text:
    R. W. Carver et al., Appellees, v. Paul Brien, Individually, and Chairman Local Protective Board Local No. 346, et al., Appellants.
    Gen. No. 42,028.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed July 3, 1942.
    Behearing denied September 18, 1942.

      Frank L. Mulholland, Clarence M. Mulholland and Willard H. McEwen, all of Toledo, Ohio, for appellants.
    Bull & Rugen, of Chicago, for appellees; Follett W. Bull and Richard C. Rugen, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a decree in chancery entered in the circuit court of Cook county, Illinois, upon the report of a master in chancery, in an action for specific performance of a contract dated August 22,1934. The action arose out of a complaint filed by certain employees of the Chicago & Alton Railroad Company, hereinafter referred to as the “Alton,” in their own behalf and on behalf of other persons similarly situated, against the Brotherhood Railway Carmen of America, certain local lodges affiliated with this Brotherhood and certain persons who were made parties defendant, both individually and as lodge officials.

The case was referred to a master, who issued a report making certain findings of fact and recommending a decree in favor of plaintiffs. Objections were filed to this report by defendants and were overruled. The objections so overruled were ordered to stand as exceptions. The court below then overruled said exceptions and entered a decree' confirming the master’s report, both as to facts found by the master and conclusions of law recommended. The decree in substance provided: (1) That plaintiffs (originally employees of the Baltimore & Ohio Railroad Company prior to 1931, but who were employed by the Baltimore & Ohio Chicago Terminal Railroad Company in 1931 and by the Alton in 1933) are entitled to seniority with their new employers as of the time they began work for their original employer, the B. & 0. under the terms of a purported contract dated August 22, 1934; (2) That the decision rendered against plaintiffs by F. H. Knight, general president of the Brotherhood Railway Carmen of America, acting as an arbitrator, on March 11,1937, is void; and (3) That all defendants were ordered to prepare and submit to the B. & O. C. T. and Alton Railroads for approval consolidated rosters of carmen employees of said railroads, giving plaintiffs their original B. & 0. seniority.

During the period of this controversy there have existed three distinct corporations, each a common carrier by railroad, and each conducting a separate business. These corporations are (1) the Baltimore & Ohio Railroad Company (herein referred to as the B. & 0.), a Maryland corporation; (2) The Baltimore & Ohio Chicago Terminal Company (herein referred to as the B. & 0. C. T.), an Illinois corporation; and (3) the Alton Railroad Company (herein referred to as the Alton), also an Illinois corporation.

Prior to July 1931, these companies owned and operated separate railroad shops in or near the City of Chicago, the B. & 0. shop being located at the South Chicago yard, the B. & 0. C: T. shop at East Chicago, Illinois, and the Alton Shop at Glenn, Illinois. In the month of July 1931, the B. & 0. decided to, and did discontinue much of the shop work theretofore performed at its South Chicago shop, and secured its performance thereafter by the B. & 0. C. T. at its shop in East Chicago.

When this transfer of work was made, certain of the B. & 0. employees who had been performing it were transferred to the shops of the B. & 0. C. T. They thereupon ceased to be employees of the B. & 0. and became employees of the B. & 0. G. T., a separate and distinct corporation, and thereafter received their compensation from it. After this transfer was made, a disagreement arose as to the proper positions of these former B. & 0. men on the B. & 0. C. T. seniority roster. It was finally decided that their names should be placed at the bottom of the roster below those of all B. & O. C. T. employees, but in the same order among themselves as that which they had occupied on the B. & 0. roster from which they were transferred.

In 1933, a further rearrangement of shop work was made which resulted in the further transfer of B. & 0. work (then being performed by the B. & 0. C. T.), together with certain shop work of the B. & 0. C. T., to the Alton shop at G-lenn. Certain other transfers of work were made at this time which are not material to our case. As a result of the above, all work has been discontinued at the original B. & 0. shop at South Chicago, and the bulk of the shop work of these three companies in the Chicago area is now being performed by the Alton at the Glenn shop.

After this transfer was decided upon, it was also decided by the three companies involved that they would permit certain employees then working on the B. & 0. and the B. & 0. C. T. properties to transfer to the Alton shops rather than to have the Alton hire entirely new men to perform the services in question. This, however, did not satisfy the transferred employees (the appellees in this action among others), who demanded that they be given places on the Alton seniority roster, corresponding to the dates of their original employment on the B. & 0. Otherwise stated, the demand was that the old B. & 0. roster be “dovetailed” into the existing Alton roster, i. e., that the oldest man in the service on either roster be given the number one position on a new combined roster, regardless of whether his seniority had been accumulated on the one road or the other, the second oldest man to be given the number two position, etc. Under the arrangement which the appelle'fes proposed, a man employed by the B. & 0. on July 1, 1920, would have a higher seniority standing with his new employer, the Alton, than a man employed by the Alton on July 10,1920, and continuously employed by it since that date. The original Alton employees objected to this demand.

The representatives of all the employees involved in this controversy met in an effort to agree upon some method of composing their differences. The representatives in question were the officials of three system federations which represented the shop craft employees of the three carriers in question. A system federation, as its name implies, is a federation of all of the craft unions of shop employees whose members are employed on a given railroad system. System federations are organized under and governed by the constitution and by-laws of the Railway Employes’ Department of the American Federation of Labor.

