author: Mr. Presiding Justice Dove

text:
    L. B. Motors, Inc. et al. (Massachusetts Bonding and Insurance Company), Appellant, v. R. H. Prichard, Appellee.
    Gen. No. 9,472.
    Heard in this court at the October term, 1939.
    Opinion filed January 25, 1940.

      E. L. Keating, of Chicago, and James Herrington Scott, of Geneva, for appellant; James Herrington Scott, of counsel.
    George Spitz, of De Kalb, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

It appears from the stipulation of the parties and the evidence in this record that the plaintiff L. B. Motors, Inc. is a corporation engaged in the business of buying, selling, exchanging and servicing automobiles having its place of business in Chicago. Charles R. Hunt is a retail dealer in new and used automobiles in Plano, Illinois and does business under the name of Kendall Motor Sales. On February 2, 1937, Hunt purchased from the plaintiff a used 1935 Ford Sedan for $420 and in payment therefor delivered his note to the plaintiff for that sum due March 2,1937 and the parties executed a conditional sales contract. On April 20, 1937 Emma Weiss entered into an agreement with Hunt at his place of business in Plano, whereby she obtained from Hunt this Ford Sedan and in return therefor delivered to Hunt her used automobile and executed and delivered to him her promissory note for $459, payable in monthly instalments of $25.50, beginning May 20, 1937. These parties also executed a conditional sales contract covering this automobile. On the same day, in consideration of $360, Hunt sold and assigned this note and conditional sales contract to R. H. Prichard, doing business as Local Finance Service. Thereafter, Emma Weiss having defaulted in malting her payments, Prichard took possession of the car under the provisions of this sales contract. The conditional sales contract executed by Hunt and held by the plaintiff was in default and thereafter it demanded possession of the car from Prichard. Its demand being refused, this replevin suit was instituted by L. B. Motors, Inc. against Prichard and the automobile was delivered to the plaintiff.

The cause originated before a justice of the peace and upon appeal to the circuit court a jury was waived and a trial had before the court resulting in a finding for the defendant and judgment directing the plaintiff to return the replevied automobile to the defendant and that the defendant recover of the plaintiff $180 for damages for the wrongful detention of said automobile by the plaintiff. From this judgment an appeal has been perfected to this court.

The Motor Vehicle Law requires every owner of a motor vehicle within 24 hours after he becomes the owner thereof to file in the office of the Secretary of State an application for a certificate of registration and upon the payment of the required fee, the Secretary of State is required to assign a number and issue to such owner a certificate of registration. The same act provides that upon the sale of a motor vehicle by a dealer he shall give the purchaser a bill of sale and another section of the same act requires the vendor of a registered motor vehicle other than a dealer or manufacturer to send a statement thereof to the Secretary of State (Ill. Rev. Stat. 1937, ch. 95½, ¶¶ 8, 18, 21 [Jones Ill. Stats. Ann. 85.008, 85.018, 85.021]), being sections 8,17 and 19 of said Motor Vehicle Law. The Uniform Motor Vehicle Anti-Theft Act provides, among other things, that the Secretary of State shall not register or renew the registration of any motor vehicle unless the owner thereof shall make application for and be granted an official certificate of title for such vehicle and prohibits the owner from operating or permitting the operation of any such motor vehicle upon any highway without first obtaining a certificate of title therefor and prohibits the owner from selling or transferring his title or interest in any motor vehicle unless he has obtained a certificate of title and makes it the duty of the owner who sells or transfers his interest in a motor vehicle to indorse an assignment and warranty of title upon the certificate of title and deliver the certificate so indorsed to the purchaser at the time of delivering the motor vehicle. Ill. Rev. Stat. 1937, ch. 95½, ¶¶ 76 and 80 [Jones Ill. Stats. Ann. 85.077, 85.081], being sections 3 and 7 of the Uniform Motor Vehicle Anti-Theft Act.

Counsel for appellant contend that Emma Weiss and appellee are charged with knowledge of the requirements of these statutory provisions and that since their enactment purchasers of automobiles need not and cannot depend upon or rely upon possession of an automobile as evidence of ownership thereof and upon statements or representations of the title made by the seller, that the purpose of the legislature in enacting these laws was to prevent the sales of motor vehicles to innocent persons by one having no title thereto and that when Emma Weiss purchased this car from Hunt, appellant had the certificate of title therefor, having received it from the former owner, Maury Sherman. It is the contention of appellee that when appellant sold and delivered the automobile here in question to Hunt, knowing that he was a used car dealer, he clothed him with apparent ownership sufficient to pass title to Emma Weiss, who was a purchaser for value without notice, that appellee having purchased the Weiss note and conditional sales contract without notice of any right or title that appellant might assert, was lawfully in possession of said automobile after Emma Weiss had defaulted and that while the provisions of the Motor Vehicle Law and the Uniform Motor Vehicle Anti-Theft Act provide penalties for their violation, there is nothing contained therein which would preclude him from recovering under the undisputed facts as disclosed by this record.

From the stipulation of the parties it appears that appellant sold this car to Hunt knowing Hunt was a dealer in used automobiles and that Hunt purchased it not to use but for resale. The note which Hunt executed for the purchase price became due March 2,1937. The conditional sales contract executed by the parties provided that the title of the automobile should not pass and that the car should remain the property of the appellant until the note was paid in full. Seven weeks after the note became due Emma Weiss, without knowledge of the fact that appellant ever owned the car, purchased this car for a valuable consideration from Hunt. If this was a contest between appellant and Emma Weiss the authorities are clear that appellant would be estopped from setting up its title. Illinois Bond & Investment Co. v. Gardner, 249 Ill. App. 337. If property is delivered by a manufacturer or wholesale dealer to a retail dealer for the apparent purpose of resale, a condition that title shall remain in the seller until the price is paid, is ineffectual as against a bona fide purchaser from the retailer. 24 R C. L. 458.

Counsel for appellant argue that since this was a second-hand car which Emma Weiss purchased and since she did not see the certificate of title or procure one from Hunt when she executed the note and conditional sales agreement, she cannot be held to be an innocent purchaser for value, as these facts were sufficient to put her on notice that Hunt may not have been the unconditional owner of said car. We do not think so. While it is true this was a second-hand car and at the time of the transaction between Emma Weiss and Hunt, Emma Weiss did not see the certificate of title, she did obtain actual possession of the car and used it for months and it was not until October 20, 1937 that appellee knew appellant had or claimed any title to or interest therein. It was on that day, long after Emma Weiss had defaulted and after appellee had taken possession of the car that appellant notified appellee that it held a certificate of title to the automobile and demanded of appellee either $420 and interest or the automobile.

Section 23 of the Uniform Sales Act (Ill. Rev. Stat. 1939, ch. 121½ [Jones Ill. Stats. Ann. 121.27]) provides: “Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.” The Motor Vehicle Law and the Uniform Motor Vehicle Anti-Theft Act both provide penalties for those persons who do not comply with the provisions thereof. These acts, in our opinion, were not intended as recording statutes and do not in any way alter, modify or change the effect of the provisions of the Uniform Sales Act as construed by our courts and have no application to the facts disclosed by this record. Mason v. Shelton, 292 Ill. App. 640, 11 N. E. (2d) 224 (Abst.); People v. Billardello, 319 Ill. 124. And the object of the legislature in enacting these acts was to protect the public from thefts of automobiles, from the evils arising from the unregulated use, sale and transfer of motor vehicles and from the crime committed by their use.

Counsel for appellant assert that no complaint is made as to the amount of damages assessed by the court for the wrongful detention of the automobile but make the rather novel claim that it was the duty of appellee to have given a forthcoming bond (Ill. Rev. Stat. 1939, ch. 119, ¶ 14 [Jones Ill. Stats. Ann. 109.512]) and retained the automobile pending the final judgment of the court in the replevin suit. Counsel argue that had appellee done so it could have procured the return of the car and would not have been deprived of its use during the period the suit was pending and undisposed of and therefore it would have sustained no damage by the wrongful suing out of the writ of re-plevin. Our statute provides that before a writ of replevin issues, the plaintiff is required to give a sufficient bond conditioned for the payment of all costs and damages occasioned by the wrongful suing out of the writ of replevin. It further permits a defendant in a replevin suit to have the replevied property returned to him by the officer before it is actually delivered to the plaintiff. This provision simply grants to the defendant the option, in lieu of permitting the property to be delivered to the plaintiff, of executing a bond in double the value of the property and conditioned as required by the statute and thereby have the replevied property forthwith returned to him. 23 E. C. L. 895. There is no merit in this contention of appellant and in our opinion the judgment appealed from is the only one warranted by the facts as they appear in this record. The "judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William L. O’Connell (Now Charles H. Albers), Receiver of the State Bank of Orangeville, Appellant, v. John Babler et al., Appellees.
    Gen. No. 9,503.
    Heard in this court at the October term, 1939.
    Opinion filed January 25, 1940.

