author: Mr, Presiding Justice Stone

text:
    Raymond Moore, Appellee, v. Sidney R. Schoen and Phil Krout, Copartners, Trading as The Marian Petroleum Company, Appellants.

      Opinion filed March 2, 1942.
    Frank E . Trobaugh and Stephen E. Beondos, both of West Frankfort, for appellants on appeal only.
    B. W. Harms and Stone & Fowler, all of Marion, for appellee.
   Mr, Presiding Justice Stone

delivered the opinion of the court.

Baymond Moore, plaintiff appellee (hereinafter designated as plaintiff), filed his suit in the circuit court of Williamson county, in an action at law, against Sidney B. Schoen and Phil Krout, copartners, doing business as The Marian Petroleum Company, defendants appellants (hereinafter designated as defendants), for breach of a written contract, by the terms of which defendants agree to sell to the plaintiff, for two years all of Ms requirements of oils, gasolines, lubricants and other products, which said plaintiff might offer for sale to his customers. Plaintiff was to operate a tank-wagon route between certain towns in Williamson and Saline counties. Defendants operated a bulk plant in DeSoto, Illinois, and sold their products wholesale and retail. By the terms of the contract, plaintiff was to buy exclusively from defendants all of his requirements of oils, gasoline, lubricants, and other products, for which he was to pay cash on delivery at the prevailing resale price at which defendants offered said merchandise for sale. The contract was subject to termination by either party giving notice in writing to the other, plaintiff by giving a 10-day notice and defendants by giving a 60-day notice.

The complaint filed by plaintiff avers the execution of the contract; that plaintiff entered into and upon the work and performed all of the things required of him, under the contract; that defendants on or about the 6th of June, 1940, attempted to cancel said agreement and gave oral notice that they would not be bound thereby, and thereafter refused to be bound by the terms of said agreement, and that plaintiff was wrongfully deprived of large sums of money which he would have received under the agreement. The answer admitted the contract and denied generally the other allegations of the complaint. The answer did not allege facts showing wherein there was a failure of plaintiff to perform his part of the contract.

The case was tried by jury and verdict in the sum of $3,900 was returned. Upon motion for new trial being filed by defendants, the court ordered a remittitur in the sum of $1,900 within one week and upon plaintiff’s failure to enter same, new trial was ordered. Plaintiff entered his remittitur of $1,900, and the court thereupon denied defendants’ motion for new trial, and rendered judgment against defendants in the sum of $2,000. From this judgment defendants prosecute their appeal to this court.

It is defendants’ theory, that the evidence introduced established the fact that plaintiff was in default under the contract, in that he did not pay cash for the merchandise obtained when he secured it, as required by the contract, hence was not entitled to. recover. Much space is devoted, in defendants’ argument to evidence showing, or tending to show that certain of plaintiff’s checks were returned on account of insufficient funds. It will serve no useful purpose for us to discuss this phase of the evidence. Eule 13 of the Supreme Court provides: “In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part; if the allegation be denied the facts must be alleged in connection with such denial showing wherein there was failure to perform.” The defendants in their answer, did not comply with this rule. In their attempted denial of the allegation that conditions precedent had been performed, they failed to allege facts showing wherein there was a failure to perform. A denial of performance.of conditions precedent which does not comply with such a rule must be treated as an admission. Enloe v. American Family Protection, Inc., 291 Ill. App. 623, 9 N. E. (2d) 728 (Abst.); Halferty v. Wilmering, 112 U. S. 713, 28 L. Ed. 858. It necessarily follows that the defendants are not in a position to contend that proof is lacking, with reference to performance of conditions precedent, which must be deemed admitted under the pleadings.

It is assigned as error that the trial court erred in permitting evidence to be introduced as to damages at variance with, and different from the contract alleged in the complaint. The gist of counsel’s argument in that regard is, that the contract contained a 6 ‘ cash on delivery” clause, whereas the contract proved contained a consignment delivery arrangement. Plaintiff testified, without objection, that some time in April, he would get the merchandise, sell it and turn the money and tickets over to defendants and they would pay him at the end of every ten days or two weeks and that this procedure was followed until June 5th. Plaintiff’s Exhibits 2, 3, 4, and 5, which showed plaintiff’s commissions, in this phase of the transaction, were admitted without objection. Later on, in the testimony of plaintiff, this matter of the change of method of payment was gone into again, and objection made by counsel for defendants. There was no express ruling on this objection by the court, and no motion to strike the previous testimony in the record. In order to avail defendants of a material variance between the allegation and proof, the testimony should have been objected to, at the time it was offered and the variance pointed out. Illinois Life Association v. Wells, 200 Ill. 445, 453; Fox v. Starr, 106 Ill. App. 273, 275; Linguist v. Hodges, 248 Ill. 491; Reavely v. Harris, 239 Ill. 526. Furthermore, the defendants introduced testimony, on the part of the witness Schoen, going to the same proposition. Error is waived in the admission of the other party’s evidence when the objector produces evidence or examines other witnesses on the same proposition. Huling v. Century Publishing & Engraving Co., 108 Ill. App. 549; Kuhn v. Eppstein, 239 Ill. 555 Whalen v. Stephens, 193 Ill. 121; Moyer v. Swygart, 125 Ill. 262. We think the trial court’s conclusion on this proposition was correct when he said that there was not so much a change in contract as in the method of payment.

It is also assigned as error that the trial court erred in giving instructions which had been interlined without striking out completely the part intended to be deleted. It is not urged that the instructions so given, do not present a correct statement of the law. In none of the cases cited by defendants was the interlineation, in itself held to be ground for reversal. Some of the cases do not approve the practice, but it alone is not reversible error.

The contention is made on behalf of defendants that there was no sufficient allegation and proof of loss of profits, upon which damages could be rightfully predicated. The complaint alleges that by reason of the defendants’ breach, “the plaintiff has been wrongfully deprived of large sums of money which he would have received under said agreement — •” which we believe to be a sufficient allegation, upon which to base proof of loss of profits.

With reference to the question of proof of loss of profits, counsel for defendants cite the case of Salaban v. East St. Louis & Interurban Water Co., 284 Ill. App. 358. In that case the court held that where plaintiff attempted to collect damages predicated upon failure of defendant to furnish water for his place of business, plaintiff had to show among other things, that this trade left him on that account; that his loss might have been from want of water, it might have been from poor management, or on account of changes in conditions, hence he was not entitled to recover. We find no such elements of speculative profits, in the instant case. A recovery may be had for prospective profits, when there are any criteria by which probable profits can be estimated with reasonable certainty. Barnett v. Caldwell Furniture Co., 277 Ill. 286; Landis v. Wolf, 206 Ill. 392; Illinois Cent. R. Co. v. Byrne, 205 Ill. 9. On the trial of the instant case the amount of sales and profit therefrom, made by plaintiff for three full months prior to the severance of contractual relations between the parties was proved as a basis upon which to estimate his probable profits in the future. We find no merit in the contention of defendants, that there was no sufficient allegation and proof of loss of profits.

With reference to whether or not the contract was breached by defendants, that was a factual question which the jury decided affirmatively, and that finding, being supported by the evidence, should not be disturbed on appeal. Barnett v. Caldwell Furniture Co., supra; Lewy v. Standard Plunger Elevator Co., 296 Ill. 295. Plaintiff testified that one of the defendants, Schoen, told him that they would not let plaintiff have any more of their products, that defendants had their own truck and were going to take over the route. While Schoen denies this, plaintiff is corroborated by the witness Bowlin. In the matter of the refusal on the part of defendants to let plaintiff have any more of their products, plaintiff is corroborated by the witness Emery. There is some evidence to the effect that defendants did take over at least a part of plaintiff’s route. On this record, we are not inclined to disturb the finding of the jury. Other points have been raised in the briefs, but we do not think it necessary xto discuss them.

We do not feel constrained upon assignment of cross error by plaintiff, to disturb the entry of the remittitur by the trial court. Finding no reversible error in the record, the judgment of the lower court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    Thomas Roberts, Administrator of Estate of Marjorie Roberts, Deceased, Appellant, v. Joseph Cipfl, Appellee.

