text:
    Randall Dairy Company, Appellee, v. Pevely Dairy Company and A. E. Kraemme, Appellants.

      Opinion filed January 4, 1935.

      Hensley & Hensley, of St. Louis, Mo., June C. Smith, of Centralia, and Hugh V. Murray, Jr., of Carlyle, for appellants.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

This is an action of slander brought by appellee, Randall Dairy Company, against Pevely Dairy Company and A. E. ICraemme, wherein it obtained a verdict and judgment for $26,000 against both appellants, and from which they appeal.

The cause of action is laid as of April 24,1932. Suit was instituted to the September Term, 1932, of the city court of East St. Louis. There was a trial which resulted in a judgment against appellants, in the sum of $8,000. The case was reviewed by this court, and reversed and remanded. Randall Dairy Co. v. Pevely Dairy Co., 274 Ill. App. 474.

Following the remandment of the cause, appellee, who will be hereafter referred to as plaintiff, sought leave to file a complaint under the Civil Practice Act, Cahill’s St. ch. 110, ¶ 129 et seq., which had become operative after the institution of the suit. Leave was granted, and on May 19, 1934, plaintiff filed such complaint; whereupon, appellants, to be designated as defendants, filed their motion, under the Civil Practice Act, to dismiss the suit on account of defects appearing on the face of the complaint, basing such motion upon three grounds, namely: That the court exceeded its jurisdiction in permitting plaintiff to file its complaint herein, where the suit had been instituted prior to January 1,1934; that the cause of action accrued more than one year prior to May 19, 1934, the date of the filing of the complaint; and that the complaint, consisting of a single count, set forth three separate and distinct causes of action, and that, as such, they were not legally joinable in a single count. The motion was denied.

The first ground referred to has not been argued, hence it will be considered as waived. Lingle v. West Chicago Park Com’rs, 222 Ill. 384.

As to the second mentioned ground, that the pleading fails to show the cause of action accrued within one year of the filing of the complaint, as before stated the suit was instituted and summons issued to the September Term, 1932, of the city court. This was the commencement of the suit. Milwaukee Mechanics’ Ins. Co. v. Schallman, 188 Ill. 213, 220.

Section 46 of the Act, Cahill’s St. ch. 110, ¶ 174, provides that in all civil actions, at any time before final judgment, amendments may be allowed in any process or pleading which may enable the plaintiff to sustain his claim, or the defendant to make a defense or assert a cross demand; also, that the cause of action, cross demand' or defense set up in any amended pleading shall not be barred by lapse of time, under any statute limiting the time within which such action might be brought, if such time had not expired when the original pleading was filed; and if it appears from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading, grew out of the same occurrence set up in the original pleading, even though the original pleading defectively stated the cause of action, defense or cross demand, in failing to allege the performance of some act or the existence of some fact or other matter, same being a necessary condition precedent to the right of recovery or defense asserted, when such condition precedent has in fact been performed, and for the purpose of preserving, as aforesaid, such cause of action, cross demand or defense set up in the amended pleading, and for such purpose only, any such amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.

That the complaint was in reality an amended declaration, in lieu of the original, seems obvious, and as it is apparent that it related to the same transaction as the original pleading, and was filed to supplement and supply defects therein, it was sufficient within the terms of said sec. 46, and should be held to relate back to the date of filing the original declaration; therefore, as there has been no question raised that the original pleading was not filed within apt time, we think the complaint was sufficient to comply with said section, and did not show on its face that the action did not accrue within the statutory period for the commencement of the suit. As to this ground we think the ruling of the trial court was right.

The remaining ground challenged the sufficiency of the complaint, as stating within a single count more than one claim or cause of action.

Paragraph 2 of section 33 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 161, provides: “Each separate claim or cause of action upon which a separate recovery might be had, shall be stated in a separate count or counterclaim, as the case may be, and each count, counterclaim, defense or reply, shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate allegation. ’ ’

Rule No. 12 of the Rules of Practice and Procedure adopted by the Supreme Court to amplify the statute is as follows: ‘ ‘ Different breaches of a contract, bond or other obligation, and different breaches of duty, whether statutory or at common law, or both, growing-out of the same transaction, or based on the same set of facts, may be treated as a single claim or cause of action, and set up in the same count.

“A party shall not be required to plead separately causes of action or counter claims arising out of the same transaction or based on the same state of facts, but may make a single statement of the transaction or facts, and follow this with a statement of the various legal grounds upon which he claims to be entitled to recover under such facts.

“If the facts are adequately stated in one part of a pleading, or in one pleading, they need not be repeated elsewhere in such pleading or in other pleadings. ’ ’

The portions of the complaint attacked by this ground of the motion are paragraphs 3, 4 and 5.

In paragraph No. 3 it is alleged that the defendants, intending to injure and destroy the good name, reputation and business of the plaintiff, did, in a discourse by defendant Kraemme, in the performance of his duties as assistant manager of the Pevely Dairy Company, concerning the plaintiff, in the presence of divers persons, speak slanderous words to the effect that paintiff was selling watered milk; that plaintiff’s plant was so filthy that milk from it was not fit for the hogs to drink, and that plaintiff’s plant was so filthy that it would soon be locked up by the State Food Inspector.

Paragraph 4 charges that defendant, Pevely Dairy Company, with the design to destroy plaintiff’s business, and to establish its own in the same territory, through its assistant manager Kraemme, and through its other officers and agents, slandered plaintiff by appearing on the premises of plaintiff’s customers, and within their hearing, repeating the defamatory words set out in paragraph 3.

The 5th paragraph averred that defendant, Pevely Dairy Company, in order to carry out the design described in the preceding paragraph, which was to destroy the business of plaintiff, through the defendant Kraemme and its other agents, did persuade certain trusty employees of plaintiff to break their contracts of employment with plaintiff, and induced them to enter the employ of defendant, Pevely Dairy Company, well knowing they were employees of plaintiff, and that their loss by the plaintiff would cripple the operations of its plant and destroy its business.

Paragraph 3, in conjunction with paragraphs 1 and 2, being the inducement, and paragraphs 6 and 7, being the conclusion, ■ states a good cause of action for slander. Paragraph 4, likewise, connected with the first three, and last two, paragraphs, states sufficiently an action for slander. Defendants contend that paragraph 4 is defective in not setting forth the slam derous words. It will be observed that its concluding clause refers to the words set forth in paragraph 3, and the slanderous matter stated therein. This is sufficient and states a good cause of action.

It is manifest that paragraphs 3 and 4 are stating the same transaction, in different language, and that they are alleging the same breach of duty; hence, within the Supreme Court’s Bule No. 12, may be joined in the same count.

As respects paragraph No. 5, a different situation exists. It states a cause of action wholly unrelated to that averred in paragraphs Nos. 3 and 4, the specific charge being that defendants, for the purpose of ruining the business of plaintiff, wrongfully persuaded, its employees to break their contracts with plaintiff and enter the service of defendant, Pevely Dairy Company, knowing that by so doing they would injure and destroy the former’s business.

That such paragraph 5 set up a good ground for action cannot be doubted. It is the law that if one, knowing of the existence of the relation of master and servant, wilfully and without just cause or excuse, entices the servant to quit his employment, to the master’s injury, such person so offending is liable in damages. S. C. Posner & Co. v. Jackson, 223 N. Y. 325, 119 N. E. 573; Walker v. Cronin, 107 Mass. 555; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229.

In Doremus v. Hennessy, 176 Ill. 608, at page 614, it is said: “It is clear that it is unlawful and actionable for one man, from unlawful motives, to interfere with another’s trade by fraud or misrepresentation, or by molesting his customers or those who Avould be customers, or by preventing others from working for him or causing them to leave his employ by fraud or misrepresentation or physical or moral intimidation or persuasion, Avith an intent to inflict' an injury which causes loss.” This doctrine is quoted with approval in London Guarantee & Accident Co. v. Horn, 206 Ill. 493, 507.

