author: Mr. Presiding Justice Riess

text:
    Glen Carrell, Administrator of Estate of Ruthe Carrell, Deceased, Appellee, v. New York Central Railroad Company, Lessee of Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    Gen. No. 9,365.

      Opinion filed February 24, 1943.
    Samuel W. Baxter and Charles P. Stewart, both of Cincinnati, Ohio, and Kiger & Dilsaver, of Mattoon, for appellant; Russell B. James, of Mattoon, of counsel.
    Carson & Appleman, of Urbana, and William K. Kidwell, of Mattoon, for appellee; John Alan Appleman, of Urbana, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The defendant, the New York Central Bailroad Company, a corporation, has appealed from a judgment in the sum of $3,500 which was entered against the appellant and in favor of plaintiff appellee, Gflen Carrell, administrator of the estate of Buthe Carrell, deceased, after a trial by jury in the circuit court of Coles county, Illinois. Plaintiff had filed suit for the benefit of the two minor children as next of kin of said intestate deceased, who was struck and killed on August 31, 1940, by the engine of a passenger train proceeding westward on appellant’s tracks while the intestate was attempting to walk across the track, at a point where the latter crosses Division street in the city of Charleston,. Illinois.

The complaint consisted of seven counts. The first count alleged negligence by defendant in failure to maintain a lookout for persons crossing its tracks on said right of way or to observe intestate; in failing to give any warning -signal or to sound any bell or whistle when its train approached the crossing, or to erect and maintain warning signals, and in approaching said crossing at a high and dangerous rate of speed, to-wit: 90 miles per hour, and thereby negligently striking and causing the death of Buthe Carrell. The second count' similarly charges said alleged acts as being wanton and wilful misconduct, so proximately causing said death. The third count alleged negligence in operating the train. The fourth count alleged negligent failure to ring a bell or blow a whistle as required by statute therein cited. The fifth count alleged the crossing to be in a populated business and residential district of said city, used by many persons and vehicles in crossing the railroad; obstructions to the view of such persons by trees and other obstacles, and negligent failure to erect reasonable warning appliances and safeguards to give adequate notice and warning of approaching trains. The sixth count alleged the negligent crossing of said street by defendant’s trains at a high and dangerous rate of speed of 90 miles per hour, and so great as to render the blowing of the whistle and ringing of .a bell on the engine unavailing as a reasonable warning of the approach of its train. The seventh count alleged wanton and wilful misconduct in defendant’s knowledge of amount of travel and of obstruction to the view of persons crossing said track and a conscious indifference to surrounding circumstances and conditions in driving the train at a high and dangerous rate of speed without adequate warning and notice, approximately causing said death.

Defendant filed a motion to strike certain counts and paragraphs of the complaint, which was denied by the court and issue was joined in defendant’s answer by denying all allegations of negligence or wilful and wanton misconduct and denying the exercise of ordinary care for her own safety by Buthe Carrell.

Error is assigned by appellant in the court’s denial of plaintiff’s motions for a directed verdict as interposed at the close of plaintiff’s evidence and all of the evidence; in the admission and refusal to admit certain testimony and in the giving or refusal of certain instructions as indicated in the motions; in denial of motions for judgment notwithstanding the verdict for new trial and in arrest of judgment and in entering judgment on the verdict.

Defendant appellant’s railroad tracks extend in an easterly and westerly direction through the city of Charleston, crossing Division street which runs in a northerly and southerly direction at a right angle thereto. Railroad street extends east and west along the southerly side of the right of way and across Division street. Immediately south of the crossing, Division street “jogs” east for a distance equaling the width of said street and thence again continues northward across and beyond the tracks. The Brown Shoe factory, where Mrs. Carrell was employed, is located on the west side of Division street approximately 100 feet south of appellant’s railroad tracks, between which tracks and factory, a driveway leads into the latter. On the east side of Division street are located several small businesses, including two restaurants, opposite the factory. Along the south side of Railroad street and east of Division street, are located several residences and concrete footwalks and a row of trees shown on photograph, whose branches extend outward above the southerly half of Railroad street, there being no buildings on the northerly or track side of Railroad street which leaves the tracks open to view from their southerly side along Railroad street for a distance of 705 feet east to the depot. The distance from the building at the southeast corner of Division and Railroad streets to the south rail of the tracks is 65 feet, as measured by County Surveyor Miller. The sidewalk on the east side of Division street extends northward on an upgrade to the tracks at a height of 3 or more feet above the street level and at an incline of about 6% per cent. North of the “jog” referred to and the track, this walk extends on northward along the west side of Division street. Deceased resided upon Division street, two or three blocks north of the tracks. The evidence tended to show certain rough and uneven places in the pavement on the upgrade incline south of the tracks. On both the southerly and northerly approaches to the crossing, usual cross-arm “railroad crossing” signs are located. The photograph, admitted as defendant’s exhibit 1 by stipulation of parties, did not show the crossing but showed Railroad street and the depot south of the tracks and the area along and north of the tracks to and beyond the depot in an easterly direction from Division street. The depot and platform was located a distance of 705 feet or about 2% blocks east of the walk on Division street and on the south side of the tracks; the depot building standing back 23 feet distant from the south rail of the track. Between Division street and the depot on the south side of tracks, three telegraph and two other poles and a post or barrier for catching mail bags were located at intervals along the right of way. Opposite the depot and along the northerly side of the tracks stood certain elevators and other buildings. Eastwardly along the tracks at a point 1,430 feet from the walk or more than one fourth of a mile distant from Division street a railroad signal tower was located. The tracks were level, straight and open to vision from the crossing to and beyond the tower for three fourths of a mile, from where they curved off in the distance. Defendant’s passenger train was running about 20 minutes late and approaching from the east toward the west at about 10:15 or 10:20 a. m.,- on the morning of the occurrence, without making a stop at Charleston; its first stop being at Mattoon about 10 miles to the west. According to the engineer and fireman in charge of the train, it was then proceeding about 70 or 75 miles an hour, while certain witnesses of the plaintiff estimated its speed to be from 70 or 75 to ’ 90 miles per hour, one of plaintiff’s witnesses stating that its speed may have been 35 miles per hour. The trainmen testified that the bell and whistle of the engine were rung and kept blowing while proceeding through the city of Charleston and while approaching the crossing. Four witnesses for the plaintiff stated that they did not hear the bell nor the whistle and a fifth witness, Reynolds, testified that no bell nor whistle was sounded. Deceased Ruthe Carrell, aged 22 years, resided on Division street with her husband and two minor children of the respective ages of 2 and 4 years, and was employed at the shoe factory. She walked to and from her home each day over said crossing to the place of her employment. Her husband was employed in a broom factory, their earnings supporting the family. On the morning of her death, Mrs. Carrell left her place of employment" at the factory shortly before 10 o’clock and proceeded eastward across Division street where she made some purchases in a restaurant. She then walked northward along the walk on the east side of Division street, passed other buildings to the southeast corner of Railroad and Division streets, and then proceeded north directly across the “jog” in said street and over Railroad street to the incline paving leading up to and across the tracks toward her home. She was struck while proceeding across the south track and was thrown by the engine a distance of 60 or 70 feet westward, where her body lay on the south side of the track. She was not seen by either the engineer or the fireman as she approached the 'crossing and the train proceeded westwardly without' their knowledge of what had happened. The engineer sat at the window on the right or northerly side of the engine and the fireman was seen by a witness who was sitting on his residence porch on the south side of Railroad street to leave his seat after the train had passed the depot and was not then at his usual place of observation on the south or left side of the engine. Plaintiff’s witnesses say that she walked up the incline toward the track at a normal gait and did not change her pace at any time and that she did not trip nor stumble. Plaintiff stresses the uneven condition of the sidewalk at that point. Two women named Richardson and Drury who were also employed at the shoe factory, had entered an automobile which was parked west of Division street between the factory and tracks in which automobile they were then leaving their place of work, and both saw the oncoming train and one remarked that she, Mrs. Carrell, would be hit. Plaintiff’s witness Harriett Drury, testified to seeing the train approach and strike Mrs. Carrell as she was attempting to walk to and across the track at a normal gait. From their position, west of where she was walking up the incline, witness was able to see and did see the oncoming train and Mrs. Carrell’s apparent danger, although they were seated on a lower level than that on which plaintiff’s intestate was walking immediately before and when she was going upon the tracks. Witness Drury was the only witness who saw the train strike her. Witness Reynolds testified that he went from his work at the factory, immediately following Mrs. Carrell across Division street to his father ’s restaurant on the east side thereof, where she made purchases and then came out and that he was standing at the southeast corner of Division and Railroad streets when she proceeded northward across Railroad street and up the incline which he said was rough and uneven; that she was leaning forward and proceeding in a normal manner and at a point about 10 feet from the track, she looked eastward in the direction from which the train came; that he last saw her proceeding about 5 feet from the track, saw the train approaching, but did not see it strike her; that he later went toward the point where her body lay, but not up to the body. The condition at the crossing and the view eastward toward and beyond the depot was detailed by several witnesses and by consent of the parties, was viewed by the jury. Aside from- the scattered posts between Division street and the depot, it appeared from the evidence and from the photograph, that nothing could have obstructed her view eastward from the point in the center of Railroad street until the time that she stepped upon the track. It was further shown that the track was straight and level to the east for three fourths of a mile and that the weather was clear and the pavements dry on that morning. Others observed the train and saw her danger. It is patent from the evidence that the unfortunate intestate, then proceeding homeward from her place of employment over a familiar crossing, did not hesitate, stop nor change her pace nor apparently observe her danger. Witness Reynolds spoke of her glancing eastward at a point 10 feet south of the track and it was contended by plaintiff that the rough condition of the walk, coupled with the rate of speed at which the train was approaching, the absence of a gate or light flash or other signal except the “Railroad Crossing” sign at the crossing, which was much used by the public at that point and the necessity of observing the condition of the walk when approaching the track, created conditions presenting conflicting questions of fact which were properly submitted to and passed upon by the jury, both as to the issues of negligence on the part of the defendant company and the exercise of due care by the intestate. The jury, in special verdicts found the defendant not guilty of wanton and wilful misconduct; found defendant guilty of negligence and the plaintiff and plaintiff’s intestate in the exercise of due care.