      Opinion filed March 2, 1942.
    Walter Kassly and Beasley & Zulley, all of East St. Louis,^ for appellant.
    Kramer, Campbell, Costello & Wiechert and Norman J. G-undlach, all of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Thomas Roberts, administrator of the estate of Marjorie Roberts, deceased, appellant (hereinafter designated as plaintiff) instituted this suit at law in the city court of East St. Louis, seeking to recover damages against Joseph Cipfl, appellee (hereinafter designated as defendant) for his alleged negligence in an automobile collision, resulting in the death of his 21-year-old daughter, Marjorie Roberts. The case was tried by the court without a jury, on May 28, 1941, and taken under advisement by the court. On the 13th of June, 1941, the court found that the plaintiff had failed to prove his case, as alleged in his complaint, by a preponderance of the evidence, and found that defendant was not guilty of the negligence nor of the wilful and wanton misconduct charged against him in said complaint, and judgment was entered in favor of defendant and against plaintiff in bar of the action. From that judgment appeal is prosecuted to this court.

The uncontroverted and undisputed facts in the case are to the effect that on June 30, 1940, at about 2:30 in the morning plaintiff’s intestate, Marjorie Roberts, was riding, as an invitee in an automobile coupe with a young man by the name of Thomas Rust. Rust was driving east on College avenue, which is a through street in East St. Louis. College avenue is intersected by North Fourteenth street, which runs in a northerly and southerly direction. There was a boulevard “Stop” sign oh the southeast corner of College and North Fourteenth, for traffic entering College avenue. Defendant was driving a Mercury Eight automobile north on North Fourteenth street.

Rust testified that he was driving his car at about 15 or 20 miles an hour, that when he first saw defendant’s car he judged his own car to be about two feet from the intersection, at which point he claimed that he was able to see to his right on Fourteenth Street, and that defendant’s car was about 80 feet down the street. Rust estimated the rate of speed of defendant’s car at 65 or 70 miles an hour, that he did not slacken his. speed, gave no signal or warning of any kind, and did not stop at the boulevard “Stop” sign, on the south side of the street. The automobile driven by Rust was first in the intersection. Rust had a right to assume that defendant, approaching a through street, where there was a boulevard “Stop” sign, would stop at that street, before entering the intersection. A person has a right to presume that other parties will obey the statutes and ordinances in force in a given place. Dukeman v. Cleveland, C., C. & St. L. Ry. Co., 237 Ill. 104, 86 N. E. 712; Potter v. Chicago, M. & St. P. R. Co., 208 Ill. App. 363; Lund v. Osborne, 183 Ill. App. 63; Johnson v. Illinois Cent. R. Co., 165 Ill. App. 19.

When Bust saw that the two cars would collide, he started to turn to the left, and applied his brakes. His right front fender and the left front fender of defendant’s car hit, and Bust’s car, from the force of the impact spun around, and plaintiff’s intestate was thrown from the machine, sustaining fracture of the skull and lacerations of the brain, from which injuries she died a few days later.

Three witnesses testified for the plaintiff, Bust, who was the only eye witness testifying, the father of the deceased girl, who testified with reference to the loss of the girl’s services as housekeeper, and Dr. V. P. Siegel, who testified as to the girl’s injuries and resultant death. For the defendant, Forrest Crawford, commercial photographer testified and identified six pictures taken by him. Defendant’s Exhibit 1 showed College avenue looking west; Exhibit 2 showed North Fourteenth street, looking north; Exhibit 4 pictured Bust’s damaged automobile; while 5 and 6 were pictures of defendant’s damaged automobile. Defendant Joseph Cipfl was offered as a witness in his own behalf, objection was made that plaintiff was suing in a representative capacity, which was sustained by the court. Same objection was made and sustained,as to the wife of defendant. So that in substance the only evidence in the record on behalf of the defendant were the six photographs.

The principal error relied upon for reversal by the plaintiff is, that the judgment of the trial court is against the manifest weight of the evidence.

It is contended on behalf of the defendant that there was only one question involved in the case and that was whether or not defendant was guilty of negligence that proximately caused the death of plaintiff’s intestate. With that statement, we are more or less inclined to agree. It is contended that the visual evidence adduced by the pictures of the scene of the accident and the automobiles involved form a substantial basis for the court’s decision in finding that the defendant was not guilty of the negligence charged against him. It is claimed that the testimony of Rust is impeached by the physical facts and the pictures introduced in evidence by defendant.

We have examined these exhibits carefully and find nothing therein that meets the eye that would convince the mind that these pictures either of the scene of the accident or either damaged car, contradict the testimony of the one eye witness, whose testimony is in the record of this case. If there is anything that stands out, in the pictures of the scene of the accident, it is the fact that as defendant approached the intersection of College and North Fourteenth streets, the boulevard “Stop” sign was almost directly in front of him and that he was driving his car in a residential section of the city, where the operation of his car in excess of 25 miles an hour would be prima facie evidence that he was operating his motor vehicle at a rate of speed greater than was reasonable and necessary, having regard for the traffic and use of the way. Chapter 95%, section 146, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.178]. The picture of the two cars also, it seems to us, corroborates the testimony of Rust, when he stated that the right front fender of his car and the left front fender of defendant’s car hit.

Ridgway v. Illinois Cent. R. Co., 303 Ill. App. 224, is cited by counsel for defendant, in support of their contention that the physical facts in the case, as shown by the pictures would be sufficient to sustain the judgment of the court, in finding for the defendant. The Bidgway case was a railroad crossing collision case, and judgment for plaintiff was reversed as against the manifest weight of the evidence because the photographs of the railroad crossing showed a clear and unobstructed view of the track for a great distance and the motorist would have seen the train had he looked. .This was an entirely different situation. There the trial court was not asked by looking at pictures, to determine the motion of the train, or the movements of the automobile.

In a case tried .by the court without a jury the finding of a trial court has no greater weight than the verdict of a jury and will be reversed where it is against the manifest weight of the evidence. Israel v. Selman, 263 Ill. App. 351; Feldman v. Karn, 247 Ill. App. 48; Feucht v. Clarke, 299 Ill. App. 477. The judgment for the defendant in this case, being contrary to the manifest weight of the evidence, will be reversed and remanded, for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


text:
    Jessie Armster, Administratrix of Estate of Roy Armster, Deceased, Appellee, v. American Steel Foundries, Appellant, and John Lankster, Defendant.

      Opinion filed March 2, 1942.
    Oehmke & Dunham, of Bast St. Louis, for appellant.

      Irwin Walker, Philip G. Listeman arid Ralph D. Walker, all of East St. Louis, for appellee; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

The appellee, Jessie Armster, as administratrix of the estate of Roy Armster, deceased (hereinafter called the plaintiff) brought this action at law against American Steel Foundries, appellant (hereinafter designated as defendant) and John Lankster, to recover damages on account of the death of Roy Armster resulting from an injury to his person through the alleged negligence of the defendants on the premises of American Steel Foundries in East St. Louis, Illinois, on November 13,1940. Upon a trial of the case before a jury, verdict was returned in favor of plaintiff and against both defendants in the sum of $5,500 upon which judgment was rendered. This appeal is prosecuted by American Steel Foundries alone.

American Steel Foundries manufactures steel castings and in the operation uses all kinds of scrap iron and steel, including steel railroad rails. It is necessary to break or cut the scrap, so that it may be put into melting furnaces and for that purpose steel railroad rails are broken to five foot lengths. Those engaged in this work used cold chisels, weighing about a pound and a half, twenty-four pound hammers and metal bars called rail bars, used with one end inserted in a bolt hole at the end of the rail to turn the rail, which is then broken by vibration. The rail bar in question in this case was an old Ford axle pointed at one end for the purpose, about four feet long and weighing ten or twelve pounds. The work of breaking these rails which required a crew of six men, was being done on an unenclosed lot about 200 by 300 feet, adjoining the plant of defendant company.

This work required special experience and the ordinary workmen regularly employed at the plant of defendant company did not do it. In October of 1940, there were some rails to be broken up and a man by the name of Louis Griffin who was experienced in this character of work was employed by the defendant company for this work. One of the controversial questions in this case, was whether the men employed in this work, among them the codefendant in the lower court, Lankster, were employed by Griffin, as an independent contractor, or were employed directly by defendant company.