Paragraph 5 set up a good cause of action, upon the premises alleged. This, however, proceeded upon the failure of defendant to desist from violating its legal obligation not to interfere with the contract rights of the plaintiff with its employees, for the purpose of injuring it, while paragraphs 3 and 4 were based upon the breach of defendant’s duty to refrain from slandering plaintiff in the hearing of its customers. These breaches of duty did not grow out of the same transaction, nor were they based upon the same set of facts; consequently they Avere not joinable in the same count of the complaint under the terms of said Rule 12.

In our opinion the actionable causes set forth in paragraphs 3 and 4 were properly contained in a single count. We think, however, that the ground of action alleged in paragraph 5 was foreign to that of the other paragraphs, and could not be joined with them in the same count of the complaint. It is our conclusion that the court should have sustained the motion for the reason last discussed.

After the denial of the motion, defendants answered the complaint. Whether by so doing they waived the objections set forth in the motion to dismiss is not before us. Both parties have argued the question as being properly saved for review; hence we have considered it. The court then, upon motion of plaintiff, struck out paragraphs 8, 9, 10, 11, 12 and 13 of the answer, and this action is claimed as error. We do not think it is. The matters averred in these paragraphs were all set forth in the motion to dismiss, and ruled upon by the court. Defendants contend that notwithstanding .such fact, they were not precluded from again raising the questions by their answer, and are authorized so to do by sec. 48 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 176.

Paragraph 4 of said section 48 provides: “The raising of gny of the foregoing defenses to the action by motion shall not preclude the raising of them subsequently by answer unless the court shall have made a decision therein; and a failure to raise any of them by motion shall not prejudice raising them by answer. ’ ’

It will be observed that the statute expressly limits the right to raise such questions by answer to instances where they have not been raised by motion, or where, if so raised, the court has not ruled thereon. If, however, the court has passed on the motion, all the grounds set forth therein are disposed of and adjudicated, and cannot be again presented by answer. The court correctly struck such paragraphs from defendant’s pleading.

At the close of plaintiff’s case, both defendants moved the court to direct the jury to find the defendants guilty and to assess plaintiff’s damages at the sum of one dollar. This motion was denied.

Plaintiff insists that by such motion defendants admitted their liability as charged in the complaint, and every material allegation, therein, and cites in support of such contention Child v. Homer, 13 Pick. (Mass.) 503. An examination of this authority discloses that the court’s holding in that case was based upon the fact that it was agreed by counsel that the only question for the jury was the amount of damages. Such is not the case here. After the denial of said motion, defendants severally filed motions asking the court to direct the jury to find defendants not guilty, both of which motions were overruled. However, the court, in the charge to the jury, stated that the fact that instructions had been given on the subject of damages, or that defendants’ counsel had discussed the subject of damages, was not to be taken by the jury as any admission by the defendants of their liability. It does not appear that plaintiff made any objection to this portion of the charge, as it should have done, under sec. 67 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 195, if it regarded the question of the amount of damages as being the only issue in the case. It does not appear that there was any agreement between counsel as to liability, such as existed in Child v. Homer, supra; hence we do not regard it as an authority in this case.

It is also contended by defendants that there is no competent proof that Kraemme was the agent of the Pevely Dairy Company at the time the alleged slanderous words were spoken.

It appears that five or six years prior to the trial, at a meeting of dairymen at the Broadview Hotel in East St. Louis, Daniel C. Kerckhoff, president of the Pevely Dairy Company, introduced Kraemme to John Randall, president of plaintiff; that Kerckhoff said Kraemme was his assistant, and that he was a solicitor for the Pevely Dairy Company. The answer of defendants admits that James Hines, at the time in question, was an officer of the last named dairy company. The proof shows that Hines introduced Kraemme as an assistant manager of his company, to certain customers of plaintiff. Euth Tibbitt testified that she was an office girl of the Pevely Dairy Company, from January, 1931, to January, 1933, and related facts and circumstances as to Kraemme’s connection with, and his activities in behalf of, said dairy company, which, if believed by the jury, justified the inference that he was, during such time, an agent of his codefendant. We think the proof of agency is sufficient.

A further ground urged for reversal is the refusal of the court to incorporate in its charge certain suggestions offered by defendants, and also that a portion of the charge as given was erroneous. It is objected that in one paragraph of the instructions the jury were told if they believed from the evidence that Kraemme uttered the alleged defamatory words in his capacity as agent, the Pevely Dairy Company knowing of such fact, and that such company, by acts or conduct, acquiesced in or ratified Kraemme’s acts in making such utterances, then both defendants were liable as joint tortfeasors. The ground of objection is that there is no evidence in the record that the Pevely Dairy Company ever knew that Kraemme had made the alleged statements, or that it had approved or ratified the same.

We think the objection is well taken. Instructions should not be given unless they are based upon some evidence in the record. Smith v. Sanitary District, 260 Ill. 453. There is no evidence in this case which in any way tended to show that the Pevely Dairy Company either knew that Kraemme had spoken the words complained of, or approved of or ratified the same. This part of the charge was erroneous. It is claimed that other portions were improperly given. We think, however, that they stated the law with substantial accuracy, and did not operate to the prejudice of defendants.

As to the suggestions of defendants which the court refused, paragraph No. 2 thereof was a general direction on the subject of the preponderance of the evidence, defined the term, and informed the jury of its duty in that regard. No part of the charge, as given, did so. Defendants were entitled to have the jury instructed upon the subject, and the refusal was error. As. to the remaining suggestions of defendants, not incorporated in the charge, we think that upon the record, as made, the court was warranted in their refusal.

Plaintiff urges that inasmuch as two juries have found the same way in this cause, the judgment should not be disturbed. The rule, as we understand it to he, is, that where two or more juries have returned like verdicts in a cause, a judgment based thereon will not be lightly set aside as contrary to the weight of the evidence; but that it has no application to situations where there are substantial errors in the record; as held by this court in Cobine v. Cleveland, C., C. & St. L. Ry. Co., 199 Ill. App. 106.

For the errors indicated, we are of opinion that the judgment should be reversed and the cause remanded, with directions to sustain the motion of defendants to dismiss the action for defects appearing upon the face of the complaint; plaintiff to have leave, if it be so advised, to amend the complaint to comply with the views herein expressed.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    The People of the State of Illinois for use of Tol A. Smythe, Executor of the Last Will and Testament of W. H. Betts, Deceased, Appellant, v. J. Lem Ballance and National Surety Company, Appellees.
    Opinion filed January 4, 1935.
    June C. Smith, of Contralla, and Hugh Y. Murray, Jr., of Carlyle, for appellant.

      Ward P. Holt, of Salem, and Wham & Wham, of Centralia, for appellee J. Lem Ballanee.
   Mr. Justice Stone

delivered the opinion of the court.

This suit was brought by appellant whose testator was county clerk of Marion county from 1922, to September, 1926, when he died. During that same period, appellee, J. Lem Ballanee, was county treasurer of said county and appellee, National Surety Company, furnished his official bond.

The controversy hinges around an item of $1,290.80 which is shown on the semiannual report made by W. H. Betts as county clerk, in June, 1926. The same item appears on page 17 of the book of cash receipts used by the county treasurer’s office of Marion county during the time that appellee, J. Lem Ballanee, was county treasurer. Appellant contends that W. H. Betts paid this item in June, 1926, in harmony with said semiannual report; that notwithstanding said payment, appellee, Ballanee, in December, 1926, represented to Betts’ executor that said item had not been paid, and that he collected the amount of the item from him; thus making a double payment — one by Betts in his lifetime and the other by his executor. Appellees contend that regardless of the report and page 17 of the aforesaid record of the county treasurer, Betts never paid the item in his lifetime and that it was never received by appellee, Ballanee, until December 6, 1926, when it was paid by appellant. They also contend that it was never credited upon the treasurer’s book until the latter date and was then credited as of June 12th, the date of the report as that was where said item belonged.

Stripped of their verbiage,lit seems to us that the pleadings fairly present the issue as above outlined.

Prior to starting his lawsuit, appellant obtained a certified copy of page 17 of the treasurer’s report which showed among other things the receipt of $1,290.80 from W. H. Betts on June 12, 1926, without any qualification. Belying upon this record and having positive proof of the payment of December 6th, appellant brought suit to recover back the sum of $1,290.80 together with interest thereon.