The foregoing is the substance of what we deem to have been the material testimony. It is given more fully because we hold the determining issue and assignment of error before this court to be whether or not as a matter of law, prima facie proof of the necessary elements constituting plaintiff’s alleged cause of action is shown by the evidence, facts and circumstances in evidence and reasonable or legitimate inferences therefrom.

Concerning the motions interposed by the defendant for directed verdicts in its favor and for judgment notwithstanding the verdict which were denied by the court, the applicable rule was set forth by this court in the cases of Kane v. Wehner, 312 Ill. App. 391, 399, 39 N. E. (2d) 51, and Gillett v. Williamsville State Bank, 310 Ill. App. 395, 34 N. E. (2d) 552; Sturgeon v. Quarton, 316 Ill. App. 308, 44 N. E, (2d) 766 (Abst.), and quoted with approval in the recent case of Dregne v. Five Cent Cab Co., 313 Ill. App. 539 (first district) since affirmed by the Supreme Court, as follows: “Upon a motion of the defendant-for a directed verdict, the court can only determine whether or not there was any evidence, which, with all reasonable inferences therefrom, viewed in the light most favorable to the plaintiff, tended to prove the material allegations of the complaint or some count thereof. If there was such evidence, it became the duty of the trial court to deny the defendant’s motion for a directed verdict and to submit controverted issues of fact to the jury, subject only to the giving of proper written instructions by the court as to the law applicable thereto. A motion to direct a verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspect most favorable to the.party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case.” Illinois Cent. R. Co. v. Oswald, 338 Ill. 270,170 N. E. 247. These principles, in varying language, have been frequently announced and applied under the particular facts and circumstances arising in numerous cases which have been reviewed by the Supreme and Appellate Courts of this State. The same rule is applicable in passing upon a motion for judgment notwithstanding the verdict as in motions for directed verdicts. Synwolt v. Klank, 296 Ill. App. 79, 15 N. E. (2d) 895; Larimore v. Larimore, 299 Ill. App. 547, 20 N. E. (2d) 902. In either case, if there is no evidence before the jury which, with reasonable or legitimate inferences therefrom, when viewed in the light most favorable to the plaintiff, tends to prove all of the necessary elements of the plaintiff’s cause of action, the motion should be allowed by the trial court, and a failure to allow such motion becomes reversible error.

Upon the issues of negligence, the evidence was conflicting. We find no evidence of wanton and wilful misconduct and the jury also so held by its special verdict. The controlling question here is whether or not the deceased, under the record, as a matter of law, was shown to be in the exercise of due care for her own safety as she proceeded along the crosswalk and when she stepped upon the track, at and immediately before the time that she was struck by the train. If she was in a position to look down the track with unobstructed view and see the oncoming train, it thereupon became her duty under the law as a matter of ordinary care, to stop, which a pedestrian can -do at any time, and to permit the approaching train to cross while she waited in safety on the walk adjoining. The testimony clearly shows that aside from the posts appearing on the photograph and described in the evidence, and which under the facts shown, could not have prevented the view of an oncoming train, there was nothing to obstruct her view for a distance of 705 feet eastward between the walk on Division street and the railroad depot; that it was possible by the ordinary use of her faculties, for her to have so gained an unobstructed view to and beyond the depot from a continuous distance of at least 20 to 30 feet south of the track before she stepped upon it and to thus observe that the train was in fact approaching from the east. While the speed of the train was rapid, its approach was visible and apparent to others and her danger was also apparent to other witnesses of the plaintiff and could have been seen by her if she had also exercised ordinary care in looking. Only one witness, who also saw the oncoming train, testified that she at any time looked up the track and that was at a distance of 10 feet away, after which she proceeded to her unfortunate death.

In repeated instances, cases involving varying conditions wherein the deceased or injured person was able to see an oncoming train in time to stop before going or driving upon the crossing, and failed to see the train or imminent danger, whether they did or did not look, the Illinois courts of review have held under the particular factual situations therein presented that due care was not shown and that as a matter of law the necessary elements of a cause of action were not proven. Provenzano v. Illinois Cent. R. Co., 357 Ill. 192,191 N. E. 287; Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, 164 N. E. 142; Adair v. Alton R. Co., 299 Ill. App. 626, 20 N. E. (2d) 170 (Abst.); Goodman v. Chicago & Eastern Illinois Ry. Co., 248 Ill. App. 128; Briske v. Village of Burnham, 379 Ill. 193, 200, 39 N. E. (2d) 976. It is contended by appellee that the reasoning which prevailed in the case of Blumb v. Getz, 366 Ill. 273, 8 N. E. (2d) 620 is applicable to the facts herein. It may be noted that the learned justice who prepared the majority opinion in that case later discussed and applied the rule which we feel impelled to follow herein, involving facts showing failure to see a visible railroad crossing barricade and reflector, in the court’s unanimous opinion In re Briske v. Village of Burnham, supra. It is there said at page 200, concerning such failure, that “The conclusion is inescapable, under these circumstances, that Jakubcyk could and would have stopped his car had he used his powers of observation. The law does not permit him to say that he did not see the obstruction when, if he had properly exercised his faculty of sight, he would have seen the barrier. (Thomas v. Buchanan, 357 Ill. 270; Dee v. City of Peru, 343 id 36.)” . . .“The law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger when the view was unobstructed and where, if he had properly exercised his sight, he would have seen it.” Quoting further (201) “It is true, as plaintiff maintains, that contributory negligence is ordinarily and preeminently a question of fact to be decided by a jury. Contributory negligence becomes, however, a question of law when it can be said that all reasonable minds would reach the conclusion, under a particular factual situation, that the facts did not establish due care and caution on the part of the person charged therewith.” (Thomas v. Buchanan, supra, 192 N. E. 215; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 170 N. E. 247.) “In such cases, the court should instruct the jury to render a verdict for the defendants. (Wilson v. Illinois Cent. R. Co., 210 Ill. 603.)” 71 N. E. 398. The judgment of the Appellate Court (Briske v. Village of Burnham, 308 Ill. App. 531) reversing the trial court and entering judgment for defendant notwithstanding the verdict was thereupon affirmed. In the case of Provensano v. Illinois Cent. R. Co., supra, wherein a gravel truck was driven onto a familiar railroad crossing and was struck by an oncoming train which could have been seen by the injured truck driver for a distance of 900 to 1,000 feet, but was not seen by him, it was contended that he was obliged to watch the macadam road and incline which interfered with his seeing the oncoming train and that he would have been obliged to stop and back down a dangerous incline to avoid injury. It was held that this condition of the highway and incline did not excuse his failure to see and observe the oncoming train and his right of recovery was denied.

While the regrettable facts herein are such as to arouse the natural sympathy that exists in a case of this kind, the rule of law in this State is well established that a railroad company, operating of necessity on fixed tracks and over highway crossings, which prevent its trains from stopping within a short distance, creates a hazardous condition in which ordinary care and prudence require that the party approaching a crossing either in a vehicle or as a pedestrian, do so with a degree of care commensurate with such known danger, and the failure to look and see the oncoming train or to look and not to see such train, when it is evident from the testimony that the prevailing conditions permit of such observation, constitutes a failure to show such ordinary care and prudence which, as a matter of law, would permit recovery. Dee v. City of Peru, supra, Greenwald v. Baltimore & Ohio R. Co., supra; Wilson v. Illinois Cent. R. Co., supra. For want of such evidence of due care, the question thereupon became one of law to be determined by the court from the record, and not one of fact -for the determination of the jury, and this court holds as a matter of law that necessary proof of due care was not made by the plaintiff. Dee v. City of Peru and citations, supra.

In view of our holding against plaintiff’s right of recovery under the law and the evidence herein, we need not pass upon further assignments of error by the appellant.

The motions of the defendant for a directed verdict of not guilty, at the conclusion of the plaintiff’s testimony or all of the testimony, and for judgment notwithstanding the verdict, should have been granted by the court below. Such failure constituted reversible error. The judgment of the circuit court of Coles county is therefore reversed and judgment is entered under the statute by this court in favor of the defendant and against the plaintiff herein, in bar of suit and for costs.