Typically, system federations are made up of the representatives of the craft unions whose members are machinists, boiler-makers, blacksmiths, electrical workers, sheet metal workers, and carmen, respectively. "Where a system federation is in existence on a given railroad, it is the collective bargaining representative of all the shop craft employees of that railroad and is empowered to speak for them. Conversely, under the constitution and by-laws of the Railway Employes’ Department of the American Federation of Labor, no organization representing a single craft of employees has the authority to negotiate a separate agreement with the railroad without the express consent of the president and executive council of the said Railway Employes’ Department. System federations of shop craft employees exist and have existed on each of the three carriers involved in this case during all periods material to the case, that on the B. & 0. being known as system federation No. 30, that on the Alton being known as system federation No. 29, and that on the B. & O. C. T., being known as system federation No. 130.

After some negotiation regarding this dispute these three systems, on August 22,1934, entered into a memorandum of agreement, which appears to be the principal subject of controversy in this case, which memorandum of agreement provided in part as follows:

“. . . Therefore, it is hereby agreed that employees who were directly affected, or who may later be directly affected by the transfer of work, as mentioned in the preceding paragraph, shall have the right to follow their work to the extent of positions created by reason of transfer of work.
“These positions are to be bulletined and the senior applicant shall be assigned.
“It is further agreed that a sub-committee of three members from each of the three groups involved, namely B&OCT, Alton and B&O Railroads, shall be selected by the three system federations for the purpose of determining the number of positions to be allotted to each group, as the result of the transfer of work in the Chicago territory. It shall be necessary that the conclusion unanimously agreed upon by this committee be final.
“After the number of positions that have been allotted to each group is determined they shall be bulletined and filled from that group.
“It is further agreed, after the above procedure has been completed, that in the event an increase in business necessitates an increase in forces at any point in the Chicago territory, senior furloughed men shall be recalled to service and their seniority will commence on the date of work starting at that point. ...”

After this agreement was signed, the parties conducted a-series of conferences for the purpose of determining the number of new jobs which had been created at the Alton shops by virtue of the transfer of work and the number of B. & O. and B. & 0. C. T. employees who should be assigned to these jobs. The other crafts were able to reach an agreement on these points, but the representatives of the carmen were unable to agree, and have been unable to do so to this day. The organizations which had reached an agreement on the point notified the Alton Railroad of that fact and proposed that seniority rosters be prepared accordingly. The carrier agreed to this arrangement and the controversy was settled as to all crafts except the carmen.

As the carmen’s dispute was still unsettled, it was agreed to submit the same to arbitration, Mr. F. H. Knight, president of the Brotherhood Railway Carmen of America, being selected as the arbitrator. The written submission is before the court as an exhibit. Thereafter, Mr. Knight rendered his decision, which appellees have refused to accept on the ground that it was not responsive to the submission. Thereafter this action was filed.

Plaintiffs, in their brief, suggest, in addition to the statements of fact made by defendants, that this is a representative suit brought in behalf of former employees in the ear department of the B. & 0. Railroad Company; that by virtue of certain consolidations first in 1931, between the B. & 0. and B. & 0. C. T. and again in 1933 with the Alton, some of the plaintiffs found their work transferred to the newly enlarged Alton shops at Glenn; and that, accordingly, the plaintiffs are for the moment employees of the Alton and the B&OCT and not only of the Alton as stated by appellants. Plaintiffs state, also, that the decree entered in the court below provided — in addition to defendants’ summary thereof — that plaintiffs were entitled to follow their work and retain their home road seniority in accordance with the provisions of the August 22,1934 agreement which was held a valid and binding contract; and that the decree contained one further provision which enjoined the defendants from preventing the plaintiffs from bidding on jobs with the new employers, i. e., in determining the particular work of an individual in accordance with the consolidated rosters and the prevailing custom.

Plaintiffs ’ theory of the case is that a binding contract clearly expressing the purposes and intentions of the parties, reached after a thorough consideration of all factors, accepted and performed as intended by five out of the six groups bound thereby, will not be permitted to remain inoperative as to the sixth group because of the obstinacy of some of the parties thereto and thus bring irreparable loss, damage and injury and gross injustice to a large number of persons; and that a court of equity will compel performance by those guilty of breach of faith, and enjoin them from fraudulently continuing to obstruct and prevent the enjoyment of proper legal rights which are the subject matter of the contract.

