text:
    People of the State of Illinois ex rel. Frank Ledbetter, Appellant, v. Sina Hadfield, Appellee.
    Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    H. L. Zimmerman and David A. Warford, both of Marion, for appellant; F. S. Seibert, of counsel.
    A. D. Morgan, of Herrin, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Williamson county dismissing a petition for mandamus filed by Frank Ledbetter, appellant (hereinafter called petitioner), as against Sina Hadfield, as city clerk of the City of Carterville, Illinois, appellee (hereinafter called respondent). A motion of respondent to dismiss such petition has been sustained, and petitioner has elected to stand by the petition.

The petition, which was filed on October 7, 1941, in the name of the People of the State of Illinois, on the relation of Frank Ledbetter, as against the city clerk of the City of Carterville, alleged the citizenship of the petitioner and referred to the fact that he was the editor and publisher of the only newspaper printed in the City of Carterville, and contained allegations that petitioner was a taxpayer, a resident, and a citizen. The petition likewise alleged that the City of Carterville was a municipal corporation, under the laws of this State, that respondent was the city clerk of such city, and that on April 1, 1941, and until the qualification of his successor, Gfus Young, was city treasurer of the City of Carterville. It was further alleged that the treasurer, pursuant to the provisions of the “Cities and Villages Act,” Ill. Rev. Stat. 1939, ch. 24, par. 110, filed with respondent a full and detailed account of all receipts and expenditures of said city, as shown by his books during the preceding fiscal year of the city. The petition goes on to aver that after the report of the city treasurer was filed in the office of the respondent, the respondent did not cause the report and account, as filed with her, to be published in a newspaper published in such city, as required by the provisions of such section of the statute hereinabove referred to, and that the respondent had not, to the date of .the filing of the petition, caused the report and account of the treasurer, as filed by her, to be published in a newspaper published in said' city. The petition follows with a recital that the petitioner demanded of respondent that she cause the report and account filed with her to be published in a newspaper printed in said city, but that respondent refused, and still refuses so to do. The prayer of the petition was for a writ of mandamus, commanding respondent to cause to be published such annual report and account of the city treasurer in a newspaper published in the city.

Respondent, in her motion to dismiss the petition, sets up a number of grounds, notably that the petition seeks to enforce an alleged private right in the name of the People of the State of Illinois; that the statutory provision referred to in the petition is directory, and not mandatory; that the facts set forth in the petition do not show a clear legal right to the writ of mandamus', or that respondent has the power to do the act demanded; that the facts set forth in the petition do not show that action was taken by the city council of the City of Carterville, Illinois, authorizing respondent to create a liability as against the city for publication of the report of the city treasurer, as required by section 44 of the “Cities and Villages Act,” Ill. Rev. Stat. 1939, ch. 24; and that the petition does not set forth the written instrument referred to, or any part of same. The court below sustained the motion to dismiss and amiounced as the reason for such decision that the petition contained no allegation that the city treasurer’s report had been approved or adopted, or that any action was' taken thereon by the city council. Petitioner has appealed to this court from the order of. the circuit court herein referred to.

The position and contention of the appellee, as specifically stated in this court is, in brief, that petitioner must distinctly aver that (1) an appropriation has been made to pay the expenses of publishing the report in question; and (2) also, that liability against the city had been authorized under the provisions of section 44, of chapter 24 of the “Cities and Villages Act” hereinabove referred to. It is likewise pointed out by appellee that the writ of mandamus does not issue as a matter of right, and that a petitioner must set forth distinctly every material fact necessary to show that it is the duty of the person against whom the writ is sought, to perform the act (People ex rel. Parker v. Board of Appeals of Cook County, 367 Ill. 559), and that the writ will not issue in a doubtful case (People ex rel. Rising v. Ames, 360 Ill. 31). It is likewise noted that the issuance of the writ of mandamus is discretionary with the court, acting upon existing facts, viewing the whole case with regard to the consequences of its action (People ex rel. Cassidy v. Fisher, 372 Ill. 146). The contention is also made that the statute involved in the instant case is directory, and particular emphasis is laid upon the fact that the action of the city council, pursuant to the provisions of section 44 was necessary before any obligation to make the publication was required of the city clerk.

We have examined the cases cited by respondent in support of her contention, and cannot agree with such contentions. The section of the act involved in this proceeding, Ill. Rev. Stat. 1939, ch. 24, par. 110, provided: “The treasurer . . . shall, annually, between the first and tenth of April, make out and file with the clerk, a full and detailed account of all such receipts and expenditures, and of all his transactions, as such treasurer, during the preceding fiscal year, and shall show in such account the state of the treasury at the close of the fiscal year; which account the clerk shall immediately cause to be published in a newspaper printed in such city . . . (italics ours).”

As expressive of the public policy of the State, another section of the “Officers Act,” Ill. Rev. Stat. 1939, ch. 102, secs. 5-10 [Jones Ill. Stats. Ann. 126.223-126.228], provides that, each public officer, other than State officers (and other than city or village treasurers who are otherwise required by statute to make publication of reports) and who receive and disperse public funds, are required by statute to make an annual report and to have it published.

As indicated by the Appellate Court, in the case of Cassidy v. Kirkpatrick, 211 Ill. App. 196 (at 198), “The object of this statute is to secure a publication of such report of the treasurer that the inhabitants may know how the money has been expended, and the city Clerk is only made a means or instrument for causing suck publication.” In that case it was indicated that the obligation to pay was a severable obligation and that the work of the clerk was merely clerical, and that if the contract for publication which the clerk had made was exorbitant, then the city council could only have been required to have paid a reasonable compensation for the work.

Duties and liabilities relating to the general welfare and security of the State have been regarded as rightfully imposed upon municipal corporations and its officers by the general assembly (People ex rel. Cannon v. City of Chicago, 351 Ill. 396; St. Hedwig’s Industrial School for Girls v. Cook County, 289 Ill. 432), and the performance of such duties and the discharge of such liabilities have been enforced, notwithstanding the fact that no appropriation has been made therefor, and no express contract has been made authorizing the expenditure (St. Hedwig’s Industrial School for Girls v. Cook County, supra; Seagraves v. City of Alton, 13 Ill. 366).

In the instant case the statute, by its terms, creates an unquestioned obligation upon the clerk to publish the treasurer’s report in a newspaper published in the city. There is no requirement that the council first act, either in making an appropriation to pay the expenses of publication, or in authorizing a liability against the city, in accordance with the provisions of par. 44 of ch. 24, Ill. Rev. Stat. 1939. To read such limitations into the act, in the judgment of this court, would be to' defeat the objectives and the purpose of the section of the act providing for publication. If, indeed, the obligations imposed upon officers as to which publication is deemed to be of paramount public interest, were avoided by the simple expedient of refusing to appropriate funds therefor, there is serious danger that vital functions of municipalities might be endangered. Practically all such matters lead to a financial liability, and viewed abstractly, might be deemed (as was contended in this case) to be a useless expense. The objectives of the statute, however, seem to be sufficiently important to require adherence thereto.

The provisions of par. 44, ch. 24, Ill. Rev. Stat. 1939, are applicable only where the creation of a liability is discretionary. In such case, action by the city council would be requisite. In the situation before this court, however, the liability is one imposed by law and there is no discretion in the council as to the performance of the duty. The fact that no appropriation has been made therefor does not prevent the enforcement of such duty. The question of liability of the city to pay for the publication may involve other problems, which were discussed in the case of Cassidy v. Kikpatrick, supra. The language of the act involved in the instant case in providing that the clerk “shall” immediately cause to be published, should, we. believe, be given its common and ordinary meaning and construed in an imperative sense (Clark v. Patterson, 214 Ill. 533, 539; O’Rear v. Crum, 135 Ill. 294, 299).

We feel that the petition in this cause was properly filed in the name of the People of the State of Illinois (People ex rel. First Nat. Bank of Hammond, Ind. v. Czaszewicz, 295 Ill. 11; Higgins v. City Council of Galesburg, 96 Ill. App. 471), and that a copy of the report was not required to be attached to the petition since the action was predicated upon the obligation to make publication and not in any respect upon the contents of the report.

We must, therefore, conclude that the action of the circuit court of Williamson county was erroneous and this cause will, therefore, be reversed and remanded to such court, with directions to overrule respondent’s motion and proceed in accordance with the views expressed in this opinion.

Beversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Bristow

license: Public Domain

text:
    Mary Frances Walker, Appellant, v. Charles A. Walker, Appellee.
    Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    Lansden & Lansden, of Cairo, for appellant.
    No appearance for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Appellant, Mary Frances Walker and appellee, Charles A. Walker, were both residents of Cairo, Illinois. Mary Frances Walker was between 17 and 18 years of age and Charles A. Walker was between 20 and 21 years of age. On July 5,1941, they went to Cape Girardeau, Missouri, and were there married, without having secured the consent of either of their parents or guardian. After marriage they did not cohabit as man and wife.

Appellant filed her complaint in chancery, in the circuit court of Alexander county, Illinois, seeking to have said marriage annulled and declared void, by decree of court. Defendant was personally served with summons, and in his answer admitted every allegation of the complaint. The complaint alleged the above facts; set forth certain statutes of Missouri and averred that such marriage could be declared void at the instance of either party, and that it was contrary to the law of Missouri, and was voidable.

After hearing evidence, the circuit court dismissed the complaint for want of equity. , The court signed a memorandum of his reasons for his decision, stating that, inasmuch as defendant only filed a formal answer, and his counsel had made no defense whatever, he deemed that public interest required a statement of reasons for his decision. Appellee has filed no brief in this court and consequently we have received the same measure of assistance from him here as did the trial court. We also believe that the interest of the public requires careful consideration of this case. The evidence shows no fraud or deceit or misrepresentation, no mental or physical disability, no duress or 'wrong doing of any character amounting to fraud.

Appellant cites several cases to the effect that the validity or invalidity of a marriage is determined by the law of the state in which the marriage ceremony is performed. We think that to be the law, if a given case were not contrary to the public policy of the State of Illinois. The statute of Illinois provides, ch. 89, sec. 3 [Jones ill. Stats. Ann. 78.03], “Provided . . . that a female person sixteen (16) years of age and upward may contract a legal marriage if the parents . . . give consent to the marriage.” The Missouri statute, sec. 3364 of the revised statute of 1939 provides that “Previous to any marriage in this State, a license for that purpose shall be obtained from the officer herein authorized to issue the same, and no marriage hereafter contracted shall be recognized as valid unless such license has been previously obtained.” The Missouri statute further provides by sec. 3370, “And no recorder shall issue a license authorizing the marriage of . . . any female under eighteen years of age, except with the consent of his or her father, mother or guardian.” It is noted that the wording of the Illinois statute seems more prohibitive than that of the Missouri statute. Section 3370 of the Missouri statute prohibits license issued to any person under 15 years of age but that on order of the court for good cause, the license may be issued to a person under 15 years of age: Appellant states in her brief that in this case there is no question involving the Uniform Marriage Evasion Act of Illinois.

Counsel contends that the law of Illinois permits annulment of marriages, performed in Illinois without parental consent, and cites, Lyndon v. Lyndon, 69 Ill. 43; Matthes v. Matthes, 198 Ill. App. 515, and People v. Reynolds, 217 Ill. App. 577. An analysis of these cases, discloses clearly that appellant is in error in her contention. In the Lyndon case, a coachman enticed a girl about 15 years old from her father’s home and by perjury, stating she was 18 years of age, secured the license. The court put the annulment on the ground that the coachman was at least in a position of trust with the father to take no advantage while driving the children in the carriage, but committed perjury in violation of his trust and duty, and procured the license by fraud. In the Matthes case, the complaint alleged the appellant was a male under 18 years of age and, therefore, incapable of consenting to marriage, and also, that the marriage was by force and duress. The court found as a fact both issues against the complainant. In People v. Reynolds, Vera Hooker was 19 years of age and Reynolds was 18. Elmer Ellis, an adult, secured the license by signing the name of Reynolds and swearing to the application, Reynolds stood outside the court house; received the license from Ellis, and was then married., His wife being pregnant, he abandoned her, and was indicted. As a defense, he set up his age as under 21 and married without consent of his parents. The court held the marriage valid. In such case, the court made statements that marriage could not be attacked collaterally, but would have to be declared void by a direct proceeding. Such holdings do not support the case at bar as authority that where there was no fraud or unusual circumstance, but a female above 16 "and under 18 years of age was married without her parent’s consent, that such a marriage was void or voidable.

Appellant states that the law of Missouri permits a marriage performed in Missouri without parental consent to be annulled and cites a number of cases, both in Illinois and Missouri. Again we disagree with appellant. Each case is clearly distinguishable from the case at bar. Where annulment was granted, such factors as mental incapacity, insanity, fraud in concealing a disease, that defendant was a felon, and the like were relied upon as a basis for relief. We will briefly consider the cases appellant cites: People ex rel. Mitts v. Ham, 206 Ill. App. 543. Truman Mitts, 43 years of age, seduced Ethel Ham, daughter of respondent, who was but 15 years, 8 months of age, and took her to Missouri where they were married. He filed the petition for habeas corpus against her father. The trial court dismissed the petition, and its order was reversed. The case quotes at length certain statutes of Missouri requiring consent of parents, much like the statute of Illinois. This case referred to the voiding of a marriage where one of the parties was under the age of consent. It found that, both in Illinois andMissouri, there was no statute declaring a marriage, without the parents consent, should be void, but that such provisions were only directory. The court, also stated “that the marriage was valid until declared void by some direct proceeding.” The appellant seems to find great comfort in that last sentence, stating in her argument that such quotation was decisive of this case. However, the court then was discussing a marriage when one of the contracting parties was under “the age of consent.” Ethel Ham, it will be noted, was under 16 years of age. Guthery v. Wetzel, 205 Mo. App. 664, 226 S. W. 626, was a case where a marriage was declared void on the ground that one of the parties was of unsound mind. Spears v. De Clue (Mo. App.), 133 S. W. (2d) 1044, was a breach of promise case, in which the defendant was a minor and could not contract to marry. The court was not considering the effect of an executed contract by a male over 18 years of age and by a legal marriage ceremony. Cox v. Denny, 224 Mo. App. 1047, 34 S. W. (2d) 528, was a case in which a father petitioned to annul the marriage of his daughter, alleging that the defendant through fraudulent representations obtained a marriage license in Ozark county, Missouri; that the alleged marriage was absolutely void in that the plaintiff had never consented to the marriage; and that the license had not been issued by a qualified recorder of deeds. There was a demurrer alleging that petitioner had no right to bring the suit; that no' one but parties to a marriage can bring a suit, and averred petitioner wholly failed to state any ground of relief. Claim was made on sec. 7302 of Missouri statute, amended in 1921, which provided that before any marriage could be solemnized, a license must be obtained from the officer authorized by statute, and that no marriage thereafter contracted shall be regarded as valid unless such license has been obtained. The court said it did not deem it necessary to construe the statute or pass on the effect of the marriage because it was confronted with the record which found that the daughter was not a party. Henderson v. Ressor, 265 Mo. 718, 178 S. W. 175, is relied upon, also. In this case the Missouri court considered a complaint for annulment of a marriage in Arkansas. The action was brought by the heirs of a deceased person. The ground was mental incapacity to enter into the marriage. The Missouri court pointed out that see. 5175 of the Arkansas statute specifically provided that when either party should be incapable from want of age or understanding and the like, the marriage shall be void from the time its invalidity shall be declared by a court of competent jurisdiction. The Missouri court said, at page 177, that the effect of the Arkansas statute was to render the marriage of persons under the age of consent or of those mentally incompetent, voidable, and not void if attack was made in the lifetime of the spouses. Missouri has no such statute.

We find no case cited by appellant, and we have been unable to find any, where the courts of Missouri have declared a marriage by a female over 16 and under 18 years of age voidable where there was no charge of fraud, mental incapacity or other like equitable grounds. Appellant likewise has not cited, nor have we found, any Illinois cases so holding. In the Reifschneider case, Reifschneider v. Reifschneider, 241 Ill. 92, 98, the court said, “Unless the statute specifically declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statutes will be construed to be directory only, in this respect, so that the marriage will be held valid although the disobedience' of the statute may entail penalties on the licensing or officiating authorities.” To the same effect is People ex rel. Mitts v. Ham, 206 Ill. App. 543, 550; Matthes v. Matthes, 198 Ill. App. 515, 520, 521; Buszin v. McKibhin, 254 Ill. App. 519. Some statutes provide for annulment of marriage where parental consent is not had, but where the statutes are merely prohibitive, it is generally held that consent of parents is not necessary to the validity of the contract. 18 R. C. L., sec. 24, p. 494.