Judgment reversed and judgment for defendant.


source: Caselaw Access Project

license: Public Domain

text:
    People ex rel. Fred B. Pletcher and Alma D. Pletcher, Appellants, v. William Dolan, Appellee.
    Gen. No. 9,368.
    Opinion filed February 24, 1943.

      Hutton, Clark & Hutton, of Danville, for appellants.
    Lindley, Jones, Grant & Sebat, of Danville, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Petition for a writ of mandamus was filed in the circuit court of Vermilion county on June 5, 1942 by the plaintiff, at the relation of Fred B. and Alma D. Pletcher, as individuals, not suing as taxpayers for themselves and others but as owners and publishers of the Gatlin Courier, a weekly newspaper, seeking an order of said court to compel the respondent appellee, William Dolan, Supervisor of the Town of Gatlin of said county, to prepare, subscribé and publish in said Gatlin Courier, as the only newspaper published in said Town, a more detailed and itemized verified statement than the one furnished to relators by respondent for publication, showing therein all funds received and expended from the treasury of said Town during the fiscal year ending on March 31, 1942, in compliance with the provisions of sections 5 and 6 of chapter 102 of Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 126.223, 126.224]. .The petition alleged failure to comply with said statute within 30 days after the end of said fiscal year as therein required. The cause was heard by the court and at the conclusion of plaintiff’s evidence, on respondent’s motion, the petition was denied and the suit was dismissed at plaintiff’s costs on the ground that a prima facie case had not been clearly made entitling plaintiff relators to the order for a prerogative writ as prayed.

The evidence showed that respondent officer had prepared a duly verified statement at the end. of said fiscal year on April 7, 1942, setting forth 160 items detailing receipts and disbursements, together with totals and balances in each fund, but omitting in some instances the names or the dates thereof or lumping certain cumulative payments to individuals appearing in the canceled warrants, which respondent contended to be in complete or substantial compliance with the requirements of said statute; that a duly signed and verified copy of said financial statement was submitted to relator Alma Pleteher by respondent on April 8, 1942, with the request that the same be published in said newspaper; that said relator took the same, but later came back to respondent and insisted that she see and examine respondent’s books, records and canceled warrants and that he prepare a more detailed report showing separately each and every warrant, the date and amount thereof and to whom paid in each and every item and instance where a warrant was issued, to be so set forth in the verified report, or that she would not publish the same. After some controversy in relation thereto, the report was sent back to her for publication without alteration, which she refused to do, but kept the same for several weeks and until after the 30 day period had expired and neither during nor after said period did relators publish said report as requested. After such continued refusal, there being no other newspaper published in said Town, respondent caused said report to be published in the Danville Commercial News on June 9, 1942, being a newspaper of wide circulation in said Town of Gatlin and published in Danville in said county. Thereupon, on June 15,1942, relators filed suit herein.

Respondent insists that relator, under sections 7 and 9 of chapter 102 of said statutes [Jones Ill. Stats. Ann. 126.225, 126.227], was required to publish said statement as submitted and had no power to audit and pass upon the legal sufficiency of the report of said township officer or its specific form or contents or to refuse to publish the same as requested in compliance with the express terms of the statute. Respondent repeatedly insisted that relators publish same and that if its form and contents did not fully or in all respects comply with the statutory requirements, he became subject to the statutory penalties therein provided, and requested that relators proceed accordingly.

Without reciting or analyzing all of the evidence and stipulations of parties herein, we hold that it appears therefrom that said Catlin Courier was one of three newspapers printed by relators at Georgetown; that said Courier having about “a couple of hundred” subscribers was taken each week for more than six months before the end of said fiscal year by relators and deposited in the post office at Catlin, and was published in Catlin; that the Commercial-News was printed and published at Danville, Illinois, in said county, and was widely circulated to subscribers in said Town of Catlin (Polzin v. Rand McNally & Co., 250 Ill. 561, 95 N. E. 623); that relators arbitrarily and without warrant of law refused to publish the statement furnished by said respondent officer as required by statute, and that said respondent did not refuse to prepare and present for publication an itemized annual report (People ex rel. Martin v. Village of Oak Park, 372 Ill. 488, 492, 24 N. E. (2d) 571) but presented a duly verified report for publication in time and manner as provided by law, the preparation of the form and contents of which relators had no legal right to audit in advance, supervise, censor or refuse to publish, or to require respondent to prepare the same in such manner as they, in the exercise of their judgment and discretion, deemed a lawful compliance with the statute as to each and all of the various items thereof; or to decide as a condition precedent to publication whether such report as a whole constituted a lawful compliance with said statute. To hold otherwise would create endless doubt and confusion in advance of the publication of reports by public officers upon whom that duty now devolves by law. Upon the legal sufficiency of said report in all respects, as to the various items thereof, under the facts in evidence, we are not required to pass in this proceeding.

A writ of mandamus is a discretionary writ and the court will not order it in doubtful cases. Kenneally v. City of Chicago, 220 Ill. 485, 77 N. E. 155; People v. Cohen, 355 Ill. 499, 503, 189 N. E. 489. If the right be doubtful it will be refused. People ex rel. Hillard v. Davis, 93 Ill. 133; People v. City of Rock Island, 215 Ill. 488; 74 N. E. 437. Courts, in granting or refusing writs of mandamus, exercise judicial discretion and are governed by what seems necessary and proper to be done in the particular instance for obtainment of justice. People ex rel. Akin v. Board of Supervisors of Adams County, 185 Ill. 288, 56 N. E. 1044; People v. Cohen, supra, 504; People v. Nelson, 346 Ill. 247,178 N. E. 485; Michigan-Grand Bldg. Corp. v. Barrett, 350 Ill. 291, 306, 183 N. E. 205; People v. Sweitzer, 339 Ill. 28, 170 N. E. 728. “When a writ of mandamus is asked the court may inquire whether it will operate impartially, create confusion and disorder, and whether it will or will not promote substantial justice.' Courts, in the exercise of the discretion with which they are vested, may, in view of the consequences attendant on the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right for which mandamus is a proper remedy.” People ex rel. Stettauer v. Olsen, 215 Ill. 620, 74 N. E. 785; People ex rel. Akin v. Board of Supervisors of Adams County, supra; People ex rel. Gamber v. Board of Supervisors, 294 Ill. 579, 128 N. E. 645; People v. Village of Oak Park, supra.

The trial court properly held that plaintiffs, who had sued by relators as such owners and publishers, had failed to clearly establish a case entitling plaintiffs to the prerogative writ prayed, and the court did not err in the exercise of its sound judicial discretion in denying the petition and dismissing the suit at plaintiff’s costs. Here an extraordinary legal remedy was sought, the right of relators thereto was not clear and was not so shown by the evidence and we hold that the writ was properly denied. Finding no prejudicial nor reversible error in the record, the judgment of the circuit court of Vermilion county is affirmed.

Judgment affirmed.


author: Mr. Justice Dady

text:
    Forster I. Mitchell, Appellant, v. Illinois Central Railroad Company and W. E. Beach, Trading as Illinois Independent Oil Company, Appellees.
    Gen. No. 9,356.

      Opinion filed February 24, 1943.
    Richard W. Velde and William M. Coppell, both of Havana, for appellant.
    Graham & Graham, of Springfield, and Epler C. Mills, of Virginia, for certain appellee; Vernon W. Foster, Charles A. Helsell and John W. Freels, all of Chicago, of counsel.
    Kenneth H. Lemmer, of Havana, for certain other appellee.
   Mr. Justice Dady

delivered the opinion of the court.

• This is an appeal by Forster I. Mitchell from a final decree of the circuit court of Mason county, dismissing for want of equity a complaint by which Mitchell sought to have the Illinois Central Railroad Company and W. E. Beach enjoined from using or permitting . tti be used as a retail drive-in filling station a certain portion of the right of way of the railroad company located in the city of Havana, Illinois. The complaint also prayed that the defendants be required to remove the gasoline tanks and retail filling station located thereon.

After the case was at issue it was referred to a master in chancery, who took the proofs and filed his report recommending the complaint be dismissed for want of equity. The chancellor overruled exceptions to the report and entered the decree appealed from.

There is no material dispute on the facts.

Mitchell has a fee simple title to the premises, having acquired such title on January 4,1940. His title is subject to the rights of the railroad company herein referred to.

The rights of the railroad company are based, as assignee, on a deed from one Boss and wife, dated November 25, 1879, by which Boss and wife, as the owners in fee, conveyed a strip of land 100 feet in width to the Champaign, Havana and Western Bail-way Company, its successors and assigns, "for the purpose of constructing, maintaining and operating thereon a single or double track railway, with all the necessary appurtenances, . . . .” From the delivery of such deed in 1879 until the delivery of the Beach lease herein referred to the premises in question were used for no purpose other than railroad purposes.

Beach, doing business as Illinois Independent Oil Company, operates 11 bulk and 19 retail drive-in gasoline stations in central Illinois. Prior to the lease in question he had and has in Havana one bulk station of 70,000 gallons capacity, located on the right of way of the railroad company and a few city blocks distant from the station in question. He operates 2 retail drive-in stations in the city of Havana, besides the one in question. Beach is one of the large shippers of petroleum products using the defendant railroad in this area.