Among other conditions precedent to employment in this particular work, was the passing of a medical examination. Among those who took the examination and who was an experienced rail breaker, was plaintiff’s intestate Eoy Armster. He did not pass the examination, but the evidence is to the effect that for at least several days prior to his injury, he came to the lot where the rail breaking was being done and worked with the crew engaged in that work, among whom was the defendant, Lankster.

Early on the morning of November 13,1940, Armster was engaged at this work with the chisel and five or six rails had been broken. Lankster was working with the rail bar. The evidence is to the effect that it was the custom in this work, for the man handling the bar, to lay it down, or set it in the ground, until the crew was ready to turn a rail over again, and start the process of breaking. Armster was within an arm’s length of Lankster, behind him and to his right. Without looking back Lankster tried to stick the bar into the ground, which was frozen, and it failed to stand up; not realizing he had injured anyone, he tried to stick the bar in the ground the second time and the pointed end of the bar struck Armster’s foot. He had struck his foot the first time, without knowing it, and used more force the second time, and the bar penetrated Armster’s foot. Tetanus developed and the injured man died from the tetanus infection on November 24th.

Among other errors relied upon for reversal by defendant, it is assigned that the court erred in admitting improper and incompetent evidence offered by plaintiff. This is not argued in defendant’s brief. Where error is assigned in the admission of incompetent evidence, and not argued and no reason assigned therein why such testimony was incompetent, it will be assumed to be waived and will not be considered by this court. People’s Nat. Bank of Monmouth v. Fernald, 252 Ill. App. 5.

It is the theory of counsel for defendant, and is argued ably and at considerable length by them, that Lankster was not an employee of American Steel Foundries, but an employee of Louis Griffin, an independent contractor, and that the doctrine of respondeat superior, has no application to this case. They further contend that plaintiff’s intestate was a licensee on the premises of defendant company and not an invitee and the only duty said defendant then and there owed him was not to injure him wantonly and wilfully.

Where the facts are undisputed the existence of the relationship of master and servant is for the court, but where from the pleadings and evidence such relationship is disputed, it is a question for the jury. Watson v. Trinz, 274 Ill. App. 379. There was ample evidence in the instant case, whereby the jury might well find that Lankster was an employee of the defendant company. He was required to make out a written application for employment; to undergo certain physical examinations; his rate of pay was fixed by defendant’s employment agent, he was told where he was to be required to work and what character of work he was to perform. While he was at work, he was advised that it was necessary for him to have protection for his eyes and he was compelled to purchase a pair of goggles, the cost of which was deducted from his pay. He. was furnished with a copy of the United States laws applicable to the work he was to perforin. He was required to use a time clock to indicate the time of his arrival at, and his leaving his work. He was paid by defendant’s check. He used tools furnished by defendant, and used them in an essential and necessary part of its business.

If, as contended by defendant, plaintiff’s intestate was a mere licensee and went upon defendant’s premises for purposes of his own and not for any purpose connected with the business of defendant, plaintiff cannot recover without proof that defendant knowingly and wilfully injured the deceased. On the contrary if Boy Armster was on the premises at the time and place of the accident by the invitation, either express or implied of defendant, it owed him the duty to exercise ordinary care for his safety while upon said premises. Pauckner v. Wakem, 231 Ill. 276; Kijowski v. Times Pub. Corp., 372 Ill. 311; Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110. To come upon the premises under an implied invitation means more than a mere license, it means that the visitor is there for a purpose connected with the business in Avhich the occupant is engaged or which he permits to be carried on. Pauckner v. Wakem, supra; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128; Illinois Cent. R. Co. v. Hopkins, 200 Ill. 122.

In the case of Mallory v. Day Carpet & Furniture Co., 245 Ill. App. 465, cited by counsel for defendant, the plaintiff’s intestate accompanied a servant of defendant from the theatre to the garage, where such servant was employed. His duties were to assist the man who had charge of the garage in taking care of cars there. His work appeared to be a mere accommodation. It was apparent that plaintiff’s intestate was in the garage merely as a visitor and for purposes of her own. She was killed by an explosion there, and the Appellate Court held that the servant who brought her there was not a servant of defendant with authority to invite deceased to the premises. There is a summary of Illinois cases on this proposition in this opinion but they are all cases where the party killed or injured was on the premises for purpose of his own. The case of Pauckner v. Walkem, supra, was cited with approval in the opinion of the court. The Pauckner case clearly draws the line of demarcation between those who are on premises for business of their own, and those who are there for a purpose connected with the business in which the occupant is engaged or which he permits to be carried on. There the court said on page 279 of the opinion, “It will be found that the distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns on the nature of the business that brings him there, rather than on the words or acts of the owner which precede his coming.” The Supreme Court in this case distinguished the case they were considering from the case of Murray v. McLean, 57 Ill. 380, in which case the owners of the premises on which the party was injured knew nothing of his presence on the premises until after he was hurt, and this fact in a measure excused the owners from giving warning or taking other precautions to protect the party from injury.

It was shown beyond any question in the case at bar, that at the time plaintiff’s intestate sustained the injury which resulted in his death, he was actually engaged in work that defendant conducted upon its property. He was working with a tool that was the property of the defendant. He was no idle curiosity seeker, or merely a visitor for purposes' of his own. It was testified by the witness, Lankster, that deceased was working there the day previous and the day before that. He worked for about an hour on the morning that he was injured. Such being the case defendant could hardly be heard to say that it had no notice of his presence on its premises and therefore only owed him the duty to refrain from injuring him wilfully and wantonly.

The question whether Armster was rightfully or wrongfully upon the premises was a question of fact. By their verdict the jury determined that factual issue in favor of plaintiff and we are not inclined to hold that their finding was contrary to the manifest weight of the evidence. Where a fair question of fact is raised by the proof, an Appellate Court will not set aside the jury’s finding as being against the manifest weight of the evidence. Summers v. Hendricks, 300 Ill. App. 498; Jones v. Esenberg, 299 Ill. App. 551; Gregory v. Merriam, 294 Ill. App. 483. The question as to whether plaintiff’s intestate was guilty of contributory negligence, was also a question of fact for the jury. Collins v. Missouri-Illinois R. Co., 233 Ill. App. 545; Brown v. Illinois Terminal Co., 237 Ill. App. 145, aff’d 319 Ill. 326, 150 N. E. 242; McConkey v. Pennsylvania R. Co., 251 Ill. App. 299; Bushu v. Cordera, 257 Ill. App. 234.

Complaint is made that the verdict of $5,500 was excessive. Plaintiff’s intestate was 47 years of age, in good health, experienced in a trade, and maintained a home for his wife. In an action for death from negligent act, there is no hard and fast rule by which damages can he computed and the verdict of a jury, unless the court can say that it was dictated by passion and prejudice, and it was not rendered in the exercise of their discretion and sound judgment, should he final. Chicago City R. Co. v. Bohnow, 108 Ill. App. 346. We are not constrained to hold that this verdict is excessive.

We are of the opinion that the court did not err in refusing to instruct the jury to find the issues in favor of defendant either at the close of plaintiff’s case or at the close of all of the evidence, and that the court did not err in denying defendant’s motion for new trial or motion for judgment notwithstanding the verdict.

Finding no reversible error the judgment of the trial court will be affirmed.'

Affirmed.


author: Mr. Justice Culbertson

text:
    John Jones for use of Daisy Mobley et al., Appellants, v. Manufacturer’s Casualty Insurance Company, Appellee.

      Opinion filed March 2, 1942.
    Charles H. Thompson and George B. Lee, both of Harrisburg, for appellants.
    Wheatley & Combe, of Harrisburg, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal in an action in garnishment to compel the defendant appellee, Manufacturer’s Casualty Insurance Company, a corporation (hereinafter called defendant) to pay judgments aggregating $5,600, obtained by the plaintiffs appellants, vis: Daisy Mobley, in the sum of $5,000; Harris Mobley, in the sum of $100; Irene Mobley, in the sum of $100; L. G. Fisk, in the sum of $300; and Dale Fisk, in the sum of $100 (said beneficial plaintiffs hereinafter called plaintiffs).

