto, or in lieu thereof, the Receipts of Voting Trust Certificates issued therefor, if any there are, duly assigned to said petitioner; also said three thousand dollars ($3,000), par value, of National Theatres Corporation First and Refunding Mortgage “A” 6% bonds, comprising bonds Nos. 1576,1579 and 1580, with June 1,1930, and all subsequent interest coupons attached thereto, or in lieu thereof, the Depositary Certificate issued therefor, if any there is, duly assigned to petitioner; said sum and said securities being the aggregate of property or the proceeds or value of property belonging to said decedent, William Garnett, and to the estate of said decedent, which said respondent has in his possession, or control, or which he has concealed, converted, or embezzled, and also the costs of this suit or proceeding, and that said petitioner, Marion G. Wilson, Executrix of the Estate of William Garnett, deceased, have execution for said money judgment as upon a judg*ment at common law against the real and personal property of said respondent Raymond E. Proehnow, as by statute in such case made and provided. ’
“Thereafter on June 18, 1932, a supplemental decree was entered, from which decretal order it appears that Marion G. Wilson, Executrix of the Estate of William Garnett, deceased, was to recover from Raymond E. Prochnow the amount converted and due and owing from Prochnow to the said estate.
“There also appears as part of the decretal order the following:
“ ‘It is further Ordered, Adjudged and Decreed, that said respondent, Raymond E. Prochnow, be and he hereby is ordered and required to pay over and deliver unto said petitioner, Marion G. Wilson, Executrix of the Estate of William Garnett, deceased, or to Thomas G. Vent, Esq. her counsel, said sum of thirty thousand two hundred and eighty-two dollars and sixty-one cents ($30,282.61); said two thousand dollars ($2,000), par value of General Vending Corporation 10 Yr. Sec. Sinking Fund 6% bonds due August 16, 1937, with August 15, 1930, and all subsequent interest coupons attached thereto, or in lieu thereof, the Receipts or Voting Trust Certificates issued therefor, if any there are, duly assigned to said petitioner; and said three thousand dollars ($3,000), par value, of National Theatres Corporation First and Refunding* Mortgage “A” 6%% bonds, comprising* bonds Nos. 1576, 1579 and 1580, with June 1,1930, and all subsequent interest coupons attached thereto, or in lieu thereof, the Depositary Certificate issued therefor, if any there is, duly assigned to petitioner, all within twenty (20) days from and after the day and date hereof, or that, in default thereof, said respondent, Raymond E. Prochnow, be committed to the County Jail in and for said County of Cook and State of Illinois, until he shall comply with said order and decree of this court; and jurisdiction of this canse and proceeding hereby expressly reserved so that this order and decree may be made effective.
“ ‘From the entry of this decree said respondent hereby prays an appeal to the Supreme Court of the State of Illinois, which appeal is hereby allowed, upon an appeal bond with good and sufficient surety in the penal sum of forty-five thousand dollars ($45,000.00), being* approved by this court and filed herein within twenty (20) days from and after the date hereof, and a certificate of evidence to be signed and sealed by the court and filed herein within sixty (60) days from and after the date hereof.
“ ‘And the court having read said petition and being fully advised in the premises doth find that, although more than twenty (20) days have elapsed since the entry of said final decree, said respondent, Raymond E. Proehnow, has failed to make the payments and to deliver the securities required of him in said decree, and has failed to comply with the above and foregoing provisions of said decree, either in whole or in part; that he has not presented or filed an appeal bond for the approval of this court wherewith to perfect an appeal from said final decree to the Supreme Court of the State of Illinois, as provided for in said decree; and that said decree, order and judgment has, therefore, become final and absolute as against said respondent. ’
“And finally it was ordered by the court that a body attachment or capias be forthwith issued to attach the body of Raymond E. Proehnow; that a mittimus issue, and that he be committed to and confined in the County Jail until he shall comply with the order of the court.
“The petitioner contends that from the decree it is apparent that the relationship which existed between Proehnow, or his Company, and Garnett was that of a creditor and debtor, and therefore the court was not within its jurisdiction to enter the decree and in support of this contention, cites the case of Johnson v. Nelson, 341 Ill. 119, wherein the court in its opinion said:
“ ‘The power to determine questions of title and rights of property and to enforce by execution orders adjudicating titles or requiring the delivery of property, added to sections 81 and 82 by the amendatory act, does not include jurisdiction of the ordinary action for the recovery of money the title to which is in the debtor. Where the relation of debtor and creditor arises for money lent, the debtor owns the money and is indebted to the creditor for it, and consequently the debtor has no money belonging to the creditor, or to the latter’s estate, in his possession. To enforce collection of the indebtedness in such case, by the rendition of a personal judgment against the debtor, was not within the scope of sections 81 and 82 prior to July 1, 1925, and no such power was conferred by the amendatory act, either expressly or by implication. ’
“However, it is important to consider further what was said by the Supreme Court in its opinion as to the recovery by the executor or administrator of such estate of specific,, property of a deceased person, its proceeds or value, that has been converted. The court said:
“ ‘The amendments to section 81 enlarged its provisions to include property belonging to “the executor or administrator or the estate of any deceased person” and conferred upon the court the power to determine, upon trial by jury if demanded by either party, questions of title and rights of property. Notwithstanding these additions, the purpose of the section as amended, apart from the recovery of books of account, papers or instruments of title, and the obtaining of information, is to recover possession of specific property, or if converted its proceeds or value. Section 81, as now in effect, contemplates that the testate or intestate, at the time of his death, held or at least claimed, and that the executor of his will or the administrator of his estate, since his death, either in succession or initially, holds or claims, the title to the property of which possession is sought.’
“The findings of fact complained of by the petitioner come clearly within the statute in question. Throughout the final decree entered in the proceeding by the Circuit Court of Cook County, the petitioner was charged with possession of the stocks and bonds enumerated in the findings of fact as being the property of William Garnett, deceased, and that without the cotisent of Garnett in his lifetime Proehnow converted the stocks and bonds by transfer or sale, and the funds so derived, to his own use, and the action in the Probate Court, as well as in the Circuit Court, is well within the act to recover personal property owned by Gar-nett, or its converted value by the petitioner in this form of action.
‘1 The court has examined the questions called to the attention of the court, and are of the opinion that the proceeding before us is but an effort by Proehnow to have reviewed the findings of fact of the trial court. If a review was desired it should have been taken by appeal, or upon a writ of error to the court having-jurisdiction of the cause. Chapman v. North American Ins. Co., 292 Ill. 179. The question involved in the petition of Proehnow is solely upon the ground set forth in the petition, and the facts contained in the petition are not related to a fact which was unknown to the trial court, and which, if known, would have precluded rendition of judgment. Cramer v. Commercial Men’s Ass’n, 260 Ill. 516. It therefore must appear that the error of fact within the meaning- of Sec. 89 of the Practice Act, which is substituted for the writ of error coram nobis, (Cahill’s Ill. Rev. Stats.) was not a part of the issue tried, and that the fact must be of such a nature as would conclusively prevent the entry of a judgment. Estate of John C. Gould v. Watson, 80 Ill. App. 242. There is no statement of fact appearing- in the petition that would meet this rule, nor is there an error in fact which would entitle the petitioner to have the alleged error considered by the court for the purpose of setting aside the order complained of. The petitioner complains that his petition filed for relief was denied solely upon the petition itself and counter-affidavits offered by the attorney for the estate, and the court, not having heard evidence, erred in denying the motion. It is the uniform rule that courts may determine a petitioner’s motion based upon a verified petition and counter-affidavits in opposition thereto without further hearing of evidence by the court and a jury. The court, therefore, did not err in so disposing of the motion. Domitski v. American Linseed Co., 221 Ill. 161; Consolidated Coal Co. v. Oeltjen, 189 Ill. 85.
‘ ‘ There is a further contention to be considered, and that is the contention of the petitioner that a supplemental decree was entered without jurisdiction and is void because an appeal was perfected from the decree by Marion G. Wilson, Executrix of the Estate of William Garnett, deceased, and that such appeal was perfected before the entry of the supplemental decree in this cause.
“It appears from the condition of the appeal bond that the appeal is from the decree entered by the court, denying certain items and certain portions and amounts of the claim of Marion G. Wilson, Executrix, against Raymond E. Prochnow. The condition of the bond contains no reference to any portion of the decree, except the denial of allowance of certain items of her claim. Smyth v. Stoddard, 203 Ill. 424, and the appeal being from the portion of the decree denying her affirmative relief, the balance of the decree is unaffected and in full force and'effect.”