On March 14, 1940, by written lease, the railroad company leased the real estate involved in this suit, consisting of about 5,040 square feet of such right of way, to Beach, for the period beginning March 14,1940, and ending March 14, 1945, for the rental of $50 per annum. The lease provided that the premises were to be used and occupied exclusively as a site for a “combination bulk oil and filling station,” and that the lessor might terminate the lease and the tenancy thereby created at any time by giving the lessee 60 days’ notice of such intention. The lease was duly approved by the commerce commission of this State. Mitchell had nothing to do with the making or the approval of the lease.

There are several other retail filling drive-in stations in the immediate vicinity, one of them owned .by Mitchell which is located about 250 feet distant from the premises in question.

About March 15, 1940, Beach entered into possession of the premises so leased to him and thereafter constructed thereon a filling station, installing thereon two 2,000 gallon underground gasoline tanks. Thereafter Beach sold from this station, at retail and to the general public, gasoline, oil and similar products. At_ such station Beach proposes to install two additional underground tanks, one of 2,000 gallons and one of 6,000 gallons capacity.

Practically all gasoline handled at such station is delivered direct to the storage tanks from tank cars on the railroad, although Beach is not bound under any contract with the railroad to use tank cars in bringing gasoline to his station. Beach testified that he expects such station will use, when in full operation, about twelve 8,000 gallon tank cars of gasoline per year.. The freight rate is from $200 to $225 pelcar for shipment from Oklahoma, $90 per car from East St. Louis and $40 per car from Southern Illinois. Most of Beach’s shipments are from Oklahoma. Oil and other supplies are delivered to the station by truck.

Two principal questions are involved: (1) Whether the railroad company had the right to rent and Beach, as lessee, had the right to use the premises as a retail drive-infilling station; (2) Whether relief can be had by Mitchell by way of injunction.

Beach, of course, has no greater rights than his lessor could give him.

It is not contended that by virtue of the Boss deed the grantees therein acquired or the present railroad company has any greater rights than an easement for railroad purposes. (Tallman v. Eastern Illinois & Peoria Ry. Co., 379 Ill. 441.) While an easement of this nature possesses most of the qualities of a fee title and confers upon the railroad the right of exclusive possession (Illinois Cent. R. Co. v. Houghton, 126 Ill. 233), there still exists the limitation that the'property subject to the easement must be used for railroad purposes. (Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 509.) The general rule appears to be that a railroad may use its right of way over property acquired by way of easement for any purpose that is reasonably necessary or convenient to the maintenance and operation of the railroad. (Illinois Cent. R. Co. v. Wathen, 17 Ill. App. 582.)

Defendants have cited a number of cases from other jurisdictions, most of which are collected in a note in 36 L. R. A. (N. S.) 512, in which it has been held proper for a railroad to use or lease portions of its right of way for such purposes as the erection of coal yards and sheds, grain elevators, warehouses, corn cribs, lumber yards, stock yards, and a hotel for railroad employees and the general public. A careful reading of these cases will show that in each case the use permitted was directly connected with the business of the railroad itself. In most of the cases cited the particular structure or building was erected for the convenience of shippers in the storage of merchandise and materials shipped or to be shipped over the railroad. We do not regard these cases applicable to the particular facts in the case before us.

The Illinois case principally relied upon by the defendants is Illinois Cent. R. Co. v. Wathen, 17 Ill. App. 582, which case has been cited with approval many times by courts of other jurisdictions but has not, insofar as we know, been cited in any opinion of an Illinois court of review. In the Wathen case the court held that the defendant railroad companies had the right, without the payment of rent, to1permit the erection and use of elevators, corn cribs, lumber yards and lime houses on portions of the railroad right of way. In so holding the court said: “One of the leading branches of the business of railroads is that of carrying freight. In order that it may carry on this business with facility and dispatch, it is necessary to have suitable grounds and buildings for the receipt and deposit of freight to be transported and for the discharge of freight received. . . . And . . . the ground and buildings that were used by the lessees in this case were necessary to enable these railroad companies to carry on their business as carriers of freight with dispatch and convenience. . . . The evidence in this case clearly establishes that the use to which the ground and buildings has been put is to facilitate the business of these railroad companies in the receipt, transportation and discharge of freights.”

In the case before us, although Beach testified that he intended to use the station in question as a combination bulk and retail station, the evidence shows that up to the time of the hearing the station had not been used as a bulk station, but only as a retail drive-in filling station, and that the type of storage tanks used on the premises were the type customarily used for the retail sale of gasoline rather than for the sale of gasoline in bulk. Plaintiff by his complaint seeks only to enjoin the use of the property as a retail filling station. We are thus confronted with the question whether the use of such property as a retail filling station can be considered as facilitating the business of the defendant railroad in the receipt, transportation and discharge of freight within the rule laid down in the Wathen case.

Defendants contend that the business of the railroad is facilitated by the use of the premises for the sale of gasoline due to the fact that the bulk of the gasoline sold at the station is shipped over the defendant railroad and that the company will receive needed revenue from this source. This same contention was considered by the U. S. Circuit Court of Appeals for the seventh district in In re Chicago & N. W. Ry. Co., 127 F. (2d) 1001, and the court there held that the operation of a retail filling station at Rockford, Illinois, upon premises in which the railroad company possessed easement rights constituted a misuser of the servient property. This case concerned the interpretation of the grant of an easement made in Illinois and the court therefore based its decision upon Illinois law. We regard this case so nearly in point that we set out the court’s opinion on the question in extenso: “The distinction between what is a proper and an improper use is not always clear and is often a question requiring nice discriminations. . . . The evidence clearly discloses that the use of the leased premises is for an ordinary retail filling station, notwithstanding the language of the lease. The question to be determined is whether a retail filling station is a misuse of the servient land. Illinois has recognized uses which facilitate the railroads’ business, but certainly the fact that a business receives its goods by rail is not a conclusive determination that the use of easement land by the business is a proper one and not a burden. In fact the Supreme Court of Illinois in R. I. & P. Ry. Co. v. Leisy Brewing Co,, 174 Ill. 547, 559, expressly approved the doctrine in Lance’s appeal, 55 Pa. 16, that ‘No one can pretend that a railroad company can build private houses and mills, and erect machinery, not necessarily connected with the use of their franchise, within the limits of their right of way. If it could, stores, taverns, shops, groceries and dwellings might be made to line the sides of the road outside of the track — a thing not to be thought of under the terms of the acquisition of the right of way.’ The problem is always one of degree. In the instant case the filling station was not an incident to the legitimate use of the easement; it was the use itself. Clearly, it may not exist under the terms of the easement. To hold that it was proper would be an open invitation to abuse. We note without comment that a bulk station was held to be a proper use in Weir v. Standard Oil Co., 136 Miss. 205, but that is not our case.”

An Illinois case which throws some light on the question is Dickman v. Madison County Light & Power Co., 304 Ill. 470. Dickman was the owner of the fee over which the railroad company, referred to as the traction company, had a right of way easement. The traction company installed on its right of way poles and cross arms with high tension wires for carrying electricity generated by the traction company. Three of such wires were owned by the power company and were used by the power company in distributing electricity to its customers. Dickman, the owner of the fee, brought an action of ejectment against both companies. The Supreme Court said that if the structures so erected on the right of way were not within the scope of the original easement, they were illegal and such an additional burden on the fee as to enable Dickman, as owner of the fee, to maintain an action of ejectment for the removal of such high tension wires, and on page 482 that ‘ ‘ the question is whether or not the wires were erected in good faith with a view to be used by it (the traction company) in the future in its business as a railroad company after making the proper change in the current, or whether such construction was solely for the use of the power company in the pursuit of a different business from that conducted by the railroad company and for the profit of both companies. If the wires were constructed with the latter motive, their construction was illegal and wrongful, but if for the former reason, their construction was legal and the appellant (Dick-man) cannot recover in this suit.”

It is our opinion that in the present case the use of the right of way as a retail filling station was an additional burden on the fee outside the scope of the original easement and that it was illegal for the defendant railroad to permit the use of, and for the defendant Beach to occupy or use the premises in question as and for a retail filling station.

We find no merit in defendants’ contention that the •approval of the lease in question by the commerce commission is a decision that the lease is for a proper railroad purpose. Such a decision, even if it were binding in an attack by the State itself on the question whether the lease was ultra vires, can have no effect upon the property rights of the plaintiff in the present proceedings. An administrative agency, such as the commerce commission, is not a judicial body and it has no jurisdiction to adjudicate controverted individual property or contract rights. (People v. Peoria & P. U. Ry. Co., 273 Ill. 440.)