Miss Eva Black, an employee, entered the December 6th payment on the treasurer’s record. On January 12, 1934, Miss Black, who was then county treasurer, after having issued the certified copy of page 17 aforesaid and after this suit was started, entered in' red ink immediately to the side of the original entry of the aforesaid payment, the following:

■ “This item of $1,290.80 was not received in June, 1926, nor from W. H. Betts but was received from Tol A. Smythe, Executor of the last will and testament of W. H. Betts, deceased in December, 1926, in payment of the amount due Marion County from W. H. Betts, as County Clerk, as shown by his June, 1926 semiannual report. This amendment is made this 12th day of- January, 1934, by the undersigned to make this record speak the truth as she knows it to be.
Eva A. Black,
County Treasurer of Marion County, Illinois.”

Appellee’s witnesses were not disqualified by reason of interest as contended. Crimp v. First Union Trust & Savings Bank, 352 Ill. 93; In re Estate of Bridge, 263 Ill. App. 499; Ackman v. Potter, 239 Ill. 578.

We are equally of the opinion that the county treasurer’s record of the things therein contained is competent legal evidence. Cassady v. Trustees of Schools, 105 Ill. 560; Cawley v. People, 95 Ill. 249.

This case is therefore brought to a very narrow compass. The treasurer’s record is competent. If the true record is without the amendment appellant must prevail. If the true record is as amended, arid the treasurer had a lawful right to make said amendment, appellee must prevail.

If Miss Black was a competent witness to give testimony to explain the apparent discrepancy as to the time and circumstances and reasons for making this record as it was made, then her testimony, being uncontradicted as it is, must determine this case. We are inclined to believe from an examination of all the authorities at hand and the absence of express Illinois authorities to the contrary, that she was so competent. We cannot, then, question her knowledge on the subject. It is true that we may wonder why the change had not been made during all the years that she had such knowledge but she testifies positively that she did have such knowledge. If then, she had such knowledge it would be wrong to allow a record of her office to exist as a false record, upon which an innocent party should lose substantial rights. Having knowledge of the error in the record we are of the opinion that she was within her rights in making said record speak the truth. The record as amended being competent evidence, therefore, the trial court did not err in awarding judgment to appellee.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Edwards

text:
    Lenora Gamble, Appellee, v. Hayes Transfer and Storage Company, Appellant.

      Opinion filed January 4, 1935.
    ICramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Preston K. Johnson, of Belleville, for appellee.
   Mr. Presiding Justice Edwards

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 $4,000, rendered upon the verdict of a jury in such amount, in favor of appellee and against appellant. The action grew out of injuries sustained by appellee as the result. of a collision between an auto driven by Clyde Taylor, in which she (appellee) was riding as a guest, and a truck belonging to appellant, which was in charge of their driver, Raymond Taylor.

The accident occurred on the evening of October 9, 1933, between the hours of five and six o’clock. The evidence discloses that Clyde Taylor, at the time in question, was driving easterly on the State highway from East St. Louis to Belleville; that in the front seat of his sedan, Miss Gamble, the appellee, was sitting on his right, while in the rear seat was James Green, another guest passenger; that appellant’s truck, driven by Raymond Taylor, was approaching from the east on such highway; that directly ahead of appellant’s truck was a Chevrolet sedan, which was said to have borne an Oklahoma license number. At a point where the road curves, the cars of Clyde Taylor and the Oklahoma car met. At this time the truck of appellant came from behind the car just ahead of it, and started diagonally across the road, colliding with the car of Clyde Taylor, in which appellee was riding.

Clyde Taylor, Creen and appellee all testified that the truck turned suddenly out into the left lane of traffic; that it was traveling rapidly, while their car was making, at the time, about 20 or 25 miles an hour. Taylor stated that he attempted to apply his brakes as soon as he saw the truck turn, but the time was too short to avert a collision. As a result, appellee sustained serious, permanent injuries, also disfigurements to her face and features, and suffered much pain and anguish; was confined to the hospital for a number of days, and was prevented from pursuing, for a considerable period, her occupation as an office employee of the International Shoe Company of St. Louis.

Appellant’s driver testified that the car directly in front of him stopped suddenly, while about 25 feet distant from him; that there was not sufficient room on the north side of the road, between the cement slab and a fence there situated, for him to turn into, and that his only recourse was to cut across the cement to the south, in order to prevent a collision with the car ahead of him, the driver of which had not given him any signal or warning of his intention to stop; that he did not see the Clyde Taylor car until he turned to the left, and did not know previously that it was coming.

At the conclusion of the evidence the court prepared a charge to the jury, in conformity with sec. 67 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 195; delivered to counsel for each party a copy of same, and inquired of both whether there were any objections or suggestions relative thereto. Appellee’s counsel responded in the negative, and the attorney for appellant made two suggestions in writing as to matters he desired included in the charge, both of which were refused by the court, and its action in so doing forms the basis of this appeal. °

Suggestion number one was as follows: “You are instructed under the law the mere fact that the plaintiff was a guest or passenger in the automobile in which she was riding at the time of the collision in question, does not excuse her from the duty of exercising due care and caution for her own safety, and if she was in a position in the automobile where she could, by the exercise of reasonable care on her part, have seen that a collision was imminent, it was her duty, under the law, to warn the driver of the automobile of such danger in time for him to have avoided same if possible.”

The court’s refusal to adopt such suggestion rested upon the proposition that the charge repeatedly required appellee to prove, before she would be entitled to a recovery, that at the time of, and just prior to, the accident, she was in the exercise of due care for her own safety. An examination of the charge reveals that in several places, the court’s direction to the jury stressed the necessity of appellee’s showing due care on her part just previous to and co-incident with the collision. The jury, if it regarded the charge, could not fail to understand appellee’s obligation in this respect, and the refused suggestion would only have emphasized her duty in this regard.

A legal principle, suggested for an instruction, may properly be refused where the same has been repeatedly stated in the charge. England v. Fawbush, 204 Ill. 384; Shorb v. Webber, 188 Ill. 126.

The court is not required to repeat its instructions to the jury, but on the contrary should not do so. Chicago Union Traction Co. v. Newmiller, 215 Ill. 383.

In our opinion the court did not err in refusing the suggestion.

Appellant’s second refused suggestion was in the following words: “The court instructs you that under the statute of the State of Illinois it is the duty of a person driving along the highway in the State of Illinois, to signal his intention of stopping on the highway so as to give persons following him reasonable notice of his intention to stop, and if you believe from the evidence in this case that the driver of the car, which has been referred to in the evidence as the car which was traveling in front of the truck of the defendant, and as the car having the Oklahoma licenses, did not give any signal or warning advising the driver of the truck of his intention to stop on the highway, and that he did stop without giving such warning to the driver of the defendant’s truck, and that such failure on his part was the proximate cause of the collision in question, then the plaintiff would not be entitled to recover as against the defendant in this case, and your verdict should be for the-defendant.”

This suggestion is based upon Cahill’s St. ch. 95a, ¶ 34; subsec. 5 of sec. 234, ch. 121, Smith-Hurd R. S. 1933, which is as follows: “No driver of a vehicle shall suddenly stop or slow down without first signaling his intention with outstretched arm or otherwise to those following closely in the rear, nor shall he turn without signaling in a similar manner both to those following closely and those approaching from the opposite direction.”

It will be observed that the quoted section of the statute limits the duty of signaling, in instances where the driver is about to stop suddenly or slow down, to those who are following closely in the rear. The suggestión does not comply with such section, in that it fails to limit its application to situations where cars were closely following the one which was about to stop; but in general terms provides that if the jury finds that the -car traveling in front of appellant’s truck stopped without signal or warning, and that same was the proximate cause of the injury, then appellant was not guilty. It would leave the jury free to determine that if the Oklahoma car stopped without signal, regardless of how far in the rear the truck of appellant might have been, such failure to signal would be a breach of statutory duty. This, manifestly, is not the rule as defined in the legislative act.

An instruction, couched in statutory language, may properly be given, but it must set forth the essentials of the act of legislation, and if it omits a material element thereof, is improper. This is based upon the fundamental principle governing instructions, that the court’s charge must correctly state the law.