      Nack & Nack, of Galena, and Dixon, Devine, Bracken & Dixon, of Dixon, for appellant; Louis A. Nack and J. C. Ryan, of Dixon, of counsel.
    David M. Burrell and Ascher & Ellis, both of Freeport, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On May 7,1936, this complaint was filed in the circuit court of Stephenson county and as subsequently amended alleged among other things that the plaintiff is the receiver of the State Bank of Orangeville and as such receiver a creditor of the Orangeville State Bank and that he brings this suit in his own behalf and' on behalf of all other creditors of the Orangeville State Bank who may choose to join. The complaint as amended then alleged that in December, 1924, the Peoples State Bank of Orangeville and the Orangeville State Bank were qualified banking corporations doing a general banking business in Orangeville. That in January, 1925, the stockholders of the Orangeville State Bank at a legally called special stockholders’ meeting passed resolutions providing for the liquidation of the Orangeville State Bank in the manner permitted by the State banking department and the organization of a new bank to assume the liabilities of the Orangeville State Bank provided the Peoples State Bank would pass similar resolutions. That at this meeting committees were appointed and directors of the Orangeville State Bank were authorized to do all things necessary to liquidate the Orangeville State Bank and to bring about the consolidation of the Orangeville State Bank with the new bank to be formed. That thereafter the stockholders of the Peoples State Bank passed a similar resolution. That thereafter the directors of the Orangeville State Bank by resolution duly passed authorized its cashier to borrow money by and on behalf of the Orangeville State Bank from the new bank to be formed and indorse and deliver to said new bank all its bills and notes receivable, said new bank to assume all the liabilities of the Orangeville State Bank. That thereafter the State Bank of Orangeville was duly organized and commenced business. That all the acts and doings of the stockholders and directors of the Orangeville State Bank in connection with the passing* of these resolutions and the consolidation of the Orangeville State Bank with the State Bank of Orangeville were duly authorized and confirmed in writing by the auditor of public accounts of this State. That on July 25, 1925,-the Peoples State Bank transferred all its bills receivable and notes receivable to the State Bank of Orange-ville, which assumed the payment of all bills payable and deposit liability of the Peoples State Bank. That on or about July 1, 1925, the Orangeville State Bank transferred to the State Bank of Orangeville its bills receivable together with $168,426.20 cash and its note for $27,077.80, being the difference between the total amount of its bills receivable and cash and its deposit liability and bills payable liability which the State Bank of Orangeville had assumed. That among the notes receivable transferred by the Orangeville State Bank to the new bank were notes aggregating $136,-689.57 indorsed with recourse by the Orangeville State Bank. That E. M. Reeser was the cashier of the Orangeville State Bank and became the cashier of the new bank. That the Orangeville State Bank retained various assets consisting of bills receivable, notes and real estate and by and with the consent of the directors and stockholders of the Orangeville State Bank the said E. M. Reeser proceeded to liquidate the remaining assets of the Orangeville State Bank and apply the sum so collected in liquidation of its liability on its note of $27,077.80. That said note had been reduced to the sum of $7,100 at the time this proceeding was instituted. That the stockholders and directors of the Orangeville State Bank, with full knowledge of the acts and doings of the said E. M. Reeser continued to hold stockholders ’ and directors ’ meetings and that the stockholders and directors of the said Orangeville State Bank directly benefited by the consolidation of the Orangeville State Bank with the State Bank of Orangeville and with full knowledge df all the facts and surrounding circumstances they allowed the said E. M. Reeser to continue in possession of the remaining assets of the said Orangeville State Bank and liquidate the same for the purpose of reducing the liability of the Orangeville State Bank to the. State Bank of Orangeville and that the said E. M. Reeser in liquidating said assets renewed various notes and bills receivable, reduced others to judgment, sold assets of the said Orangeville State Bank and that said stockholders of the Orangeville State Bank ratified, approved and confirmed the acts and doings of the Orangeville State Bank and the acts and doings of the said E. M. Reeser, its cashier, by failing to take any action or actions or other proper procedure to terminate the legal existence of the said Orangeville State Bank as a corporate entity or to bring about the termination and liquidation of its affairs; that all the acts and doings of the directors and stockholders of the Orangeville State Bank in consolidating with the State Bank of Orange-ville were performed pursuant to the statutes in such cases made and provided, being sections 12 and 13 of chapter 16 A of Callaghan’s Illinois Statutes Annotated, 1924 Edition; that the auditor of public accounts of the State of Illinois from time to time made periodical examinations of the affairs of the State Bank of Orangeville and knew that the Orangeville State Bank was indebted to the State Bank of Orangeville on the notes executed and delivered by Orangeville State Bank to State Bank of Orangeville and on the various notes indorsed and delivered by Orangeville State Bank to State Bank of Orangeville. That upon the notes transferred by Orangeville State Bank to State Bank of Orangeville bearing the indorsement of Orangeville State Bank by E. M. Reeser, cashier, now held by plaintiff as receiver of Orangeville State Bank there remains due and unpaid thereon a sum in excess of $20,000; that at the time said notes matured the makers thereof failed to pay the same and that E. M. Reeser, acting as cashier of Orangeville State Bank and State Bank of Orangeville, allowed said notes to be renewed by the makers thereof payable either to Orangeville State Bank or State Bank of Orangeville, but in each and every instance caused the indorsement of the Orangeville State Bank to be placed on said notes at the time of the renewal thereof and that by virtue of the same the Orangeville State Bank is liable thereon for the amount hereinabove set forth.

To this amended complaint certain defendants filed their motion to dismiss, the sixth, seventh and eighth paragraphs of which are: “Sixth: That the said complaint discloses on its face that the resolution in question contemplated a liquidation of the said Orangeville State Bank and that the said resolution and the matters and things contemplated thereby were ultra vires, illeg’al and void under the statutes and laws of the State of Illinois. Seventh. That it appears from the face of said complaint that the matters, things and transactions alleged in the complaint to have taken place between the Orangeville State Bank and the State Bank of Orangeville were contrary to and in violation of the laws and statutes of the State of Illinois, and that the said acts and transactions were ultra vires, illegal and void. Eighth. That it appears from the face of said complaint that a liquidation which was ultra vires, illegal and void was attempted under and by virtue of the consolidation provisions then existing with regard to state banks and that said consolidation provisions had no application to the liquidation of the said bank and that no consolidation was in fact or in law ever attempted or effected.”

Thereafter the plaintiff filed his motion to strike from the files the foregoing motion to dismiss and upon a hearing of the motion to dismiss and the motion to strike the court overruled the motion of the plaintiff to strike and sustained the motion of the defendants to dismiss for the reasons above set forth in said paragraphs six, seven and eight and the plaintiff electing to abide by his amended complaint, a decree dismissing the amended complaint as to the defendants making the motion to dismiss and rendering judgment in their favor for costs was entered and it is to reverse this decree that this appeal has been prosecuted.

This suit is not instituted by appellant against the Orangeville State Bank to recover the balance due from it upon the notes given by that bank to the State Bank of Orangeville or to recover upon the secondary liability of that bank by reason of its indorsement upon the several notes receivable which were transferred by it to the State Bank of Orangeville but is a proceeding against the stockholders of the Orangeville State Bank brought by appellant in behalf of himself and all other creditors of the Orangeville State Bank to enforce the constitutional liability of the stockholders of that bank to its creditors. Counsel for appellant contends that it appears from the allegations of the amended complaint that the Orangeville State Bank and the Peoples State Bank, in 1925, transferred substantially all of the assets of both banks to the State Bank of Orangeville, which assumed all the liabilities of the two banks; that this arrangement was done with the consent of the auditor of public accounts and was in fact a consolidation which the statute then in force permitted and therefore none of the acts done in bringing about this consolidation can be held to be ultra vires.