The further question remains whether the plaintiff, as. the owner of the fee is entitled to relief by way of injunction to prevent the continued use of the premises as a retail filling station. Defendants insist that, under the-authority of Dunn v. Youmans, 224 Ill. 34, plaintiff must show an actual and substantial injury and not merely a technical or inconsequential wrong entitling him only to nominal damages. We do not think that this rule applies to the facts in the present case. We believe the correct rule is set forth in the case of Springer v. City of Chicago, 308 Ill. 356, at page 364, where the court says: “Injunction is a proper remedy of the owner when an unlawful appropriation of his land is attempted for the use of a public corporation which has not acquired the right of such appropriation by condemnation or otherwise. In such cases courts of equity act upon broader principles than in ordinary cases and have granted equitable relief without regard to the existence of legal remedies, irreparable injury or other equitable considerations.” In Burrall v. American T. & T. Co., 224 Ill. 266, the court held that the owner of the fee was entitled to an injunction to prevent the defendant company from imposing an additional burden upon the fee. In McIntyre v. McIntyre, 287 Ill. 544, 549, the court said: “Courts of equity will relieve against a continuing trespass where there is no adequate remedy at law.” (See Jones on Easements, sec. 879; Newell v. Sass, 142 Ill. 104; Crullen v. Edison Elec. Illuminating Co., 254 Mass. 93, 149 N. E. 665.) In Lidgerwood Estates v. Public Service Electric & Gas Co., 113 N. J. Eq. 403, 167 Atl. 197, the court said: “Equity’s jurisdiction to restrain a continuing trespass has long been settled . . . and this court has often entertained jurisdiction to enjoin the use of an easement in a manner different from the grant.”

There is at least some evidence tending to show that the premises, as improved and as proposed to be improved, are adaptable to and are contemplated belt ing used as a bulk station. Inasmuch as the plaintiff is not here contending that such bulk station use would be an improper one, the question of the propriety of such use is not before us.

We are of the opinion that the plaintiff was entitled to a decree enjoining the defendants from using or permitting the premises in question to be used as and for a retail drive-in gasoline filling station, but not to a decree requiring the removal of the improvements thereon.

The cause is reversed and remanded with directions to the trial court to enter a decree enjoining the defendants from using or permitting the premises in question to be used as and for a retail drive-in gasoline filling station.

Reversed and remanded with directions.


author: Mr. Justice Hayes

text:
    People of the State of Illinois, Defendant in Error, v. Harry E. Meisenhelter, Alias Harry E. Mersenhelter, et al., Plaintiffs in Error.
    Gen. No. 9,337.

      Opinion filed February 24, 1943.
    Karns & Bandy, of East St. Louis, for certain plaintiffs in error.
    John R. Fitzgerald, of Decatur, for certain other plaintiff in error.
    John R. Kane, of Harrisburg, for certain other plaintiffs in error.
    Ivan J. Hutchens, State’s Attorney, for defendant in error.
   Mr. Justice Hayes

delivered the opinion of the court.

Plaintiffs in error (hereinafter called the defendants) were indicted by a grand jury at the May term 1941 of the circuit court of Macon county on the charge of conspiracy to injure and destroy, by dynamite, a certain pipe line, the property of The Texas Empire Pipe Line Company. The defendant in error will hereinafter be referred to as the State.

The jury returned a verdict of guilty as to each of the defendants herein and fixed the punishment at imprisonment in the penitentiary and also a fine. Motions for a new trial and an arrested judgment were denied. Judgment was entered on the verdict and the defendants were sentenced to the penitentiary. They prosecuted this writ of error to reverse that judgment.

Defendant Harry E, Meisenhelter was business agent for the Common Laborers’ Union at Decatur. Defendant Edwin Roy was treasurer of the union and a member of the executive board. Defendants Cecil Wilson and Melvin Watkins were also members .of the board. Defendant S. C. Lorton was business agent for the Boiler Maker’s Union. He lived in East St. Louis, but his jurisdiction included central Illinois. Defendant George Diehl was a member of the East St. Louis local of the Boiler Maker’s Union. Defendant George Bruns was a bartender in Granite City.

z Roy, Wilson and Watkins base their motion to quash the indictment on account of each of them having been subpoenaed to testify before the grand jury. It appears from the record that each defendant signed a waiver of immunity before appearing before the grand jury; that Meisenhelter had consulted with a lawyer in behalf of all of them sometime before they appeared before the grand jury and conveyed the lawyer’s advice to them, and that several weeks before the convening of the grand jury they had been questioned by federal investigators and had signed written statements. In view of this they were not in a position to claim they were taken by surprise, deceived or not properly advised as to their constitutional rights. The constitutional privilege of silence on the part of a witness, when a reply would tend to expose him to punishment, is a personal privilege of the witness. If he answers, without claiming it, the privilege is waived. The law presumes that a party who is called upon to testify as a witness knows his rights. He may decline to testify to anything that may tend to incriminate him. If he fails to claim the privilege, he cannot after-wards complain. People v. Nachowicz, 340 Ill. 480. The court is not required to inquire into proceedings of the grand jury to determine whether the evidence adduced there was sufficient to warrant the indictment, unless all the witnesses were incompetent or all the testimony on which the indictment was found was incompetent. People v. Gould, 345 Ill. 288. In this case there was no showing made as to what the defendants testified to before the grand jury. It appears there were a large number of other witnesses, whose ñames appeared on the indictment and under this set of circumstances the presumption is that the indictment was based on competent evidence. People v. Gould, supra. The motion to quash was properly overruled.

Meisenhelter, Boy, Wilson and Watkins filed a motion for severance. Lorton, Diehl and Bruns (the other defendants) did not ask for a separate trial before the trial started, but during the trial made a motion to withdraw a juror so they could ask for severance. Both motions were denied by the court. The only ground set out in the application for severance by the first-named defendants were that statements had been signed by some defendants which might be competent against the declarant but incompetent as to the other defendants.

The Supreme Court held in People v. Siegal, 362 Ill. 389 that, “Where two or more persons have been indicted jointly and one of them has made a confession, a severance will not be permitted as a matter of right, nor will the Court be influenced because some of the defendants may prefer to be tried separately from the others. The People’s rights in criminal prosecutions are to be observed as much as the defendants’ rights. Both parties are clothed with certain privileges and presumptions and they must be duly regarded. It would be unjust and unreasonable to universally permit separate trials of persons who are jointly charged with a crime, and the better practice is not to permit it unless it shall appear from a showing made to the Court that a denial of a severance would work prejudice to some one or more of the parties.” The general rule is that persons jointly indicted shall be jointly tried, and it is only in those' cases where one or more defendants would be deprived of a fair trial that the court is warranted in granting the severance. It is incumbent upon a defendant moving for a separate trial to show the trial judge how he would be prejudiced by a joint trial. If he fails so to do he cannot, on review, complain of the action of the trial court in denying his objection. The determination of this question is governed by the facts in each case and the motion is addressed to the sound discretion of the trial judge. People v. Minnecci, 362 Ill. 541. A court of review will only consider such evidence as is before the trial court at the time of the hearing of the motion for severance. People v. Gould, 345 Ill. 288.

There was no showing made on the application for severance that the defense of the different defendants were antagonistic. Under the particular circumstances of this case, it appears that all the defendants were engaged in a joint enterprise and working towards a common end. In our judgment, the trial court properly exercised his discretion in refusing the severance.

The pipe line in question was constructed in the summer of 1939 and finished shortly after the first of the year in 1940, running from Salem, Illinois to its pumping station at Hayworth, Illinois. The work was done by the Williams Brothers Construction Company, as contractors, on an open-shop basis. The defendants in error with other union representatives of the various crafts endeavored before and during the time of the construction to have the work all done by union labor on a closed-shop basis.

Early on the morning of February 9, 1940, the pipe line was bombed at a point near Boody in Macon county. Pearle Hoskinson, who was secretary and a member of the executive board of the Decatur local of Laborers’ Union, and who was indicted with the above-named defendants, pled guilty prior to the trial, and testified in behalf of the State. At the time of the trial he had a petition pending for probation. His testimony connected the defendants with the crime, was very damaging to them, and in substance was as follows: In the summer of 1939 at an executive board meeting consisting of Meisenhelter, Boy, Wilson, Watkins and Ho skins on, Meisenhelter reported the pipe line was coming through, and the job would have to go union; that there would have to be something done about it and recommended the establishing of a slush fund, and suggested getting the money without the members knowing about it; that the board decided to take the money out of initiations, dues and rein-statements and turn it over to Boy who was to keep it in cash without its going through the banks or any record showing it; that Louise Schoof, bookkeeper and stenographer for the union, shortly thereafter collected something over one hundred dollars and turned it over to Boy; that the board held weekly meetings and Meisenhelter reported that the pipe line was getting closer, and that they would have to do something about, it, as Buck Lorton was putting pressure on him to have something done; that on the first Sunday of February, 1940 the witness was present at a meeting held in Meisenhelter’s house when Lorton, Diehl and Bruns came into the meeting; that Diehl gave his name as Jones and Bruns as Brown; that Lorton told Meisenhelter not to call him over the telephone any more; that Meisenhelter told all three of them he had a pipe line he wanted blown up in Macon county and wanted to know what it would cost; that Lorton replied five hundred dollars and inquired of Meisenhelter if he wanted to furnish the dynamite or have them furnish it; that Lorton advised him it was better to steal the dynamite so it could not be traced; that Lorton told Meisenhelter to have the money ready the first part of the week; that Bruns and Diehl would do the job and that he had picked out the spot; that Lorton said the bombing would take- place in the next few days and they would have to have the money ready. The witness further testified to being present when Meisenhelter asked other labor organizations to kick into the “slush fund” and stated to them that arrangements for blowing up the line had been made with men from St. Louis; that he was present at a conversation between Louise Schoof and Meisenhelter when Meisenhelter reported that those fellows came back that morning at about two or three o’clock in a LaSalle car and wanted to know if they could use his garage to make the bomb; that he let them go down in his basement and that they strung fuse over the place and made the bomb and then left; that he gave them three hundred and seventy-five dollars, and that Meisenhelter then stated, “I suppose it is blown up”; that that was on Friday morning between nine and ten o’clock of the day that the bombing took place. Meisenhelter told the witness and Boy not to talk to any one about it.