Thereafter, Prochnow sued out a writ of error from the Supreme Court to review the judgment of the Appellate Court, which writ of error was dismissed by the Supreme Court, and in its opinion (Wilson v. Prochnow, 359 Ill. 148), after referring to sections 81 and 82 of the Administration of Estates Act referred to in the quoted opinion of this court, the Supreme Court said:

“Contempts have been classified as criminal con-tempts and civil contempts. The former includes acts in disrespect of the court or its process and those tending to bring the court into disrepute or obstruct the administration "of justice. Civil contempts have been characterized as quasi-contempts, and consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court. In such a case the process is civil. (Hake v. People, 230 Ill. 174; Holbrook v. Ford, 153 id. 633.) In this class of cases, while the authority of the court may be said to be incidentally vindicated, its power is called into exercise for the benefit of a private litigant and not in the public interest, merely. If imprisonment is ordered, it is not as a punishment but to the end that the other party to the suit may obtain a remedy for the advancement of his own private interests and rights which he could not otherwise procure. People v. Elbert, 287 Ill. 458; O’Brien v. People, 216 id. 354; Loven v. People, 158 id. 159; People v. Diedrich, 141 id. 665; Crook v. People, 16 id. 534.”

In the instant proceeding which is now the subject of this court’s consideration, a petition was filed by Prochnow in the circuit court of Cook county on February 20, 1935, in which he recites, inter alia, the fact of the issuance of a mittimus under which he is now confined in the county jail under the order of the Circuit Court, and that he has been so confined since May 14th, 1934, and states that “your petitioner at one time prior to the entry of the decrees and order aforesaid had been in the possession of said bonds. Your petitioner at the time of the entry of said decrees and order aforesaid was not in possession or control of said bonds and said bonds have not since that time been in his possession or control, nor have they been in the possession or control of any other person or persons for your petitioner. Your petitioner has no knowledge of the whereabouts of. said bonds and he does not know who now claims ownership thereof. Your petitioner has not now and since the entry of said decrees and order has not had in his possession or control, either directly or indirectly, in his own hands or in the hands of any person or persons for him, any assets of any kind belonging to the estate of the said William Garnett, deceased. Your petitioner is unable to procure any funds on credit or otherwise with which he might be enabled to comply with the decrees and order of this court, and your petitioner is unable to comply with said decrees and order. If your petitioner shall continue to be detained and imprisoned he will not be able to earn any money and he will therefore, so long as he shall be so detained and imprisoned be unable to make any payment on account of the decrees or order entered against him. Unless your petitioner shall be ordered discharged from said detention and commitment, he will be kept in confinement during the rest of his natural life. Wherefore, your petitioner prays that said Marion G. Wilson, executrix of the estate of William Garnett, deceased, may be required to answer this petition, but not under oath, under oath being hereby expressly waived, and upon a final hearing of this petition and the answer thereto, a decree or order may be entered herein finding the total amount now due from the petitioner to said estate and that a money decree be entered accordingly, and that the decrees and order committing this petitioner to jail be vacated and that the commitment and attachment heretofore issued be withdrawn and th@ petitioner discharged from the custody of the Sheriff of Cook County, and that the petitioner may have such other relief as the court may determine to be just, and the petitioner shall ever pray, etc.”