The appellees contended in the trial court and the chancellor held that in 1925 when the transactions set forth in the amended complaint took place there was only one method of voluntary liquidation for a State bank and that was governed by section 15 of the Banking Act, which provided that a bank could determine its affairs, distribute its assets, resign its charter and close up its business by depositing with the auditor of public accounts an amount of money equal to the whole amount of debts and demands against it, that from the allegations of the amended complaint it appears that there was an attempt by the State Bank of Orangeville to liquidate the Orangeville State Bank in a way not sanctioned by the banking act and that in so doing all the transactions must be held to be ultra vires and void.

Continental Ill. Nat. Bank & Trust Co. v. Peoples Trust & Savings Bank of Chicago, 366 Ill. 366 was a suit brought by the Continental Bank in behalf of itself and all other creditors of the Peoples Bank against the Peoples Bank and its stockholders to enforce the constitutional liability of the stockholders of the Peoples Bank to its creditors. It appeared in that case that the Continental Illinois Bank and Trust Company and the Peoples Bank and Trust Company of Chicago entered into an agreement on June 9, 1932, whereby the Peoples Bank conveyed and transferred to the Continental Bank all of its assets except some leases and the Continental Bank assumed the liabilities of the Peoples Bank. The assets received by the Continental Bank were insufficient to discharge the liabilities of the Peoples Bank to the Continental Bank and the Continental Bank brought this suit against the Peoples Bank and its stockholders. The court held that the law then in force authorized one bank to contract.in writing with another bank to assume the whole amount of its debts and demands but that such contract must be approved by the auditor of public accounts, that inasmuch as the agreement between the Continental Bank and the Peoples Bank had not been so approved, the banks were without power to make the agreement, that it was void and the Continental Bank was not a creditor within the meaning of the Constitution and that there could be no recovery by it from the stockholders of the Peoples Bank.

Counsel for appellant argue that inasmuch as the amended complaint alleges that the Orangeville State Bank consolidated with the State Bank of Orangeville and that in so doing it acted in pursuance of sections 12 and 13 of the Banking Act and not under section 15 of that act, that what the court said and held in Continental Ill. Nat. Bank & Trust Co. v. Peoples Trust & Savings Bank, supra, is not applicable. In our opinion the allegations of the amended complaint do not sustain this conclusion.

Section 12 of the Banking Act which was effective at the time the transactions took place as alleged in the amended complaint, provided among other things, that whenever the board of directors of any banking corporation may desire to consolidate such corporation with any other corporation having banking powers which may hereafter exist, they may call a special meeting of the stockholders of such corporation for the purpose of submitting to a vote of such stockholders the question of such a consolidation with some other corporation. That each stockholder shall be advised of such meeting either by mail or delivering personally a notice signed by a majority of the directors and in addition a general notice of the time, place and object of the meeting shall be published for three successive weeks. That at the meeting if two-thirds of all the votes represented by the whole stock are in favor of the consolidation, a certificate verified by the affidavit of the president and under the seal of the corporation shall be filed in the office of the auditor and a like certificate with the recorder of deeds and that upon filing such certificate a notice of such change of organization shall be published for three successive weeks. Section 13 of the same act provided that all banking corporations so consolidating shall forward to the auditor of public accounts the complete proceedings of their consolidation, together with a list of the stockholders and such other records as the auditor may require. The allegations of the amended complaint do not set forth the fact that these steps were taken. There is no consolidation agreement referred to in the pleadings but what the complaint alleges is that the stockholders did all things necessary to liquidate the Orangeville State Bank, that they passed resolutions providing for its liquidation and appointed committees and authorized the directors to do all things necessary to liquidate the Orangeville State Bank and to bring about its consolidation with the new bank to be formed, that it transferred its bills receivable, cash and notes to the new bank, which assumed all its deposit and bills payable liabilities. Among its bills payable, after the transaction was completed, was this note of $27,077.80. If there was a consolidation and not a liquidation, then the State Bank of Orange-ville assumed the payment of this note of $27,077.80 along with the other bills payable and deposit liability of the Orangeville State Bank. While the amended complaint alleges as a conclusion of the pleader that the acts done were performed pursuant to sections 12 and 13 of the Banking Act, the other allegations of the amended complaint are inconsistent therewith. Consolidation occasions the dissolution of the constituent corporations, but here the amended complaint alleges that the Orangeville State Bank continued to exist as a legal entity. After a consolidation is effected the stockholders of the constituent corporations would have stock in the new corporation but if that was true in the instant case, there is nothing in the amended complaint that discloses it.

In Chicago Title & Trust Co. v. Doyle, 259 Ill. 489, it was said that corporations are creations of the General Assembly and that any consolidation, merger or purchase by which one corporation acquires the franchises of another corporation must have statutory authority to do so, that as the whole matter is under control of the General Assembly, the effect of a consolidation with respect to the extinction of the constituent corporations and the creation of a new corporation or the continued existence of one or both of the constituent corporations depends upon the statute under which the consolidation is effected. “The general rule” continues the opinion, “is that the consolidation effects the dissolution of the original corporations and brings into existence a new corporation possessed of the property, rights, and franchises and assuming the liabilities of those passing out of existence.”

In Chicago Title & Trust Co. v. Zinser, 264 Ill. 31, it was held that by the consolidation of the Eeal Estate Title and Trust Company and the Chicago Title and Trust Company the original corporations ceased to exist and the Chicago Title and Trust Company, as the consolidated corporation, acquired and succeeded to all the property, rights and franchises of its component parts and became subject to all the duties, obligations and conditions imposed upon them.

From an examination of the amended complaint the only reasonable conclusion that can be drawn therefrom is that the transactions therein alleged were designed for the purpose of effecting the liquidation of the Orangeville State Bank. Liquidation of this bank was the essence of the steps taken by the stockholders of the Orangeville State Bank as set forth in this amended complaint. They transferred to the State Bank of Orangeville substantially all of its assets and by the assumption by that bank of all of its liabilities, all its powers bestowed upon it as a banking corporation were ended. Although it did not surrender its charter and was not technically dissolved, that fact is immaterial. It could not have been dissolved without first satisfying all its obligations but as a bapk it was completely out of business. The action of the State Bank of Orangeville in assuming the liability of the Orangeville State Bank and its action in attempting to shift responsibility for its debts was beyond the powers conferred upon these banking corporations by the legislature and precludes appellant from recovering in this proceeding against its stockholders. Continental Ill. Nat. Bank & Trust Co. v. Peoples Trust & Savings Bank, supra.

The decree appealed from is in harmony with the authorities and will be affirmed.

Decree affirmed.


author: Presiding Justice Riess.

text:
    Jerry E. Simpson, Appellee, v. A. B. Bliss, Appellant.
    Gen. No. 9,180.
    Heard in this court at April term, 1939;
    opinion filed January 15, 1940.
    William S. Ellis and Trapp & Trapp, for appellant; Fred I. Edgell, for appellee.
   Opinion by

Presiding Justice Riess.

“Hot to be published in full.”


text:
    Helen M. Thomson, Appellee, v. W. C. Miner, Appellant.
    Gen. No. 9,208.
    Heard in this court at October term, 1939;
    opinion filed January 15, 1940.
    Gumbart & Grigsby, for appellant; Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellee.
   Opinion by

Presiding Justice Riess.

‘ ‘Not to be published in full. ’ ’


author: Justice Fulton.

text:
    First National Bank of Mt. Auburn, Appellee, v. School District No. 63, of Christian County, Appellant.
    Gen. No. 9,200.
    Heard in this court at October term, 1939;
    opinion filed January 15, 1940.
    Provine & Williams, for appellant; Amos M. Pinkerton, of counsel; Leal W. Reese, for appellee.
   Opinion by

Justice Fulton.

‘‘Not to be published in full.”


text:
    Edith McCarthy, Appellee, v. William Gray, Appellant.
    Gen. No. 9,203.
    Heard in this court at October term, 1939;
    opinion filed January 15, 1940.
    John W. Williams and Homer H. Williams, for appellant; O'Harra & O’Harra and O. C. McCartney, for appellee.
   Opinion by

Justice Fulton.

‘ ‘Not to be published in full.’ ’


author: Justice Hayes.

text:
    Frank Altman, Appellee, v. A. B. Bliss, Appellant.
    Gen. No. 9,179.
    Heard in this court at April term, 1939;
    opinion filed January 15, 1940.
    William S. Ellis and Trapp & Trapp, for appellant; Edwin O. Mills, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.’’


author: Justice Hates.

text:
    Faye Beard, Appellee, v. Otto Zindars, Appellant.
    Gen. No. 9,197.
    Heard in this court at October term, 1939;
    opinion filed January 15, 1940.
    Green & Palmer and Hawbaker & Sievers, for appellant; Henry I. Green and Oris Barth, of counsel; Weilepp & Wilson, for appellee,
   Opinion by

Justice Hates.