“The duty of the court to instruct the jury, being recognized, it follows as a corollary that a correct declaration of the legal principles involved should be given to the jury; otherwise the requirement to instruct would be a needless formality.” Beck v. Beagle, 28 Ohio App. 508, 162 N. E. 810.

It cannot be said that a suggestion based upon a statutory section, which omits an essential element required by the Act, is a correct exposition of the law as declared by the statute. The suggestion was not an accurate statement of the statutory duty of the driver of a motor vehicle to signal to cars following closely in the rear, before stopping or slowing down, and was properly refused by the court.

No questions are argued, other than the refusal to incorporate in the charge the two suggestions before discussed, and the court’s ruling on each one being correct, the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Murphy

text:
    H. G. Gentle, Appellee, v. William Butler, Appellant.
    Opinion filed January 4, 1935.
    Peyton Burbling, of Cairo, for appellant.
    Asa J. Wilboubn, of Cairo, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee brought an action of forcible entry and detainer against appellants before a justice of peace of Alexander county and recovered a judgment for possession. Appellant appealed to the circuit court and on a trial with a jury appellee obtained a judgment for possession and appellant has appealed to this court.

Appellee has filed a motion to dismiss the appeal and this motion has been taken with the case. The judgment from which this appeal was taken was entered April 6, 1934, which was during the February Term of said court. At the time of entering the judgment, appellant prayed an appeal to this court in accordance with the practice prior to January 1, 1934. The court fixed the bond at $200 to be filed within 60 days from the date of the entry of the judgment. On June 6, which was during the May Term of court, an order was entered extending the time for filing a bond to July 1st. Appellant filed notice of appeal to this court and bond on June 26.

Appellee urges in support of the motion, first, the appeal bond was not filed within five days as provided by section 18 of the Forcible Entry and Detainer Act, Cahill’s St. ch. 57, ¶ 19, second, the court had no jurisdiction on. June 6 to extend time for filing the appeal, being after the expiration of the 60-day period granted on April 6; third, no notice of appeal was given within five days as required by statute.

In Davis v. Hamilton, 53 Ill. App. 94, the court, after reviewing the first four sections in the Forcible Entry and Detainer Act, Cahill’s St. ch. 57, ¶¶ 1-4, and the provisions of section 18 of said Act, said, “We therefore hold that this provision was intended to apply only to appeals from such judgments, that is, judgments rendered on the original trial, whether in a court of record or before a justice of peace. Of this action circuit courts have both original and appellate jurisdiction. This case was commenced before a justice of peace. The bond given on appeal from his judgment was filed within five days from its rendition ; whereby the plaintiff, in our opinion, obtained all that the statute intended in the security thus promptly furnished for whatever rent, damages and costs should accrue, or be occasioned to lnm by its wrongful suspension.

“The trial in the circuit court was had on the appeal so taken. ' The provision in question did not provide for a further appeal. It was fully satisfied by the bond filed, and the right of further appeal was given, conditioned and regulated by another, which in this case was also complied- with. The motion to dismiss is i herefore overruled. ’ ’

In Vincent v. Laurent, 165 Ill. App. 397, this court in passing upon the same question involved in this action said, “Upon a consideration of sections 18, 19 and 20 of the act entitled ‘Forcible Entry and- Detainer’ we conclude that the proviso in section 18 requiring in case of appeal that the appeal shall be prayed and bond filed within five days from the rendition of the judgment applies to judgments rendered on the original trial whether in a court of record or before a justice of peace and has no application to tlie filing of the bond for an appeal to this court where the suit originated before a justice and we concur in the reasoning and conclusions reached in Davis v. Hamilton, 53 Ill. App. 94, and Ehlert v. Security and Safety Deposit Company, 72 Ill. App. 59.” This was folloAved in Berkel v. Schmitt, 244 Ill. App. 437.

Appellee relies upon Fairbank v. Streeter, 142 Ill. 226, and Chung v. Blue Island, Oil Products Co., 336 Ill. 439. In the Fairbank case the opinion states that the single question in the case is whether an appeal from a judgment of the justice of peace in forcible entry and detainer could be perfected by the filing of an appeal bond in the office of the clerk of the court to Avhich the appeal is sought to be taken, Avithofit first having the amount of the bond fixed by the court trying the case. The court Avas considering the sufficiency of the appeal from the original, trial and not in reference to an appeal taken from a court of record where the case had been tried on .appeal from a justice of peace. In the Chung case, .it does not appear that the case had been tried in the circuit court on appeal from a justice of peace. Neither of these cases is-in point:

By the provisions of sections 18 and 19, the legislature made provision for prompt action by a defendant where a judgment for possession had been entered against him and requires him to furnish security to the plaintiff for rent and damages accruing during the appeal. It is apparent from the wording of section 19 that it was intended that the appeal bond thus given should extend to the final termination of the case for the condition of the bond is to be that the defendant will pay rent and damages during the withholding and until restitution of the possession to the plaintiff. Provision is also made whereby the court in which the appeal is pending may require an additional or new bond. It is our opinion that sections 18, 19 and 20 of the Forcible Entry and Detainer Act, Cahill’s St. ch. 57, ¶¶ 19-21, refer solely to the first appeal whether taken from a judgment entered in a court of record or justice of peace and that there is no provision in the Detainer Act regulating an appeal from a court of record where the case has been tried in such court on appeal from a justice of peace. Rule 2 of the Supreme Court Rules, 355 Ill. 13, referring to statutory proceedings, referred to in section 1 and subsection 2 of section 31 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 159, which includes forcible entry and detainer actions provides that “the separate statutes shall control to the extent to which they regulate procedure in such actions but the Civil Practice Act shall apply to matters of procedure not so regulated by separate statutes.” The appeal in this case being controlled by the provisions of the Civil Practice Act and appellant having filed his notice of appeal on June 26, within 90 days of the date of the judgment appealed from, complied with that Act. The court order entered April 6 fixing the time for filing an appeal bond and the subsequent order extending the time were of no force and effect. Motion to dismiss the appeal will be denied.

The land described in this proceeding consists of a quarter section but the controversy is over a part of the quarter 80x200 feet located near the river. The evidence shows that in October, 1931, appellee received a bond for deed from the owners of the quarter and ivas given the right of possession January 1, 1932. July 6,1933, Jessie E. Fisher and her husband, Arthur E. Fisher,' the obligors in the bond, conveyed the quarter section by warranty deed to appellee.-

Appellant entered possession of the tract in controversy in 1911 without any color of title. He took an old shanty boat and erected a house around it and continued in possession of the tract Avithout any lease. In December, 1931, after the execution of bond for deed, the grantor, Arthur E. Fisher, wrote a letter to appellant apprising him of the sale of the land to appellee and said “under these conditions it is now necessary that you move your buildings and belongings from the premises or that you make arrangements with Mr. H. G. Gentle to continue occupying such portion as you now occupy. ’ ’

The evidence shows that thereafter appellant called at appellee’s house and told appellee that he had received the Fisher letter and had come over to see him about renting the land. There is a conflict in the evidence as to whether any arrangements were made in reference to the rental of the land but we are satisfied that the jury Avas warranted in finding that there was such an agreement. Appellant did not pay any rent.

On the trial appellant undertook to prove a title adverse to appellee’s by showing that he had been in open, adverse, peaceable possession for more than 20 years.

Appellant’s sole ground for reversal is that there Avas no proof of a demand for possession having been made on him before the filing of the complaint. Where a tenant repudiates the relationship of landlord and tenant and claims to be the owner in fee by adverse possession, no notice to quit or demand for possession is necessary before beginning an action of forcible entry. Herrell v. Sizeland, 81 Ill. 457.