To this petition a special demurrer was filed by Marion G. Wilson, executrix of the estate of William Garnett, deceased. The court entered an order sustaining the demurrer and dismissing the petition, and in such order found, among other things, that “this court is without jurisdiction to set aside, vacate, modify or annul the decrees and orders entered herein at the May Term, A. D. 1932 of this court, or to grant the relief or any part or portion thereof as prayed for in said petition, and that said demurrer is well founded in point of law and should be sustained.”

The principal ground upon which Proehnow seeks his discharge, as set forth in his petition, is that notwithstanding' the ascertained fact that he embezzled and appropriated to his own use a large amount of property belonging to the estate of William Grarnett, deceased, and which he has failed and refused to turn over to the personal representative of the estate, the fact is that he is bankrupt, without funds, and is totally unable to comply with the order of the court. In his brief filed here, it is admitted that the following facts are established by the orders and decrees of the circuit court, all of which-have been affirmed on review: (1) That Proehnow converted to his own use certain assets of William Grarnett, deceased. (2) That among the assets so converted were certain securities, the value of which, including interest, was ascertained by the circuit court at the time of the entry of the decree of May 24, 1932, to be $30,280.61. (3) That judgment was entered for-this amount in favor of the executrix and against Proehnow, and execution ordered, and that such judgment remains fully unpaid. (4) That in addition to the assets so converted, Prochnow has not accounted for certain bonds belonging to the Grarnett estate. (5) That these bonds, at the time of the entry of the decree of May 24, 1932, were either in Proehnow’s possession, or in his control, or had been concealed by him, converted by him, or had been embezzled by him. (6) That Proehnow at the time he was committed to jail, had not paid the money judgment, and had not restored the bonds.

It is claimed by the petitioner, and it is admitted by the demurrer, that Prochnow has not now and since the entry of the orders and decrees of the circuit court has not had in his possession or control either directly or indirectly in his own hands or in the hands of any person or persons for him, any assets of any kind belonging to the estate of William Garnett, deceased; that at the time of the entry of the orders and decrees of the circuit court, Prochnow did not have and since that time has not had in his possession or control, nor did any person or persons have in their possession or control any property or assets of any kind belonging to Prochnow in which he either directly or indirectly had any interest whatsoever; that since the entry of said orders and decrees of the circuit court, Proehnow had not disposed of or concealed any property or assets belonging to him either in his own name or in the name of any person or persons for him; that since the entry of the orders and decrees of the circuit court, Proehnow at no time has been able to procure any funds on credit or otherwise with which he might be enabled to comply with the order and decrees of the court. As stated, for the reasons set forth, Prochnow now seeks his release from imprisonment.

In People v. Zimmer, 238 Ill. 607, one Zimmer had been appointed receiver of a certain partnership, and as such receiver, had collected a large amount of money for which he failed to account. The court in that case entered an order that Zimmer turn the money over to a person designated, which order Zimmer failed to obey. A rule of the court was entered against Zimmer to show cause why he should not turn over the moneys, as ordered by the court, within a certain fixed time, otherwise, he should be held in contempt of court. In answer to this rule, Zimmer set forth various reasons for his failure to comply with the order of the court, and among others, a statement to the effect that he was insolvent, had no money, and could not, therefore, comply with the order of the court. As to this defense, the Supreme Court said:

“As a further reason why he should not be punished for contempt the receiver stated that he had no money or other property with which he could make the required payment, and it is argued that the court may not properly punish a receiver for contempt in failing to pay over money with which he is properly chargeable, if he does not, in fact, have the means with which to make the payment. In the first place, the receiver’s inability is not satisfactorily shown by his answer. That document contains no detailed statement of his affairs, as it should do. His offer to submit to an examination is not less than an impertinence. If he decided to interpose a defense of insolvency, the answer should have been accompanied by such a showing as would, prima facie, have rendered an examination unnecessary. Had that showing been so made, the court could then, if it saw fit, have permitted counsel for Dalton to interrogate Zimmer with reference to the statements of the answer. We are satisfied, upon this record, that if Zimmer does not have this money it is because he has disbursed it improperly and unlawfully, when, if the law is as he successfully contended when the case was first in the Appellate Court, he might be called upon to account for it at any time before the cause was finally disposed of in the circuit court. Moreover, where, as here, a receiver has wrongfully converted or expended money in his hands and is proceeded against in the cause in which he was appointed for contempt on account of a failure to comply with an order to pay, inability to pay, resulting from the wrongful act, does not present a defense to the proceeding, and the receiver may be imprisoned for the contempt notwithstanding his inability to pay. Cartwright’s case, 114 Mass. 230.”

It is to be noted that counsel for Proehnow in this appeal do not cite any Illinois authority upon which to predicate any claim that the bankruptcy or insolvency of Proehnow, or his inability to pay, as alleged, is any reason alone, for Ms discharge. As stated, the principal point raised by the petitioner on this appeal is that the court was in error in its finding and holding that the circuit court is without jurisdiction to set aside, vacate, modify or annul the decrees and orders entered in the case at the May term, 1932, or to grant the relief of any part or portion thereof, as prayed for in the petition. On this point, we are unable to agree with the court’s finding. As already stated, the proceeding under sections 81 and 82 of the Administration of Estates Act is a summary proceeding, and is brought for the sole purpose of compelling any person having property or effects belonging to the estate of a deceased person, to produce them, and to turn them over to the personal representative of the estate, in this case, the executrix of the estate of William Gar-nett, deceased. It necessarily follows that the court in attempting to exercise the powers given it by these sections of the act must retain full control over the matter for the purposes noted in the statute. The very language of the act in this regard indicates that this is true. We again call attention to the language of the act to which we refer, which is that “the court may, on refusal to comply with such order, commit such person to jail until he shall have complied with the order of the court therein.” The only purpose of this provision is to compel a compliance with the court’s order, and the court necessarily retains jurisdiction of the entire subject matter for that purpose. The judgment of the circuit court dismissing the petition, is reversed and the cause is remanded with the direction that the court enter such order as is appropriate and is consistent with the views herein expressed.