“Not to be published in full,”


author: Justice Dove.

text:
    People of the State of Illinois, Appellee, v. One Slot Machine Found in Parkside Recreation Parlor and John Dochus, Owner, Appellant.
    Gen. No. 9,467.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940.
    George T. Liddell, for appellant; Robert E. Nash, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Penrose Elevator Company, Appellee, v. Wayne McCray, Appellee, and W. F. Holmes, Appellant.
    Gen. No. 9,489.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940.
    George C. Dixon, Eremont M. Kaufman and Hall, Mitchell & Petz, for appellant; Warner & Warner, for appellee; R. L. Warner and M. O. Pires, of counsel.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Opinion by Justice Dove.

text:
    Hymen Pollack and William Pollack, Trading as Pollack Auto Sales, Appellants, v. Bernard J. Smith, Appellee.
    Gen. No. 9,504.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940.
    Eva R. Pollack and Gordon Moffett, for appellants; Charles G. Seidel, for appellee.
   Opinion by Justice Dove.

“Not to be published in full.”


author: Justice Huffman.

text:
    Theodore Vanderwall, Appellant, v. W. F. Beard, Appellee.
    Gen. No. 9,476.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940.
    Edward S. Foltz, Jr., for appellant; B. Jay Knight, J. E. Goembel and Frederick H. Haye, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Metropolitan Life Insurance Company, Appellant, v. John Van Hyfte et al., Appellees.
    Gen. No. 9,493.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940.
    Hardy, Hardy & Wither ell, for appellant; George W. Hunt, Donald W. Evans and E. J. Galbraith, for certain appellees; Sturtz & Ewan, for certain other appellees.
   Opinion by

Justice Huffman.

“Not to be published in full. ’ ’


text:
    Minnie F. Chapman, Appellee, v. Emma F. Chapman, Formerly Frankie Chapman Abbott, Appellant.
    Gen. No. 9,499.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940.
    Sears, O’Brien & Streit, for appellant; Barnabas F. Sears, of counsel; Beamish, Edwards & Brunnemeyer and Francis J. Steinbreeher, for appellees; Harold L. Beamish and Francis J. Steinbreeher, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.’’


author: Mr. Justice Hayes

text:
    Board of Library Directors of City of Springfield et al., Appellants, v. John P. Snigg et al., Appellees.
    Gen. No. 9,188.

      Heard in this court at the April term, 1939.
    Opinion filed October 19, 1939.
    Rehearing denied February 23, 1940.
    Giffin, Lindner, Newkirk & Jones and Robert H. Brunsman, all of Springfield, for appellants.
    L. G. Pefferle, of Springfield, for appellee Jennie Feldkamp.
   Mr. Justice Hayes

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Sangamon county dismissing a petition for a writ of certiorari filed by the petitioners appellants, Board of Library Directors of the City of Springfield, hereinafter called petitioners, against respondents appellees, the Civil Service Commission of the City of Springfield, and Jennie Feldkamp, hereinafter called respondents.

The circuit court heard the case entirely upon the pleadings and the record of the Civil Service Commission, no evidence having been presented or heard. Since on or about April 4, 1882, the city of Springfield has been under the general Cities and Villages Act, and since January 2, 1911 it has been under Art. XTTT of that act (ch. 24, ¶¶ 265-326, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.300-21.364]) which provides for the commission form of government. Ever since the adoption of said commission form of government, the city of Springfield has been operating in pursuance of the provisions thereof.

On April 2, 1907 the city of Springfield adopted “An Act to regulate the civil service of cities,” approved March 20, 1895.

The petitioner, Board of Library Directors of the City of Springfield is a quasi municipal corporation organized and existing under “An act to authorize cities to establish and maintain free public libraries and reading rooms,” approved March 7, 1872, having been so established by the city council of said city in 1901, and has continued to operate under said Library Act ever since.

The respondent Jennie Feldkamp is an employee of the petitioner, Board of Library Directors of the City of Springfield, having been employed more than five years prior to 1909. In that year she took and passed an examination given and prescribed by the Civil Service Commission of the city and thereafter the Civil Service Commission ■ certified her name to the Board of Library Directors as eligible for employment as assistant librarian.

On September 22, 1938, the respondent Jennie Feld-kamp filed with the Civil Service Commission a petition which stated that she was certified as assistant librarian for the city library on April 12, 1909; that she had served ever since in such position; that about 15 years ago Miss Wilson came in as a new librarian and shortly after she started moving the said Jennie Feldkamp from one job to another until she was finally placed in the back room mending books; that there have been a number of assistant librarians come to work in the library since respondent was appointed; that respondent’s check for the last month was cut in half; that her time was cut in half; and that many assistants have come in since the said Jennie Feld-kamp has been in the library that have not been cut either on time or pay. The respondent asks to be restored to her former position. The Civil Service Commission gave notice of the filing of said application of Jennie Feldkamp and of the hearing to be had thereon. On the day set for the hearing, the library board appeared before the Civil Service Commission and filed a written motion to dismiss the petition on the ground that the Commission had no jurisdiction of the subject matter. The commission denied this motion and set the case for hearing on its merits for November 7,1938.

On November 3, 1938, being prior to the date set for the hearing before the Civil Service Commission, petitioners filed in the circuit court, a petition for a writ of certiorari directed to the Civil Service Commission, and commanded them to certify to the circuit court their record in the Jennie Feldkamp case then pending-before them, so that such record when filed in said court, might be quashed.

The respondent Jennie Feldkamp filed in the circuit court a motion to dismiss the petition for certiorari, and the petitioners filed a motion to quash the record of the Civil Service Commission, and a motion to strike the motion filed by Jennie Feldkamp to dismiss the petition for certiorari.

The circuit court, by its judgment, allowed the motion of Jennie Feldkamp to dismiss the petition for certiorari, sustained the record of the Civil Service Commission and denied the motions by the petitioners to quash said record and to strike Jennie Feldkamp’s motion to dismiss.

The principal question raised in this record is whether or not the Civil Service Commission has jurisdiction over the librarian, assistant librarian, and servants and employees of the library board of the city of Springfield.

The general assembly of the State, in an effort to insure good public service by experienced employees of cities, and to remove from said employees political pressure that might be brought on them, and to insure their continuous duration in office against discharge without cause, in 1895 passed an act to regulate civil service of cities, ch. 24½, secs. 39-77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 23.040-23.080]. The general plan of this act provides that the mayor shall appoint three persons who shall constitute the Civil Service Commission, and directs that said Commission shall classify all offices and places of employment in such city, with reference to examinations, except those mentioned in section 11 which excludes all officers elected by the people, judges and clerks of election, members of the board of education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, police officers above the grade of captain, and the private secretary of the mayor. It further provides for examination by the Civil Service Commission which shall be public, competitive and free to all citizens of the United States, and provides that those who are successful in passing the examination shall be registered, and directs that the heads of the departments of the city, when a vacancy occurs, shall notify the Civil Service Commission and that said Commission shall certify to the appointing officer the name and address of candidates from the register of the class or grade to which said position belongs. It further provides that no officer or employee in the classified civil service of any city who shall have been appointed under said rules and after said examination shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. It further provides that the commission shall, by its rules, provide for the promotion in such classified service on the basis of ascertained merit and seniority in service.

Section 291 of ch. 24, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.326], being a section of the commission form of government which the city of Springfield is under, provides that all officers, assistants, and employees of such city except those named and mentioned in sections 23, 24, and 27 of this act, shall be appointed and discharged only in accordance with and pursuant to the provisions of said Civil Service Act. On an examination of sections 23, 24 and 27, it appears that a librarian, assistant librarian or employee of the library board are not mentioned therein.

Section 1 of the Library Act (ch. 81, par. 1, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 73.01]) provides that the city council in any city “shall have power to establish and maintain a public library for the inhabitants of such city,” and for that purpose may levy a tax on all taxable property within the city, such tax to be levied and collected in like manner as the general taxes of said city. Section 2 empowers the mayor, with the approval of the council, to appoint a board of nine directors. Section 3 gives the mayor, with the consent of council, power to remove any director for misconduct or neglecting his duty. Clause 4 of section 5 of said act, gives the library board exclusive control of the expenditures of all moneys collected for such library. In clause 10 of section 5, the library board, with the approval and consent of the city council, is given power to sell or otherwise dispose of property no longer necessary for library purposes. In clause 11 of section 5, it is provided “that said board shall have power to appoint a suitable librarian and necessary assistants and shall also have power to remove such appointees.