One of the questions raised and urged by defendants is that seniority rights created by contract between an employer and the representatives of employees, do not follow an employee through a change of employers in the absence of a contract to that effect executed between the new employer and his employees. Plaintiffs had held seniority rights in connection with their employment on the B. & 0. as of the date of the beginning of that employment, but it is the contention of defendants that although such rights may exist as between one employer and his employees, they cannot, in the absence of specific agreement, follow the employee through a change of employers and confer upon him rights against his new employer and fellow workers based upon his date of employment with the former one. This conclusion follows inevitably — it is urged — from the legal nature of seniority rights; and further that such rights are necessarily contractual in origin. The case of Ryan v. New York Cent. R. Co., 267 Mich. 202, 255 N. W. 365, is cited and quoted from as follows; “. . . He (the employee) has no inherent right to seniority in service, nor did such right arise out of his employment by the railroad company except as provided for in the contracts entered into and the rules adopted by the company relating thereto____” And further, in Donovan v. Travers, 285 Mass. 167, 188 N. E. 705, it is said; . . Although a right of seniority such as is here asserted is undoubtedly a valuable property, it arises only from agreement....” And in Boucher v. Godfrey, 119 Conn. 622, 178 At. 655, the court said; “If such rights of seniority existed in favor of the plaintiffs, it must be by virtue of some contract between them and the company, either express or implied. ’ ’ Also cited, is the case of Hartley v. Brotherhood of Railway & Steamship Clerks, 283 Mich. 201. So that, being contract rights, the employee’s rights of seniority are effective only to the extent provided in the contract which creates them and against the parties bound by that contract. And we are in agreement with the suggestion that, thus, it follows that such rights, although granted by an employer to its employees, cannot automatically follow the employee to the service of another employer or be applicable against persons already in the employ of such second employer. This result follows, unless the parties by agreement make specific provision for the retention of his seniority standing by an employee under such circumstances.

From the facts of this case, we find that the B. & 0. at all times pertinent to this question had an agreement with its shop craft employees represented by system federation No. 30, which provided for seniority rights among the employees covered thereby. Similar agreements have been in effect on the B. & O. C. T. and the Alton, each negotiated between the individual carrier and the representative of its employees. None of these agreements contained any provision to the effect that an employee shifting employers was to carry with him his accumulated seniority. To the contrary, each provided that, when an employee transferred from one shop to another, even on the same road, he would lose his seniority, and his seniority at the new place of employment would begin at the time of Ms employment at that point. This is what is termed “point semority.” It would appear that the plaintiffs can find no support for their position, in claiming to have acquired seniority rights on the Alton effective as of the date of their first

employment on the B. & 0., in any of the collective agreements which were in effect at the time when they were transferred to the Alton shop.

In the absence of any showing of any contract right to seniority in the Alton shop growing out of any agreement with that company, the plaintiffs rely on another and different sort of agreement — the memorandum of agreement of August 22,1934. This instrument, plaintiffs insist, constitutes a complete contract vesting in them certain legal rights and their action is essentially one seeking specific performance of this alleged contract. Defendants however, contend that this memorandum was not a statement of complete agreement between the parties but was only a stage in a long series of negotiations which were designed to bring about an adjustment of the controversy then pending between the parties; and further that these negotiations broke down without final agreement being reached. Of course, a court of equity may not order the specific performance of an incomplete contract. Before specific performance can be had it must appear that the provisions of the coiitract are complete and binding on all parties. The trial court, in its decree, upheld the contention of plaintiffs that the contract of August 22,1934, constituted a complete agreement vesting in plaintiffs certain rights. It appears from the decree that was entered, as follows;

. . Be it further ordered and directed that the defendants prepare and submit for approval to the B & 0 C T and to the Chicago & Alton railroads consolidated rosters of all parties to this suit working or entitled to work in the car departments of said employers, dovetailing the names of the plaintiffs, giving them their home road seniority as of the date of the first transfers with the names of the defendants with their home road seniority in the respective places of employment; and that the defendants be and they are hereby enjoined from preventing the B & 0 men transferred in 1931 from bidding on jobs in accordance with the custom prevailing so long as they bid in accordance with the consolidated roster; and

“Be it further ordered and directed that said consolidated roster be prepared and so submitted within thirty (30) days from the date of the entry of this decree, and this Court shall retain jurisdiction of the subject matter and parties of this suit to effectuate the terms of his decree. ...”

When we come to consider the contract as the subject matter of this complaint for specific performance, we find that it is not a complete contract. Inasmuch as seniority rights must be effective against the employer if they are to be effective at all, he must be a party to any contractual arrangement which creates or alters them. The Alton railroad has accorded seniority rights to its employees by its general collective bargaining agreement with system federation No. 29, portions of which are copied into the joint exhibit stipulation. That agreement provides that the seniority of any worker shall be computed from the date of his last employment. The memorandum of August 22, 1934, proposes an arrangement which departs from the basic agreement by providing that B. & O. and B. & O. C. T. employees shall have seniority dates with the Alton other than those of their employment with that company. It is contended, with considerable force, that for such an agreement to be effective to establish legal seniority rights in the appellees or anyone else, it must first be assented to by the Alton. The trial court apparently recognized this situation, for it did not order the defendants to make a contract or to abide by a contract which in itself was deemed to provide seniority rights for the appellees but merely ordered them to submit a proposal to the Alton. And, even if the memorandum in question could be considered as a valid and complete contract, it is at most a contract between certain parties to make an offer to another party, an offer which may or may not be accepted. Without such acceptance, the plaintiffs would not be benefited. There is no evidence in the record indicating the attitude of the Alton toward such a proposal if made and accordingly, there is nothing to show that, if the proposal required by the court were made, it would ever be accepted or the plaintiffs would ever acquire any rights thereunder. The rule, of course, is familiar that, in connection with specific performance of contracts, equity will not use its broad and unique powers to do á vain thing. It will not order a course of conduct which may prove nugatory or without benefit to the persons seeking relief. We are of the opinion that the memorandum of agreement as incorporated in this record was not complete. The trial court by its decree merely directs that a proposal be submitted to the Alton Railroad for its approval; and, of course, as to whether or not it will be approved and accepted is a matter which will be taken care of in the future.