There appears to be no such provision in either the Illinois or Missouri statutes, declaring a marriage a nullity where the consent of the parents was not had. The court, therefore, acted properly in refusing to allow the marriage in this case to be annulled.

We are of the opinion that the decree of the trial court was correct, and the same should be, and accordingly is hereby affirmed.

Affirmed.


text:
    Consolidated Gasoline Company et al., Appellants, v. George J. Lexow et al., Appellees.
    Heard'in this court at the May term, 1942.
    Opinion filed November 2, 1942.

      Beasley & Zulley, of East St. Louis, for appellants.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court.

The plaintiff appellant filed a suit in chancery in the circuit court of St. Clair county against the appellees for accounting; to reform the terms of a lease, and other relief of a transitory or personal character. It appears that all the defendants in the suit were residents of Madison county, and that all of the defendants were served with summons in the county of their residence.

The defendants below, limiting their appearance for the purpose of the motion by their attorneys, Kramer, Campbell, Costello and Wiechert, filed their written motion to dismiss the bill in chancery for the reason that the court had no jurisdiction over the defendants, and assigned for their reasons that the present suit is brought in the county of St. Clair; that these defendants at all times were residents of the county of Madison; that these defendants, were not served with process of summons in St. Clair county; and that these defendants were not joined with any defendant who was served with process in St. Clair county. The names of all defendants, both in their individual and representative capacity, appear at the conclusion of the motion, and below them appears the name of the law firm heretofore mentioned and its address. Following this is the affidavit of two of the defendants. The court below sustained this motion, and entered judgment for the defendants and against the plaintiffs for costs of this suit on the ground that the court had no jurisdiction of the defendants. This appeal ensued.

For the purpose of this opinion, we deem it unnecessary to recite all the various claims made by the appellants in their bill of complaint, except to say that the action is entirely in personam, and grows out of the violations of a certain lease entered into between appellants and appellees which pertained to the sale of oil and gasoline. The sole question is whether the trial court was correct in its holding there was no venue in the circuit court of St. Clair county.

The bill of complaint alleges that the lease involved herein was made and executed partly in the county of St. Clair and partly in the county of Madison, and the appellants contend that this confers jurisdiction upon the circuit court of St. Clair county under section 7 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.007], which act reads as follows: “Except as otherwise provided in this act, every civil action shall be commenced in the county where one or more of the defendants reside or in which the transaction or some part thereof occurred out of which the cause of action arose.”

Appellees in their brief undertake to answer this contention with the sole argument that it would be physically impossible for the transaction involved here to have occurred partly in one county and partly in another. In other words, they insist that the lease out of which the controversy arises must of necessity have been made in one county or the other. The authorities they cite in support of this position deal principally with the rule of law that a written agreement cannot be varied with parol testimony, and therefore, any negotiations that might have transpired preliminary to the execution of the agreement, could not be properly considered as a part of the transaction.

Defendants’ motion to dismiss admits the truth of all allegations in the complaint that are well pleaded. The sufficiency of the complaint has not been challenged, and therefore, stands admitted. (Section 42(3), Civil Practice Act [Jones Ill. Stats. Ann. 104.042]; Addante v. Pompilio, 303 Ill. App. 172; De Lia v. Toolen, 307 Ill. App. 491.) Section 42, paragraph 2 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.042] provides that no pleading shall be deemed bad which shall contain such information as shall reasonably inform the party of the nature of the claim or defense which he is called upon to meet. It will be observed from a reading of the motion to strike that the defendants below did not see fit to challenge the recital in the complaint that part of the transaction in question occurred in St. Clair county. We are of the opinion that the allegation in the complaint that the lease was made and executed partly in St. Clair county was sufficient to confer jurisdiction upon the circuit court of that county. Conceivably, the lease in question could have been made and executed partly in one county and partly in another. If one party to the lease signed in Madison county and another party thereto signed in St. Clair county, certainly the transaction would occur partly in one and partly in the other. Contrary to the contention of the appellees, it would not depend upon who signed last, nor where the instrument was delivered. Preliminary to the execution of the lease, negotiations might have taken place partly in one county and partly in another. Admittedly, these would not be proper to- be shown to vary the terms of the written lease, but it is within the realm of possibility that they would be pertinent and competent to explain any ambiguities that might appear in the instrument.

We are also of the opinion that appellant is correct in his contention that the motion to dismiss in this case, being a plea to the jurisdiction must be made by the parties personally and not by their attorneys. The motion made in this case reads that it is by their attorneys Kramer, Campbell, Costello and Wiechert. The leading case upon this subject is Pratt v. Harris, 295 Ill. 504. Therein, it was stated, “In their motion to dismiss, they by their attorney entered their limited appearance for the purpose of making’ a motion to dismiss for want of. jurisdiction. The common law rule is, that a plea to the jurisdiction of the person must be pleaded in person and not by attorney. If pleaded by attorney it admits the jurisdiction of the court,” citing Mineral Point R. Co. v. Keep, 22 Ill. 9, 31 Cyc. 166, 21 R. C. L. 543. To the same effect, since the passage of the Civil Practice Act, are the cases of Thomas v. Ritholz, 310 Ill. App. 166, and McGuire v. Outdoor Life Pub. Co., 311 Ill. App. 267.

This judgment is therefore reversed and remanded to the circuit court of St. Clair county with directions to overrule the motion to dismiss and enter a rule on the defendants to answer.

Reversed and remanded with directions.


text:
    James R. Allison et al., Appellants, v. William L. Berry and Jack Woods, Appellees.

      Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    Conger & Elliott, of Carmi, and H. C. Moore, of Centralia, for certain appellant; H. C. Moore, of Centralia, of counsel.
    Kern, Pearce & Pearce, of Carmi, and Kelly A. Lot, of Fairfield, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court.

On January 18, 1940, Plaintiffs filed their complaint in equity to have two oil leases on certain lands executed to appellee, William L. Berry, and to one Frank Denker, canceled, and for injunction. Appellees filed a counterclaim for damages for instituting said suit and for the execution and filing of record of another oil lease, on the same lands by plaintiffs, James R. Allison and Ida M. Allison to plaintiff Oil, Inc., a corporation. The chancellor found in favor of defendants and counterclaimants, and entered judgment for counterclaimant, William L. Berry in the sum of $529 and counterclaimant, Jack Woods, in the sum of $350 against the plaintiff, Oil Inc., a corporation. Counterclaimants dismissed their counterclaim against the other two plaintiffs, James R. Allison and Ida M. Allison. Oil, Inc., a corporation, has appealed from said judgments.

On July 9,1939, the Allisons executed an oil lease on said lands to defendant Berry and said Frank Deriker. This lease provided that if no oil well was completed on or before January 5, 1940, the lease should terminate. When December 11,1939 came, no well had been completed or drilling or work of any kind begun under said lease. On December 11, 1939, the Allisons executed to Berry and Denker another oil lease on the same land, which provided that, if no well be commenced by them on or before December 31, 1939, the lease should terminate and provided that the well should be drilled with all due diligence. Berry acquired Denker’s interest in the lease except a thirty-first part.

On December 20, 1939, Jack Woods and Berry entered into a -contract between themselves whereby Woods agreed to drill an oil well on said land for Berry.

On December 23, 1939, on said lands and at labor cost of $3.50, a small excavation was made. On December 26, or 27th, 1939, a derrick was hauled and erected upon said land and between January 3 and 5, 1940, a slush pit was dug. This work was done for Woods. On January 11, 1940, Allison served Berry with notice of forfeiture of luis leases and erected “No trespassing” signs on the premises. After the service of such notice of termination of the Berry leases, Allison executed the lease in question to the appellant, Oil, Inc., a corporation, on the same lands, by which lease it agreed to complete an oil well in 30 days. This last lease was placed of record and counterclaimants claim damages therefor, on the theory of slander of title.