Reversed and remanded with directions.

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


author: Mr. Justice Allaben

text:
    Mary E. Lachenmyer, Appellee, v. Central Mutual Insurance Company of Chicago, Appellant.
    Gen. No. 8,920.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    C. H. Swick, of Urbana, for appellant.
    Schaefer & Dolan and Frank B. Leonard, all of Champaign, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

On November 13, 1934, the plaintiff, Mary E. Lachenmyer, recovered a judgment against W. M. Glotfelty in the circuit court of Champaign county, Illinois, for $15,000' for injuries sustained by her in a collision between Grlotfelty’s taxicab number 104, serial number 9422, and an automobile in which plaintiff was riding on April 22, 1934. Thereafter she filed her complaint in this canse against the defendant-appellant, Central Mutual Insurance Company of Chicago, setting forth the judgment, and alleging that at the time said accident happened there was in full force and effect a policy of insurance covering the defendant, Glotfelty, and the cab in question, whereby the defendant, the insurance company, was bound to pay all final judgments rendered against the said Glotfelty on account of the operation of the said cab, but not more than $5,000 for injuries sustained by any one person, and not more than $10,000 for injury to all persons in one accident, and that there was also at said time and place and covering said Glotfelty and said cab another policy of insurance whereby the insurance company bound itself to pay any judgment rendered against the defendant Glotfelty for the operation of the above mentioned cab, with a limit in amount, to the sum of $2,500. The complaint further alleged that under the terms of par. 466 (1) eh. 73, Cahill’s Statutes, 1933, the plaintiff was entitled to maintain suit directly upon these policies ; alleged performance of all conditions precedent required of the plaintiff and Glotfelty, and asked for judgment in the sum of $7,500, interest from the date of the entry of the judgment on November 13, 1934, and costs taxed in the suit in which judgment was recovered against Glotfelty. The answer of the defendant, Central Mutual Insurance Company of Chicago neither admitted nor denied that the policy was in full force and effect on the date of the accident; admitted that suit was brought as alleged by plaintiff; denied there was demand made on Glotfelty to pay the judgment ; alleged that the law with reference to section 42a of the Motor Vehicle Act, Ill. State Bar Stats. 1935, ch. 73, ¶ 44, was unconstitutional and void; alleged that the court did not have jurisdiction of the parties defendant, nor of the subject matter; alleged that the policy or bond of $2,500, and the other policy referred to, only insured the said Walden M. Glotfelty in the sum of $5,000 for one person, and $10,000 for two persons ; admitted the recovery of the judgment on the date alleged; denied.liability entirely, or if any liability, not to exceed the sum of $5,000. On these issues trial was had before the court, at which time proper proof was made of the judgment for $15,000. Policies were put in evidence. In addition Walden M. Glotfelty. testified that he owned the cab that was involved in the collision, and that the cab bearing engine number 9422 was the same cab referred to in the two policies; that he called the local agent of the defendant insurance company the night of the collision, and its adjuster came down, interviewed witnesses, and hired Mr. Zwick to represent him in the common law case; that he did not retain or agree to pay either Mr. Zwick, or Judge Freeman who also appeared with Mr. Zwick in the trial of the case. He further testified that a representative of the insurance company discussed the amount of judgment of $15,000 after the same had been entered. An examination of the two policies of insurance discloses that the larger policy, that is, the policy with $5,000 and $10,000 limits, contained a limitation schedule of $5,000 for one person and $10,000 for one accident. There is no record as to the premiums, but said schedule bears the following notation: “See bonds Nos. 7533 to 7541, incl.” This policy also contains the following provision: “No recovery shall be had under this policy if at the time a loss occurs there be any other insurance, whether such other insurance be valid and/or collectible or not, covering such loss, which would attach if this insurance had not been effected. Any and all provisions, of this policy which are in conflict with the statutes of the State wherein this policy is issued are understood, declared and acknowledged by this Company to be amended to conform to such statutes. ’ ’ Also a further clause providing that insurance company, irrespective of the limit of liability, would pay all court costs and all interest accruing after entry of a judgment. It also contained the following* indorsement: “In consideration of the premium charged, it is understood and agreed that the policy to which this endorsement is attached shall run concurrently with Bonds Nos. 7533 to 7541, inclusive, and shall provide insurance over and above the limit of insurance .provided in said bond up to a total of $10,000.00 for injuries to or the death of more than one person in one accident. ’ An examination of the smaller policy, Exhibit B, number A-7533, discloses it covered the period of this accident, and the cab involved therein, and contained the following provision: “This policy shall and does insure said owner against such liability for the sum of Twenty-Five Hundred Dollars ($2500.00) for each motor vehicle and liability hereunder is limited to a maximum of Two Thousand, Five Hundred Dollars ($2,500.00) for each motor vehicle covered by this policy. This policy of insurance is issued pursuant to the provisions of the motor vehicle law.” No evidence was offered by the defendant. The court found for the plaintiff and against the defendant in the sum of $7,500, $15.85, costs; and interest on the sum of $7,500 from November 13, 1934, the entry of the judgment, to date, and entered a judgment in the sum of $7,601.12, and costs. A motion for new trial was thereafter denied. It is from this judgment that the defendant, Central Mutual Insurance Company of Chicago appeals, assigning as error the following: The court erred in entering judgment against defendant in the sum of $7,601.12, in allowing interest on the principal judgment, as interest was not pleaded or claimed in said declaration; in the construction of the policies, in that the court held that there were two policies, each with full liability; in not directing a verdict in favor of the defendant at the close of all the evidence; in finding that any demand had been served on said defendant for the payment of said judgment, or any particular sum of said judgment; in assessing an excessive judgment; in not granting motion for new trial.