The defendants herein contend that their conviction is based solely on the testimony of Hoskinson, an accomplice and an ex-convict, who at the time of his testimony was under duress on account of having-entered his plea of guilt; that he had a petition pending for probation and was actuated by the motive of pleasing the State so as to obtain leniency for himself; but the written statements of Boy, Watkins, Wilson, Foxx and Chvatal which were admitted in evidence, corroborates the testimony of Hoskinson. None of the defendants testified nor did they offer any defense, other than some character witnesses.

The testimony of an accomplice is subject to great suspicion, and should be acted upon with great caution. People v. Lawson, 345 Ill. 428, but a verdict of guilt may be sustained on the uncorroborated testimony of an accomplice. People v. Spira, 264 Ill. 243. A conviction procured on the testimony of an accomplice will not be molested where the facts and circumstances testified to by such an accomplice when weighed and tested, according to the established rules applicable thereto are sufficient to prove guilt beyond a reasonable doubt. People v. Karatz, 365 Ill. 255. Our- Supreme Court has frequently held that the testimony of one witness even though denied by the accused may be sufficient to sustain a conviction. People v. Angelica, 358 Ill. 621.

Under the law the fear and mistrust that go with the testimony of an accomplice is only as to the credibility of the witness of which the jury is the sole judge. The testimony of Hoskinson taken with the facts and circumstances shown in the record; the many meetings of the defendants, their common interest, their joint enterprise, their motive, together with the statements taken from the several defendants when separated from each other, make a record that it would be hard to see how the jury could return any other verdict than was returned in this case.

Defendants complain of rulings of the trial court on the admission of evidence, and point out that Hoskinson was permitted to testify to a statement made by Meisenhelter at a board meeting of the Laborers’ Union in which he, Meisenhelter, Foxx, Watkins and Wilson were present; that Meisenhelter said the other unions were talking to him about the pipe line, saying he should make them go union; that they were putting pressure on him down around St. Louis for not doing something about it; that when Meisenhelter was asked who was putting pressure on, he replied Buck Lorton. Objection was made to this testimony by the defendant Lorton, after which the prosecutor stated to the court, “we will connect it up later.” The court then stated: “Well if you do all right on that promise, I will let it stand.” Defendant Lorton points out that Meisenhelter’s statement was made outside of his presence and was therefore incompetent. Other testimony of this witness is objected to as not being made during the existence of the conspiracy. Where the proof of conspiracy depends upon a large amount of circumstantial evidence and isolated, independent acts, and where the whole of the evidence introduced on the trial taken together shows such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations. The prosecutor may either prove the conspiracy which rendered the acts of the conspirator admissible in evidence, or he may prove the acts of the different persons and thus prove a conspiracy. Where a conspiracy is established, every act or declaration of any of the conspirators in furtherance of the common purpose is regarded as an act binding all. People v. Nusbaum, 326 Ill. 518; People v. Looney, 324 Ill. 375. The existence of a conspiracy may be proved not only by direct evidence but also by inference from the conduct, statements, documents, facts and circumstances which disclose a common design on the part of the accused persons and others to act together in pursuance of a common, criminal purpose. People v. Link, 365 Ill. 266. Statements made by Meisenhelter, although all the defendants were not present at the time, appear to be made for the purpose of bringing about the dynamiting of the pipe line in question and were binding against Meisenhelter’s coconspirators. Spies v. People, 122 Ill. 1.

Further assignment of error is made that the court permitted Hoskinson to testify that Meisenhelter stated in 1939 that someone “blowed up the pipe line south of Vandalia.” Objection was made on the grounds that it was immaterial, and a separate crime.

The question of the state of mind, motive and intent of the several defendants was a fact which the jury was entitled to have as a bearing upon the ultimate fact charged, and for the purpose of assisting the jury in coming to a conclusion as to the ultimate fact.' It appeared that Meisenhelter was following the Vandalia job as a pattern and the court properly admitted the evidence to enlighten the jury on the motive and intent of Meisenhelter. Evidence tending to show the re-, lation of the parties, the purpose of the combination and the preliminary steps taken to effect that purpose is within the scope of the investigation to establish the conspiracy. People v. Drury, 250 Ill. App. 547; People v. Nall, 242 Ill. 284.

Error is assigned by the defendants on the trial court’s ruling in admitting the written statements of defendants Roy, Wilson, Watkins, Chvatal and Foxx. The court limited the admission to the particular defendant making the statement and deleted the names of any other defendant appearing in the statement, substituting the words “other person or persons.” This is the usual and approved procedure. People v. Siegal, 362 Ill. 389; People v. Young, 316 Ill. 508.

The defendants in their briefs, complain bitterly of the attitude of the trial court and contend that because of this they were denied a fair trial. It appears that the record is voluminous. The case was bitterly contested. There were a number of lawyers on the defense who appeared to be experienced, forceful men, representing numerous defendants. On this account there was some confusion at times during the trial. We have examined the abstract and additional abstract as well as referred to the record on the points raised under this subdivision, and we find from this inspection that the trial judge exercised considerable patience and caution in the conduct of the trial, — particularly in ruling on the .evidence. Defendants’ counsel are unduly sensitive in regard to the court’s remarks. They complained many times on the court asking for authorities when they took issue with him on his ruling. This is not unusual for it is the duty of counsel to furnish authorities in support of the position taken. One of these instances was where Hpskinson testified that Meisenhelter said to him, “They have not got anything on us, if we just sit tight. They cannot get us, if we just sit tight.” Defendants’ counsel objected on the grounds that it was immaterial. The court in ruling said, “I think it is material, have you any authority? I think it is Mr. Kane.” A number of similar instances are pointed out here by the defendants but we fail to find that the record substantiates the severe criticism made on the trial court.

After the motion for a new trial had been filed together with the points relied on, the court showed some impatience at the time he passed on this motion, but this did not add to or take from the record as made, other than affect counsel’s feelings.

We find nothing in the conduct of the court that would cause reversible error. A trial judge has the burden of giving both sides a fair trial and seeing to it that the law prevails, and that justice is done. On this record we find the trial judge clearly carried the responsibility.

Criminal acts of violence as disclosed by the record in this case under the pretense of labor are wholly inexcusable and very detrimental to labor, as it causes labor to appear in ill repute in the eyes of the public. It is apparent from the record in this case that the body of the membership of this local would not countenance the unlawful act that was perpetrated by their „ agents, for the latter were afraid to let the members as a whole know anything about it. It is unfortunate for labor organizations to permit their affairs to fall into the hands of unscrupulous men who will commit criminal acts of violence as a matter of expediency when it is wholly unnecessary, un-American and only injures the cause of labor. Organized labor has made very great strides during the last decade. They have done so under the law and with the help and protection of the law in the American way.

In entering judgment the court fixed the mim'rmrm and maximum sentence as to each of the defendants under the Act of 1941. The defendants contend that this act violates section 13, article 4 of the constitution, which was so held by our Supreme Court in the case of the People v. Montana, 380 Ill. 596. On account of this error the present case will have to be reversed and remanded to the circuit court with directions to enter proper • sentence under the Indeterminate Sentence Act, otherwise we are of the opinion that the defendants had a fair trial and were legally convicted.

The judgment is reversed and cause remanded to the circuit court with directions to enter proper sentences.

Reversed and remanded with directions.


text:
    A. H. Sebastian, Appellant, v. School Directors of School District No. 103, Montgomery County, Appellees. School Directors of School District No. 103, Montgomery County, Cross Appellants, v. A. H. Sebastian, Cross Appellee.
    Gen. No. 9,353.

      Opinion filed February 24, 1943.
    Dowell & Dowell and George W. Dowell, all of Salem, for appellant and cross appellee.
    Hill & Vandever, of Hillsboro, for appellees and cross appellants.
   Mr. Justice Hayes

delivered the opinion of the court.

A. H. Sebastian brought an action at law against the School Directors of District Number 103 of Montgomery county to recover the sum of $408.60, which sum he alleged was the balance due him for school supplies furnished the district from February 1939 to April 1940. The circuit court of Montgomery county heard the case without a jury and entered judgment for plaintiff in the sum of $275.68.

Sebastian is engaged in selling school supplies direct to schools through salesmen, one of whom Frank Jett, had made sales to District Number 103 for several years prior to this action. Jett testified that while at one time he was accustomed to contact a'member of the board who would refer him to the janitor to see what was needed, for the past few years he had done business with the janitor alone. All of the purchases in question here were made by the janitor alone and the order blanks signed by him without authority of the board or any of its members, except for one order for sanding floors which was signed by all three directors on July 12, 1939. Plaintiff has received one payment of $100 which he applied on the account generally.