The plaintiffs in their brief say in reply that seniority rights are property rights and may properly be the subject of an agreement between employees or their representatives. As authority for the proposition that employees have the right to contract among themselves about their seniority rights, the case of Polanskey v. Monongahela Ry. Co., 342 Pa. 188, 19 A. (2d) 377, is cited. This recent case by the Supreme Court of Pennsylvania arose because in 1927 the Monongahela Railway took over a portion of the line of the Pennsylvania Railroad Company, whereupon plaintiffs employed by that company became defendant’s employees. In adjusting conflicting seniority rights of plaintiffs and the other employees of defendant, an agreement was made between the chairman of the General Grievance Committees representing the Order of Railway Conductors and the Brotherhood of Railroad Trainmen, providing, “in the words of the bill, that ‘for the purpose of seniority of employees’ the transferred branch ‘should be treated as an individual railroad unit and that the plaintiffs herein should have seniority over any other employees of the Monongahela Railway Company, insofar as said Chartiers Southern Branch was concerned. ’ ” In 1930, the defendant company constructed an extension to the transferred branch. For about nine years thereafter the extension, for seniority purposes, was treated as part of the branch originally transferred, and plaintiffs enjoyed the preferential rights claimed under the agreement. Later, however, in 1939 as a result of an election in the Brotherhood of Railway Trainmen there was a change in the recognized bargaining agent for the employees and this new agent requested the employer to make a change in the prior agreement. The employer did so, replacing three of the plaintiffs and thus depriving those plaintiffs of their prior seniority which they had enjoyed for nine years. The plaintiffs brought an injunction suit against the employer, asking for a decree to restrain the employer from depriving the plaintiffs of their prior seniority rights under the agreement. The decree was refused and the court affirmed the decree on the ground that the employer not being a party to the agreement between the employees it could not be enjoined.

Plaintiffs contend that the contract of August 22,1934 itself refutes the claim of defendants that the contract is too indefinite and uncertain to permit enforcement by a decree of specific performance; that it is easily understood what was meant by the phrase, “have the right to follow their work and retain the same seniority” as set forth in the contract; and that neither can it be successfully advanced that the necessity for reaching an agreement was uncertain because the agreement itself refers to the three different railroads and the two consolidations as being the cause for confusion and uncertainty. But we cannot quite agree with plaintiffs suggestion. Here, the decree directed that the defendants should prepare and submit for approval to the B. & O. 0. T. and to the Chicago & Alton Railroads consolidated rosters of all parties to this suit working or entitled to work in the car departments of said employers, dovetailing the names of the plaintiffs, giving them their home road seniority as of the date of the first transfers with the names of the defendants with their home road seniority in their respective places of employment, and that the defendants be enjoined-from preventing the B. & 0. men transferred in 1931 from bidding on jobs in accordance with the custom prevailing so long as they bid in accordance with the consolidated roster. As we have indicated, the conclusion necessarily follows that something remains to be done so as to make the contract enforcible, and that is what the court attempts to do by inserting the provisions of the decree just mentioned. To complete the uncertainty of this so-called contract, it must be noted that the representatives of the carmen were unable to agree and did not agree to the provisions as provided for by the committee that was taking up the question for determination. The contract as to the carmen, therefore, is still in dispute, and their refusal to agree to the provisions as provided for is still the subject of consideration.

Having reached the conclusion that the memorandum of agreement is not a complete contract, it is therefore necessary to consider the law that is applicable to the questions before us. Among the authorities cited by defendants, attention is called to the Restatement of the Law of Contracts, vol. 2, page 673, where the following language appears;

“If the uncertainty is so great as to prevent the giving of any legal remedy, direct or indirect, there is no contract. But there may be cases in which it is just to refuse the remedy of specific performance on the ground of uncertainty, even though it is not unjust to give a judgment for damages or restitution. ’ ’ Then again, the conclusion of the commentator in an annotation on this subject in 65 A. L. R. 102, is referred to, as follows:

1‘ Courts of law will grant relief in damages for the breach of many agreements which would not be regarded in equity as sufficiently definite and certain to warrant a decree for their specific performance. In this respect a greater degree of certainty is required in the terms of a contract which is to be specifically enforced in equity than is necessary in one which is to be the basis of an action at law for damages, since an action at law is founded on mere nonperformance by the defendant, and this negative act may often be established without determining all the terms of the contract with exactness. On the other hand, a suit in equity is wholly an affirmative proceeding, its object being to procure a performance by the defendant specifically, and this requires a clear and precise understanding of the terms of the contract, for they must be clear and definite before the performance thereof can be decreed. ’ ’ Our attention is also called to the case of Westphal v. Buenger, 324 Ill. 77, where the court was asked to specifically enforce a written agreement involving real estate which was not complete in its terms. The court there said that “An agreement in writing which does not purport to give an absolute right without further negotiation thereon, cannot be specifically enforced.” When we come to consider the memorandum before us, the court is not in a position to enforce the terms of the contract, which is not an affirmative one, the object of this proceeding being, of course, to procure a performance of the action specifically. This requires — as stated in the above annotation in 65 A.L.R. 102 — a clear and precise understanding of the terms of the contract, for they must be clear and definite before the performance thereof can be decreed. In our opinion the contract was not a complete one, being such that it was necessary for the court to direct that the defendants should prepare and submit for approval to the B. & O. C. T. and to the Chicago & Alton Railroads consolidated rosters of all parties to this suit working or entitled to work in the car departments of said employers. The suggestion of the trial court by this provision of the decree being that the B. & O. C. T. and the Alton Railroads approve the proposition after its preparation and submission to them, it is clear that the question of the enforcement of the contract depends on the further act of the employers. As we have already said, the Chicago & Alton has not approved of any offer suggested, and the question is whether said company will accept such offer when submitted to it. Therefore, the contract is not complete, and it is a well-known rule that equity will not enter a decree of specific performance to bring about a further agreement which the parties might have reached. The contract of which specific performance is asked must be complete and capable of enforcement without any further suggestions or agreement to make it complete.