After the lease was executed to appellant and about nine o’clock p.m. of the same day, agents of Berry and Woods broke down the fences on said lands and drove a truck on same and unloaded a set of draw heads. About a week later other equipment was hauled and unloaded on the premises. No engines or boilers were ever brought on the land. No other work was ever done and several weeks later, appellees removed such equipment from the premises.

It is quite apparent from the. undisputed evidence that from December 11, 1939 to January 11, 1940 and after that date, that Allison was becoming more and more disturbed with the fear, and prospect, of no early beginning of actual drilling of an oil well on said premises. He claimed that Berry advised him that he had contracted with certain contractors, and thereby he secured the lease agreement of December 11, 1939, although he had done nothing under his lease dated July 9, 1939. The evidence showed that the weather was cold and snow was on the ground. It further showed that in the near vicinity at least five other oil wells were being drilled and were continued, to completion.

About the first of January, appellant, Oil, Inc., a corporation, was ready to take a lease from Allison and pay him $600 for same and to agree to put an oil well down in 30 days. Although there were several conferences between representatives of appellant and Allisons, the latter did not at first give such lease to appellant, saying that he was going to give Berry one more chance. And after he had given notice to Berry to move out, he did not execute a new lease, although requested, for some time. The evidence shows that Oil, Inc., a corporation, did nothing more than offer to accept a lease from the Allisons. No bad faith on its part or on the part of the Allisons appeared, Appellant did not move its machinery on the land or start to drill a well. The continued possession of premises by Berry and Woods prevented Oil, Inc., a corporation, from moving its machinery on the land.

Allison was continually appealing to Berry to start operations. There is nothing in the evidence to show that Allison was a conspirator or entered into a conspiracy with Oil, Inc., a corporation. The counterclaim was dismissed against Allisons after evidence was introduced.

Berry and Woods testified that to January 18, they were financially able to drill a well and pay for expense of drilling of same. Berry said the Allison lease was suitable for drilling and was a good drilling lease and that the lease was as good at the hearing as it was when he was moving on the premises. When the court asked him during the trial if he would drill the well then, if there was no question about the title, he said he had had so much bad luck since, that he wouldn’t say he was financially able to drill the well.

Woods was never able to secure the proper drilling equipment. He had a steam outfit which was not suitable for cold weather, since pipes had not been put under the ground before it got cold. He tried to get a Diesel outfit which was a proper one, but was unsuccessful. The evidence is conclusive that it was. almost the end of December before Berry, through Woods, became active in getting ready to proceed with the work. No casing was put down as the lease required. It was to be expected that the weather would get cold. The proposed machinery was unsuitable for the purpose, in cold weather. It was apparent to Allison that appellees could not, under all the circumstances, develop the lease in question until warmer weather. Bad weather was no excuse for nonperformance.

The elements of damages allowed by the court in its two judgments was damages of Wood alone. The judgment in favor of Berry was for an expense of the contractor Woods which Berry, as an accommodation to Woods had occasioned, vis., digging of a small cellar hole at cost of $3.50 and slush pit at cost of $75. Woods was allowed $50 he paid an attorney for drawing np his drilling contract and $300 for trackers moving equipment on the ground after notice had been served that the lease had been forfeited. Woods had never spoken a word in his life to the Allisons and if he did not know of the notice to cancel the lease, it was because Berry, for whom he was contracting to drill a well, did not tell him. But the signs of “No trespassing” were visible.

Woods had no title, yet appellees claimed and the court allowed some of the items of damages to a contractor, who was a stranger to the title. The recourse of Woods, if any, was against Berry, had Berry breached his contract with Woods.

The counterclaim recited execution of the leases; alleged Berry and Woods commenced a well on December 26, 1939, that they had made financial arrangements for its completion and contracted for the equipment with which to drill it; that plaintiffs wilfully conspired to defeat their lease; that Allison executed said lease to Oil, Inc., a corporation, who accepted same and thereby clouded the title of counter-claimants so they were unable to continue drilling; that in addition to granting the lease, plaintiffs brought this suit to cancel their lease and as a result counterclaimants have been unable to secure funds to complete said well and that their contractor refused to furnish the drilling equipment with which to drill same; that appellant has completed a dry hole in the vicinity which tends to condemn their lease and that it is very doubtful if counterclaimants can refinance their drilling, and, as a result of the conspiracy, counterclaimants have been damaged.

Appellees contend that a freehold is involved and that this case should have been taken directly to the Supreme Court. Allison served notice of termination of the Berry lease. During the trial Berry tendered release of these leases. It seems to us that by such mutual action, the leases were terminated, and that a freehold is not now involved j that the issue involved is upon the counterclaim, for damages.

The injury complained of in the counterclaim was loss of credit; but it averred that financial arrangements had been made for drilling the well. The testimony of Berry indicated that he was worth several thousand dollars. Just why he did not use his assets and proceed, was not made clear. Woods testified that he was financially able to drill the well. Berry and Woods did no further work than as herein stated. They were not stopped by this litigation. No injunction was issued. If litigation stops a lessee, he still has the right, thereafter, to continue and complete a well. Summers Oil & Gas, vol. 2, p. 261, sec. 349; Greer v. Carter Oil Co., 373 Illl. 168, 177, 178.

It seems apparent from the evidence, counterclaim-ants quit because they were afraid that the notice of forfeiture of their lease might, be valid, and, that should they proceed, they might work on a well, to the advantage of someone else. Such situation faces every person against whom some other person may assert a right. No facts were shown of any effort to obtain any credit or financing or make financial arrangements after the notice of forfeiture was served. There was no attempt by Berry to sell his lease or borrow money on same. Berry admitted his lease had a commercial value, that it was in proved territory, that the values of such leases in oil fields depend upon the surrounding wells and that this was in good territory.

The items of expense of Woods for which the two judgments were allowed, were all contemplated in the drilling of the well under the lease, and had Woods continued the work and drilled the well, appellant would not have been obligated to reimburse him or any other person, for these items. The counterclaim asserts they quit because of loss of credit, but Berry testified that he did not quit because of the notice of forfeiture or posting of the no trespassing sign, but that he quit because of the filing of the suit. Woods testified that he quit because he was informed that appellant had filed its lease. Berry testified that Woods ■told Berry he couldn’t go any further, that they had stopped Mm and that what stopped Woods was a law suit on file. So, the proof does not sustain the allegations of the counterclaim.

We have referred to various parts of the evidence which was undisputed, because, therefrom it appears to us, that the judgments were against the manifest weight of the evidence. We have referred at length to. the evidence, because it must be considered on the charge of conspiracy and slander of title.

Appellees confined their argument to the good faith of appellant in acquiring its lease and discussion of their contention of slander of title. Although appellant cites numerous authorities and argues the privilege of instituting judicial proceedings, which is a well recognized right, we do not deem it necessary to discuss the charge in the complaint of conspiracy in instituting the suit. Apparently, by dismissing the counterclaim against the Allisons and failure of appellees to cite authorities or argue liability for instituting the suit, contention of conspiracy and liability for instituting the suit, were abandoned.

The subject of slander of title has not been extensively considered by our Illinois courts of appeal. In other jurisdictions, however, there appear numerous cases involving the subject, and the general principles seem to be well settled. Our attention has been called to three Illinois cases: — Van Tuyl v. Riner, 3 Ill. App. 556; Inland Printer Co. v. Economical Half Tone Supply Co., 99 Ill. App. 8; and Everett Piano Co. v. Bent, 60 Ill. App. 372. The Inland Printer Co. case involved publication of a libel, in effect, that appellee’s wares were humbug, worthless and unfitted for practical use in the production of half tone pictures. The Everett Piano Co. case was for an injunction for a malicious interference with complainant’s trade, to stop issuance of a circular claiming that complainant was an infringer and liable to prosecution as such. The issues in those two cases were such that they do not furnish much assistance in the instant case.

Appellees cite several cases, but we do not believe they support their contention. In Smith v. Autry, 69 Okla. 28, 169 Pac. 623, notes were fraudulently issued and a warranty deed instead of a mortgage, was placed of record. The evidence showed a definite purchaser ready and able to buy the land, but that he did not do so, because of the deed placed on record. No contention is made in this case, that appellee, Berry, was prevented from selling his lease. The fraud was deliberate in the Autry case and was the placing of record of an instrument known to be false.