• The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Emma L. Veach, Appellee, v. R. B. Hendricks and Eva Hendricks, Appellants.
    Opinion filed January 4, 1935.
    R. B. Hendbicks, of East St. Louis, for appellants.
    Bakeb & Lesemann, of East St. Louis, for appellee,
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee started a forcible entry and detainer action against appellants before a justice of peace of St. Clair county and on January 1, 1934, obtained a judgment for possession. Appellants appealed to the county court of said county and on July 10 a judgment for possession was entered in that court against them. July 16 appellants filed an appeal bond in the usual form in the office of the clerk of the county court and on September 16 filed in this court a transcript of all the proceedings of the lower court. Appellee enters a special appearance limited to the filing of a motion to dismiss the appeal or in the alternative to strike the same from the docket. In support of the motion, it is contended, first, that an appeal taken from a judgment entered in a forcible entry and detainer action by a court of record where the case was heard in such court on appeal from a justice of peace is controlled by the provision of the Civil Practice Act and, second, that the appellants have not complied with the provisions of the Civil Practice Act in that no notice of appeal was filed.

During the present term of this court, we have filed an opinion in the case of Gentle v. Butter, 278 Ill. App. 371, in which we hold that an appeal taken from a judgment entered in a court of record in a forcible entry and detainer action where it had been tried in such court on appeal from a justice court is controlled by the provisions of the Civil Practice Act.

Subdivision 1, section 74 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 202, provides that “Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal.” Subdivision 2 of section 76 of said Act provides an appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court. After being duly perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected shall be deemed jurisdictional. In section 82 reference is again made to notice of appeal. Buie 33 of the Supreme Court, 355 Ill. 32,- prescribes in detail the contents and form of notice of appeal and by Buie 34 reference is made to the notice of appeal as the instrument by which the appeal is perfected. In view of these statutory provisions and rules of court, it is our opinion that the filing of a notice of appeal is jurisdictional and that the proceedings of the lower court cannot be reviewed on appeal unless such notice has been filed.

The right of appeal is purely statutory and the staE ute granting such right must be strictly complied with. Hall v. First Nat. Bank, 330 Ill. 234; Davison v. Heinrich, 340 Ill. 349.

The filing of the bond in the lower court without a notice of appeal did not operate to perfect the appeal for any purpose. There is no appeal here and nothing to dismiss. Chicago, P. & S. W. R. Co. v. President & Trustees of Town of Marseilles, 104 Ill. 91. The cause will be stricken from the docket.

Cause stricken.


text:
    John H. Wedig, Appellee, v. The Kroger Grocery and Baking Company, Appellant.
    Opinion filed January 4, 1935.

      C. W. Burton, of Edwardsville, for appellant.
    M. B. Sullivan, of Granite City, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

John H. Wedig recovered a judgment against the Kroger Grocery and Baking Company, appellant herein, for injuries resulting from a certain collision. Since the rendition of the judgment and since the appeal was prosecuted in this case, John H. Wedig, appellee, died. Now come J. Harrison Wedig, Jr., and J. C. Steele, co-executors of the will of the appellee, and suggest to the court the death of the appellee, and ask the court to substitute them as appellees herein. Appellant has filed a plea setting up the death of the appellee as a ground for abatement of the action.

We are of the opinion that death of the plaintiff who has recovered a judgment for personal injuries does not abate the action. The representatives of the plaintiff are entitled to be substituted as appellees and to have the case heard on its merits. In the event that the judgment of the trial court is correct, the judgment will be affirmed. In the event that a reversal is required the suit will be restored to its original status, and will abate.

The rule followed by the overwhelming weight of authority is well stated in Buling Case Law:

“It is as obvious as it is elementary that a final judgment is the end of the litigation. . . . The cause of action then has ceased to exist, being merged in the judgment, and consequently, so long as the judgment remains in force, the doctrine of abatement has no further application, unless the case is one in which the death wholly eliminates the matter in controversy, such as a suit for divorce, which will abate on the death of either party so far as it relates to the status of the parties, except where property rights dependent thereon are involved, . . . But the death of a party after judgment has been recovered does not wholly preclude further litigation. The defendant’s right to prosecute an appeal or writ of error to review the proceedings in which the judgment was entered is not affected by the plaintiff’s death, and since the judgment is enforceable against the defendant’s estate, in the event of his death, his personal representatives have the same right of appeal. If the judgment is reversed the situation becomes the same as if there had been no judgment, i. e., the original cause of action is reinstated, with all its incidents, including liability to abate by the death of-either party; . . Vol. 1 R. C. L., p. 39, par. 35.

This doctrine is supported by the authorities irrespective of whether the original cause of action was such as would have survived to the representatives. See annotation to Lew v. Lee, 62 A. L. R. 1043, 1048, and Vol. 1 Corpus Juris, p. 169, sections 288, 289.

Some decisions of the Supreme Court of Illinois purporting to be contrary to the general current of authority are cited. In Wilcox v. International Harvester Co., 278 Ill. 465, the plaintiff died before judgment, and consequently before the cause of action was merged therein. The language of the court, pp. 471, 472, is definitely limited to death before final judgment. In Holton v. Daly, 106 Ill. 131, the plaintiff died after the judgment had been reversed, and the cause of action prosecuted by the administratrix was therefore restored to its original status. In Prouty v. City of Chicago, 250 Ill. 222, the action was originally instituted by the administrator for the benefit of the decedent’s estate, and the only cause of action existing at the time of suit was one for the benefit of the next of kin. Olson v. Scully, 296 Ill. 418, was an election contest in which the contestee died. Obviously, there could be no recourse against the contestee’s representatives, People v. Western Life Indemnity Co., 261 Ill. 513, was a mandamus proceeding on behalf of one McPherson to compel the insurance company to keep a policy in force so long as the relator should pay the premiums. The court held that the action of mandamus was such a peculiarly personal action that it must abate. Here, as in the case of Olson v. Scully, supra, to grant the remedy would have been futile. To compel the company to accept the premiums would be a mere incident to the restoration of the policy. If the widow had any rights, they were fixed at the death of the insured, and the widow could recover in an appropriate action on the policy.

There is, however, language in the case of People v. Western Life Indemnity Co., supra, which is perhaps misleading in this connection. On page 514 the court says: “The common law rule was that the death of a party at any stage of the proceedings abated the action. A distinction, however, was made between an appeal and a writ of error, as an appeal divested the judgment of its legal effect, and the rule was, that in such case, if the action was one that did not survive, the whole action would abate before final judgment in the appellate tribunal. (5 Ency. of Pl. and Pr. 786, 793, 794; 1 Comyn’s Digest, 71-73; Green v. Watkins, 6 Wheat. 260.)”

The distinction is carried further in 5 Ency. of PI. and Pr. 800, between appeals and appeals in the nature of a writ of error, the latter being appeals which merely suspend the operation of the judgment and do not annul it. It would be a violent shock to the profession and a disturbance to well settled property law if a court were to hold in Illinois today that the effect of an appeal is to divest a judgment of its legal effect and to destroy the lien of the judgment. See People v. Grace, 237 Ill. 265, 270; Brown v. Schintz, 203 Ill. 136; Moore v. Williams, 132 Ill. 591; Oakes v. Williams, 107 Ill. 154; Curtis v. Root, 28 Ill. 367. The court in the Western Life Indemnity Co. case was fully cognizaiit of the effect of an appeal on a judgment and did not intend there to state that the common law rule there noted was the rule in Illinois in modern times.

On principle the matter is clear. The cause of action is merged in the judgment for damages. The statutes of abatement and survival of causes of action have no application to the matter.

The motion to strike the plea in abatement is therefore allowed, and leave is hereby given to J. Harrison Wedig, Jr., and J. C. Steele, as executors of the last Avill and testament of John H. Wedig, deceased, to continue this cause in their names as appellees.

Motion alloived.


text:
    M. Carter and Flossie Carter, Appellants, v. Herrin Loan and Improvement Association and Mae C. Smith, Appellees.
    Opinion filed January 4, 1935.
    D. F. Moore, of Benton, for appellants.
    T. B. F. Smith, of Carbondale, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a petition by appellants for leave to file notice of appeal from a decree of the circuit court of Williamson county dismissing appellants’ bill to redeem and for injunction for want of equity. The decision of the trial court was rendered on May 4, 1934. At that time the Civil Practice Act governing the procedure on appeal was in force. An appeal was prayed according to the procedure under the Practice Act of 1907. Said appeal was granted upon appellants filing their bond in the sum of $500 within 30 days from said date. The appeal bond was filed and approved within that time. It appears that all necessary steps were taken to perfect the appeal according to the old Act.