Having considered the questions called to our attention, we are of the opinion that the court erred in its decree, for the reasons stated in this opinion, and the decree will therefore be reversed and the cause remanded with directions to dismiss the complaint for want of equity.

Decree reversed and cause remanded with directions.

Burke, P. J., and Kilet, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Hollywood Building Corporation, Appellee, v. Greenview Amusement Company, Appellant.
    Gen. No. 41,840.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed July 3, 1942.
    Rehearing denied September 18, 1942.
    Lawrence A. Jacobson, of Chicago, for appellant.
    Murphy & Pearson, of Chicago, for appellee; John T. Murray and Lawrence L. O’Connor, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action of forcible detainer filed December 5, 1939, for possession of theatre premises at 1500-08 W. Fullerton avenue, Chicago and for damages for unlawfully withholding possession. The trial was by the court without a jury and judgment was entered for plaintiff for possession. Defendant has appealed.

Defendant occupied plaintiff’s theatre under a 15-year lease made February 1,1938 with rent at $500 per month, plus a percentage of annual business. Included in the lease was a steel canopy and sign 40-feet wide, 6-feet deep, which extended 14 feet from the building to the edge of the then sidewalk. It is attached to the building with steel bindings, supports a sign, and on its three sides carries advertisements of current motion pictures. Early in 1939, Fullerton avenue was widened by the City and the width of the sidewalk reduced, so that the canopy and sign extend beyond the sidewalk and over the street about 6 feet. On November 18,1938, defendant wrote plaintiff, notifying it of the proposed improvement and the consequent reduction of the sidewalk width and the necessity of reducing the size of the canopy and sign to meet City Ordinances. The letter called upon plaintiff to make the changes. August 10, 1939, plaintiff wrote defendant demanding .that it remodel the canopy and notified defendant that its failure to do so in conformity with ordinances of the City was an “event of default.” October 15, 1939, plaintiff made a lease with another company, which later sued defendant in an action similar to this and in which defendant on November 8,1939, had judgment which was affirmed here. Fullerton Greenview Amusement Corp. v. Hollywood Bldg. Corp., 305 Ill. App. 452. November 26,1940, plaintiff demanded possession presumably because the defendant’s judgment made the second lease ineffective. Defendant refused to vacate and the instant suit followed. Plaintiff accepted $500 per month rent to and including April 1941, and while the checks were not cashed, were certified and kept by plaintiff. Defendant’s failure to remodel the canopy to conform to the City’s requirements, is the only default charge and it is admitted that neither party, when the lease was executed knew that the street improvement was to be made.

The court in its final order entered April 9, 1941, found that defendant failed to properly maintain and operate the canopy as required by the lease, violated the City Ordinance pertaining thereto and by virtue thereof is in default and plaintiff is entitled to possession.

Plaintiff contends defendant was required under the lease to remodel the canopy and sign following the street improvement, so as to come within the requirements of chapter 86, section 66 of the Municipal Code of Chicago, which provides that no sign erected prior to a street widening shall extend more than three feet beyond the new curb, after the improvement. The first question is whether defendant’s refusal to remodel the canopy and sign was a default under the lease giving rise to plaintiff’s right to possession. We must determine the answer by a reasonable construction of the terms of the lease and the intention of the parties.

The relation of landlord and tenant creates no obligation or duty on the landlord to make repairs, unless he assumed such duty by express agreement with the tenant. Loy v. Sparks, 304 Ill. App. 35. In the instant case the landlord assumed no such duty. A covenant to repair by the tenant, except to prevent waste by his acts of negligence, is not implied by law and an express covenant to repair will not be enlarged by construction. 45 A. L. R. 17.

Plaintiff’s contention rests on sections 1, 2, 3 and 4 of Article IV of the lease. Section 1 required defendant to comply with all health and police regulations to the extent of changes, structural or otherwise, costing $1,000 for any one year and $10,000 for the complete term. Section 2, required defendant to bear the cost of any changes in the premises, required by law and which were occasioned by its manner of operating the premises. Section 3 required it to keep the premises in good condition, working order and repair and to decorate, etc. and to return them in as good condition as when received, reasonable wear and tear excepted and to make all needful and proper replacements, renewals or improvements to maintain the efficiency of the premises. Section 4 required it to maintain and operate at its expense the electric sign and canopy with the right to remove, alter, modify or replace the sign or canopy on notice to plaintiff; in a proviso of this section lessee expressly agreed to indemnify plaintiff against all claims, etc. growing out of damages to personal property, resulting from the maintenance, operation, repair or reconstruction of the electric sign or canopy, or for failure to maintain them, and agreed that the lessor should have no obligation in connection with their maintenance or operation.