In Kelly v. First State Bank, 145 Minn. 331, 177 N. W. 347 a prospective purchaser, identified, and ready to buy, refused, when he found a second mortgage filed of record by a bank. The bank was told by the mortgagor that he had sold the land to plaintiff and that plaintiff knew of, the second mortgage and, although the bank did not consult the purchaser, who was plaintiff, the court held it had the right to rely on the statement, and was not liable. Oil, Inc., a corporation, had the right to rely on the statement of Allison that his lease with appellees had been canceled. In Collins v. Whitehead, 34 Fed. 121, the defendant had placed a false affidavit on record which claimed a secret interest and which affected the value of the real estate for which reduced value, damages were claimed.

Appellee places great reliance upon the case of Humble Oil & Refining Co. v. Kishi (Tex. Com.), 291 S. W. 538, which they say is stronger than the case at bar and discussion of the author in Summer’s Oil & Gras, vol. 4, pp. 51-54, sec. 600 of said Kishi case. Appellees misconstrue the Kishi case.

The Supreme Court of Texas, in the case of Shell Oil Co., Inc. v. Howth, 159 S. W. (2d) 483 at page 491, distinguishes this Kishi case from the Howth case and points out, that in the Kishi case, the lease expired by its terms and, against the protest of Kishi, the Humble Oil and Refining Company entered the land and drilled a dry hole; that prior to the drilling, the mineral estate had a market value of one thousand dollars per acre and afterward was worthless and said “The entry . . . without the consent of Kishi constituted a trespass and ouster in denial of Kishi’s rights. There was the gravamen of the wrong, and a recovery was based upon that ground . . . The character of the entry made was unlawful, and was the sole cause of the injury complained of.” The Kishi case does not support the contention of Berry and Wood.

Shell Oil Co. v. Howth was a suit for cancellation of a mineral lease and for damages claimed by cross action. Among the damages claimed were counsel fees and loss of credit. The court of civil appeals, 133 S. W. (2d) 253, 259-264, held that loss of credit by reason of the false and fraudulent claims advanced by the Shell Petroleum Corp. against the land, are not considered proximate results of the wrong complained of.

In Shell Oil Co., Inc. v. Howth, at page 490, the court discusses at detail, and cites many cases in various jurisdictions, on the subject of slander of title. It pointed out that Howth failed to allege in his pleadings the loss of a specific sale or bargain which resulted in the acts complained of and that therefore his pleadings were subject to general demurrer. The defendant there had taken another lease. Consideration of the evidence showed that it acquired rights or thought it acquired rights. The court stated that it was incumbent on Howth to allege and prove that the Shell Oil Co. was not acting in good faith in purchasing what it believed to be an outstanding title; that the purchased claim was wholly groundless; that it conspired to assert an adverse claim; — that it committed a malicious act. The court pointed out that there was room to doubt as to Howth’s title.

We believe the same language applies to this case. The motion by Oil, Inc., a corporation, attacking the counterclaim on the ground it did not state a cause of action should not have been denied. Malice was not averred and malice was not proved. The burden of proof was on counterclaimants to prove a conspiracy and to prove malice. Since Berry and Woods failed to allege a cause of action of slander of title, and failed to prove an unlawful conspiracy against, them, or against their title, a judgment in their favor cannot be sustained.

In Smith v. Michigan Buggy Co., 175 Ill. 619, 628, in regard to malicious prosecution of a civil suit, the court pointed out, that, when a civil suit is maliciously prosecuted without probable cause, defendant undergoes expenses and often suffers injury from loss of credit, which wrongs he must endure without a remedy. The court then discussed the right of every man to come into a court of justice and claim what he deems to be his rights, without fear of being prosecuted for heavy damages.

Appellant did not try to take the law in its hands and forcibly take possession of the land, but, with diligence joined the Allisons in the suit to have rights of the various parties determined, in a court of justice. We do not think institution of such suit, under the facts in this case, could be denominated a malicious prosecution, nor a conspiracy. The counterclaim in theory sought damages for loss of credit; but the evidence showed that their credit was as good as before appellant secured its lease. The court rendered damages, not on the basis of loss of credit, but on certain items of expense which Woods alone would have sustained, without any recourse against the Allisons or appellant, had he continued and drilled the well in question.

An action for slander of title is maintainable only by one who possesses an estate or interest in the the property. 33 Am. Jur. 315, sec. 352. Woods was the contractor. Berry had an interest in the property under his lease. No judgment whatever should have been entered in favor of Woods. Since the elements of the judgment that was rendered for Berry were for expense bills of Woods, irrespective of any other question, such judgment should not have been rendered in favor of Berry. He was not entitled to judgment for the contractor’s expenses, although he contracted the bill as agent for the contractor, Woods. That was a matter to settle between themselves.

The decisions all require before liability is occasioned, that the party accused, must have acted maliciously and the fact that he had no claim, in itself, does not establish malice. If he only had reasonable grounds to believe he had an equity or legal title in the lands, assertion of his claim could not be slander of title. Van Tuyl v. Riner, 3 Ill. App. 556; 37 C. J. 131, 135, secs. 598, 615, 618; Ward v. Mid-West & Gulf Co., 97 Okla. 252, 223 Pac. 170.

Since the undisputed evidence supports the above, no good purpose would follow by reversing this cause for a new trial.

Accordingly, judgment is reversed.


author: Mr. Justice Stone

text:
    Mathew Slovinski, Appellee, v. Herman Beasley, Trading as B. and D. Transportation Company, Appellant.

      Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Louis Beasley and Edward C. Zulley, both of East St. Louis, for appellee.
   Mr. Justice Stone

delivered' the opinion of the court.

This is an appeal from a judgment of the circuit court of St. Clair county, in the sum of $2,400, recovered in that court by Mathew Slovinski, appellee (hereinafter designated as plaintiff), against Herman Beasley, doing business as B. and D. Transportation Company, appellant (hereinafter designated as defendant), for personal injuries sustained by plaintiff, growing out of the alleged negligence of defendant, on the 8th day of May, 1941.

At about 6:30 o’clock on the morning of the above date, plaintiff was driving his one ton truck in a westerly direction on the outside of north lane of U. S. Highway 40, a four lane highway, near the village of Fairmont City, in St. Clair county, when defendant’s 21,000 pound transport truck, operated by one of his employees ran into and struck the plaintiff’s vehicle from the rear. The force of the impact threw plaintiff forward and his back was injured.

Negligence charged in the complaint was a failure to have the motor vehicle under proper control; careless and improper driving; that the truck was not equipped with brakes adequate to control the movement and stop and hold such vehicle, in violation of the Motor Vehicle Law; the driving of the vehicle without having speed of same under control; that defendant’s driver was fatigued and had fallen asleep wMle driving, and driving at a rate of speed greater than was reasonable and proper, in violation of the Motor Vehicle Law, which resulted in the collision and resultant injuries to plaintiff. Defendant’s answer denied these allegations. Trial by jury resulted in a verdict of $2,400 for plaintiff, and motion for new trial being denied, judgment by the court, in the aforesaid amount.

It is urged that the trial court erred in overruling defendant’s motion for new trial. Plaintiff testified that while he was driving his truck on the outside lane of the four lane highway, defendant’s transport truck ran into and struck plaintiff’s truck from the rear, without notice or warning of any kind and that defendant’s driver admitted to him that he was asleep. Another witness for plaintiff testified that the driver admitted to him that he was asleep at the time of the accident, and that the brakes on his truck were defective.

Eira Dennis, defendant’s driver, denied admitting that he was asleep, and that his brakes were defective, that what he said was, that they were not the best. He stated on the witness stand that the brakes were worn and old, having had a lot of use, all of which he knew at the time of the accident. He stated that he had driven all night from Chicago, except for three hours, sleep at Atlanta, Illinois; that he was following plaintiff’s truck, and plaintiff acted as if he were turning left. Dennis claimed he started to go around to the right side of plaintiff, and as he did, plaintiff turned back and he hit him. Witness did not claim that plaintiff had made any signal of his intention to turn left into the inner lane. He further testified that he was three or four feet behind plaintiff’s truck, when he applied his brakes, and after his truck collided with the one in front, he had no brakes at all, and his truck proceeded for 800 feet before it stopped of its own accord. In general, application for a new trial is addressed to the judicial discretion of the trial court. Adamsen v. Magnelia, 280 Ill. App. 418. There are many things that a trial judge observes on a trial that do not appear from the printed record — the appearance of a witness, his or her manner of testifying, and other circumstances that greatly aid the trial court in determining the credibility of a witness and the weight, if any, that should be attached to his or her testimony. Gavin v. Keter, 278 Ill. App. 308. Upon a careful consideration of- this record, we do not believe the discretion vested in the trial court was abused, in the denial of the motion for a new trial.