With the coming of the Civil Practice Act the old system of perfecting appeals passed on. Under the Act in effect at the time the decree in this case- was rendered the only way to perfect an appeal was by filing a notice of appeal within 90 days from the rendition of the judgment or decree to be reviewed. A copy of the notice of appeal must be served upon the appellee within five days of its filing, but not later than 90 days after the entry of the judgment or decree. Section 76 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 204, provides in part as follows: “No appeal shall be taken to the Supreme or Appellate Court after the expiration of 90 days from the entry of the order, decree, judgment or other determination complained of.” Rule 1 of our Supreme Court provides as follows: “All provisions of the Civil Practice Act with respect to review in civil proceedings by the Supreme or Appellate Courts shall apply 'to orders, determinations, decisions, judgments or decrees entered by trial courts on or after January 1, 1934.” Appellants did not follow the statute which the above rule prescribes as necessary. We are aware of some confusion in regard to the application in the beginning of this new procedure in reference to the perfecting of appeals. We would be inclined to take this into consideration were it not that the one part of the statute which makes provision for just such errors as occurred in this case has also been ignored. Section 76 further provides: “But notice of appeal may be filed after the expiration of said 90 days, and within the period of one year, by order of the reviewing court, upon motion and notice to adverse parties, and upon a showing by affidavit that there is merit in appellant’s claim for an appeal and that the delay was not due to appellant’s culpable negligence.”

Appellants have not complied with this part of the statute. They have therefore disregarded the rules of the Supreme Court, the statute which gives specific directions as to how to proceed in cases of appeal, and the further section of the statute which directs what to do in case of mistake in the first instance. Appellants have not put themselves in a position to deserve the. consideration of the court on their petition for leave to file notice of appeal, even if the court now had power to allow it.

The petition for leave to file notice of appeal is denied.

Petition denied.


author: Mr. Presiding Justice Wolfe

text:
    George Barthelman, Appellee, v. William Braun, Appellant.
    Gen. No. 8,829.

      Opinion filed January 10, 1935.
    Miller & Shapiro, of Kankakee, for appellant; Lester E. Williams, of Chicago, of counsel.
    Frank J. & James T. Burns and Streeter & Blanks, all of Kankakee, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiff, George Barthelman, brought suit in the circuit court of Kankakee county against the defendant William Braun to recover damages for personal injuries to himself and damages to his automobile, caused, as he claims, by the negligence of the defendant. The first seven counts of plaintiff’s declaration charge negligence in different phraseology. To this declaration the defendant filed a plea of “not guilty, ’ ’ non-ownership, and non-operation of the automobile in question. The eighth, a wilful and wanton count in the declaration, was withdrawn by the court from the consideration of the jury at the close of the plaintiff’s case. During the trial the defendant admitted the ownership and operation of the automobile by the defendant. The jury found the issues for the defendant. The plaintiff entered a motion for a new trial, which was sustained and the plaintiff was granted a new trial. The defendant was granted leave by this Appellate Court to appeal from the order of the trial court granting the plaintiff a new trial. The case is now before this court on that appeal.

On June 16,1931, the defendant was driving his automobile in a westerly direction on the State Highway, No. 17, in the county of Kankakee. The plaintiff was operating his automobile along said highway in the same direction. The defendant was operating his car at an approximate rate of 35 miles per hour. The highway on which the parties were driving was an ordinary 18-foot concrete pavement with a black line down the center of the paved portion of the road. The defendant, when near the residence of what is commonly called the Noffke farm, approximately 10 miles west of Kankakee, observed a man walking in a westerly direction on the right-hand side of the road. The defendant sounded his horn several times in order to get the pedestrian to step off of the concrete so that he could keep on in a westerly direction without driving his car over on the south side of the black line in the center of the road. As the defendant approached the man on the road and within 100 feet of him, he again sounded his horn. The pedestrian turned around and looked at him but did not get off of the concrete slab. The defendant slowed his car down to approximately 20 miles an hour, and without warning or signal of any kind, he drove the left wheels of his car south a foot and a half or two feet from the black line in the center of the road. "While his car was in this position the plaintiff approached from the east and attempted to pass the car of the defendant and struck the car of the defendant. The plaintiff’s car ran off the pavement a short distance on the south side of the road and then back onto the pavement in front of the defendant’s car and crossed the road and turned over, damaging the car and injuring the plaintiff. The facts as above stated are not contradicted.

Sometime after this accident the defendant signed a statement telling how the accident occurred. This statement was introduced in evidence as plaintiff’s Exhibit No. 1, and is as follows: “On Saturday, June 6th, at about 4:30 P. M., as I was driving west on route No. 17, at a speed of approximately 30 miles per hour, I was forced to turn out suddenly on the wrong side of the road, due to the fact that a man was walking away from my car and refused to get off the road. Bather than hit him, I swayed suddenly to my left, as I did so, I hit a car that was traveling in the same direction I was at approximately a speed of 35 miles an hour. He blew his horn, but I could do nothing" as the man going west refused to move. As a result I caused the driver of the Ford car, who was passing me, to run into a ditch, wrecking his car and injuring several occupants of the same car. I was to blame solely for this as it was unavoidable. Hope this report will prove satisfactory and I am sorry it happened.

“William Braun.”

It will be observed that the defendant made two changes in the writing as shown by the statement in the appellant’s brief. In the statement of facts appelIant says: “Defendant did not signal that he ivas going to turn out to the left.”

So far as this appeal is concerned there is no complaint that the court erred in admitting improper evidence, or that he refused to admit proper evidence; or that the instructions given by the court to the jury were improper. A question of fact is presented, namely: “Whether the evidence was sufficient to sustain a verdict for the defendant and whether the court abused his discretion in granting the plaintiff a new trial.” We do not deem it necessary to set out the testimony in full in a case of this kind, but state we have carefully read it. The trial court is given discretion in passing upon a motion for a new trial and it is his duty to carefully weigh the evidence, and if it is his judgment that the verdict of the jury is not in accord with the weight of the evidence, he should grant a new trial. The trial court is generally in a better position to pass on the Aveight of the evidence than the Appellate Court, because he has the opportunity to hear and see the witnesses and observe their conduct and. demeanor while on the witness stand. Bollin v. Galesburg Horse & Mule Co., 276 Ill. App. 256.

In this case we are of the opinion that it is shown by a preponderance of the evidence that the defendant was negligent in the operation of his car at the time of the accident, and that the negligence of the defendant was the proximate cause of the injury to the plaintiff. The trial court did not abuse his discretion in granting the plaintiff a new trial. The order of the circuit court of Kankakee county in granting a new trial to the plaintiff is hereby affirmed and the case is hereby remanded to said court for a new trial.

Affirmed and remanded.


text:
    Josephine Francis, Appellee, v. Wayne Galbreath, Appellant.
    Gen. No. 8,839.
    Opinion filed January 10, 1935.
    Charles E. Lauder and Frederick H. Lauder, both of Monmouth, for appellant.
    Safford, Soule & Kritzer, of Monmouth, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiff, Josephine Francis, started suit in the circuit court of Warren county, in which she asks for an injunction to restrain Wayne Galbreath, commissioner of highways of the township of Ellison, Warren county, Illinois, from excavating a ditch or ditches across the public highway adjoining her property, from constructing culverts across the highway, and from excavating any ditch or ditches for the purpose of culverts across said highway. The verified petition was filed April 25, 1934. The court issued a temporary injunction restraining the said commissioner, the appellant here, from excavating any ditches across said highway and restraining him from putting in any culverts in said ditches. The court also issued a mandatory injunction to close said culvert and ditch, so as to prevent any water from flowing through the same until a hearing could be had upon the petition. Subsequently the petition was amended.- On July 6, 1934, the defendant filed an answer and made a motion to dissolve the temporary injunction. The case was heard before the court on the bill of complaint as amended, the amended answer, replication affidavits and the oral testimony of Theodore Bonderer, a civil engineer and surveyor, who is also county superintendent of roads for Warren county. At the conclusion of the hearing the court overruled the motion to dissolve the injunction but modified it by striking out the mandatory part of the temporary, order.