The issues in this case were tried and determined by the trial court, without a jury, and resulted in a fiudiug by the trial court in favor of the garnishee, and against plaintiffs. The facts, in part, concerning this case, and upon which the action of garnishment is predicated, were agreed upon by the parties to this cause and a signed stipulation entered into, which said stipulation, among other things, recited the rendition (on the 7th day of October, 1940, in the circuit court of Saline county, Illinois), of the judgments hereinbefore referred to. Said stipulation further recited that on October 18, 1940, execution was issued on the judgments above described, against the defendant, and that said execution was delivered to the sheriff of Saline county, Illinois, and on October 19, 1940, the said execution was returned by said sheriff, “No property found.”

Said stipulation further provided that the amounts of said judgments were recovered by the beneficial plaintiffs, against John Jones, upon a complaint filed by them against the said John Jones and Stanley Wilson (to which complaint the said John Jones and Stanley Wilson answered, denying liability, and from which cause the said Stanley Wilson was dismissed as defendant), and in which complaint it was alleged that the injuries and damages sustained by the beneficial plaintiffs directly resulted from the alleged negligence of the said John Jones in the operation of the motor vehicle, more particularly described as a 1931 Chevrolet express truck, while he, the said John Jones, was driving said truck on U. S. Route No. 45, at or near the intersection of Barnett street, in Saline county, Illinois, on June 27, 1939, at about 11:00 o’clock p.m., which said truck then and there operated by said John Jones, collided with a 1936 tudor Chevrolet sedan owned by the said L. Q-. Fisk, and then operated by one Lomand Fisk, in which the said plaintiffs were riding as guest passengers.

It was further stipulated that there was existing and in force and effect at the time of the collision, a policy of insurance issued to John Jones and Stanley Wilson, together with a rider attached to and forming a part of said policy, said rider reciting among other things, the following:

“In consideration of the premium at which this policy is written, the named assured declares that the commercial automobile described in the policy as a ‘farm truck’ is and will be used principally on or about the premises at the location stated in the policy, and in connection with the operation of the named assureds ’ farm. ’ ’ The policy itself, under item 5 thereof, recited that the purposes for which the automobile is to be used are “commercial.” In the declarations which were made a part of the policy, the assured gave their occupation as farming. The motor vehicle insured was a 1931 Chevrolet express truck, and the declared purpose of its use was “commercial.” The term “commercial” is defined in the policy as, “the transportation or delivery of goods, merchandise, or other materials, and uses incidental thereto, in connection with the named insured’s business occupation as expressed in item 1,” which is declared to be farming. The rider was attached to the policy, in consideration of a reduction in the premium paid by the assureds, which the agent, F. A. Leberman, testified was lower because of the restrictions in the use of the truck, being limited to farm purposes, upon the declarations that the truck was to be used principally on or about the premises at the location stated in the policy, at the farm of the assurers, and in connection with the operation of the named assureds’ farm.

Certain other facts were stipulated, and when this matter came on for a hearing before the court, it was tried before said court on said stipulation of fact, and certain interrogatories and answers thereto, and certain oral testimony. The sole and only question presented for our determination in the view we take of this case is, whether or not the truck of the assured was covered by the insurance policy at the time of the collision.

The trial court held adversely to plaintiffs’ contention and this now comes on before us for hearing on the following assignments of error: (1) That the court erred in entering judgment in garnishment in favor of defendant, and against the plaintiffs; (2) The court erred in finding the Manufacturer’s Casualty Insurance Company, a corporation, not liable as garnishee ; and (3) The judgment of the court is contrary to the law and the evidence.

The evidence in this case disclosed that on June 27, 1939, the day on which the accident occurred, the assured Jones, at about noon, came to his son’s home in Harrisburg and made arrangements to take his son, and children, to Carrier Mills that evening, and while there is some conflict in the evidence, there is evidence fairly tending to show they planned to go to a show. Pursuant to that arrangement, about 6:15 o’clock p.m., Jones drove from his farm, to Harrisburg, and picked up his son and certain members of his family, and a neighbor boy, and drove them, in the truck, to Carrier Mills, where they did attend a shoiv. The evidence further disclosed that after 10:00 o’clock that night, the party, while enroute to the home of Jones’ son in Harrisburg, collided with an automobile in which the plaintiffs were riding, causing injuries' and damages which furnished the basis of the $5,600 in judgments.

John Jones testified, among other things, on the trial of this cause that, upon arrival at Carrier Mills on the night of the accident, before going to the show, he went over to O ’Keefe’s car yard and looked around at some used cars, and that he had in mind buying a used car for his own use and for the benefit of his young son who resided at home, and who wanted some way to get back and forth to his work. This witness further testified that at the time of the accident he didn’t have any provisions in the truck for the farm, or supplies, or anything of that kind. This witness further testified that he knew about the endorsement on the policy, and that he knew the automobile described in the policy was to be used principally about the farm.

The plaintiffs in this case can recover against the garnishee only if the assured could have successfully maintained in action against the insurer, upon the insurance contract (Pogline v. Central Mut. Ins. Co., 280 Ill. App. 5; Wold for use of Wegener v. Glens Falls Indemnity Co., 269 Ill. App. 407).

The burden of proof rests upon the plaintiffs to establish that the use made by the assured of the truck at the time of the collision came within the coverage of the policy (Soukup v. Halmel, 357 Ill. 576, 579).

While we are very mindful that an insurance policy is to be construed most favorably to the insured, it is equally true that no strained or unwarranted construction is to be adopted, which is plainly not within the terms of the instrument (Soukup v. Halmel, supra; Midwest Dairy Products Corp. v. Ohio Casualty Ins. Co., 356 Ill. 389, 397).

This case having been tried by the court, without a jury, the findings of the trial court are entitled to the same weight as a verdict of a jury, and we would not be at liberty to set the same aside unless we find same are manifestly against the weight of the evidence (Foeller for use of Town of Shiloh Valley v. Griffin, 309 Ill. App. 238, 240; Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180, 186; Klopp v. Benevolent Protective Order of Elks, 309 Ill. App. 145, 153; Barnett v. Pitcairn, 309 Ill. App. 201, 205).

From a careful examination of the evidence in this case we are of the opinion, and so find the fact to be, that the use made of the truck at the time of the collision in question was not within the coverage of the policy, and we further find that the finding of the trial court was in harmony with the evidence and amply supported thereby, and is correct, and said finding is, therefore, affirmed.

Judgment affirmed.


text:
    Hallie Cooper, Appellee, v. W. W. Shaffer, Appellant.
    Opinion filed March 2, 1942.
    Charles J. Huffman, of Vienna, Smith & McCollum, of Flora, and Kramer, Campbell, Costello & Wiechert, of East St. Lonis, for appellant.
    C. Boss Beynolds, of Vienna, and Arthur F. Melvin, of Marion, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment in the sum of $2,500, rendered in the circuit court of Johnson county, in favor of appellee, Hallie Cooper (hereinafter called plaintiff), and against the appellant, W. W. Shaffer (hereinafter called defendant).

The action in which the judgment was rendered was predicated upon injuries suffered by the plaintiff as the result of an accident which occurred on an unpaved road known as the “Old Marion and Vienna Boad” on July 29, 1940, at about 5:00 o’clock p. m. The defendant was driving his automobile along such road, in a southerly direction, behind a gravel truck going in the same direction. The evidence discloses that the defendant made attempts to pass this truck, but that the road was too narrow and that the driver of the truck refused to move over to permit the defendant to pass, so the defendant had dropped back to about 150 feet behind the truck in order to escape the heavier dust being thrown out by the truck.

Defendant’s evidence indicated he was driving at a speed of about 20 miles per hour, although the plaintiff’s evidence indicated that defendant’s speed was much greater. It was undisputed that plaintiff’s automobile was traveling at a speed of 15 or 20 miles per hour, and that plaintiff was driving in a direction opposite to that in which the defendant’s car was being driven. Defendant testified that he did not see plaintiff’s car until it loomed up suddenly 6 or 8 feet away, and that he was unable to avoid striking plaintiff’s car. Plaintiff’s witnesses testified to the effect that the road was about 22 feet wide, and that the center of the road was somewhat rough, but that there was a good traveled road on each side of the center and out onto the shoulder. Defendant’s witnesses testified to the effect that the road was only about 12 feet wide, and that there was only one traveled lane. One witness testified on behalf of plaintiff, in rebuttal, over objection of defendant, as to the width of the road and the number of lanes of travel on the road on the day on which the accident occurred, although the witness did not testify as an occurrence witness.