Section 2 does not apply because the change required in the sign and canopy was not occasioned by defendant’s operation of the premises. Section 3 applies only to work necessary to preserve the condition of the premises as they were at the execution of the lease. Section 4, refers only to maintenance and operation of the sign and canopy, except for the extraordinary work defendant had the right to do on notice to plaintiff, which we will discuss hereinafter. The proviso in section 4 refers likewise to the right to extraordinary work and to maintenance and operation. Section 1 requiring compliance with health and police regulations is the only provision upon which the judgment can rest.

We have not been referred by either party to any Illinois cases precisely on the point involved here. We have read several New York cases cited by the defendant, but they are not applicable here because of the words “structural or otherwise” in section 1 of the lease. Section 66 of the Municipal Code above referred to, is a police regulation (Evans v. City of Kankakee, 231 Ill. 223), which was brought into application when the sidewalk was reduced in width. The street improvement was, of course, not contemplated by the parties when the lease was executed, but a close reading of the lease indicates that plaintiff was'careful to avoid any responsibility for changes in the canopy and sign and that the necessary changes, though important alterations, come within the words “structural or otherwise.” A provision similar to that requiring notice to plaintiff of defendant’s proposal to exercise its right to alter, etc. the sign or canopy, was said in City of New York v. United States Trust Co., 116 App. Div. 349, 101 N. Y. Supp. 574, to negative the idea that defendant agreed to hear the expense of the alterations made necessary by law. In that case there was a prohibition against such changes unless the landlord consented. We believe that agreeing to make changes ‘‘structural or otherwise” in compliance with police regulations at defendant’s expense is not inconsistent with its right at its expense to make important changes voluntarily. We hold that a proper construction of the lease in question, having regard to the expressed and inferred intentions of the parties, is that defendant under section 1, was bound to alter the sign so as to comply with section 66 of the City Code.

Defendant claims plaintiff waived its right to possession for the default, by accepting rent after the notice and demand. Plaintiff does not deny that having-defendant’s checks certified was the same as cashing them, so far as defendant is concerned. Article VI, sec. 4 of the lease provides that “payment or receipt of less than the full amount due shall not” waive or affect any notice or demand or waive any right or remedy of the lessor, plaintiff. This provision differs from that in Vintaloro v. Pappas, 310 Ill. 115, cited by plaintiff. Plaintiff contends that the general rule of waiver does not apply here because of the provision referred to. Since the parties dispute the meaning, and because of the uncertainty of the language, we must construe the words most strongly in favor of the defendant. Plaintiff says the phrase “of less than the full amount due” modifies only “receipt” and not “payment.” We believe both words are modified by the phrase and that the proper construction clearly means that payment or receipt of the full rent waived plaintiff’s right to terminate the lease under the notice and demand which preceded such payment or receipt.

For the reasons herein given the judgment of the Superior Court is reversed.

Judgment reversed.

Burke, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Huffman

text:
    Raymond Walsh, Administrator of Estate of Johanna Walsh, Deceased, et al. Genevieve Swenson, Administratrix of Estate of Mary Lorraine Swenson, Deceased, Appellee, v. Kenneth F. Murray and Glen Ritt. Glen Ritt, Appellant.
    Gen. No. 9,776.
    Heard in this court at the May term, 1942.
    Opinion filed September 3, 1942.

      Hall & Hulse, of Waukegan, for appellant; Albert L. Hall, of Waukegan, of counsel.
    Diver & Caret, of Waukegan, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This action arises out of a collision between two automobiles. The deceased, Mary Lorraine Swenson, had spent part of her Christmas vacation with her grandmother, Johanna Walsh. On the day in question, the deceased, a child of twelve years, was riding home in a car then being driven by Kenneth F. Murray, her uncle. Biding in the Murray car, at the time, were Murray, the driver; Glen Blackburn; Gertrude Billings; Murray’s wife, Bernadine; her mother; Johanna Walsh, grandmother of the deceased; and the child. The cars collided at the intersection of two paved highways. Murray was driving his car south on highway 54. Appellant Bitt was driving his car east on highway 62, which was protected against the traffic from highway 54 by the usual and ordinary stop signs.

In the collision, Mary Lorraine Swenson was killed. Her mother, Genevieve Swenson, brings this suit against Murray and appellant Bitt. Trial by jury resulted in a verdict in favor of appellee plaintiff, and against both defendants, in the sum of $5,000. By special interrogatory submitted, the jury found defendant Murray guilty of wilful and wanton misconduct. He prosecutes no appeal. Defendant Bitt brings this appeal from judgment on the verdict, and argues two grounds for reversal; first, that the court admitted improper evidence on behalf of appellee with respect to the testimony of two deputy sheriffs concerning the speed of an automobile about one-half mile from the scene of the accident, which was of the same color as appellant’s car; and second, that Murray at the time, was acting as custodian of plaintiff’s intestate, and Ms negligence, by law, is imputable to the parent. The deceased left no brother or sister.