The pertinent part of-the bill as amended charges: ‘ ‘ That waters are discharged on the land of Appellee in a manner contrary to a state of nature; that irreparable injury will.be done to Appellee.” The specific things which constituted the irreparable injury are alleged in the following manner: “The undersigned further represents that the said Wayne. Galbreath, Commissioner as aforesaid, and his agents, in order to carry the surface waters from the west side of said highway across said highway and thence North along the East side thereof, have dug ditches and thrown up a levee of earth along the east -side of said highway or have caused and permitted ditches to be dug and a levee of earth to be erected along the East side of said highway and they are maintaining and causing or permitting said ditches and levee of earth to remain across and change and obstruct said natural water course, all of which diverts said waters at said point from its natural water course and causes said surface waters to be discharged upon the lands of plaintiff in a manner contrary to nature' and to the irreparable injury of plaintiff; that the embankment or levee erected by the Commissioner changes and obstructs a natural water course; that the embankment levee and ditch all divert said waters at said point from its natural water course.”

The appellant contends that the plaintiff was not entitled to the relief granted because the bill was amended after the preliminary injunction was ordered and if the bill as presented when the injunction order was signed was not sufficient to support the injunction order on motion the injunction should be dissolved. The same question was presented to our Supreme Court in the case of Court Rose No. 12 Foresters of America v. Corna, 279 Ill. 605, in which the Supreme Court in discussing the matters used this language: ‘ ‘ The amended and supplemental bill and amendments thereto did not change the object of the suit but did nothing more than to elaborate the facts upon which the same relief was asked. Where there is a change in the purpose of .a suit and in the relief prayed for, an amendment to a bill may render a temporary injunction ineffective, but whenever, pending an injunction, an amendment is allowed which merely sets out in detail the facts, with no change in the character of the case, the injunction is not affected. Moreover, that question was considered on the appeal to the Appellate Court from the order denying the motion to dissolve the injunction, and by the statute the decision of the Appellate Court was final.”

It is also contended by the appellant.that the plaintiff has failed to prove that the proposed work of the highway commissioner would damage her property. It is the appellee’s contention that the proposed levee on the east side of the road along her land will prevent water which would naturally flow through her property from going upon it the same way that it usually flows if it were not for the levee which was being erected on the east side of the road next to her property. She also claims that she is entitled to have this water come upon her premises as in a natural flow, and that it would be an injury to her land if it is diverted from its natural water course. Mr. T. J. Bonderer, the county superintendent of highways of Warren county, in his testimony said: “When water reaches the level at the north end top of outlet, water spreads eastward into such territory as is low, that is, part of the Francis ’ land and J ones ’ land, and if a levee was not there and the ditch, the water would flow over the Jones’ and Francis’ land.” And later in the testimony the court asks this question: “I take it that there is no donbt on this project as it has been built, it changes the natural course of the water, takes it to the side of the road instead of coming across this land.” To which witness replied, “I think the installation of the two culverts has not changed the natural course, but the construction of a levee has.” From the testimony of this witness it is clear that the proposed work on this road is, or will change the natural flow of the water upon the Francis’ land.

Complaint is also made that the court erred in not. dissolving the temporary injunction for the reason that the appellee had failed to show any substantial damages by reason of the ditch and levee being in front of her premises. In the case of Winhold v. Finch, 286 Ill. 614, on page 619, it is said: “It is true that to justify relief by injunction an actual and substantial' injury must be shown, as was held in Girard v. Lehigh Stone Co., 280 Ill. 479, and Dunn v. Youmans, 224 id. 34, but this does not mean that the injury must necessarily be great in the pecuniary loss involved or impossible of compensation in damages. When an owner of property is about to be deprived of a legal right in connection with it by the wrongful act of another for which there is no legal redress the act may be restrained by injunction, 'or, if it has already been executed, may be required to be undone, if this is practicable. The irreparable injury necessary to give a court of equity jurisdiction in such a case is not one so great as to be impossible of compensation but one of such a character that the law cannot give adequate compensation for it. ‘The fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages, only, often furnishes the very best reason why a court of equity should interfere in a case where a nuisance is a continuous one.’ (Elliot on Roads and Streets, 497; Newell v. Sa.ss, 142 Ill. 104.) Where an injury is of such constant and frequent occurrence that no fair or reasonable redress can be had for it in a court of law it may be enjoined. Chicago General Railway Co. v. Chicago, Burlington and Quincy R. R. Co., 181 Ill. 605.”

It is our opinion that the appellee made a prima facie case and that the showing made by the appellant was insufficient to justify the court in dissolving the temporary injunction. The order appealed from should be, and is, hereby affirmed.

Affirmed.


text:
    James A. Pattison, Appellant, v. The Illinois Bankers Life Association and Illinois Bankers Life Assurance Company, Appellees.
    Gen. No. 8,851.
    Opinion filed January 10, 1935.
    Hanley & Byan, of Monmouth, for appellant.
    Hugh T. Martin and Bardens & Melburg, of Monmouth, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellant, plaintiff in the lower court, started suit against the appellees, defendants helow, upon a policy of insurance issued by the defendant, the Illinois Bankers Life Association, to the plaintiff on the 8th day of August, 1913. . The suit was brought to recover from the defendants the sum of $200 alleged to be due the plaintiff on a policy of insurance by virtue of a provision in the same which provided that when the assured became 70 years of age total disability was admitted to exist. No other provisions of the policy are sued upon and no other provisions in reference to the policy are at issue in this suit. To the plaintiff’s declaration the defendant filed its answer and admits the issuance of the policy but denies liability on the same for the reason that the provision of the policy sued upon is ultra vires and void. The case was tried before the court without a jury upon an agreed stipulation of facts. The stipulation is as follows:

1. The Illinois Bankers Life Association is a corporation organized under the laws of Illinois under the Act entitled, “An Act to incorporate companies to do the business of life or accident insurance on the assessment plan,” etc., approved June 22,1893, and in force July 1, 1893, Cahill’s St. ch. 73, ¶ 405 et seq., and certificate of incorporation was issued by the Secretary of the State of Illinois, November 3, 1897.

2. No provision of the by-laws of the Illinois Bankers Life Association are material to the issues in this case.

. 3. That August 8, 1913, plaintiff became a member of the Illinois Bankers Life Association and such association executed and delivered to him on that date certificate numbered 33,308.

4. Plaintiff has paid all assessments levied under said certificate as they became due, but no assessment or increase of rate of assessments has been levied on account of, or collected for the payment of benefits under the provision of said policy providing, “Upon the assured attaining the age of seventy years total physical disability shall be deemed to exist and on such anniversary of the issuance of the policy thereafter 10 per cent of the face of this policy shall be paid to assured as such age total physical disability benefit until such policy shall be fully paid to said assured. The policy being reduced by each of said payments.”

5. That plaintiff became 70 years of age January 2f>, 1932, and made' written demand upon the Illinois Bankers Life Assurance Company for payment of 10 per cent of the face of said policy, under the above mentioned clause.

6. That plaintiff was not at the time of the filing of the complaint totally physically disabled and is not making any claim under the provision of the policy, which provides, “if the assured be permanently and totally disabled the result of accident or disease, one-half of this policy shall be paid on due proof thereof, and the remainder shall be paid at death.” That-plaintiff’s sole claim at this time under said policy is made under the provision thereof as follows: “Upon the assured attaining the age of 70 years total physical disability shall be deemed to exist, and on each anniversary of the issuance of this policy thereafter- 10 per cent of the face of the policy shall be paid to assured as such age total physical disability benefits until such policy shall be fully paid to said assured.”

7. That the defendant, Illinois Bankers Life Assurance Company, is a corporation organized under the laws of Illinois, entitled: “An Act to organize and regulate the business of life insurance,” approved March 26, 1869, in force July 1, 1869, Cahill’s St. ch. 73, ¶ 315 et seq.

8. That by contract of reinsurance dated November 19, 1929, the Illinois Bankers Life Association transferred to the Illinois Bankers Life Assurance Company its assets as trust funds for the benefit of the members of the Illinois Bankers Life Association, and the Illinois Bankers Life Assurance Company assumed the liabilities of the defendant, the Illinois Bankers Life Association, which liabilities are payable out of said trust fund held by it for the benefit of the members of the association.