It is difficult to determine from the assignment of error just what appellant’s complaint is. It seems to us that many matters have been argued by both appellant and appellee that have no bearing on the issues involved in this case; the argument of appellant seems to be that these two policies should be construed together, or treated as one policy and that by so doing that the policy, Exhibit A, provides only additional insurance over and above the limit of insurance provided in said bond (Exhibit B) up to a total of $10,000 for injury to or death of more than one person in one accident as provided in Clause A of the insuring agreement. To us it does not appear that it is necessary to decide that question or that if appellant’s contention were true it would aid appellant in this case or in any way affect the judgment of the trial court, because there is nothing in the language of the policies, or either of them, or any of the indorsements thereon, which in any way limits the recovery of one individual on Exhibit A to $2,500. In other words, even if the sole amount of recovery on the two policies was $10,000, still one individual who had a judgment in excess of $7,500 could recover $5,000 on the large policy and $2,500 on the other. This might or might not leave $2,500, as the amount left unexhausted in the larger policy, Exhibit A, but that question is not before this court in this case. There is considerable argument concerning two judgments against the defendant, covered by this policy. There is nothing in the record to substantiate any such contention, nor is anything concerning such other judgment raised by pleadings. There is a provision in the larger policy that the insurance company would pay over and above its policy limits, interest and costs. They were asked for in the plaintiff’s complaint. No complaint is made as to the computation, and therefore, we find no error by the court as set up by the assignments of error, 1, 2 and 3. Assignment 4 is not argued, and therefore, will not be considered.

Defendant complains because the court found that a demand had been served upon the defendant for payment of the judgment. It is not necessary a notice be served on the defendant insurance company; as insurance carrier for Glotfelty it is bound by the judgment against him. (Wold v. Glens Falls Indemnity Co., 269 Ill. App. 407; Poorman v. Ft. Armstrong Automobile Underwriters, 269 Ill. App. 466.) What we have said above applies to the complaint that the judgment is excessive, and that a new trial should be granted.

The constitutionality of the statute under which the smaller of the policies, Exhibit B, was issued, was raised in the trial court. By appeal to this court that question is waived, and will not be considered. Through the argument there seems to be running the contention that this is not a final judgment. We can .find nothing in the record to justify such contention, or that there was more than one judgment against the defendant Glotfelty.

A careful examination of this record leads us to the conclusion that there was no reversible error committed by the trial court, that the finding and judgment of the trial court is correct, and therefore, its judgment is hereby affirmed.

Judgment affirmed.


text:
    Agnes L. Lachenmyer, Appellee, v. Walden M. Glotfelty, Trading as Terminal Cab Company, Appellant.
    Gen. No. 8,932.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.

      C. H. Swick and Roy C. Freeman, both of Urbana, for appellant.
    Schaefer & Dolan and Frank B. Leonard, all of Champaign, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

Between 11:30 and 12:00 o’clock on the night of April 22,1934, the plaintiff, Agnes L. Lachenmyer, was driving a Ford coupe in a westerly direction on University avenue, in Champaign, Illinois. Biding as a passenger in the car with her was her sister, Mary E. Lachenmyer. When the Ford coupe reached the neighborhood of the intersection of Fourth street with University avenue, a collision occurred between the Ford coupe and a taxicab owned by the defendant, Walden M. Glotfelty, and which at the time was being-operated by an agent of said defendant. As a result of this collision both Agnes L. Lachenmyer, and Mary E. Lachenmyer, her sister, were seriously injured. The two sisters joined as plaintiffs, filed a complaint in the circuit court of Champaign county, against Walden M. Glotfelty, and Toby N. Drollinger, copartners, doing business as “Terminal Cab Company.” On motion of Mary E. Lachenmyer the causes were tried separately, and before trial the plaintiff dismissed the complaint as to the defendant Toby IST. Drollinger. The original complaint consisted of four counts; the first count was confined to the action of Mary E. Lachenmyer alone; the fourth count charged wanton and wilful conduct, and was dismissed out of the case by the plaintiff before trial. Therefore, this case was tried upon the allegations of negligence of the defendant as alleged in the second and third counts of the complaint as amended. The ad damnum on motion was increased from $10,000 to $15,000.

The two counts of the complaint as amended charge that on the night of April 22, 1934, the plaintiff was driving a Ford coupe in a westerly direction on University avenue, in Champaign, Illinois, which thoroughfare was then and there a part of Illinois State Route 25; that at that time and place she was using due care and caution for her own safety and for the safety of others; that at the intersection of Fourth street with University avenue the car which she was driving was struck by a taxicab owned by the said defendant, and operated by his agent; that said collision was caused by the negligent manner in which the agent of the defendant then and there operated defendant’s taxicab; that said negligence consisted of the following: That the defendant, by his agent, drove his said taxicab negligently and carelessly at a greater speed than was reasonable and proper having regard for traffic and use of the way; that the defendant’s cab was traveling east on University avenue, behind another automobile, and swerved to the left or toward the north side of the street, into the lane of travel of the plaintiff’s automobile; that the defendant by and through his agent, failed to keep a proper lookout and that the defendant otherwise, negligently and carelessly drove and operated said cab, whereby and on account of said negligence as above set forth, and while the plaintiff was on the right or north side of the street or roadway and was using due care and caution for her own safety, and as a direct and proximate result of the above mentioned negligence, a collision occurred between the plaintiff’s car and the defendant’s cab, whereby the plaintiff was greatly injured and damaged, and sustained damages to the extent of $15,000.