Among the errors relied upon for reversal, it is' assigned that the trial court erred in refusing to direct a verdict for defendant and against the plaintiff at the close of all the evidence. This is not argued, and will be deemed to be waived. Murgic v. Fort Dearborn Casualty Underwriters, 245 Ill. App. 361; Starr v. Rossin, 302 Ill. App. 325; Trust Co. of Chicago v. Iroquois Auto Ins. Underwriters, Inc., 285 Ill. App. 317.

It is alleged that the court erred in permitting the doctor to testify over objection as to what he assumed was wrong with plaintiff, said assumption being alleged to be based on plaintiff’s history and what plaintiff told him. It is also urged that error was committed in the giving of plaintiff’s instruction number three, which pertained to damages. It is not assigned as error that the damages awarded by the jury were excessive. It has been repeatedly held that evidence or instructions going to the measure of damages, where the amount is not questioned as excessive, will not work a reversal, because, errors therein, if any, are harmless. Reisch v. People for use of Stringer, 130 Ill. App. 164, aff’d 229 Ill. 574; Semrau v. Calumet & S. C. Ry. Co., 185 Ill. App. 203; Hutchison v. Chicago City Ry. Co., 192 Ill. App. 464. We do not find it necessary therefore to discuss the above errors relied upon for reversal.

It is urged that the court erred in giving plaintiff’s instruction number one to the jury, which provided:

“The court instructs the jury that in this case the plaintiff is not required to prove his case beyond a reasonable doubt; it is sufficient to entitle him to recover if he proves his case by a greater weight of the evidence.” It is claimed that this instruction is misleading in that it does not correctly instruct the jury as to the manner in which plaintiff must prove his case. This instruction has been proved, in substance, in many instances. Murphy v. Brichler, 305 Ill. App. 6; Pierson v. Lyon & Healy, 243 Ill. 370; Chicago Consolidated Traction Co. v. Schritter, 222 Ill. 364; Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Taylor v. Felsing, 164 Ill. 331; Chicago City Ry. Co. v. Bundy, 210 Ill. 39.

Counsel for defendant contend that it was error for the court to give to the jury, plaintiff’s instruction number two. There the jury were told that if they believed, “that at the time and just prior to the collision in question the plaintiff did and acted like any other prudent person would have done and acted, situated as the plaintiff then was and under similar circumstances, then the plaintiff was exercising due care and caution required by these instructions.” It is contended that under the ruling in Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, with reference to an instruction given therein, that the giving of this instruction was error. In the Edwards case the instruction told the jury that all the law required of the plaintiff was that degree of care and caution which a reasonably careful and prudent person would have exercised “in the situation in which” plaintiff was placed. There the Supreme Court held the instruction bad because it entirely ignored the question of whether plaintiff was guilty of contributory negligence in placing himself in that situation. The objection to the instruction in the case at bar is not well talien because the instruction is not limited as to time, to the instant of the injury, but tells the jury that the degree of care required of plaintiff was such as any other prudent person, would have done and acted, situated as the plaintiff then was and under similar circumstances, “at the time and just prior to the collision.” It is not contended, nor could it be aptly contended under this record, that there is any question of contributory negligence involved here, as there was in the Edwards case. This instruction has been approved, in substance by the Supreme Court in many cases. Pierson v. Lyon & Healy, supra; South Chicago City Ry. Co. v. Kinnare, 216 Ill. 451; Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267.

We find no reversible error and. the judgment of the trial court will be affirmed.

Affirmed.


text:
    John Philpott et al., Appellees, v. Edith Parham, Appellant.

      Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Geers & Geers, of St. Louis, Mo., for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action at law brought by John Philpott, Omer Philpott, William Heaton, Sr., and Phoebe Heaton, appellees (hereinafter designated as plaintiffs), against Edith Parham, defendant (hereinafter designated as defendant) to recover for personal injuries sustained by plaintiffs, on the 13th of November, 1940, at about two o’clock p.m. when an automobile in which they were riding collided with an automobile driven by defendant.

The accident occurred on a four lane highway, near the intersection of Forty-Sixth street and State street, in the city of East St. Louis, in St. Clair county, Hlinois.

The case was tried by jury, on an amended complaint consisting of four counts, one count for each plaintiff, charging defendant with driving the automobile at excessive speed; failure to keep a proper lookout ahead; swerving from the south to the north side of the highway and- colliding with the car in which plaintiffs were riding. Defendant’s answer admitted operation of the automobile by defendant and denied all other allegations in the four counts of the amended complaint. The jury returned a verdict for John Philpott in the sum of $500, for Omer Philpott in the sum of $25; for William Heaton, Sr., in the sum of $150; and for Phoebe Heaton in the sum of $400. Motion for new trial was denied and judgments entered in favor of the plaintiffs, from which judgments appeal is taken to this court.

The driver of the car in which plaintiffs were passengers, William Heaton, Jr., testified on the trial of the case, that he was driving west on the four lane highway, with the four passengers in the car, at about 25 to 30 miles per hour; that just prior to the collision a truck was ahead of him, also going west. He was in the north lane and in passing another car had gotten into the south lane, and was preparing to pass the truck ahead of him, when it made a left turn into Forty-Sixth street; that he then swung the car to the right, at which time the car driven by defendant, in an easterly direction ran into the left side of his car. He estimated the speed of defendant’s car at about 60 miles per hour. As to that speed he is corroborated by his father, William Heaton, Sr.

The driver of plaintiff’s car testified that his car was never across the black line. In this he was corroborated by several of the passengers in his car.

Defendant, testifying in her own behalf testified that at the time of the accident she was driving her car about 35 miles an hour, going east; that plaintiff’s car approaching from the east was weaving, and that she thought the driver was either drunk or had lost control of his car; that she saw that she was going to be hit and stopped her car, and that plaintiff’s car struck her car. She further testified that she closed her eyes about a second before the impact. She is uncorroborated in her theory of the accident, except by contradictory statements alleged to have been made by several of the plaintiffs, which statements are denied by them, and contradicted by the position of the cars after the collision as testified to by four witnesses testifying for defendant.

Among the exhibits introduced in evidence by defendant were photographs of her car and of defendant’s car taken after the collision. We are rather inclined to the opinion that those exhibits bear out the plaintiffs, in their theory of the accident, rather than the defendant in her theory.

It is the province of the jury to weigh the evidence and determine the credibility of witnesses. This court will not substitute its judgment for the verdict of the jury unless the evidence is clearly insufficient to support the verdict. People v. Merritt, 367 Ill. 521; Shellabarger v. Nattier, 289 Ill. App. 473. The questions of negligence and due care are matters to be determined by the jury, under the proper instructions of the court. Hutson v. Flatt, 194 Ill. App. 29; Kowalski v. Kelley, 183 Ill. App. 313; Sullivan v. William Ohlhaver Co., 291 Ill. 359, aff’g 214 Ill. App. 672 (Abst.); Johnson v. Goey, 142 Ill. App. 147, aff’d 237 Ill. 88. In the event of a conflict in the testimony, an appellate tribunal will not set aside the verdict of a jury, unless it is satisfied that the verdict is manifestly against the weight of the evidence. Avey v. Medaris, 272 Ill. App. 207; Haynes v. Century Coal Co., 171 Ill. App. 83. We are not inclined so to hold, on the record before us. Complaint is made and it is assigned as error, that the court gave four instructions on damages, which counsel in his brief alleges were all the same. The plaintiff, Phoebe Heaton, was apparently not employed in any gainful occupation at the time of the accident, hence the element of loss of earnings was omitted from the instruction covering her damage, so that the four instructions were not the same. We find no error in the matter of multiplicity of instructions on damages. Counsel also claims that the action of the court in giving an instruction with reference to damages sustained by plaintiff, Omer Philpott, was error. This instruction contained the phrase, “The probable duration of his said injuries, if any, which you find and believe from a preponderance of the evidence are permanent.” Omer Philpott testified that he sustained cuts and bruises over one eye, and that both knees were cut and his hip injured, that he lost no time, and that the hospital rendered him a bill for one dollar. The jury by their verdict awarded this plaintiff the sum of 25 dollars. One would not be constrained to believe from the size of this verdict that the jury had been confused or misled by reason of the wording of the instruction with reference to damages in the case of this plaintiff. An instruction given the jury is not ground for reversal when, although it is not entirely free from objection, it could not have misled the jury, and the adverse party was not materially prejudiced by it. Simon v. City of Chicago, 279 Ill. App. 80.