Three of the members of the board testified that the janitor had no authority to purchase supplies and they did not know that these purchases from plaintiff in question here had been made by him. August Bennassi, one of the directors, testified further that at the' April meeting of the board in 1939 a motion was passed rehiring the janitor. The motion further provided that he should have no power to make any purchases. Finally Bennassi testified that in 1939, during a conversation with plaintiff’s salesman Jett, concerning the order for sanding the school floors he told Jett that “the janitor had no authority to sign orders without the whole support of the School Directors of District 103.” Dallas Bappe, another of the directors testified that he was present at the conversation and heard the statement above quoted made. Jett, on the other hand, testified on cross-examination that Bennassi “did not tell me that the janitor, Mr. Drabant, had no authority to place any orders,” and further stated on rebuttal that he “did not hear any conversation like that.” The time of this conversation is not exactly stated but we must assume that it took place some time around July 12, 1939 the date of the order for the sanding job.

Plaintiff contends that since defendants permitted their janitor to purchase supplies without express authority from them, they are estopped to deny his authority to make such purchases, and that in any event, defendants ratified the acts of their janitor by making a payment of $100 on their account. Defendants argue that their janitor had no authority to purchase supplies from plaintiff or any one else, that plaintiff had actual or constructive notice of this limitation upon the janitor’s authority and that the payment of $100 was not intended to be applied upon the account generally but upon plaintiff’s bill for sanding the floors and hence cannot be construed as a ratification of any prior unauthorized purchases.

We believe that the district is clearly liable for supplies purchased by their janitor prior to the meeting of the board of directors in April 1939 as found by the trial court. There is no proof in the record that defendants ever objected to any of the purchases. While three of them testified that they did not know that purchases were being made, they did not deny that they were billed for the orders placed by their janitor and it further appears from Bennassi’s testimony that the directors saw the merchandise after it had been delivered and that there were arguments among the members of the board over the bills. We believe that these facts are sufficient to raise an estoppel against defendants. Sebastian v. School Directors of Dist. No. 53, 306 Ill. App. 282.

We find that the court properly allowed the two invoices of goods furnished the defendant by the plaintiff prior to their adoption of the resolution at the April 1939 meeting which revoked the authority of the janitor to buy goods in behalf of the district. We find that the court ascertained the correct amount due from the defendant district to the plaintiff in the sum of $275.68. The court properly disallowed the invoices furnished after the April 1939 meeting of this school district on orders given by the janitor. The school law provides that all official business shall be transacted at a regular or special meeting and that all actions taken by them involving the expenditures of moneys shall be recorded on their records. Ill. Rev. Stat., ch. 122, secs. 119, 120 [Jones Ill. Stats. Ann. 123.126, 123.127].

The act of the janitor ordering the goods after the adoption of the resolution prohibiting him from doing so was void.. One deals at his own hazard with a municipal body expending public funds, and is required to see that the transaction be done and recorded as required by law.

Plaintiff contends that the trial court erred in refusing to include in its judgment the amount of sales tax on the items purchased. On this point we find the court properly held this to be a retailer’s occupational tax and not a consumer’s tax. This court (first district) so held in the case of People’s Drug Shop, Inc. v. Moysey, 317 Ill. App. 370. We concur in that opinion.

Plaintiff also complains of the judgment for costs entered against him by the trial court who apparently relied upon section 267 of the School Law. Any decision on this issue must be based upon the proposition that an,' award of the costs of a suit for or against a party thereto must be based on the applicable statutory provisions since costs were not allowable at common law. Moore v. People, 37 Ill. App. 641; Mundy v. Pope County, 233 Ill. App. 483. Our costs statute, Ill. Rev. Stat. 1941, ch. 33, sec. 7.[Jones Ill. Stats. Ann. 107.044] provides that “If any person shall sue in any court of this state . . . for any offense or wrong immediately personal to the plaintiff, and shall recover any debt, or damage in such action, then the plaintiff . . . shall have judgment to recover costs . . . .” This provision is broad in its terms and covers the situation before us unless some statutory exception exists exempting defendants here from its provisions. Section 267 of the School Law, Ill. Rev. Stat. 1941, ch. 122, sec. 290 [Jones Ill. Stats. Ann. 123.360], relied upon by defendants, provides in part as follows: “No . . . clerk of any court, . . . shall charge any costs in any suit in which any school officer, school corporation or any agent of any school fund, suing for the recovery of the same, or any interest due thereon, is plaintiff and shall be unsuccessful in such suit; . . . It should be noted that this provision applies only where a school district or its officers are parties plaintiff. We have examined Hendricks v. Gamble, 217 Ill. App. 422 cited by defendants and several other cases construing this section of the statute, including our own decision in Board of Education Dist. No. 7 v. School Directors of Dist. No. 66, 201 Ill. App. 429. While these cases adopt a liberal construction of the statute, in all of them where costs were disallowed, the school officers or district against whom such costs would normally have been assessed were parties plaintiff. We recognize that in Hendricks v. Gamble, supra, there is a statement to the effect that no authority exists for subjecting school funds to the payment of costs and that in Board of Education Dist. No. 7 v. School Directors of Dist. No. 66, supra, we said: “The school funds raised for educational purposes may not be used for the payment of costs.” These statements are dicta, however, and not necessary to the decisions in those cases. We believe that it was the intention of the legislature in enacting the provision of the school law quoted above to encourage the recovery of school funds, even by litigation, where a reasonable ground for so doing exists. It could not have intended to discourage the recovery of an established indebtedness from school districts which unjustly refuse to pay. We therefore hold that the section of the School Law quoted above does not apply in this case and that the trial court erred in assessing costs against plaintiff.

Although defendants filed no motion to dismiss plaintiff’s appeal they argue on their cross-appeal that it should be dismissed because plaintiff’s brief contains no assignment of errors. Plaintiff does include, however, a section in his brief entitled “Contested Issues” in which the purported issues before us are set forth. Rule 36 of the Supreme Court and our Rule 9 require that a brief statement of the errors relied upon for reversal appear in appellant’s brief at the close of his statement of the case. While plaintiff has not strictly complied with this rule, his attempt to do so discloses the alleged errors he complains of and thus we do not feel warranted in dismissing his appeal. Snook v. Shaw, 315 Ill. App. 594, 43 N. E. (2d) 417. It should be noted, however, that this decision is not intended to serve as a precedent countenancing careless disregard of the rules cited.

For the reasons stated above the. judgment of the circuit court of Montgomery county is affirmed as to the amount of the judgment but is reversed as to taxing the cost against the plaintiff and is remanded to said court with directions to assess the costs against the defendant.

Affirmed in part, reversed in part and remanded with directions.


text:
    Edith Otter Lewis, Appellant, v. T. C. Hill, Individually and as Executor of the Last Will and Testament of Sarah E. Collins, Deceased, et al., Appellees.
    Gen. No. 9,362.
    Opinion filed February 24, 1943.
    S. S. DuHamel, of Springfield, for appellant.
    Nichols & Jones, of Tuscola, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

Sarah E. Collins in her last will and testament executed December 12, 1935 devised certain real estate in the village of Atwood, Illinois to plaintiff Edith Otter Lewis. On April 4, 1940 Sarah E. Collins was adjudged incompetent and defendant T. C. Hill was appointed her conservator. In his inventory he reported household furnishings, certain real estate, including the property at Atwood, and $1,152.07 cash on hand as belonging to his ward. On October 28,1940 he filed a petition to sell the Atwood property in the county court of Douglas county alleging that his ward was residing in a home for the aged at a cost of $50 per month, that she was 91 years of age, and she had $660.56 cash on hand and that the property to be sold was worth from $1,000 to $1,200. The county court ordered the sale and the property was thereafter sold for $964.

Sarah E. Collins died March 16, 1941 and her last will and testament was admitted to probate by the county court of Douglas county on April 28, 1941. Hill was appointed executor, and filed his report as conservator showing a balance on hand of $1,752.40 which he receipted for as executor.

Plaintiff Edith Otter Lewis commenced these proceedings in the circuit court of Douglas county, setting forth in her complaint the facts as outlined above and prayed that an order be entered finding that the sale of the Atwood property did not adeem the specific devise of that property to her and that Hill be ordered to pay her the sum of $964, the sale price of the property. Hill, and the residuary legatee under the will who were made defendants, filed a motion to dismiss the complaint alleging among other things that the circuit court had no jurisdiction of the proceedings and that the devise to plaintiff was adeemed by the sale of the property by the conservator. The circuit court of Douglas county dismissed the complaint for want of equity and plaintiff has appealed to this court.

In support of her argument that the circuit court of Douglas county had jurisdiction to hear this matter, plaintiff pointed out that in effect she is attempting to impress a trust upon the proceeds of the sale of the Atwood property now in the hands of Hill as executor of the estate of Sarah E. Collins to prevent their distribution to the residuary legatee. She therefore contends that the circuit court under its plenary jurisdiction of trust matters had jurisdiction here. Defendant contends that the controversy here is merely over the distribution of the assets in the-estate and that as such it is properly cognizable only by the county court of Douglas county under its statutory probate jurisdiction.