The defendant answered the complaint, denying all allegations of negligence, alleging specifically that his cab was at all times operated on the south side of the street, and denied that the plaintiff was free from negligence.

The following facts are admitted: (1) The collision; (2), that University avenue lies in an east and west direction; that at the point where it is intersected by Fourth street, a north and south street, University avenue is 47 feet wide; that immediately east and west of said intersection University avenue is 40 feet wide; that there formerly was a single track street car line, located in the center of University avenue, at the 40-foot widths; that the rails comprising said track had been removed; that the portion of the street formerly occupied with said track was paved with bricks laid longitudinally; that the distance from the former location of the north rail of said track to the north curb of University avenue was 17% feet; that the distance from the former location of the south rail of said track to the south curb of University avenue was also 17% feet, except that at the point of intersection of Fourth street with University avenue, the distance from the location of the former south rail of said track to the south curb, was 24% feet; that the 7 feet additional space being by reason of a cut-back of 7 feet, to provide parking space in front of a hotel; that Fourth street south of University avenue was 39 feet east of the point where Fourth avenue intersects University avenue to the north, there being a jog of 39 feet; that plaintiff was the owner of the Ford coupe and was operating the same at the time of the collision, and that defendant’s taxicab was being operated by his ■agent or employee.

The testimony submitted as to the happening of the accident is quite voluminous. No attempt will be made to set out in detail the testimony of the various witnesses. As actual eyewitnesses the plaintiff produced three, being herself, her sister, and Irvin ft. Maxwell who was sitting in a front window on the west side of the hotel, looking north, and who saw the two automobiles collide. The defendant produced two — one, Cleon Parrish, who was operating the taxicab, and Leland P. Smith, who was walking west on the south side of University avenue, and who heard the sound of the collision, turned around, and ran to the scene of the accident.. Besides the witnesses mentioned, the plaintiff produced a Mr. Doig, and Louis Frizzell and Clyde Davis, who testified as to the positions of the automobiles after the accident. In addition to the witnesses mentioned, the defendant also produced James Lindsay, a driver for the University Cab Company, which is operated by the defendant, Glotfelty; Boss Gilmer, also employed by said defendant, Glotfelty, as a cab driver, George F. Miller, another employee of said Glotfelty, all of whom testified as to the position of the automobiles involved, after the accident. A Maude Waters, who at the time of the collision was a passenger riding in the taxicab of the defendant was not called as a witness.

The plaintiff testified that between 11:00 and 11:30 o’clock on the night in question she was driving a Model A, Ford automobile, west on University avenue, going between 15 and 20 miles per hour; that she had city driving lights on, and could see a half block ahead; that she saw cars parked along* the north side of University avenue, saw cars approaching from the west, on the south side of the street; that the south wheels of her automobile were north of what had been the north rail of the street car track; that the north side of her automobile was 10 feet from the north curb; that as she passed south Fourth street she glanced down and then looked ahead to see that the path ahead was clear, when some very bright lights suddenly turned out ahead of her, about 20 feet, which lights gleamed intensely into her face; that the south wheels of her automobile were then just north of the former location of the north rail of the street car track; that she tightened her grip on the steering wheel, straightened her leg to apply the brake; that the collision occurred almost instantly; that she had no opinion of the speed of the other automobile; that she was thrown to the top of the automobile, and then against the front of it. She then testified in detail as to her injuries, the care she received, the time she spent in the hospital in receiving medical attention, and as to her present condition. She further testified that just before the accident the front end of her automobile was just nearing north Fourth street; that there were no cars on the north side of University avenue; that she did not remember any cars being in the intersection; that she was looking directly west, watching for traffic; that she did not see any car coming from the north; that she was north of the former location of the car track, and might have turned slightly, perhaps a foot; that she did not have time to turn to the north or south; that she saw the cab turn out because there were no cars between the cab and her automobile, and the cab was about 20 feet away; that she did not see any car pass in front of her.

Mary Laehenmyer testified that she was riding in the Ford automobile at the time of the collision, and that the automobile was going about 15 miles per hour. Otherwise, her testimony directly corroborates the testimony of the plaintiff. Irvin E. Maxwell testified for the plaintiff, stating that he was sitting in the front window of the hotel on the south side of the street; that he was looking north; that when he first saw the cab it started to pass another cab on the south side of the street; that the cab involved in the accident was going at a speed of 45 miles an hour; that he (Maxwell) was looking north, heard a crash, and saw where the two cars hit head on, which was north of the center of the street; that the Ford automobile was 8 or 9 feet from the north curb line of University avenue, with the front end a foot or a foot and a half farther out than the rear; that all four wheels of the Ford automobile were north of the old street car track; that the front wheels of the cab were a little south of the north rail of the former street car track; that there were marks on the pavement at the back end of the rear wheel of the taxicab, 15 to 17 feet back. The other witnesses who testified on behalf of the plaintiff, as to the location of the cars after the accident, gave the location of the Ford automobile as well north of the center line of University avenue, and that of the taxicab as also somewhat north of that line.