9. That under the contract of the reinsurance each member of said association had the right to have his certificate or policy converted into any form of policy issued by the.Illinois Bankers Life Assurance Company for that purpose upon proper adjustment of premiums and reserve, and that said policy or certificate was in no way altered or affected by said contract of reinsurance.

10. That the defendant, Illinois Bankers Life Assurance Company, reserved the right to any and all defenses to claims presented by members or by beneficiaries of members of the defendant, the Illinois Bankers Life Association, that said association would have been entitled to interpose except for such contract of reinsurance.

11. That said contract of reinsurance is now in full force and effect and was duly approved by the director of trade and commerce of Illinois.

12. That both defendants herein declined to make any payment under said policy to the plaintiff on his said claim and have advised the plaintiff that no payments are due thereunder. That such payment was declined by the Illinois Bankers Life Assurance Company, the company being advised by the director of insurance of the State of Illinois that in the opinion of the Attorney General of,the State of Illinois, the Illinois Bankers Life Association had no legal power to. insert a clause providing “disability deemed to exist at age. seventy,” and providing for payments under such a provision.

The court found the issues in favor of the defendant and that the clause in the policy providing “disability deemed to exist at the age of seventy” is ultra vires and void, and dismissed the suit at plaintiff’s cost. The plaintiff brings the suit to this court for review.

The only point relied upon for reversal is: The court erred in holding the clause of the policy is ultra vires and contends even though considered ultra vires the defendant is estopped from pleading the same as a defense to the claim of the plaintiff.

The question to be decided is: “Did the defendant, the Illinois Bankers Life Association, have power to contract to pay a living member a fixed cash payment upon attaining the age of 70 years?”

The defendant association which issued the certificate involved in this suit was organized under the Assessment Act of 1893 and was so organized and existing at the time of issuing the certificate in question. Section 8 of said Act is as follows: “Every such life insurance corporation shall accumulate and maintain a reserve or emergency fund equal to such sum as might be realized from one assessment on, or periodical payment by policy or certificate holders thereof, and in no event less than the amount of its maximum policy or certificate. Such fund, if. not already accumulated, shall be accumulated by every such existing corporation, within six months from the time this Act takes effect, and by every corporation hereafter formed under this Act, within six months from the date of its incorporation, and shall be held for the purposes for which said fund was created or accumulated. In case such fund or any portion thereof shall have been used by the corporation for the purpose or purposes for which the same was created or accumulated and the amount thereof thereby reduced to less than the amount of one death assessment or periodical payment, the amount of such reduction below the amount of one death assessment or periodical payment shall be made up and restored to said fund within six months thereafter. Such fund may be held in cash or invested in the same class of securities required by law for the investment of funds by insurance corporations; and nothing herein contained shall prevent the creation and accumulation of other funds in excess of the amount herein required to provide for the purposes of such corporation. If such fund is in excess of the amount of one death assessment or periodical payment upon all certificates or policy holders and not less than the sum of one hundred thousand dollars, the excess or any portion thereof may be used in the reduction of assessment or periodical payments by policy or certificate holders by ratable cash dividends or credits', or in such other equitable division or apportionment thereof as its rules or contracts may provide, and such use shall not be deémed or construed to mean a profit received by members within the meaning of the statutes of this State, or the pro rata excess on any policy or certificate terminated by death or surrender may be refunded to the holder or beneficiary, as may be provided for in said policy or contract: Provided, that nothing contained in this Act shall be construed to permit any contract promising any fixed cash payment to any living certificate or policy holder, excepting in the contingency of total physical disability.” Cahill’s St. ch. 73, ¶ 412.

This insurance company was created by the statutes of Illinois and its powers were limited to those given it by the act under which it is organized. In the case of Rockhold v. Canton Masonic Mut. Benevolent Society, 129 Ill. 440, a very similar case, the same questions were involved as in this case. The Canton Masonic Mutual Benevolent Society was organized under the general laws of the State of Illinois for the purpose of giving' financial aid and benefit to widows, orphans, heirs and devisees of the deceased members. That association issued to Rockhold a certificate providing that on becoming 70 years of age, or after he-had been a member in good standing for 25 consecutive years he would be paid a certain sum. Rockhold made all payments on this certificate as required and upon attaining the age of 70 years he served notice on the company demanding the amount alleged to be due him under the terms of the certificate. The defendant corporation had previously paid or given financial aid and benefits to the widows, orphans, heirs and devisees of deceased members. The court in the opinion states as follows: “The only difference between a corporation organized under the general law and one created by special statute is, that in the former we look to the certificate of the promoters, while in the latter to the special statute to ascertain the scope of the powers of the corporation. The rule for construing the instruments must necessarily be the same, namely, the powers specifically enumerated, and such others as are incidental or necessary to carry those powers into effect, but none others, may be exercised by the corporation.” Alexander v. Bankers Union of Chicago, 187 Ill. App. 469; Alton Mfg. Co. v. Garrett Biblical Institute, 243 Ill. 298; McCartney v. Supreme Tent Knights of Maccabees of the World, 132 Ill. App. 15.

From an examination of the statute under which this company was organized we are of the opinion that they had no authority to issue the policy in question. The appellants insist, though the court hold the issuing of this policy is ultra vires, the defendant was estopped from raising that as a defense because they had accepted payments of the premiums from the plaintiff and he had relied upon the provisions of his policy as being valid. No doubt in many cases a corporation would be estopped from denying the ultra vires acts of their directors or agents. The Supreme Court in the case of National Home Bldg. & Loan Ass’n v. Home Sav. Bank, reported in 181 Ill. 35, at page 43, gives an enlightening discussion of what acts are ultra vires, and when a corporation is estopped to deny such acts. In the opinion the court' says: “It is also argued that the building and loan-association is estopped to raise the question whether the contract was ultra vires because it has received the benefit of the contract by the conveyance of the property to it. That depends, as we think, upon the sense in which the term ultra vires is used. It has been applied indiscriminately to different states of fact in-such a way as to cause considerable confusion. When used as applicable to some conditions, it has been frequently said that a corporation is estopped to make such a defense where it has received the benefit of the contract. For example, the term has been applied to acts of directors or officers which are outside and beyond the scope of their authority, and therefore are invasions of the rights of stockholders, but which are within the powers of the corporation.' In such a case the act may become binding by ratification, consent and acquiescence, or by the corporation receiving the benefit of the contract. Again, it has been applied to cases where an act was within the authority of the corporation for some purposes or under some circumstances, and where one dealing in good faith with the corporation had a right to assume the existence of the'conditions which would authorize the act. Where an act is not ultra vires for want of power in the corporation but for want of power in the agent or officer, or because of the disregard of formalities which the law requires to be observed, or is an improper use of one of the enumerated powers, it may be valid as to third persons. In the more proper and legitimate use of the term it applies only to acts which are beyond the purpose of the corporation, which could not be sanctioned by the stockholders. There would, of course, be no power to confirm or ratify a contract of that kind, because the power to enter into it is absolutely wanting. If there is no power to make the contract there can be no power to ratify it, and it would seem clear that the opposite party could not take away the incapacity and give the contract vitality by doing something under it. It would be contradictory to say that a contract is void for an absolute want of power to make it and yet it may beconie legal and valid as a contract, by way of estoppel, through some other act of the party under such incapacity, or some act of the other party chargeable by law with notice of the want of power.”

The powers delegated by the State to the corporation are matters of public law, of which no one can plead ignorance. A party dealing with a corporation having limited and delegated powers conferred by law is chargeable with notice of them and their limitations, and cannot plead ignorance in avoidance of the defense of ultra vires. To the same effect is Best Brewing Co. v. Klassen, 185 Ill. 37; Alton Mfg. Co. v. Garrett Biblical Institute, 243 Ill. 298.

It is our opinion that the provision of the policy sued upon is one that the insurance company had no authority to make. The defendant should not be es-topped from raising the defense of ultra vires.

The judgment of the circuit court of Warren county is hereby affirmed.

Judgment affirmed.