We believe that this action was properly brought in the circuit court. The property devised to plaintiff in the will of Sarah E. Collins was not owned by the testator at the time of her death. In order to prevail therefore plaintiff must trace the proceeds therefrom into the hands of the executor and by some equitable doctrine establish her rights to them. We believe that by attempting to impress these funds with a trust, plaintiff has brought the controversy within the equitable jurisdiction of the circuit court although we do not decide that had the action been brought in the county court that court would not have had jurisdiction to hear the matter by virtue of its probate jurisdiction.

It is conceded by all, that the proceeds from the sale of the Atwood property remained in the hands of the conservator at the time of Sarah E. Collins’ death. Thus the only remaining question is whether the sale by the conservator adeemed the devise to plaintiff. This question apparently has not been passed upon by the courts of this State and the decisions elsewhere are in conflict. The English cases prior to the Lunacy Act of 1890 which settled the matter by statute hold that an ademption took place. See 30 A. L. R. 676. The courts of Pennsylvania and New York have reached a .similar result. In re Ireland’s Estate, 257 N. Y. 155; Hoke v. Herman, 21 Pa. 301. On the other hand a Federal court in a case arising in Illinois and the courts of New Jersey and Missouri have held that no ademption occurs. Wilmerton v. Wilmerton, 176 Fed. 896; In re Estate of Cooper, 95 N. J. Eq. 210, 123 A. 45; Lamkin v. Kaiser, (Mo. App.), 256 S. W. 558; National Board v. Fry, 293 Mo. 399, 239 S. W. 519.

While there are variations among the facts in these cases this significant difference between the two lines of authorities must be noted. Those cases following the old English rule hold that where property the subject of a specific legacy or devise is not in existence at the time of the testator’s death an ademption takes place even though the property was disposed of, not by the voluntary act of the testator but by the conservator during the testator’s incompetency. The cases reaching an opposite result consider not only the change in the nature of the property but also the probable intent of the testator and hold that where the proceeds of the sale of such property have not been used for the support of the testator the sale by the conservator during the incompetency of his ward is involuntary and to the extent that the funds can be traced, they retain the original character of the property sold and pass to the specific legatee or devisee.

We believe that on the facts of this case, plaintiff is entitled to prevail. ■ None of the funds received from the sale of the Atwood property were used for the support of Sarah E. Collins and we do not believe that the mere fact that there has been a conversion from real estate to personalty which did not benefit the testator should defeat her intention expressed in her will. Nor do we believe that a conservator- of an insane person should be permitted to revoke the express provisions of a testator’s will made at the time the testator had mental capacity to make the same. Such a conversion has been held insufficient to defeat a contrary expressed intention of the testator where the sale was made by the testator himself. Adams v. Peabody Coal Co., 230 Ill. 469; Heirs of Wright v. Minshall, 72 Ill. 584. Because the funds from the sale of the Atwood property can be traced and because it is clear that no part of them were used for the benefit of Sarah E. Collins, we hold that they are impressed with a trust in the hands of the executor and upon distribution of the estate should be paid to plaintiff under the provisions of the will of Sarah E. Collins.

For the reasons herein stated the judgment of the circuit court of Douglas county is reversed and cause remanded to said court with instructions to overrule the motion to dismiss the amended complaint.

Reversed and remanded with directions.


author: Presiding Justice Huffman.

text:
    Elmira Swain, Appellee, v. William Hoberg, Appellant.
    Gen. No. 9,707.
    opinion filed February 12, 1943.
    Arthur H. Shay and Courtney Arthur, for appellant; Hollerich & Hurley and H. L. Richolson, for appellee.
   Opinion by

Presiding Justice Huffman.

Not to be published in full.


text:
    Philip H. Kantro, Appellee, v. City of Elgin et al., Appellant.
    Gen. No. 9,814.
    opinion filed February 12, 1943.
    Perry D. Wells and Geo. D. Carbary, for appellant; Geo. D. Carbary, of counsel; Healy, Beverly & Funk, for appellee; Paul G. Funk, of counsel.
   Opinion by

Presiding Justice Huffman.

Not to be published in full.


text:
    Roscoe J. Todd, Administrator of Estate of Nellie J. Todd, Deceased, Appellant, v. S. S. Kresge Company, Appellee.
    Gen. No. 9,843.
    opinion filed February 12, 1943;
    rehearing denied March 17, 1943.
    Charles G. Seidel and Ernest W. Akemann, for appellant; Ellis & Hamilton, for appellee; Paul M. Hamilton, of counsel.
   Opinion by

Presiding Justice Huffman.

Not to be published in full.


text:
    John Chucklin, Appellee, v. Frank O. Lowden and Joseph B. Fleming, Trustees, Appellants.
    Gen. No. 9,846.
    opinion filed February 12, 1943;
    rehearing denied March 17, 1943.
    Stafford & Schoede and Edward C. Schoede, for appellants; Milton V. Thompson, of counsel; Huber & Reidy, for appellee; Isador I. Katz, of counsel.
   Opinion by

Presiding Justice Huffman.

Not to be published in full.


author: Justice Dove.

text:
    Mildred Sidney Baldwin, Appellant, v. Peoria Star Company et al., Appellees.
    Gen. No. 9,783.
    opinion filed February 12, 1943.
    Richard H. Radley, Sr., Joseph A. Weil, Mary D. Cassell, John Radley and Richard H. Radley, Jr., for appellant; George Z. Barnes, Shelton F. McGrath and Clyde R. Birkett, for certain appellees; Jerome Crowley and Cassidy, Knoblock & Sloan, for certain other appellees.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    Elmer J. Humbert, Administrator of Estate of John Elmer Humbert, Deceased, Appellee, v. Frank O. Lowden et al., Trustees, Appellants.
    Gen. No. 9,810.
    opinion filed February 12, 1943;
    rehearing denied March 17, 1943.
    Milton V. Thompson, Eaton Adams, Henry Waterman and Carl A. Meliu, for appellants; Joseph L. Shaw and Ogden H. Chamberlain, for appellee.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    Nicola Pastore, Administrator of Estate of Nicholas Pastore, Deceased, Appellant, v. Charles Sasso, Appellee.
    Gen. No. 9,820.
    opinion filed February 12, 1943.
    Palmer Di Giulio and Daniel A. Covelli, for appellant; Barr & Barr, for appellee.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    People of the State of Illinois ex rel. Lester F. Carson, Appellee, v. Nona Crowe, Appellant.
    Gen. No. 9,844.
    opinion filed February 12, 1943.
    Henry E. Pratt, for appellant; George F. Barrett, Attorney General, and Lester F. Carson, State’s Attorney, for appellee; Donald A. Morgan, of counsel.
   Opinion by

Justice Dove.

Not to be published in full.


author: Justice Wolfe.

text:
    Union Cabinet Company, Appellee, v. Interstate Hotels Company, Appellant.
    Gen. No. 9,818.
    opinion filed February 12, 1943;
    rehearing denied March 17, 1943.
    A. F. Beaubien, for appellant; Mark H. Beaubien, of counsel; Hall & Hulse, for appellee; Albert L. Hall, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in full.’’


text:
    Donald Piper, by Eugene Piper, His Next Friend, Appellant, v. Esther L. Speroni, Executrix of Will of Peter J. Speroni, Deceased, Appellee.
    Gen. No. 9,848.
    opinion filed February 12, 1943;
    rehearing denied March 17, 1943.
    J. L. Spaulding, James H. Andrews, Gregg A. Young and Harper Andrews, for appellant; Carey R. Johnson and Joseph R. Peterson, for appellee.
   Opinion by

Justice Wolfe.

“Not to be published in. full.’ ’


author: Presiding Justice Riess.

text:
    Jennie Hish et al., Appellants, v. County of Shelby, Appellee.
    Gen. No. 9,360.
    opinion filed February 24, 1943.
    Jno. W. Fribley, Wilton A. Carr and Robert J. Sanders, for appellants; E. C. Eberspacher, Jr., State’s Attorney, and J. C. Willard, Assistant State’s Attorney, for appellee.
   Opinion by

Presiding Justice Riess.

“Not to be published in. full.’’


author: Justice Dady.

text:
    Edward W. Brown, Minor, by Charles Brown, His Next Friend, et al., Appellees, v. Robert H. Steed and William McCann, Partners, Trading as State Grocery and Market, et al., Appellants.
    Gen. No. 9,364.
    opinion filed February 24, 1943.
    Stone & Taylor, for appellants; Loren B. Lewis, for appellees.
   Opinion by

Justice Dady.

“Not to be published in full.”


author: Justice Hayes.

text:
    H. C. Willadsen, Trading as H. C. Willadsen Construction Company, Appellee, v. City of East Peoria, Illinois, Appellant.
    Gen. No. 9,358.
    opinion filed February 24, 1943.
    George Donaldson, Wallace J. Black and Kenneth W. Black, for appellant; Fred W. Potter, Jr., for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full. ’ ’