For the defendant, Parrish, the driver of the taxicab, testified that on the evening in question he was operating the cab on the right-hand side of University avenue, going east, traveling about 25 miles per hour; that he observed a car coming west on the north side of the street, traveling about 25 miles per hour; saw it approach the intersection of Fourth street; that he saw a small truck come from north Fourth street, in front of him, and go south on Fourth street; that this truck was 40 feet away from him when he first saw it; that when the truck pulled out, he pulled his taxicab to the left, to about the center of the street; that as the truck went by he saw the lights of the other automobile directly in front of him, about 30 feet away; that then the collision occurred; that after the collision the north front wheels of the cab were on the former location of the north rail of the street car track; that the north front wheels of the Ford automobile were just over the line, to the north side of the former location of the north rail; that he saw the Ford automobile until the other automobile pulled in between them; that at that time the Ford automobile was on the north side of the street car line, about 100 feet down the street; that at that time the truck was crossing the old street car track moving in a southeasterly direction; that when he again saw the Ford automobile it was 12 or 14 feet away; that the collision happened about when the north wheels of his cab were about on the north rail of the old street car track; that the two cars collided head on; that he did not think he put on his brakes when he first saw the truck; that he did not sound a horn before the collision; that when he first saw the lights he turned the wheel of his cab to the south and that just a fraction of a second after that the collision occurred; that he was going 20 miles an hour at the time of the collision, and was working for the defendant.

Leland P. Smith, testifying on behalf of the defendant, stated that he was walking west on the south side of University avenue, turned around toward the south, looking over his shoulder, heard the sound of the collision, and turned on around, and ran to the scene of the accident; that as he turned around he observed the tail light of a car disappearing down south Fourth street. He, and the other witnesses who testified on behalf of the defendant, as mentioned, gave the position of the cars after the accident at about the middle of the intersection, placing the Ford automobile a little bit south of the center of the former street car track.

Also on behalf of the plaintiff Dr. J. M. Christie and Dr. John B. Christie, physicians, testified that the plaintiff had a compound fracture of the nose, with bones protruding through the skin, a compound and badly comminuted fracture of the elbow, with bones broken into several pieces, a comminuted fracture of the left knee, and a fracture of the right knee; her legs were placed in casts, her arm was suspended in a Balkan frame, and she had a stymen pin through her ankle; she was in Mercy Hospital for eight weeks, at home in bed for three weeks; that after remaining home she returned to the hospital on two occasions; that she had a permanent shortening of one inch in the left leg; that the motion of the left arm was restricted to a great degree; that she was still under a doctor’s care at the time of the trial; that it was certain there would always be some restriction in the elbow. The medical and hospital expense aggregated approximately $1,000. Several witnesses testified that plaintiff had been in good health prior to the accident, but was very nervous since.

Numerous X-rays of the injured parts were admitted in evidence over the objection of defendant. These X-rays were taken at the request of Dr. J. M. Christie, who used them in connection with his treatment of the plaintiff. Some of the X-rays were taken by Irene Pipgress, X-ray technician at Mercy Hospital in Urbana since June, 1934. She had been an X-ray technician for six years prior to that time, and had taken thousands of X-rays. As to the various pictures identified by her as having been taken and developed by her she described the position of the body, and the relation of the tube to the body. She identified the machine and equipment used as standard X-ray equipment. While she did not use the fluoroscope in taking any of these pictures she testified that she had used the fluoroscope on other photographs to determine the accuracy of the machine; that she checked the milliamperes and voltage to get the proper amount, which is a recognized method among X-ray technicians for testing machines; that in her opinion as an X-ray technician the exhibits which she identified each correctly represented what it purported to show, and that each was diagnostic. The rest of the X-ray pictures were identified by Sister Marcella, a registered nurse, who was X-ray technician at Mercy Hospital for about a year and a half prior to June 1, 1934; that she had been trained by her predecessor, Sister St. Vincent; that she had taken about 250 pictures; that the pictures she identified were developed by her; that standard machines were used; she described the position of the lens with reference to the body of the patient; that she ran the machine to get the correct milliamperes and voltage; that the machine was in good working order; that she did not make a fluoroscopic examination of the patient before taking any of these pictures; that in her opinion as an X-ray technician the pictures taken by her truly represented what they purported to show.

At the close of plaintiff’s testimony the defendant moved the trial court to direct a verdict in favor of the defendant, which motion was denied. The motion was renewed at the close of all the evidence, and was again denied. The cause was submitted to the jury for consideration. The jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at $10,000. Defendant’s motions for new trial, and in arrest of judgment, were both overruled. Judgment was entered on the verdict, against the defendant, in favor of the plaintiff, in the sum of $10,000 and costs. It is from this judgment the defendant has prosecuted an appeal to this court, claiming the following errors relied upon for reversal: That the trial court erred in refusing to direct a verdict and to instruct the jury to find the issues for the defendant at the conclusion of the plaintiff’s evidence; and at the conclusion of all the evidence; in admitting improper and incompetent evidence on the part of the plaintiff; in admitting in evidence each and all of the X-ray pictures offered by plaintiff; in refusing to exclude the evidence of Sister ' Marcella from the consideration of the jury; in refusing to incorporate instructions 1 to 12 and 14, tendered by defendant; erred in giving jury instructions in terms of general abstract propositions of law; in refusing to grant a new trial; and refusing to sustain motion of defendant in arrest of judgment.