It is undisputed, however, that defendant was traveling a short distance behind a gravel truck, in the dust cloud raised by the truck, and that immediately prior to the collision he was toward what would have been the left-hand side of the road had there been two lanes in such road. The plaintiff, who met the truck as he was proceeding in the opposite direction, while driving along at a low rate of speed, as hereinbefore stated, was unable to see defendant’s car in the cloud of dust, but kept to his right-hand side of the road in passing the truck, going in the opposite direction. The collision between the automobiles of plaintiff and defendant occurred on the portion of the road which would have been the right-hand side of the road for the plaintiff.

The cause was tried before a jury, which returned a verdict for plaintiff in the sum of $2,500, and judgment was entered upon such verdict. Defendant on appeal to this court, assigns a number of errors including the contention that the verdict of the jury was excessive. No argument is presented on such point, and we, accordingly, will give no further consideration to such contention.

The only points which are raised and argued by defendant on this appeal arise from defendant’s contention that the court below erred in giving certain instructions on behalf of plaintiff, in refusing certain instructions on behalf of defendant, and in admitting the testimony of a witness for plaintiff in rebuttal, as set forth in the statement of facts herein.

Plaintiff’s instructions, numbers 1 and 6, are objected to on the ground that they fail to specify that the negligence of the defendant must be shown to be the proximate cause of the injury before plaintiff would be entitled to recover, and also, that the plaintiff must be shown to have been in the exercise of due care and caution at the time of the collision. Other instructions given on behalf of the defendant adequately covered such point.

As was stated in the case of McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, at page 106, “other instructions given to the jury state positively there could be no recovery if defendant in error were guilty of negligence, and it is elementary that instructions should be considered as a series.” Considering the instructions in the instant case in a series, the deficiencies in one may be supplied by the contents of another. It is, therefore, obvious that the defendant’s given instruction, number 6, adequately covered the points raised by the defendant in his objections to plaintiff’s given instructions, numbers 1 and 6.

Defendant, likewise, contends that the trial court erred in refusing to give defendant’s offered instructions, numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. We do not believe that any useful purpose would be served by detailing the nature of objections made to the refusal of each of such instructions, but believe it will suffice for all purposes here to state that all of the matters objected to in such instructions, where such matters were proper under "the facts and the law, and where the circumstances required the giving of such instruction, were adequately covered by other instructions which were actually given and the giving of such refused instructions would have been simply repetitious. The courts of this State have many times determined that repetition in instructions is neither necessary nor desirable.

It should suffice for the purposes of this case to state that the jury was fairly instructed on the issues before it, and any refused instructions, so far as they presented correct propositions of law, were substantially covered by given instructions (Shelby Loan & Trust Co. v. Milligan, 372 Ill. 397).

As to the last point made by defendant that there was error in permitting plaintiff’s witness to testify in rebuttal as to whether or not the road was a one-lane or a two-lane road, the allowance of such evidence in rebuttal cannot, under the circumstances, be deemed to be erroneous, and certainly, not reversible error. Testimony which might properly have been introduced in chief may be offered in rebuttal, and it is entirely discretionary with the trial court whether such testimony be admitted, or not. That discretion, so exercised, will not be the basis for a reversal, unless it has been abused (Corlett v. Illinois Cent. R. Co., 241 Ill. App. 124, 130).

Since we find no reversible error in the record, the judgment of the circuit court of Johnson county is, accordingly affirmed.

Judgment affirmed.


text:
    James Douglas Smith, Plaintiff, v. Louisville and Nashville Railroad Company, Defendant. McGlynn and McGlynn and Charles P. Noell, Appellees, v. Louisville and Nashville Railroad Company, Appellant.

      Opinion filed March 2, 1942.
    Farm:er, Klingel &"Baltz, of Belleville, for appellant.
    McGlynn & McGlynn, of Bast St. Louis, Charles P. Noell and Wm. H. Allen, both of St. Louis, Mo., for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment in the sum of $10,000, in favor of appellees, McG-lynn & McGlynn and Charles P. Noell (hereinafter called plaintiff attorneys), as ag’ainst the appellant, Louisville and Nashville Railroad Company, a corporation (hereinafter called defendant).

The judgment was rendered in a proceeding to enforce an attorney’s lien arising upon a petition filed in this cause by the plaintiff attorneys. The case was tried by the court, without a jury. The original plaintiff in this action, while an employee of the defendant, was injured by an explosion of an engine in the State of Kentucky. He resided at Mud Lake, Kentucky, about 30 miles from the city of Covington. About eight months after the accident he entered into a written contract with plaintiff attorneys whereby he employed them as his attorneys to prepare and prosecute his claim for damages against the defendant, growing out of his personal injuries, and agreed to pay them for their services “40% of whatever was collected by suit, or otherwise. ’ ’ Thereafter such attorneys filed suit on behalf of such plaintiff, against the defendant, in the city court of East St. Louis, to recover damages under the Federal Employers Liability Act, and performed various services in the case in connection with the preparation of the case, generally, for trial. Shortly after the filing of the suit, such attorneys filed a notice with defendant of their attorneys’ lien. That case was set for trial on June 4, 1941.

On the evening, of May 18, 1941, however, a claim agent of the defendant went to the original plaintiff at his home in Kentucky, and finally (between one and two o’clock in the morning on May 19, 1941) effected a settlement on behalf of the defendant Railroad Company, without the knowledge or consent of the original plaintiff’s attorneys. The settlement was for the sum of $15,000. At the time of such settlement, the original plaintiff executed a release of his cause of action wherein it was specifically recited that it was understood and agreed that defendant would hold such original plaintiff “harmless and indemnify him from any fee for which he might be liable” to one of the plaintiff attorneys. Such plaintiff testified that he had signed another release at the time, which included the names of both attorneys and there was some testimony to the effect that there was an agreement in such release to pay the attorney fees. It was expressly understood that the $15,000 was to be retained by such plaintiff. There was also some evidence relating to the matter of the original employment of the plaintiff attorneys, but there was nothing in such evidence which tends to disclose any basis for censure or reversal (on the basis of facts relating to such employment), as contended by defendant. The evidence was that the original plaintiff actually invited the plaintiff attorneys to act on his behalf, and that they undertook to represent him in a maimer which involved no impropriety whatsoever.

The defendant, on appeal of this case, has moved to dismiss on the ground that the court in which the suit was filed (the city court of Bast St. Louis) had no jurisdiction of the subject matter of the suit. It is also contended, as a basis for reversal, that the contract of the plaintiff attorneys with the original plaintiff was void for a number of reasons, including the fact that the State of Ohio, where the contract was made, had no statutory provision for an attoruey’s lien; that the attorneys were not licensed to practice in that State ; and that one of the attorneys was licensed to practice in the State of Missouri, but not in the States of Illinois or Ohio; that the attorneys had been guilty of unprofessional conduct in soliciting employment, and that, therefore, the contract of employment was void; that the court erred in admitting evidence on behalf of plaintiff attorneys of the services performed by them; and finally, that the judgment for $10,000 which was rendered in the case, exceeded the amount provided for in the contract of employment, which has been referred to hereinabove.

In connection with the motion of appellant to dismiss the cause on jurisdictional grounds, it should be noted that section 1, of article 6, of the Constitution of 1870, referred to by defendant, does not withdraw from the legislature the power to confer upon city courts jurisdiction to hear and determine transitory causes of action, arising outside of the territorial limits of the city in which the particular city court is located (Frank Simpson Fruit Co. v. Atchison, T. & S. F. Ry. Co., 245 Ill. 596).

The legislature does not derive its powers from the Constitution, which is not a grant of power to the legislature, but is simply a limitation on its inherent powers. The legislature may legislate upon any subject not withdrawn from its authority by the Constitution (City of Chicago v. Cook County, 370 Ill. 301; People v. Barnett, 344 Ill. 62), and any limitation upon the inherent power of the legislature must be clearly and unequivocally expressed in the Constitution.