In the Commission Form of Government Act. sec. 24a, being sec. 289 of ch. 24, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.324], provides that any city which lias adopted the commission form of government may establish, maintain and conduct in all respects a public library in accordance with the provisions of an act, “An Act to authorize cities to maintain free public libraries” approved and enforced March 7, 1872.

The case of Johnston v. Chicago, 258 Ill. 494, was a suit based upon the negligence of the driver of the truck of the Chicago Public Library. Suit was brought against the city and not the library board. The court said, “If the corporation appoints or elects them, can control them in the discharge of their duties, continue or remove them, can hold them responsible for the manner in which they discharge their trust, and if these duties relate to the discharge of corporate powers” they may be justly regarded as its agents or servants. (4 Dillon on Mim. Corp. (5th. ed.) sec. 1655 and note.) Under the statute authorizing the establishing and maintenance of a public library and reading room, the directors of the library were appointed by the mayor with the approval of the city council. Beading the entire statute together, wé think its whole scope and intent is that the library board is but a part of the city government. As was said by this court in Board of Water Com’rs v. People ex rel. Springfield, 137 Ill. 660, 667, “Without the active cooperation of the City Council it would have been wholly unable to effect the object of its creation,” and it was there held that the Board of Water Commissioners of the city of Springfield was merely a branch or agency of the municipal government.

In the case of the People v. Chicago, 227 Ill. 445, it was held that the board of education of the city of Chicago is connected with, dependent upon, and to some extent a part of the municipal government of that city, and as such its officers and employees fall within the operation of the Civil Service Act, applicable to the employees of said city.

Section 291 makes the Civil Service Act of cities apply to all employees in cities under the commission form of government, and section 289 provides that cities under the commission form of government having a public library shall conduct the same in all respects in accordance with the provisions of the Library Act.

The legislature making both the Civil Service Act and the Library Act a part of the commission form of government shows the legislative intent to have both acts apply, and require a construction giving effect to both. In Village of Ridgway v. Gallatin County, 181 Ill. 521, 525, the court said:

“Such a repeal (by implication) is not favored in the law, and a later statute will never be held to repeal an earlier one, unless they cannot be reconciled. It is the duty of the courts to construe them so as to avoid repeal, if such a construction can be given, and a statute will never be held to be repealed by implication if it can be avoided by any reasonable hypothesis.” In the County of Cook v. Gilbert, 146 Ill. 268, 274, it is said:
“Bepeal by implication is not favored, and will not be held, if both acts, by reasonable construction, may be continued in force.”

Petitioners cite the case of McGann v. People, 227 Ill. 567, in support of their position that section 5 of the Library Act gives exclusive jurisdiction to the library board, and removes library employees from under any control of the Civil Service Commission, but in this case, which grew out of the appointment of a deputy clerk by the clerk of the municipal court of Chicago, we find that the Municipal Court Act provides that the clerk of the municipal court shall appoint such number of deputies as may be determined, from time to time, by a majority of the judges of the municipal court, and that such deputy clerk shall be subject to removal at any time by the majority of the judges of said court. Here there is clear legislative intent, expressed in this statute, to take the jurisdiction from the Civil Service Commission and vest it in the judges of the municipal court. The clerk of the municipal court had the right to appoint and to discharge, but subject to the supervision of the judges of the court. Likewise in the case of Brenan v. People ex rel. Kraus, 176 Ill. 620, cited by petitioner, the statute there provides for the creation of a teachers’ and employees’ pension and retirement fund, in force July 1,1895, expressly providing that no teacher nor other school employee elected by said board of education shall be removed or discharged except for cause, upon written charges, which shall be investigated and determined by said board, whose action and decision in the matter shall be final. This shows a clear intent on the part of the legislature to vest the authority in the school board and not in the Civil Service Commission, and the provisions of the Teachers’ Act and of the Civil Service Commission Act were clearly inconsistent so far as the power of removal of employees of the school board was concerned.

Under the language used in section 5 of the Library Act, the libary board had power to appoint a suitable librarian and necessary assistants, to fix the compensation, and the right to discharge them. This is as far as the legislature went. It makes a different situation from the McGann case, supra, which vested the authority in the judges of the municipal court and also different from the Brenan case, supra, which vested the authority in the school board and made the decision final.

Petitioners contend that in addition to the language found in section 5 of said Library Act, that we should hold that the petitioner “had full, complete and exclusive jurisdiction of and over the appointment, compensation, discipline and removal' of the librarian and all necessary assistants” of the city of Springfield. If the legislature had put this language in the act, the petitioners would be warranted in the contention they now make, but apparently the legislature left this limitation out of the act so that the Civil Service Act would apply. By construing the two statutes together, the library board has the authority to hire and discharge, subject however, to the regulations of the Civil Service Commission. This seems to be the more reasonable and sound construction of the legislative intent and gives effect to both acts.

By analogy, the library board falls in the same category as a board of education. The legislature expressly provides in sec. 50, ch. 24½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 23.051], being the Civil Service Act, that the superintendent and teachers of schools should be exempt from the Civil Service Act. The fact that library employees were omitted from section 50, clearly shows that the legislature intended they should be under the civil service jurisdiction.

We hold the circuit court ruled correctly in allowing the motion of the respondent Jennie Feldkamp for the dismissal of the petition of the library board of the city of Springfield. For the reasons herein set forth the judgment of the circuit court is hereby affirmed.

Judgment affirmed.


text:
    Oscar Bellomy, Appellee, v. Albert H. Bruce, Trading as Consolidated Oil Company, and Paul Conover, Appellants.
    Gen. No. 9,191.

      Heard in this court at the April term, 1939.
    Opinion filed October 19, 1939.
    Rehearing denied February 27, 1940.
    Lancaster & Nichols, of Quincy, and Pope & Driemeyer, of East St. Louis, for appellants.
    Wilson & Schmiedeskamp, of Quincy, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

This is an appeal by defendants-appellants (hereinafter called defendants) from a judgment in favor of plaintiff-appellee (hereinafter called plaintiff) for $20,000 for personal injuries.

The case was tried upon the issues made by an amended complaint, consisting of two counts. The first count charged the defendants with negligently and carelessly unloading gasoline from a truck in the presence of a lighted lantern. An explosion and fire resulted therefrom, whereby the plaintiff was burned and permanently disabled. Plaintiff further avers that he was present during the unloading of the gasoline and was all of the time in the exercise of due care for his own safety. Count two charges the defendants with wantonly unloading the gasoline from a tank truck inside of a building on a hot night, and while a lighted lantern was burning in said building, and that an explosion and fire did result.

The answer admitted the allegations of the complaint except that it denied that plaintiff exercised due care; denied the charges of negligence and of wanton conduct; avers that plaintiff actively participated in unloading the gasoline, and charges that any injury received by the plaintiff was the direct and proximate result of his own carelessness and negligence. The plaintiff replied denying the allegations of negligence on his part as set out in defendant’s answer.

Plaintiff was the operator of a filling station in Coatsburg, which he leased from the defendant Bruce. Bruce was a wholesale gasoline dealer in Quincy. Plaintiff purchased gasoline from Bruce which Bruce delivered to his filling station in Coatsburg in an automobile tank truck. For some time prior to July 14, 1938, — the date of the explosion in question, — the plaintiff had an arrangement with Bruce whereby Bruce’s truck was, at plaintiff’s request, to be used for deliveries of gasoline plaintiff had to make in the country. On each occasion when there was a country delivery to be made, plaintiff or his boy would go with the driver of the truck and assist in emptying the contents of the truck tank into the farm tank.

About noon on July 14,1938, plaintiff ordered a load of gasoline from Bruce. Bruce’s truck arrived at plaintiff’s filling station about 7:00 or 7:30 p. m. with 585 gallons of anti-knock and 315 gallons of white gasoline. Defendant Conover was driving the truck. Plaintiff told Conover that 250 gallons of the white gasoline were for a farmer named Schoch who wanted it delivered that evening, and asked Conover to take it to Schoch’s farm. The anti-knock gasoline was unloaded at plaintiff’s station, and plaintiff gave Conover a check for the price of the entire load. None of the white gasoline was unloaded into plaintiff’s tanks as it was the intention of both of them to bring back the gasoline that was not put into the farmer’s tank, and to dump it into plaintiff’s tank at his filling station, after the delivery to Schoch had been completed.