Glen Blackburn was riding in the front seat by the side of Murray. The deceased was riding in the back seat with her grandmother, and others. It was a clear, cold day in January. The highway was free of ice and snow. Blackburn is the only witness in the case who saw the accident. He states the Murray car was traveling about 50 miles an hour; that as it came into the intersection, he heard Murray exclaim; that it was but the fraction of a second thereafter until the collision occurred. This witness states he saw appellant’s car as it approached the intersection; that it did not change its course; that it was traveling at a speed of 70 to 80 miles per hour, and struck the Murray car about the center of the body. The windows of the Murray car were frosted over, and apparently the occupants of the car, other than Murray and Blackburn, did not see appellant’s car. The collision threw Blackburn clear of the Murray car, but it did not appear to stun or bewilder him. He immediately went to the Murray car to assist in removing the occupants. He says that the officers arrived almost instantly after the accident; that by the time he had gotten up from the pavement, they were there; and that no car passed the intersection between the time of the collision and the arrival of the officers. It appears that the intersection is out in the open country where the view is unobstructed.

The testimony of the two officers (deputy sheriffs), discloses that they were traveling upon the same highway being traveled by appellant, and in the same direction; that about a half mile from the intersection, a green sedan°passed them at a rapid rate of' speed, and disappeared around a curve in the road. The officers proceeded until,they came to the curve, which was about a quarter of a mile from the intersection, when they saw that an accident had occurred. They then increased the speed of their car, passing all cars between them, and the intersection. Upon arriving at the scene of the accident, they found a green sedan involved, answering the description in color and design as the one that had just passed them. This was appellant’s car. One of the officers states that, in his opinion, the green car was traveling about 60 miles an hour when it passed their car. Only a few seconds elapsed between the time the green car passed the officers and their arrival at the scene of the accident. They saw no other green car. Blackburn testifies that no car passed through the intersection between the time of the accident and the arrival of the. officers.

Under such circumstances, we do not consider the admission of the testimony of the officers regarding the speed of the green car at the time it passed them, to constitute error. The facts and circumstances in evidence, were proper for the consideration of the jury upon the question of the identity of appellant’s car, and whether the speed at which it was traveling at the time it passed the officers was maintained to the place of the accident.

Appellant urges as his second point for reversal, that Murray was the custodian of the deceased for the purpose of taking her home; that appellee had entrusted him with this mission, and that his negligence was imputable to appellee; that since the jury found Murray guilty of wilful and wanton misconduct in the operation of his car, appellee is barred from recovery. It appears from the testimony of appellee that she did not know who would bring her daughter home; that she was expecting her on that day or the next; and that some of the friends of the family, or members of the family, had always brought her home on previous occasions. Murray had five adults riding with him, consisting of his wife, relatives, and friends. The evidence is that these people were riding as his guests. No witness testified on behalf of appellant. The record is silent as to the relationship of agency existing between Murray and appellee. This was a question for the jury.

It is usually considered in a suit of this character, that “the negligence of a third party cannot be imputed to the plaintiff unless the third party occupies the relationship of servant or agent of the plaintiff.” This rule includes-inf ants. Smithers v. Henriquez, 368 Ill. 588, 600; Thomas v. Buchanan, 357 Ill. 270, 277, 278.

We are of the opinion the trial court did not err in admitting the testimony of the officers; and that the verdict of the jury on the question of relationship of agent or servant existing between appellee and Murray cannot be considered as contrary to the manifest weight of the evidence. These are the two points argued by appellant.

The judgment is therefore affirmed.

Judgment affirmed.


text:
    Richard W. Frey and Lucile Frey, Appellants, v. Louis Schaab and Richard D. Pollard, Justice of the Peace, Appellees.
    Gen. No. 9,793.

      Heard in this court at the January term, 1942.
    Opinion filed September 3, 1942.
    Eagle & Eagle, of Rock Island, for appellants.
    Stafford & Schoede, of Rock Island, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This case comes to this court by transfer from the Supreme Court. The nature of the case, the pleadings, the decree appealed from, and the errors assigned, are fully set out in the opinion of the Supreme Court (Frey v. Schaab, 379 Ill. 315).

Each error assigned by appellants, in the final analysis, is based upon the question whether the complaint and amended complaint stated a cause for equitable relief. Appellants by the last error assigned, complain of the action of the trial court in denying them leave to file an amended complaint. Motion had previously been granted to dismiss the original complaint for failure to show grounds for equitable relief. The amended complaint was attached to the motion for leave to file same, and is precisely as the original complaint, except that two paragraphs thereof are amplified by certain additional allegations of evi-dentiary matters.

Courts of equity are liberal in allowing amendments, to the end that justice may be done, however, the allowance thereof is largely within the discretion of the trial court, and a court of review will not reverse for a refusal to allow an amendment unless a manifest abuse of such discretion is shown. County of Winnebago v. Cannell, 376 Ill. 277, 282; Walker v. Struthers, 273 Ill. 387, 391, 392; Trustees of Schools v. Otis, 85 Ill. 179. When the complaint, in substance, fails to show that plaintiff has a cause for equitable relief, it is not error to dismiss it, especially after one motion to dismiss has been sustained, and the plaintiff has had an opportunity to obviate or avoid, the objections by his amended complaint. Foss v. People’s Gas Light & Coke Co., 241 Ill. 238, 251.