In absence of any clear limitation upon the inherent power of the legislature to legislate upon any particular question, even in cases of doubt, the power of the legislature to legislate upon such subject will be sustained (Wilson v. Board of Trustees of Sanitary Dist. of Chicago, 133 Ill. 443), and jurisdiction of the subject matter (absence of which is basically sought to be invoked in this case), is the power to hear and determine causes of action of the general class to which the proceeding in question belongs (Smith v. Herdlicka, 323 Ill. 585).

The particular act conferring jurisdiction upon city courts, such as the city court of East St. Louis (ch. 37, sec. 333, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 108.001]), provides specifically that every such city court has concurrent jurisdiction with the circuit court within the city in which the same may be “in all civil cases, both law and chancery, and in all criminal cases arising in said City, and in appeals from Justices of the Peace of said City.” It has been determined that by such act, the legislature has not limited the jurisdiction of the city courts, with respect to civil cases, to causes of action arising within the territorial limits of the city (in which the court is located), but has vested in such courts, jurisdiction of transitory civil causes irrespective of where such causes of action may arise (Frank Simpson Fruit Co. v. Atchison, T. & S. F. Ry. Co., supra; Baker v. Rockabrand, 118 Ill. 365; Konow v. Nichols, 128 Ill. App. 409).

The instant case, arising under the Federal Employers Liability Act, is clearly a transitory action for personal injuries, and unless there is something in the particular language of the act referred to which limits the jurisdiction of the city court of East St. Louis, that court obviously had jurisdiction of this proceeding. As stated in the case of Konow v. Nichols, supra, at page 413, the true construction of the act gives to the city courts concurrent jurisdiction with the circuit court in “three classes of cases. (First) All civil cases; (Second) All criminal cases arising in said City; and (Third) Appeals from Justices of the Peace in said City. We think if the legislature had intended to confine the jurisdiction to ‘civil and criminal cases arising in the City’ it would have so expressed itself, and not said ‘all civil cases’ and ... in contradistinction thereto ‘all criminal cases arising within the City.’ ” The words, “arising in said City” appearing in the act, through application of ordinary principles of statutory construction, refer to criminal cases only. A general rule of statutory construction in the interpretation of the language of the act would give no meaning whatsoever to the second preposition “in” immediately preceding the phrase “all criminal cases arising in said City” if we adopted any other construction. Relative and qualifying words, and phrases, both grammatically and legally, refer to the last antecedent, unless a contrary intent clearly appears (Stevens v. Illinois Cent. R. Co., 306 Ill. 370).

Since the city court of East St. Louis unquestionably had jurisdiction of the subject matter, and of the general class of cases to which the instant case belonged, and since no objection was raised in the trial court below, on any grounds of venue, or to the exercise of jurisdiction by that court in this case, any further objections on that ground have been waived and cannot be raised on appeal (Taylor Coal Co. v. Industrial Commission, 301 Ill. 381; Wilson Bros. v. Haege, 347 Ill. 140).

As to the matters raised on the merits, we believe it is sufficient to state that the contract of employment, which plaintiff attorneys had with the original plaintiff, was valid where made, in the State of Ohio, which does not prohibit the making of such a contract, and that the rights of the parties thereunder are to he governed hy the law of the State of Illinois, where the contract was to be performed (George v. Haas, 311 Ill. 382), even though it contained no specific recital as to the place of performance. In absence of any specific reference in the contract as to the place of performance, the place of performance is to be determined in accordance with the understanding of the parties at the time of its making as shown by the evidence, and since the evidence discloses that the contract was to be performed in Illinois (and was performed in this State, so far as possible by the plaintiff attorneys), the right to any attorney’s lien upon the cause of action in this State is governed by the attorney’s lien statute of this State (Ill. Rev. Stat. 1941, ch. 13, sec. 14 [Jones Ill. Stats. Ann. 9.13]). Upon compliance with the terms of such act, a lien upon the cause of action arose in plaintiff attorneys’ favor (Smith v. American Bridge Co., 194 Ill. App. 500).

The suit having once been filed in a court of this State, such lien, under the Illinois Statute, at once attached to the cause of action and could not thereafter be destroyed by the settlement which was made by defendant, without the consent of such attorneys. Under such Attorney’s Lien Law the contract of employment and service by such attorneys of notice of lien, operated as an assignment of a 40 per cent interest in any judgment that might be rendered in the case, or in the proceeds of any settlement that might be made by defendant with the client of such attorneys claiming the lien (Baker v. Baker, 258 Ill. 418).

We need not discuss at length, the contention of defendant relating to the supposed illegality of the contract on the ground that the attorneys were not licensed to practice in the State of Ohio where the contract was made. The Missouri attorney was lawfully entitled to appear and participate with the Illinois attorneys in such case in this State. As a matter of fact, there was no plea of illegality of the contract, or of any supposed violation of the laws of Ohio, which in itself would constitute a waiver of that point.

The contention that the employment was solicited by one of the attorneys is, in our opinion, unsupported by the evidence, and we see no basis whatsoever for the contention that any of the attorneys for the original plaintiff violated any law or rule of ethics in accepting the employment.

There was, likewise, no error in. admitting evidence to show that the plaintiff attorneys performed their contract of employment so far as they were able to do so. Such evidence was apparently offered, not for the purpose of showing the reasonable value of such services, but simply to show performance by such attorneys of their contract, or willingness to perform. There was no reversible error in the admission of such evidence.

On the matter of the amount of the judgment in favor of plaintiff attorneys in the sum of $10,000, we cannot, however, agree with the contention of plaintiffs. It is plaintiffs’ theory that the amount of the settlement, which was made, was not merely for $15,000, but for $15,000, plus attorneys’ fees, and that the $15,000 which was paid to their client constituted simply his part of the settlement — that is, 60 per cent of the whole — and that the settlement as a whole amounted to $25,000, and that they were entitled to 40 per cent of that sum, or $10,000. In support of that contention we are cited to the case of Sutton v. Chicago Rys. Co., 258 Ill. 551. In that case the action was settled for the sum of $325, plus $40 for services of a physician, and in the letter which was addressed to the client and which constituted the settlement agreement, there was an express undertaking to pay the attorney “a reasonable fee. ’ ’ That was clearly an additional undertaking to pay a reasonable fee, and the conclusion in that case, that the defendant became obligated to pay the attorney a sum equal to that paid to the client was clearly justified (in accordance with the agreement between attorney and client). Where a¡ settlement is made for a certain amount, and there is an express agreement to pay the attorney’s fees, the amount of the settlement is the amount paid the client plus the attorney’s fees, and the attorney would be entitled to recover such percentage of the whole amount of the settlement as is provided for by his contract of employment.

In the instant case the exact language of the release and compromise of the lawsuit, which was entered into by the defendant Railroad Company and the client of plaintiff attorneys, simply provides that the defendant Railroad Company would hold the said client “harmless and indemnify him from any fee for which he may be liable to Charles P. No ell, growing out of the contract of employment entered into between them to prosecute said suit.” There is no satisfactory evidence in the record that there was any undertaking to do more than is provided in such release agreement. We must, therefore, conclude that the plaintiff attorneys are entitled, under the law, to a sum equal to 40 per cent of the amount of the settlement. The only amount which the attorneys could have recovered from their client is $6,000. The indemnifying agreement undertakes to provide for payment only of such amount and not of a reasonable fee, or of an attorney’s fee in addition to the amount of settlement. The judgment should, therefore, have been for 40 per cent of $15,000 (the amount of the settlement), that is, in the sum of $6,000.

The judgment of the city court of Bast St. Louis will, accordingly, be modified in this court to provide that judgment be rendered in the sum of $6,000, rather than $10,000, and such judgment in the sum of $10,000 will be vacated and judgment will be entered in this court, in favor of plaintiff attorneys, and as against defendant, in the sum of $6,000, and costs.

Affirmed, as modified, and judgment entered here.


author: Mr. Justice Culbertson Mr. Justice Dady

text:
    Amanda Ritter and Josephine Ritter Schmidt, Appellees, v. Louis G. Ritter, Appellant.
    Dady, J., dissenting.
    Opinion filed March 2, 1942.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Archie P. Weihl, Philip Gr. Listeman and Josiah Whitnel, all of East St. Louis, for appellees; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Monroe county, in favor of appellees, Amanda Ritter and Josephine Ritter Schmidt (hereinafter called plaintiffs), and against appellant, Louis Gr. Ritter (hereinafter called defendant), in the sum of $2,007 and costs, for attorneys’ fees and expenses, in connection with the recovery of title to certain real estate.