Plaintiff got into the truck with Conover- and two Niehoff boys, one of whom was then in the employ of Bruce, and they went to the Schoch farm about seven miles distant. Plaintiff directed the way they traveled. Plaintiff, at one time, lived near Schoch’s farm and was acquainted with it and the buildings on it.

When plaintiff and Conover arrived at Schoch’s farm, it was after dark, — about eight o’clock or a little after,- — and plaintiff saw Schoch walking between the house and the machine shed with an open-flame lantern, an oil burning lamp. He saw Schoch open the door to the machine shed, go inside, and noticed that he had the lighted lantern in his hand when he went into the shed. Schoch’s son drove a car out of the machine shed, and Conover backed the truck into the shed through the door from which the car had been driven, while plaintiff stood to one side of the truck, outside the shed, directing him. Plaintiff then went inside the shed oh the left side of the truck.

The machine shed was approximately 30 feet long, north and south. Its width east and west is not stated in the record, but it appears that it had two doors on the south side. The truck was backed through the east door. . The rear end of the truck projected one and a half to two feet into the shed. The 250 gallon tank, which was to be filled with gasoline, stood slightly to the north of the rear end of the truck and about six feet west of it. The top of this tank was four and a half or five feet off the ground. There was a cultivator and other farm machinery along the west and north walls of the shed. There was a door on the east side of the shed at the north end.

After Schoch opened the door into the shed, he went inside the shed and moved different articles off the gasoline barrel, with his lantern on his arm. He had not finished moving things out of the way before the truck backed in. They began unloading the gasoline just before he was through moving things around. Defendant Conover drew the gasoline from the tank truck by drawing it into five gallon pails which he then handed to the plaintiff, and plaintiff emptied the gasoline into a hole in the top of Schoch’s tank through a funnel. Conover drew gasoline from the tank truck into five gallon pails by means of a faucet at the back end of the truck. The evidence shows that five gallons of gasoline weigh about 35 pounds and that with the can, the weight would be about 45 pounds. Conover testified that he knew plaintiff was busy pouring the gasoline into the tank; that plaintiff was pouring this gasoline as high as his head or a little over, and that plaintiff was facing the west and south.

Plaintiff testified that after approximately 10 gallons of gasoline had been drawn, he told Schoch to take the lantern out and that Schoch started back towards the door in the northeast corner of the building. Plaintiff knew there was a door there as he had often used it, and from the time Schoch started back to the door with the lantern plaintiff did not see the lantern again or know it was in the shed. Conover testified that he heard plaintiff say something that night about taking the lantern out of the place; that he also said the same thing as plaintiff did about taking the lantern out and that he intended it for Mr. Schoch. Schoch testified that he did not hear either the plaintiff or Conover say anything about taking the lantern out, but that he (Schoch) just made the remark, “I better carry that lantern out.” Schoch did not carry the lantern out, but took it back and set it down about one and a half feet from the east wall of the shed by the north door, and about 20 feet from the point where the gasoline was being poured into the farm tank.

The lights in the shed consisted of a flashlight, which one of the boys held while plaintiff was emptying the cans through the funnel into the tank; another flashlight which Conover held in his hand; the three red lights on top of the tank truck which are in a row on the back end, and the tail light on the truck. Schoch testified that when he started back with the lantern, there had been no explosion or fire, — “ten gallons of gas were drawn at that time. I went back and set the lantern down and did not move it after that time. There was an explosion and fire later that evening. After I set the lantern down I talked to my neighbor, Walter Weller, at the northeast door. I just turned around and started to walk back to the truck with the flashlight in my hand; after that I did not hear Mr. Conover say anything about a lantern. After I set the lantern down at the door I think about twenty gallons of gas was drawn before the fire or explosion. ’ ’

Conover testified that he could drawn gasoline faster than Bellomy could pour. When Conover turned to hand the cans of gasoline to Bellomy, Conover turned his face to the west and then around to the north. Conover testified, “nobody had it (lantern) when I seen it. I saw it sitting back at the door at the north end of the building at the east wall on the ground, that was the first I saw of the lantern. Bellomy was facing with his face towards the west and south. When I saw the lantern it was about northeast from Bellomy. His back was just towards the lantern as he was pouring. After I saw that lantern there on the ground, I drew about four gallons of gasoline into the can. When 1 saw the lantern on the ground I did not say anything to anybody to take it out. I had said the lantern should be taken out. I realized it was dangerous to be sitting where it was, and it should be taken out immediately and that leaving it there too long might cause an explosion. I continued to draw four gallons of gasoline. Up to the time I was drawing the four gallons of gasoline there had been no explosion and after I had drawn the four gallons of gasoline there was an explosion. ’ ’

As a result of the explosion, plaintiff was terrifically burned. The evidence shows that most of his clothing was burned off his body and that he has not been able to wear clothing from the time of the fire up to the date of the trial. The most severe burns were on the right leg and left arm. The evidence disclosed that he had suffered a great amount of pain; that he had incurred first, second and third degree burns; that he was severely burned over a great part of his body; that there were blisters and pieces of skin hanging from his arms and other portions of his body, and for several days following the injury he was close to death. At the time of the trial the burns were healing, but there was a great deal of scar tissue and atrophy. It was necessary to do some skin grafting on the left arm, but plaintiff’s condition prohibited doing this for two or three months. There was permanent injury to the left arm and right leg. The medical services rendered up to the time of the trial amounted to $500, and the hospital bill, for the same period, was $768.85.

A stipulation was entered in the trial court between plaintiff and defendants stating that injuries received by the plaintiff were the direct and proximate result of an explosion and fire, caused by gasoline vapor, which was incident to the unloading of gasoline coming in contact with a lighted lantern located in the machine shed.

Both defendants were called by the plaintiff for cross-examination under section 60 of the Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060]. The defendants offered no further evidence but at the close of plaintiff’s case moved for a directed verdict which the court denied. The jury returned a general verdict finding the defendants guilty and assessing plaintiff’s damages at $20,000. They also answered four special interrogatories submitted at defendant’s request as follows: (1) plaintiff was not guilty of negligence which directly contributed to the cause of his injuries; (2) the defendant Conover was guilty of negligence, and (3) that the defendant Conover was guilty of wanton conduct in unloading the gasoline under the facts and circumstances shown in the evidence. The fourth interrogatory submitted was as follows: Were plaintiff and defendant Paul Conover both guilty of wanton conduct in unloading the gasoline under the facts and circumstances shown in the evidence1? The answer was “no.”

Defendants contend herein, with great emphasis, that the trial court erred in denying their motion for a directed verdict, and insist that plaintiff was guilty of the same degree of misconduct of which the defendant Conover was guilty, and for that reason he cannot recover in this action. They further state that contributory negligence is a defense to an action for negligence, and wilful and wanton conduct on the part of the plaintiff is a good defense, where plaintiff charges defendant with wilful and wanton misconduct. This is the most important and vital factor in this case and is worthy of great consideration and calm deliberate judgment. It is a matter of common knowledge that an open light should not be allowed where gasoline is being used or exposed to air, for the vapor of gasoline when mixed with the proper proportion of oxygen in the air, particularly with high temperatures, becomes very inflammable, and when exposed to an open flame, explodes. Both the plaintiff and the defendant Cono-ver were cognizant of this fact as both were experienced in handling gasoline.

A dangerous instrument was being handled here, and the degree of care exercised by those handling it should have been commensurate with the danger. Whether an act is wanton and wilful depends upon the circumstances of the case, and whether a personal injury has been inflicted wilfully or wantonly is a question of fact to be determined by the jury, if there is evidence to support the allegation. The rule is, in passing upon a motion to direct a verdict, if, when all the evidence is considered with all reasonable inferences drawn from it in its aspect most favorable to the party against whom the motion is directed, and if there is evidence to support all the necessary elements of the case, the motion should be denied. Ill-will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness. Streeter v. Humrichouse, 357 Ill. 234, 238.