Counsel maintain that this instruction, coupled with the fact that three other instructions were given on behalf of plaintiffs, confused the jury and caused them to believe that the case was more serious than it actually was and that plaintiffs were entitled to recover something. The record shows that .John Philpott was out of work for about a year, as a result of the injuries sustained, making at the time of the accident $5.15 a day; he sustained a broken pelvis, one bone in his left foot was broken, he was 31 days in the hospital and had become obligated for a doctor bill of $127. The jury awarded him the sum of $500.

Plaintiff William Heaton, Sr., sustained injuries to his back, hips and left shoulder, was confined to bed for two and a half months and. had a $12.50 hospital bill. The jury awarded him $150.

Plaintiff Phoebe Heaton was bruised all over; sustained injuries to her left hip; lost seven jaw teeth; had doctor, hospital, and ambulance bill aggregating $72.50 and was awarded $400. Certainly none of these amounts is excessive. We hardly think on this record, that the jury was confused as to the amount of damages by reason of any instruction of the trial court.

Finding no reversible error, the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Hardware Mutual Casualty Company, Appellant, v. John Baldus and Earl Ohlendorf, Appellees.
    Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.

      Johnson & Johnson, of Belleville, for appellant.
    L. N. Nick Perrin, Jr. and Russell H. Classen, both of Belleville, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This suit was commenced in justice court by Hardware Mutual Casualty Company, appellant (hereinafter designated as plaintiff), against John Baldus, and Earl Ohlendorf, appellees (hereinafter designated as defendants). There the issues were decided in favor of defendants, and appeal taken to the circuit court of St. Clair county. A trial de novo, before the court, resulted in a judgment for defendants and against plaintiff for costs and in bar of action.

The action arose out of a collision between an automobile operated by Charles Hemahn, Sr., and one operated by defendant, Earl Ohlendorf, in which defendant John Baldus was a passenger. The suit is based on damage to the former car. The automobile driven by the said Hemann was the property of Adolph Ohlendorf, Jr. (not related to defendant of the same name).

Plaintiff company carried the policy of insurance upon the automobile of Adolph Ohlendorf, Jr., which policy contained a subrogation provision subrogating plaintiff to the rights of insured in the event of payment under the collision loss clause. This gave plaintiff its right to institute suit against defendants.

At the close of plaintiff’s testimony, the court allowed a motion to dismiss, as to both defendants, and judgment entered against plaintiff for costs of suit.

It is not necessary to discuss the facts involved in the accident, for it is not relied upon as error, that the judgment of the court was against the manifest weight of the evidence.

It is contended that the court erred in refusing plaintiff’s offer of proof as to damages. In offering the proof, plaintiff proceeded upon the theory that the proper measure of damages was the difference between the fair cash market value of the car prior to the time of the accident, and its fair cash market value immediately after the collision. The witness, Ernest Schmidt, garageman to whom the question was submitted, testified that the car could be repaired. When personal property has been injured by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs. Latham v. Cleveland, C., C. & St. L. Ry. Co., 164 Ill. App. 559; McDonell v. Lake Erie & Western Ry. Co., 208 Ill. App. 442; McNamara v. Melson, 237 Ill. App. 279.

It is relied upon for reversal that the court erred in refusing to admit plaintiff’s exhibit 2 in evidence, which was an estimate of repair costs for the repair of the automobile in question. It was attempted to have the witness Ernest Schmidt, on behalf of plaintiff testify with reference to this. The estimate of probable cost to repair the car was made by the Wagner Motor Co. The rule of evidence commonly known as “the best evidence rule” — one which from early times has been repeatedly enunciated by the courts, is that the highest degree of proof of which the case is susceptible must, if accessible be produced. 22 C. J. 974. Gross v. Thomson’s Estate, 286 Ill. 185; People v. Illinois Cent. R. Co., 272 Ill. 116; Anderson v. Irwin, 101 Ill. 411. Witness did not prepare the estimate, did not make the repairs to the automobile at the time, and plaintiff’s exhibit 2 was not the best evidence. The court did not err in refusing to admit this.

Inasmuch as there was no competent evidence of the extent of damages to the automobile in question, the court did not err in entering judgment in favor of defendants and in bar of the action. Therefore, the question of the alleged error in the dismissal of defendant Baldns, because in the opinion of the trial court there was no question of agency established by the evidence, need not be discussed.

We find no reversible error and the judgment of the lower court will be affirmed.

Affirmed.


text:
    Clarence L. Gleason and Luevenia Gleason, Appellees, v. C. C. Cunningham, Trading as C. C. Cunningham Truck Company, Appellant.

      Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    Kramer, Campbell, Costello & Wiechert and John C. Roberts, all of East St. Louis, and C. M. Raemer, of Salem, for appellant.

      Ward P. Holt, of Salem, Sebe, Christian, of Sapulpa, and John B. Kramer, of Salem, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit brought by Clarence L. Gleason and Luevenia Gleason, his wife, appellees, who will be hereinafter referred to as plaintiffs, against C. C. Cunningham, appellant, who will be hereinafter referred to as defendant, in the circuit court of Marion county, to recover for personal injuries sustained by Luevenia Gleason and damage to an automobile, the property of Clarence L. Gleason. The damage complained of, was the result of a collision on March 12, 1941, between two trucks of the defendant and the automobile driven by plaintiff, Clarence Gleason, and an automobile driven by Roger McClung, on the road known as the Oil-Field road, a hard surfaced road in Marion county.

Defendant was operating two tank trucks upon the Oil-Field road in a northerly direction, some 700 or more feet south of where that road intersects U. S. Highway 50, and a short distance north of the B. & 0. railroad tracks, near Salem, Illinois. At approximately 5 p.m. these two trucks, the first one driven by Cash Leturno and the second one or the one to the south, driven by J. E. Johnson, both in the employ at that time of defendant, were proceeding in a northerly direction at a speed of about 25 dr 30 miles per hour. The two trucks, at that time were about 25 or 30 feet apart. Plaintiff, Clarence L. Gleason, was driving his automobile in the same direction with his wife, Luevenia Gleason, the other plaintiff, as a passenger in the front seat with him, at a speed of about 25 or 30 miles per hour, and about 25 or 30 feet behind the second truck. About the same distance behind the Gleason car, and being driven at about the same rate of speed was an automobile; driven by Roger McClung.

Suddenly the first truck driven by Leturno stopped on the pavement, as did the second one. There is no affirmative evidence that either signaled their intention to stop. Mrs. Gleason screamed a warning to her husband, who applied his brakes. According to Gleason’s theory, his car came to a stop about six feet behind the second truck and the McOlung car then struck the Gleason car and knocked it forward into the truck. McClung’s theory was that Gleason’s car did not stop, but struck the second truck, rebounded and then was struck by McClung’s car, and knocked forward into the truck again. In any event, as the result of the impact, Mrs. Gleason was thrown against the dashboard and the windshield and sustained injuries to her back and neck.

Plaintiffs’ complaint consisted of two counts, which charged the defendant with negligence in that its employees permitted their automobile trucks- to stop and stand upon the highway without first giving any signal or warning to the vehicles behind .them, as a result of which negligence, the automobile of Clarence L. Gleason was damaged and Luevenia Gleason sustained personal injuries. Defendant’s answer admitted ownership of the trucks and denied generally, the negligence alleged.