This matter has previously been considered in this court in the case of Ritter v. Ritter, 308 Ill. App. 337, in which case the facts, as set forth in the pleadings, were specified in detail. We shall not repeat those facts in this opinion, other than to state that in that case it was the decision of this court that the defendant’s motion to dismiss, which was based upon the contentions that (First) No cause of action was stated, and (Secondly) The doctrine of “res adjudicata” operated to bar the plaintiffs ’ action, was overruled, and further proceedings were had in the circuit court of Monroe county, as the result of which the judgment now appealed from was entered. No contention is made that the amount of the judgment in this matter is excessive.

In subsequent pleadings in the circuit court, and in the evidence as presented in that court, no new or additional issues were raised by the defendant, and the defendant now presents this matter on appeal to this court upon substantially the same issues as were raised in the previous appeal, that is: It is the contention of the defendant, basically, (First) That there is no right of recovery in the plaintiffs, under the facts, of attorneys’ fees and expenses of litigation; and (Secondly) That the decree in the chancery suit originally instituted by the plaintiffs, as against the, defendant, under the doctrine of “res adjudicata,” bars the plaintiffs from maintaining the present action against the defendant.

As we indicated previously in this court (Ritter v. Ritter, 308 Ill. App. 337), in our opinion, there was no sound distinction to be made between instances where the wrongful act of a defendant necessitates action by a plaintiff, as against that defendant, and cases where action against third parties is required to be undertaken in order to repair the damages which may have been done by such wrongdoer. We pointed out that it would be inconsistent indeed if a defendant, by arbitrary action of the character involved in this proceeding, could defeat the right of a plaintiff to recover damages by retaining title in himself and refusing to make a conveyance to a plaintiff. No one has denied that if defendant had conveyed to a third party, or if, as a result of defendant’s action, litigation by the plaintiffs, as against a third party, was required, the expenses incurred by plaintiffs (including attorneys’ fees) in protecting or reacquiring such property rights, could be recovered from the defendant and would give rise to a cause of action against the wrongdoer, under such circumstances. We then pointed out that the result of a defendant’s wrongful conduct, where action is required to be instituted against such defendant, is equally as apparent as it is in cases where action would be required to be instituted as against third parties.

We also pointed out that the doctrine involved in the instant case must be limited to such cases as clearly demonstrate that affirmative legal action is necessarily required on the part of a plaintiff to protect certain property rights, as the result of wrongful or malicious conduct of a defendant, and that the legal expenses incurred in such necessary action could furnish the proper basis for a cause of action as against the defendant.

While it has been pointed out that there is probably no Illinois case or satisfactory precedent, which involves the precise facts which are found in the instant case, no amount of legal legerdemain, or casuistry, can alter the fact that the basic principle has long been established in granting a plaintiff a right to recover where action is necessitated to reacquire certain property, as against third parties. The simple issue which was involved in the prior determination of this court, that a cause of action exists in favor of the plaintiffs against this defendant, was whether or not the fact that the defendant retained title to property and refused to convey to plaintiffs (rather than transferring to a third party), would operate to deprive the plaintiffs of rights which the courts have long recognized that they would have against defendant under the same facts and circumstances if third parties were involved. We concluded on a previous appeal that such right of action was the only logical and consistent conclusion to which the court could come, and that the plaintiffs had a right of action against the defendant for such legal expenses in this case.

Some confusion or misunderstanding is manifest from the contentions advanced by the appellant in this case, in which it is sought to use the language expressed in the case of Smith v. Michigan Buggy Co., 175 Ill. 619, as the basis for a denial of a right to a recovery in the instant case. In the Smith case the plaintiff had instituted the action to recover damages alleged to have been sustained by him in a prior civil suit which he claimed that the defendant had brought against him maliciously and without probable cause. In that case the court properly stated that it would be a mistake to allow an action in favor of that plaintiff, as against the defendant, for the reason that it might oftentimes happen that “an honest suitor would be deterred from ascertaining his legal rights through fear of being obliged to defend a subsequent suit charging him with malicious prosecution.”

It is obvious that the Smith case and the statements of the court can have no application whatsoever to the ruling announced in the previous appeal in this case, in which we concluded that plaintiffs have a right of action as against defendant for legal expenses resulting from the wrongful conduct of the defendant in the retention of the plaintiffs’ property. The conclusion of this court on the previous appeal did not, either expressly or by implication, extend the doctrine which had previously been established in this State in such cases as Himes v. Keighblingher, 14 Ill. 469; McEwen v. Kerfoot, 37 Ill. 530, and Philpot v. Taylor, 75 Ill. 309, but simply applied it as against a defendant who has' been guilty of wrongful conduct in the wrongful retention of certain property where such defendant makes necessary, action against him (rather than action against a third party). The conclusion certainly did not, in any manner, operate to modify or depart from the conclusion in the case of Smith v. Michigan Buggy Co., supra, which involved facts and circumstances of an entirely different character. As a matter of fact, the conclusion of this court, on the previous appeal, in allowing plaintiffs a recovery of legal expenses, as against this defendant, actually operated to encourage honest suitors to ascertain their legal rights and, as the courts of this State have long concluded that it should, operates only to the detriment of a wrongdoer who seeks to deprive a plaintiff of property rights, under the facts as are presented in the instant case.

It should be apparent that the conclusion in this case is not an expansion of a doctrine established by previous decisions, but is simply the recognition of an established rule and its application to the facts in this case. There have been some loose references to public policy in connection with the allowance of a recovery of the character involved herein, as against a party to an action, but, as we have sought to point out, considerations of public policy and justice are equally as clear under the state of facts in this case as they would be if the original action had been instituted as against the third party. We cannot arbitrarily deny a plaintiff recovery in cases such as the instant case — which comes squarely within the limited class of cases where such recovery is authorized— simply because some errors of conception have resulted in erecting a misapplication of principle and of text language (through vague statements relating to attorneys’ fees) into a so-called “rule of damages.” Lawyers, yes — even judges — are sometimes properly censured for attempting to be technical before they are realistic or just. No precedent in this State requires that we indulge in the absurdity of denying rights to a plaintiff as against a defendant, which we would have in the identical circumstances if a prior action had involved a different party and the conduct of the defendant had been even less reprehensible than was true in the instant case. We will not take a hand in giving such an illogical an unsound conclusion the blessing of judicial approval in this State.

We have discussed this matter at length, not because it should be again adjudicated on this appeal, but simply as a means of clarification of the issues before this court. As was stated in the case of People ex rel. Kastning v. Militzer, 301 Ill. 284, at page 287, “The law is well settled that questions of law which have been decided by an Appellate Court on the appeal of a cause will not be again considered on a second appeal ; that they are binding not only on a Trial Court in the further progress of the cause, but also on the Appellate Court in any subsequent appeal. ‘There is no mode provided by law, except it be upon a rehearing, whereby a final decision of a case in this Court can be reversed or set aside at a subsequent term. There must be an end of litigation somewhere, and there would be none if the parties were at liberty, after a case had received the final determination of the Court of last resort, to litig*ate the same matter anew and bring it again and again before the Court for its decision.’ ” It is our conclusion, therefore, that the questions of law which have been decided by this court on the previous appeal in this cause, have become the law of the case, and they will not again be considered by this court on this appeal.

As we have stated, it was our conclusion that the intentional wrong of the defendant necessarily resulted in litigation by plaintiffs in defense of title to their property and gave plaintiffs a cause of action against defendant for the damage proximately result ing from the tort, which damage is reasonably measured by the expenses of plaintiff's (including attorneys’ fees) in the defense of their property rights. We also determined that the former chancery action between the parties hereto, and the decree therein, was not an adjudication of the issues involved in the present suit between the parties. We pointed out that the cause of action in this case was in tort for damages and was entirely separate and distinct from the cause of action in the chancery case, which was to compel the conveyance by defendant to plaintiffs of title to realty, which defendant had wrongfully acquired and that, therefore, the doctrine of “res adjudícala” did not prevent the assertion of plaintiff’s claim for damages in this proceeding (Clancey v. McBride, 338 Ill. 35; Quinn v. Ohlerking, 37 Ill. App. 315; People ex rel. Adams v.McKibben, 377 Ill. 22).