The evidence in this case on the question of wilfulness and wantonness of the defendant Conover is such that the trial court was warranted in submitting this issue to the jury. The evidence shows that after Cono-ver had heard the plaintiff direct that the lighted lantern be taken out of the shed, which direction was not followed, that Conover saw the lantern in the northeast corner on the floor inside the shed; and as Conover carried each pail of gasoline from the faucet on the truck to the plaintiff, he faced the lantern and couldn’t help but have knowledge of the presence of the lantern inside the shed. At that time the only light at the north end of the shed was the lantern. During this interval, Conover knew that plaintiff was standing with his back to the lantern and not in a position to see the lantern. The plaintiff was facing southwest and pouring the gasoline into the funnel in the tank at an elevation above his head, and it was difficult for him to keep up with Conover in disposing of the gasoline as fast as it was brought to him. The plaintiff, at this time, was facing a flashlight being held by one of the boys so he could see to pour into the funnel. Plaintiff’s work was such that he stayed in one position and his constant attention was focused on pouring the gasoline through the funnel. Despite Conover’s knowledge of the presence of the lantern in the building, he neither advised plaintiff of this fact nor did he stop drawing the gasoline from the tank, but under his own admission he drew four gallons of gasoline between the time he had seen the lantern in the building and the explosion, which shows an intentional disregard on the part of Conover of a known duty, and an entire absence of care for the life of others, such as exhibits a conscious indifference to consequences and makes a case of constructive or legal wilfulness.

We next come to defendants’ contention that the wilful or wanton conduct on the part of the plaintiff is a good defense, where plaintiff charges defendant with wilful and wanton misconduct, and that both the plaintiff and Conover were equally negligent. On a casual reading of the testimony, an impression is made that they were both in the same category, bnt on close, careful examination of the evidence it appears that plaintiff did direct that the lantern be taken out of the building; that Schoch, who had the lantern, started with it to the northeast door, — the presence of which plaintiff had previous knowledge, — and plaintiff assumed that the lantern was taken out of the building; that up to the time of the explosion and injury he had no notice of the presence of the lantern in the building and was not in a position to see it; that he was occupied in the difficult task of emptying the buckets into the tank which took his entire attention, and although he may have been guilty of contributory negligence, the facts and circumstances surrounding him and his opportunity to ascertain the presence of the lantern being just inside the door rather than outside is quite different from that of Conover. Under the facts and circumstances which surround each of these two men we cannot say, as a matter of law, that they are both equally guilty of wanton conduct but are forced to hold that the trial court was warranted in submitting this question of fact to the jury and properly denying the motion to direct a verdict.

Defendants assign error on plaintiff’s given instruction and complain that in various instructions given for the plaintiff, the jury was referred to the amended complaint for a statement of the issues and although this form of instruction has been repeatedly condemned by the Supreme and Appellate Courts of this State, the defendants cannot complain, for their instructions were subject to the same criticism. In Lerette v. Director General of Railroads, 306 Ill. 348, the court said,

“It is contended that the court erred in giving certain instructions at the request of appellee which referred the jury to the declaration to determine the issues. This form of instruction has been repeatedly condemned by this court. . . . But appellant is in no position to urge the question in this case, for the reason that the same error is found in many instructions given at the request of the defendants below.” and in Gourley v. Chicago & E. I. Ry. Co., 295 Ill. App. 160, the court said, “We find, however, that defendant offered an instruction given by the court which is subject to substantially the same criticism, and the law is well settled ‘that a party has no right to complain of an error in an instruction, when a like error appears in an instruction given at its own request. ’ ”

Criticism is made on instruction number 2, which stated that defendants have admitted in their answer that the defendant Paul Conover was at all times referred to in plaintiff’s amended complaint as the servant and employee of the defendant, and that the plaintiff was not required to make any proof in that regard. The instruction carried the exact language of the admission in the answer and was properly given by the court.

Error is assigned on the giving of instruction number 9. Complaint is made that this is a peremptory direction of a verdict without any attempt to state the facts upon which the verdict should be predicated. We do not think the criticism is well founded, and the defendants did not object or except to this instruction in the trial court, so they are not now in a position to complain of it jfor the first time.

Defendants criticize instruction number 10. This instruction is in the usual form and has been approved by this court many times. Defendants put too narrow a construction on the word “situation,” which Webster defines as “position as regards conditions and circuiri-stances; state: condition.” The word “situated” as used in this instruction referred to all the circumstances and conditions as shown by the evidence and included plaintiff’s experience and knowledge in handling gasoline as shown by the evidence. Instruction number 12 given at the request of the defendants was as follows: “The Court instructs the jury that ‘negligence,’ as used in these instructions, mean the want of ordinary care, by ordinary care is meant such care as a man of ordinary prudence usually exercises under the same or similar circumstances.” Plaintiff’s instruction number 10 should be considered with defendants’ instruction number 12, for the court gave a precautionary instruction which told the jury that the instructions given did constitute a series or whole and the jury should consider all of the instructions together in making up the verdict. Defendants complain of instructions number 24 and 25, because they did not require the jury to reach a determination on the issues solely from the evidence, since the words, “from the preponderance of evidence,” were not repeated after the word “believe” in the latter part of the instructions.

Where there is a requirement in the first part of an instruction that the jury must base their findings upon the evidence, this applies and extends to all subsequent clauses in the instruction and need not be repeated in each succeeding clause. Village of Altamont v. Carter, 196 Ill. 286, 287.

Taken as a whole the set of instructions given contained a fair statement of the law applicable to the case in clear language that should have been readily understood by the jurors and the defendants were not prejudiced thereby.

Complaint is made by the defendants that the trial court permitted counsel for plaintiff to ask jurors whether they were financially interested, as stockholders or otherwise, in the Maryland Casualty Company, without requiring a showing by the plaintiff of any probable necessity for such question. A transcript of the examination of the jury is not included in the record, but on page 105 of the record it appears that one of the attorneys for the plaintiff stated in the record that plaintiff’s attorney, at the close of the examination of the first four jurors, asked the question of the jurors in regard to their financial interest as stockholders in the Maryland Casualty Company. He further stated that this same question came up in a case that was tried just prior to this one and the court held that such an inquiry was made in good faith; that this question was asked in good faith, and that his client be not prejudiced. He further stated that the Maryland Casualty Company was a stock company, and not a mutual company, and that they had filed a suit in the United States District Court to restrain the prosecution of this suit in the State court. The trial court accepted the attorney’s word that the question was asked in good faith and stated there was no reason to believe to the contrary.

It was held in the case of Smithers v. Henriquez, 368 Ill. 588, 592, in substance: Where inquiry is made of jurors as to a possible financial interest in an insurance company, not a party to the suit, by questions propounded in good faith, with the object of eliminating interested parties from the jury, that such inquiry is not necessarily so prejudicial as to require a reversal.

Defendants complain that plaintiff was brought into the court room on a cot, and that this was very prejudicial. The trial court was careful to see that nothing-unusual happened to excite sympathy throughout the trial. It does appear that the plaintiff was covered with a sheet except for his face and head, but the court stated in the record, that there were no burns or evidences of burns on his face or head. Defendants also state that the second motion for continuance should have been granted. The case was at issue, and the plaintiff was entitled to have his case tried. The granting of a continuance, except where it is based upon a statutory cause, rests in the sound- judicial discretion of the court. Benton v. Marr, 364 Ill. 628.

Defendants assign error claiming the verdict was the result of prejudice, sympathy and other improper causes and that it was excessive. They concede in their argument here, that plaintiff’s injuries were severe, painful, and necessitated substantial expense for their treatment and care. The attending physician, who took care of the plaintiff from the time of the injury and up to the trial, describes in his testimony terrific injury to the body of the plaintiff, great pain and suffering covering a long period of time, as well as permanent injury to the right leg in that it could not be straightened. At the time of the trial, the physician stated that plaintiff’s left arm was of no use and would require skin grafting. It is hard to visualize the human body suffering more pain than that described by the doctor, relative to plaintiff’s injuries. This testimony stands unchallenged and uncontradicted, outside of the inferences drawn by counsel from the record. The defendants did not cross-examine plaintiff’s doctor on the trial. The defendants had an examination of the plaintiff made by Doctor Reynolds shortly before the trial, but failed to call him at the trial or make any effort whatsoever to check the amount, extent or duration of plaintiff’s injuries, and it is a reasonable deduction, under these circumstances, that the injuries were at least as bad as the attending physician described them.