From a consideration of the testimony it will plainly appear that there was a sharp conflict between the testimony offered by the plaintiff and by the defendant, as to the manner in which this accident happened. If, as testified by the plaintiff, and her sister, they were going west on University avenue, with their lights dimmed, moving at the rate of 15 miles an hour, and as they came to the intersection of University with Fourth no car passed from north Fourth across their pathway and into south Fourth, and they were driving with their left wheels north of the old north car track, and the defendant going at the rate of 45 miles an hour, as testified by Irvin R. Maxwell, suddenly pulled out of his line of traffic and into the line of traffic of the plaintiff, without any cause other than a desire to pass a taxicab which was ahead of him, and if further, the operator of the taxicab sounded no signal as he did so, and ran head on into the plaintiff’s car, north of the north rail of the old street car track, and if he was 20 feet from the plaintiff’s car when he pulled out of his line of traffic, and the plaintiff was looking ahead, and attempted to stop, but the impact happened immediately after, then, certainly, the plaintiff was entitled to recover in this case. On the other hand, if the testimony of the defendant’s driver is to be believed, then the plaintiff might well be denied recovery. This is equally true as to the evidence of the various witnesses who testified as to the location of the automobiles after the accident. Hence, the trial court committed no error in refusing to direct a verdict at the close of the plaintiff’s evidence, or at the close of all the evidence. The question of the negligence of the defendant, and the contributory negligence of the plaintiff were questions of fact, which were properly submitted to the jury, and the jury having by its verdict determined that the plaintiff was free from neglh gence, and the defendant was guilty of negligence, there is ample testimony to sustain the verdict. The question of the credibility of the witnesses was for the jury, and therefore, no error was committed by the trial court in refusing to grant the defendant a new trial, or in refusing to sustain the defendant’s motion in arrest of judgment unless error was committed by the trial court in connection with the admission in evidence of the X-ray pictures, or in its instructions to the jury.

The defendant in his errors relied upon for reversal, or assignment of errors, does not complain that the verdict is excessive, neither is there any such contention in his brief proper, nor is anything said about it in the argument, except the mere statement, “In conclusion we say that the damages were excessive. ...” Indeed, from a consideration of the evidence we do not see how it could well be contended that a verdict for $10,000 was excessive in this case. The plaintiff sustained the various fractures heretofore mentioned, was in the hospital for approximately eight weeks at one time and had to return to the hospital several times thereafter for treatment, had sustained a shortening of one leg, and a very large loss of use of one arm, during the treatment which was administered to her various treatments were given her which caused excruciating pain, and at the time of the trial she was still under treatment, and was in a highly nervous condition. All of this was proved by a well qualified physician. No testimony was offered to refute it. In fact, defendant in his argument admits that The collision in question was one which resulted in serious injury to plaintiff, of which fact there can be no doubt.” With this in view we will consider whether or not the trial court erred in admitting in evidence each and all of the X-ray pictures, and in refusing to exclude the evidence of the witness, Sister Marcella. In view of the fact that the seriousness of the injuries is not disputed, and that their nature could be determined without the use of X-ray pictures, we believe that even if the X-ray pictures, plaintiff’s exhibits, were erroneously received, no harm has been, done the defendant, and therefore, no reversible error committed. (King v. Meeker, 269 Ill. App. 57.) A consideration of the testimony of the doctor that he ordered the X-ray pictures and used them in his treatment of the plaintiff, and taking into consideration the further fact that both of the witnesses who took the X-rays were skilled X-ray technicians, regularly employed for that purpose by the hospital, and their further description of the method employed, the character of the machine, the position of the lens, and the position of the body, when each picture was taken, was sufficient proof to warrant the trial court in admitting them in evidence. It is true the fluoroscopic test was not used by either of the experts, although one of them had used the fluoroscope in the taking of other pictures to determine the accuracy of the machine. They testified as to other standard tests which they did use to test the accuracy of the machine. An examination of the body Avitli the fluoroscope is not an exclusive method of testing the accuracy of an X-ray film. These experts testified that in their opinion the pictures correctly represented the condition of the part of the body photographed. Under all the circumstances we feel no reversible error was committed by the trial court in admitting these pictures, or in refusing to strike the testimony of Sister Marcella. (Chicago City Ry. Co. v. Smith, 226 Ill. 178; Chicago & Joliet Electric Ry. Co. v. Spence, 213 Ill. 220.)

Defendant complains that the trial court erred in refusing to incorporate in its instructions to the jury defendant’s tendered instructions 1 to 12, inclusive, and tendered instruction 14; also that the trial court erred in giving to the jury the narrative instruction in terms of general abstract propositions of law, which defendant insists were erroneous. The complaint as far as defendant’s instruction 1 is concerned may be disregarded because the point was not saved for review. It appears from" the record that while the suggestion was presented to the court prior to his preparing his narrative instruction after the court had prepared his tentative draft of the narrative instruction and submitted same to counsel no mention was made

by counsel as to the omission of his suggested instruction 1. Any error was thereby waived. (Civil Practice Act, 1933, sec. 67.) Defendant’s instruction number 2 was properly refused because in the narrative instruction was incorporated defendant’s instruction number 8, which charged the jury that before the plaintiff could recover she must prove by the preponderance of the evidence defendant’s negligence as charged in the complaint, that same was the proximate cause of the injury, and that the plaintiff was free from contributory negligence. (Peters v. Madigan, 262 Ill. App. 417; Gordon v. Current, 263 Ill. App. 435.) As to defendant’s tendered instructions 4, 5, 6, 7, 10, 12 and 14, it appears to this court that all of the matters therein contained which were properly applicable to this ease were incorporated in the court’s narrative instruction, and the trial court properly refused to reiterate propositions of law which he had previously incorporated in his narrative instruction. The issues in this case were simple, and it was not necessary that the same propositions of law be set out more than once in order that the jury might be properly instructed. Neither can we find any merit in defendant’s contention that the narrative instructions given by the court were in such general terms and of such an abstract character as to be of little value and to make the giving of the same erroneous. No specific complaint is set out as to the other instructions, and therefore, they will not be considered. It appears to us that the defendant had a fair opportunity to present his defense; that there was no reversible error in the proceedings in the trial court; the verdict of the jury was supported by the evidence, and the court properly entered judgment on the verdict, which judgment of the trial court so entered on said verdict, should be and is hereby affirmed.

Judgment affirmed.