Upon a trial of the case before a jury, a verdict was returned in favor of plaintiff, Clarence L. Gleason in the sum of $25 and in favor of plaintiff, Luevenia Gleason in the sum of $10,000. At the close of all of the evidence defendant made a motion to instruct the jury to find the issues in favor of defendant. The court reserved its ruling on this motion and later denied same. Motion for judgment non obstante veredicto was filed by defendant and denied by the court. Upon a remittitur in the sum of $4,000 by plaintiff, Luevenia Gleason, motion for new trial was denied and judgment entered in favor of Luevenia Gleason in the sum of $6,000 and in favor of plaintiff Clarence L. Gleason, for $25 from which judgments appeal is prosecuted to this court.

Gleason, Mrs. Gleason and MeClung all testified that no signal, indicating an intention to stop was given by the truck drivers ahead. Both Leturno and Johnson testified that they did not remember whether they signaled or not. Leturno testified that he did not know if the stop light was working and Gleason testified positively that no red light was flashing. Leturno, in front, testified that he stopped his truck because of a line of traffic in front of him, and is corroborated by Johnson, who says that there was at least one car in front of Leturno and by the witness, L. C. Egan, who was some distance away. This is disputed by the testimony of Mr. and Mrs. Gleason, Cecil Hodges, Paul Bundy, Edgar Harold and Roger MeClung, who all say that there was no car ahead of the two trucks of defendant company.

Both Leturno and Johnson claim that their trucks came to a gradual stop, so there would seem to be no logical excuse for not signaling their intention to stop. Johnson testified that he did not see the Gleason car before he stopped. He admitted however, that he looked into his rear vision mirror and saw it a few seconds after he had stopped. It is not controverted that Mrs. Gleason screamed a warning to her husband. A scream is a spontaneous expression so it may well be inferred that the stopping of the truck ahead was sudden.

It is upon this record and these facts that counsel for defendant maintain that each plaintiff failed to prove the case of action alleged, and that the court erred in refusing to grant defendant’s motion at the close of all the evidence to find the issues in favor of defendant, and having reserved its ruling thereon, erred in failing to enter judgment notwithstanding verdict. In an action for injuries, the question of negligence is primarily for the jury, and only becomes a question of law when there is no dispute in the evidence and but one inference can be reasonably drawn therefrom. Campbell v. Chicago, R. I. & P. R. Co., 243 Ill. 620, 90 N. E. 1106, aff’g 149 Ill. App. 120; Reidel v. Chicago, R. I. & P. R. Co., 144 Ill. App. 424, aff’d 239 Ill. 362, 88 N. E. 254; Hornung v. Decatur Railway & Light Co., 145 Ill. App. 429, aff’d 241 Ill. 128, 89 N. E. 269.

Counsel for defendant strenuously contend that even if it be assumed that the action of the drivers of defendant’s trucks in stopping without signaling their intention so to do, was negligence it could not be the proximate cause of the injuries to plaintiffs. With this reasoning we cannot concur and, without elaborating thereon, do not find the cases cited by defendant in point, on this proposition. There seems to be ample justification in this record for the jury to believe that there was a sudden stopping of defendant’s trucks, without any signal to the car in the rear and with opportunity to do so. According to the testimony of both drivers, Johnson looked in his rear vision mirror, not before stopping, but after. He could not help but anticipate that such stopping might probably and foreseeably cause injury to others behind, using this much traveled hard road. There was thus initiated a continuous succession of events linked together and traceable back to the first cause as the proximate cause of the injury. Pullman Palace Car Co. v. Laack, 143 Ill. 242, L. R. A. 215; Wintersteen v. National Cooperage & Woodenware Co., 361. Ill. 95. Where personal injuries are caused by concurrent negligence of two persons and the accident would not have happened without the negligence of both, the negligence of each was proximate cause and each is liable. Annen v. W. F. McLaughlin & Co., 189 Ill. App. 261; Darling v. Wood, 168 Ill. App. 272. So that in the instant case, even though there might be the concurring negligence of Gleason and McClung both might be held liable and they might be sued jointly or separately. McGregor v. Reid, Murdoch & Co., 178 Ill. 464; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559.

In any event, the question of what is the proximate cause must be determined from the particular facts of each particular case and are not questions of law for the court to determine, but questions of fact for the jury. City of Flora v. Pruett, 81 Ill. App. 161; Phillabaum v. Lake Erie & W. Ry. Co., 315 Ill. 131. It is the duty of the jury, under the proper instructions of the court to pass upon the controverted questions of fact, and these questions can be taken from the jury only when reasonable men would not differ in their opinion on the questions of negligence or proximate cause. Rehthaler v. Crane Co., 218 Ill. App. 267; Porter v. Chicago City Ry., 187 Ill. App. 28; Phillabaum v. Lake Erie & W. Ry. Co., supra.

We do not believe that the lower court erred therefore in refusing defendant’s motion, offered at the close of all of the evidence to find the issues in its favor and in overruling its motion for judgment notwithstanding the verdicts, nor in overruling the motion for new trial.

It is urged that the court erred in giving instructions Nos. 1 and 4 on behalf of plaintiffs. Instruction No. 1 told the jury that preponderance of the evidence means “that evidence which, in the light of all the facts and circumstances in the case, and guided by these instructions is, in your judgment entitled to the greater weight and credit.” The case of Meunier v. Chicago & Carterville Coal Co., 180 Ill. App. 114 is cited as being in point, the court in that case having held an instruction given in that case with reference to the preponderance of the evidence as being reversible error. In that case the court condemned the use of the phrase, “you are to determine where the preponderance of the evidence is, in accordance with the way in which it appears to your minds; . . . This the court held was telling the jury that they might find the evidence preponderated according to their notion as to what tests should be applied in passing upon the weight of the evidence. We do not find the instruction under consideration here as open to that 'objection. The jury are told in substance that they are to determine the preponderance of the evidence, from the facts and circumstances in the case and the instructions of the court, in other words, upon the law and the evidence, and considering the instructions as a series, instruction No. 2 given for plaintiff properly gives the accepted tests by which the jury can determine the weight to be given the testimony of the various witnesses. We find no reversible error in this instruction.

Instruction No. 4 given on behalf of plaintiffs sets forth the substance of the statute forbidding the stopping of a motor vehicle without giving an appropriate signal to the driver of any vehicle immediately to the rear. Objection is made that this instruction was an abstract proposition of law, not applicable to the evidence in the case. In the light of the record herein submitted to us, we cannot hold that instruction No. 4 is subject to this objection.

It is argued on behalf of defendant that the verdict of the jury as to Luevenia Grleason is excessive, being for so great an amount as to indicate that the verdict was the result of passion and prejudice on the part of the jury. The evidence showed that Lnevenia Grleason had been under the care of two physicians, as a result of her injuries, one of whom had a bill for $99.50 and the other, charges of $110. The hospital bill was $42.70. There were other expenses, such as purchase of brace and transportation. She sustained a severe injury to her neck and back. It has been necessary for her to wear a brace for her back, which she will be compelled to wear for some time in the future. She was confined to her bed for two months and a half, and suffered pain from the date of the injury to the date of the trial a period of about seven months and her testimony was to the effect that she still suffers. One of the physicians testified that a previous tear of the womb was aggravated by this injury and would interfere with normal marital relations. The medical opinion was to the effect that she would have trouble with her back for a long time, that some suffering from such injuries get well, or at least improve and some never do. Unless the verdict is of such magnitude as to show passion and prejudice on the part of the jury, the Appellate Court has no right to disturb it, as the amount to be fixed is largely in the discretion of the jury. Grannon v. Donk Bros. Coal & Coke Co., 173 Ill. App. 395, aff’d 259 Ill. 350, 102 N. E. 769. Fitzpatrick v. California & Hawaiian Sugar Refining Corp., Ltd., 309 Ill. App. 215. The fact that there was a remittitur of $4,000 does not establish the fact that the verdict was the result of passion and prejudice. The practice of filing a remittitur is well established in this State and such a remittitur is not to be taken as a concession that the jury was actuated by passion or prejudice. Stumer v. Pitchman, 22 Ill. App. 399, aff’d 124 Ill. 250, 15 N. E. 757; Fitzpatrick v. California & Hawaiian Sugar Refining Corp., Ltd., supra.

We do not believe that the amount of the judgment is excessive. There being no reversible error in the record, the judgment both as to Clarence L. Gleason and Luevenia Gleason will be affirmed.

.Affirmed.