The defendants having closed their case without offering any proofs on the extent of plaintiff’s injuries are not now in a position to ask a court on review to do what they failed or feared to do at the trial. Although the verdict is large, in view of the state of the record, we do not feel warranted in setting aside the verdict of the jury and overruling the judgment of the trial court. For the reasons herein set forth the judgment of the circuit court of Adams county is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Riess

text:
    Thelma Leah Rose, Appellant, v. Kenneth Lee Meyer, Appellee, and Aroma Meyer, Defendant.
    Gen. No. 9,118.
    Heard in this court at the April term, 1938.
    Opinion filed January 15, 1940.
    Rehearing denied February 23, 1940.
    F. T. Carson and Lloyd S. Engert, both of Urbana, and C. E. Tate, of Champaign, for appellant.
    Dobbins, Dobbins & Thomas, of Champaign, for appellee ; R. F. Dobbins and J. G. Thomas, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The plaintiff appellant, Thelma Leah Bose, has appealed from a judgment in favor of the defendant ap-pellee, Kenneth Lee Meyer, entered by the circuit court of Champaign county on October 6, 1937.

The case had been tried by a jury and motions for a directed verdict of not guilty in favor of both defendants were interposed at the close of plaintiff’s evidence. The motion of the defendant Aroma Meyer was granted and the suit was dismissed as to said defendant, from which order no appeal was taken. The court reserved its decision on the motion of Kenneth Lee Meyer, which motion was renewed at the close of all of the evidence and decision thereon was reserved until after general verdict. After hearing the cause, a verdict was returned by the jury in favor of the plaintiff for damages in the sum of $10,000 for personal injuries and property damages and expenses alleged to have been sustained by the plaintiff in an automobile collision. Subsequent thereto, the motions for a directed verdict in favor of said defendant upon which decision had been reserved by the court was argued and granted and a judgment notwithstanding the verdict was entered in favor of said defendant in bar of the action, from which judgment this appeal was taken.

The complaint herein consisted of five counts, severally alleging due care on the part of the plaintiff and charging negligence on the part of the defendant in the operation of his automobile, in failing to sound warning- and in swerving his car into the rear of the plaintiff’s car after she had passed the intersection of Vine and Bandolph streets in the city of Champaign, Illinois; in negligently striking her car in the side and rear; in not keeping proper lookout and observing plaintiff’s car and in driving at an excessive speed of 45 miles per hour in violation of the provisions of the Motor Vehicle Law of Illinois and of being guilty of general negligence which proximately caused the injuries and damages sustained by the plaintiff. Defendants’ answer specifically denied each of the material allegations of the several counts.

Error was assigned in granting the motions for a directed verdict and in setting aside the verdict of the jury and entering judgment in favor of the defendant notwithstanding the verdict. In passing upon these questions, it is necessary to determine whether or not competent legal evidence was offered and admitted at the trial, which, with reasonable inferences therefrom, tended to prove the material allegations of the complaint. If such proof was made, it became the duty of the trial court to overrule the motions for a directed verdict and submit the issues of fact to the jury for its consideration and verdict and enter judgment on such verdict, unless a motion to set the same aside and grant a new trial was duly filed and granted by the court upon sufficient grounds shown and set forth in said motion. Upon the motions for a directed verdict in favor of the defendant the evidence must be viewed and considered in the light most favorable to the plaintiff.

In substance, the plaintiff testified that she lived in Champaign; drove from her home in her car, a Plymouth coupe, at about 9:15 o’clock Sunday morning, June 17, 1934, accompanied by a pupil, Betty Mc-Manaway, then aged 14 years; that the weather was sunshiny and dry; that she drove east on Illinois street to Randolph street, then north on Randolph street on the way to the home of two of her pupils residing there; that she stopped the car at Columbia avenue, then proceeded across Columbia avenue toward Vine street; that as she approached Randolph and Vine she was driving along the right side of Randolph street; that she had driven cars equipped with speedometers since quite young and was capable of judging speed of cars and was driving not to exceed 15 miles an hour when she approached the intersection of Vine and Randolph streets; that she then looked to her right and left before entering the intersection; that in her best judgment she was 36 feet from the intersection when she looked to the right and when she got to the curb line of the intersection she again looked to the right but saw no approaching cars; that she then proceeded across the street and after having looked both ways, continued until she heard a screeching and grinding of brakes; that at that time her car was across the street on the north side of Vine street, which runs east and west; that the rear of her car was entirely across the street; that when she heard the screeching of brakes she looked over her right shoulder to see where the noise was coming from and then saw the defendant’s car approaching at a fast rate of speed; that this car was driven by the defendant Kenneth Lee Meyer; that as she swerved to the left, his car continued to come toward her car and struck its rear end over the right wheel and then her car started to spin around and turned over on its left side, and when it came to rest it was upset and on her arm; that in her opinion said defendant was traveling 40 miles per hour just before he struck her and that when she saw defendant over her shoulder in her opinion he was traveling about 50 miles per hour; that her car came to rest on Randolph street. She then detailed certain serious bodily injuries and her subsequent removal to the hospital and treatment thereafter.

On cross-examination she further stated in substance that she could see at least a quarter of a block down the street toward the east, judging it to be between 50 and 60 feet, and saw no cars approaching before or when she was at the south curb line of Vine street and entered into the intersection; that she looked and could have seen a car in the block at that time; did not recall if a car was parked 150 feet east; that at the time she saw the Meyer car, it was at the curb line of Randolph street on the north side of Vine street; that she was driving on the right side of Randolph street between the center of the street and the east curb line and that she saw the Meyer car coming about the line of the sidewalk and judged it about 12 feet away; that it struck the rear end of her car and she felt the blow; had looked and turned the car to the north when she heard a loud screeching of brakes; tried to get out of the way of the other car; that her car was at the north curb line of Vine street; that she entered the intersection not to exceed 15 miles an hour, and judged her speed to be between 12 and 15 miles; that she played the piano and taught dancing to children and on programs.

Further cumulative testimony of a similar nature was given by Betty McManaway, including evidence of partial obstruction of view by a low hedge, some shrubbery and trees at and near the corner. She placed the cars at the same point at the time of impact, testified to the screeching brakes of the defendant’s car and to the rate of speed. Disinterested neighbors also testified as to the screeching brakes, the noise of the impact and the location and condition of the cars after the collision and as to the low hedge, shrubbery and trees.

It appeared that neither driver saw the other car until shortly before the time of the impact. The fact that plaintiff did not see the defendant’s car until just before the collision is strongly stressed by defendant appellee as evidence of want of due care on the part of the plaintiff, but assuming that she had looked both ways upon entering the intersection, was crossing at a speed of not more than 15 miles an hour, had passed the center and was almost across Vine street when defendant’s car came from the right at a speed of 40 or 50 miles an hour and struck the rear of her car, it would become purely a question of fact whether or not, under the above circumstances and considering the evidence in the light most favorable to the plaintiff, she was exercising due care or was guilty of contributory negligence, and whether or not the negligence of the defendant, if any, was the sole proximate cause of the injuries.

Upon these issues of fact, it clearly appears to this court from a careful examination of the abstract and record herein that there was a sharp conflict in the evidence and that the motion for a directed verdict should not have been granted. (Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 6 N. E. (2d) 125; Blumb v. Getz, 366 Ill. 273, 8 N. E. (2d) 620.) Under the above circumstances, the motion for a judgment notwithstanding the verdict could only be properly granted under the same rule that the motion for a directed verdict could be granted (Ulbricht v. Western Coach Lines, 289 Ill. App. 164, 6 N. E. (2d) 931); namely, that there was no evidence tending, with reasonable inferences therefrom, to prove the material allegations of the complaint or some count thereof.

Defendant appellee, in his brief, assigns as alleged cross errors, want of due care on the part of the plaintiff appellant in crossing the intersection in question; that the verdict of the jury was contrary to the manifest weight of the evidence and did not warrant a verdict for the plaintiff; that the trial court erred in giving or refusing certain instructions concerning the rights of the respective parties upon approaching and crossing the intersection where the collision occurred, which alleged errors were argued in his brief.

These were not matters to be considered by the court upon motions for directed verdict and are not properly before this court at this time. Objections to instructions and that the verdict is contrary to the manifest weight of the evidence were matters that could only be raised by defendant on a written motion to set aside the verdict and grant a new trial and cannot now be raised in or considered by this court.

The trial court erred in granting defendant appel-lee’s motion for directed verdict in his favor and in setting aside the general verdict and entering judgment notwithstanding the verdict, in favor of the defendant upon his subsequent oral motion therefor. The motions for directed verdict should have been denied; and unless motions for new trial were duly filed before judgment, a judgment on the general verdict for the plaintiff: should have followed, subject to proper disposition of any motion for a new trial filed within 10 days thereafter and to statutory right of appeal by either party.

The judgment of the circuit court of Champaign county will therefore be reversed and the cause remanded with directions to proceed according to the holdings of this court herein.

Reversed and remanded with directions.