It is contended by defendant, however, that since the rendition of the previous opinion in this proceeding, as a result of the case of Skolnik v. Petella, 376 Ill. 500, decided by our Supreme Court, that the principle of “res adjudicata” has been extended by such court, and that our previous conclusion on the former appeal in this case should, therefore, be reversed on this point. We have examined the Skolnik case with care and find no basis for changing our previous conclusion. The Skolnik case involved a foreclosure of a mortgage by a trustee. on behalf of bondholders, in which the mortgagors and subsequent purchasers who assumed the mortgage, were made defendants and in which, after a foreclosure sale, a deficiency decree was entered against the mortgagors, but not against the other defendants on their contract of assumption. The court concluded that the bondholders could not thereafter sue the other defendants on their contract of assumption for the reason that the court in the foreclosure proceeding had express statutory power to render a personal judgment against anyone liable for’ any deficiency, over whom it had personal jurisdiction. It is stated in one of the opinions rendered in that case at page 504, that, “the principles of ‘res adjudicata, ’ . . . are limited to one cause of action con cerning one subject matter, taking in not only all that was adjudicated in the prior action, but all that might have been.” The distinction which should be emphasized in determining whether or not the doctrine of “res adjudicata” is applicable rests fundamentally in the recognition of the fact that in the instant case there was not one cause of action which was involved between the parties, but two separate and distinct causes of action.

As was stated in the case of People ex rel. Adams v. McKibben, 377 Ill. 22, which was decided by our Supreme Court after the SholniJc case, at page 25, “there is a difference between the effect of a judgment as a bar against a prosecution of a second action between the same parties upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or demand. In the former, it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose (Harding Co. v. Harding, 352 Ill. 417; Barry v. Commonwealth Edison Co., 374 Ill. 473). Where, however, the second action between the parties is upon a different claim or demand, the judgment or ruling in the prior action operates as an estoppel only'as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered (Hoffman v. Hoffman, 330 Ill. 413; Barry v. Commonwealth Edison Co., supra).”

In the chancery action against defendant for the purpose of compelling the conveyance of real estate, the title to which defendant had wrongfully acquired, it was determined, as a fact, that defendant had been guilty of certain wrongful conduct towards plaintiffs. That wrongful conduct necessarily required plaintiffs to institute the chancery suit to protect and preserve their title to real estate. The expense of such suit was “damage which proximately resulted from defendant’s tort.” In the chancery action the issues were tried without a jury, while in the action for damages the parties were, if they desired, entitled to a jury trial. As a matter of fact, plaintiffs’ damage could not be determined until the conclusion of the chancery case, including an appeal, if one had been taken. While we believe that such claim for damages might have been asserted in that proceeding, the plaintiffs, likewise, had the right to assert it in the subsequent proceeding involved herein. Under the facts, to have attempted to litigate the plaintiffs’ claim for damages before the entry of the decree in that case, and then to have relitigated the matter after the entry of the decree, if there had been an appeal, would have resulted in confusion and would truly have been “trying the matter piecemeal.”

The claim of the plaintiffs, as we stated in our previous opinion, constituted a separate and distinct claim, and plaintiffs had the right to institute a separate suit on such claim. It cannot be stated, under such circumstances, that either the parties or the courts, in the language of the Slcobiih case, are “twice vexed with the same cause of action.”

If we were to adhere to the contentions made by the appellant, the doctrine of “res adjudicata” would be required to be given a new orientation, tantamount to the conclusion that the fact that a claim might have been asserted in an action required that, at all hazards, it must be asserted in such action. That would be a most dangerous precedent and, we believe, completely unsound.

We venture to predict that the effect of this decision will be wholesome and, like all decisions based on a sound application of principles of justice, will produce none of the difficulties which seemed to disturb the appellant in this case.

There being no reversible error in the proceedings of the circuit court of Monroe county in this cause, the judgment of such circuit court is, accordingly, affirmed.

Judgment affirmed.

Mr. Justice Dady

dissenting: I disagree with the majority opinion for the reasons set forth in my dissent in the previous appeal of this case, as reported in 308 Ill. App. 337.

In my opinion there are no novel facts in the present case which warrant a departure from the general rule that attorneys’ fees and expenses of litigation cannot be recovered as damages by a plaintiff who has been forced into litigation with a defendant by reason of defendant’s wrongful conduct, where such plaintiff has been successful in such litigation. The majority opinion indicates that there is no case to be found in point and yet recovery was denied in the following cases in which the plaintiffs, as in the case at bar, were forced into litigation by the defendants in order to protect some property right. (Toop v. Palmer, 108 Neb. 850, 189 N. W. 394; Stickney v. Goward, 161 Minn. 457, 201 N. W. 630; Leslie v. Carter, 268 Mo. 420, 187 S. W. 1196; Choukas v. Severyns, 3 Wash. (2d) 71, 99 P. (2d) 942; Perlus v. Silver, 71 Wash. 338, 128 Pac. 661.) In none of these cases did the court consider the fact that plaintiff was forced into litigation with defendant in order to protect his property rights as against such defendant, as a sufficient reason for establishing a new rule of damages.

The majority opinion is based upon the premise that because recovery of such damages is allowed in collateral litigation, it should also be allowed where the litigation is between the same parties. The number of cases in which a defendant by his wrongful conduct forces litigation upon a plaintiff with a third party is certainly infinitely fewer than cases where the litigation is between the same parties. Where recovery is limited to cases involving litigation with other parties, the rule permitting recovery is not difficult to administer. However, if recovery of such damages is to be permitted even in the class of cases as limited in the majority opinion to instances where “legal action is necessarily required on the part of a plaintiff to protect certain property rights as the result of wrongful or malicious conduct of a defendant,” it is apparent that an entirely new type of claim will hereafter be asserted in a vast number of cases, either in the original action between the parties or in a later separate suit, and in each such case the court will be required to determine whether the circumstances justify the assessment of attorneys’ fees and expenses in addition to the costs of suit.

In the instant case the attorneys’ fees and expenses were incurred by plaintiffs in asserting their claim in chancery that defendant was a constructive trustee in their behalf of a parcel of property. If recovery is to be permitted in this case it should be allowed at least in all constructive trust cases, and there would be no logical reason for restricting recovery to this class of cases alone. The vista thus opened up of new litigation may be appealing to some members of the bar, but I do not think that the public interest would benefit by rewarding successful plaintiffs in this manner. The question might well be asked, if recovery is to be allowed to the plaintiffs in such cases, why should it be denied to defendants who are required to defend their property rights against groundless claims either wrongfully or maliciously asserted by plaintiffs. I am still of the opinion that a sound public policy requires both the successful plaintiffs and defendants in cases of this character to pay their own attorneys’ fees and expenses of litigation.

The additional cases cited in the majority opinion on the question of res adjudicaba fail to convince me that, if plaintiffs were legally entitled to recover their attorneys’ fees and expenses as damages, they are not now barred by reason of their failure to assert this claim in the original chancery proceedings. The claim for damages is clearly based upon the wrongful conduct of defendant in refusing to convey title to plaintiffs, and the majority admit in their opinion that this claim could have been asserted in the original proceedings. There was only one breach of duty on the part of the defendant, and plaintiffs were entitled to all damages flowing from that single breach, including attorneys’ fees and expenses of litigation if these were to be considered as a part of the damages. I do not understand why the claim for these particular damages should constitute a distinct and separate cause of action which the plaintiffs at their election can assert either in the original proceeding or in a subsequent suit as provided in the majority opinion. This same question was carefully considered by the courts in the cases of Leslie v. Carter, supra; and Van Horne v. Treadwell, 164 Cal. 620, 130 Pac. 5, and in both cases recovery was denied in the subsequent suit on the ground that the claim for such damages, if such a claim existed, should have been asserted in the prior proceeding. The principle laid down in these cases furnishes a further reason for denying recovery to the plaintiffs in this case.