The relief sought by appellants, is in the nature of a specific performance of an alleged contract with appellee arising by way of letter and oral promises, by having a trustee appointed to take and hold appellee’s real and personal property; that he be declared to have a life estate only therein; and that appellants be decreed the owners in fee thereof, as remaindermen. Under the following authorities, we are of the opinion, the complaint failed to present a sufficient cause for such relief. Faulkner v. Black, 378 Ill. 112; Holsz v. Stephen, 362 Ill. 527; Rath v. Degener, 352 Ill. 135; Yager v. Lyon, 337 Ill. 271; Flannery v. Woolverton, 329 Ill. 424; Lonergan v. Daily, 266 Ill. 189.

The decree of the trial court is affirmed.

Decree affirmed.


author: Justice Culbertson.

text:
    People of the State of Illinois, Defendant in Error, v. Elihu Totten and Mabel Totten, Plaintiffs in Error.
    Heard in this court at May term, 1942;
    opinion filed June 27, 1942;
    rehearing denied September 9, 1942.
    J. L. McLaughlin and U. G. Ward, for plaintiffs in error; George P. Barrett, Attorney General, for defendant in error; Joseph B. Siemer, State’s Attorney.
   Opinion by

Justice Culbertson.

“Not to be published-in full.”


author: Justice Dady.

text:
    People of the State of Illinois, Defendant in Error, v. Rolston Smith, Plaintiff in Error.
    Heard in this court at May term, 1942;
    opinion filed June 27, 1942;
    rehearing denied September 9, 1942.
    Earns & Bandy, for plaintiff in error; George P. Barrett, Attorney General, Louis P. Zerweck, State’s Attorney, B. V. Gustin and Pred J. Bier, Assistant State’s Attorneys, for defendant in error.
   Opinion by

Justice Dady.

“Not to be published in full.”


author: Presiding Justice Burke.

text:
    Commercial Engraving Company, Appellant, v. Arthur C. Cimaglia, Appellee.
    Gen. No. 42,193.
    Heard in third division, first district, this court at April term, 1942;
    opinion filed July 3, 1942;
    rehearing denied September 18, 1942.
    Harry H. Kaplan, for appellant; Arnold S. Kabaker, of counsel; John A. Ulrich, for appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


author: Presiding Justice Huffman.

text:
    Chicago Title and Trust Company, Appellee, v. Richard F. Pietschman et al. Caroline Lott, Appellant, v. Albert J. Peterson et al., Appellees.
    Gen. No. 9,780.
    Heard in this court at May term, 1942;
    opinion filed September 3, 1942.
    Snyder & Clarke, for certain appellant; Gerald C. Snyder, of counsel; Leslie A. Needham, for certain other appellant; Perlman, Goodman, Heeht & Chesler, for certain ap-pellees; Morton C. Chesler, of counsel; Defrees, Fiske, O’Brien & Thomson, for certain other appellee; Howard M. Biemeck, of counsel.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.


text:
    Maria Grice, Administratrix of Estate of Dolores Grice, Deceased, Appellee, v. Paul F. O’Neil, Administrator of Estate of Richard Jacobsen, Deceased, Appellant.
    Gen. No. 9,799.
    Heard in this court at May term, 1942;
    opinion filed September 3, 1942.
    C. H. Linscott, for appellant; Clarence M, Dunagan, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


author: Mr. Presiding Justice Hayes

text:
    People of the State of Illinois, Defendant in Error, v. Noah D. Rife, Plaintiff in Error.
    Gen. No. 9,329.
    Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.
    Rehearing denied October 6, 1942.

      Walter V. Dysert, of Danville, for plaintiff in error; A. B. Dennis, of Danville, of counsel.
    William T. Henderson, State’s Attorney, and Thomas A. Graham, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

The plaintiff in error, Noah D. Rife (hereinafter called the defendant) with his wife Mabel Rife, was indicted by a grand jury of Vermilion county, charged with the crime of receiving, buying and aiding in concealing 132 pounds of engine brass, and 167 pounds of journal brass, all the property of Benjamin Wham, trustee of the Chicago and Eastern Illinois Railway, a corporation, which brass had been stolen from said trustee. The indictment alleged that the defendant and his wife had knowledge that the brass was stolen property.

The jury returned a verdict finding the defendant guilty, and fixing the value of the property at $9.35, and also found Mabel Rife not guilty. The defendant was sentenced to Vandalia for one year and fined one thousand dollars, from which judgment he prosecutes this writ of error.

On November 5,1940, the defendant bought the brass in question from Henry Brandon, a colored man, and gave him a check in the sum of $10.67. The defendant and his wife, for sometime prior to the day in question, had operated a junk yard in the city of Danville. At the time in question the Chicago and Eastern Illinois Railway Company had its property and assets in the custody and control of Benjamin Wham as trustee, by appointment of the United States District Court of the Northern District of Illinois, pursuant to a reorganization under section 77 of the Bankruptcy Act. About the middle of October 1940, the round house foreman in Chicago had supervised the replacing of heavy brass on engines numbered 3643 and 1908, and had the same placed in a freight car, sealed, and sent to Danville, where it was unloaded at the storehouse platform inside the C. & E. I. shops near the round house. It was then .put in the bins in the shop at Dan-ville and each piece of brass bore the engine number from which it was removed. On the same day that the defendant had bought the brass from Brandon, three employees of the railway company, together with the deputy sheriff, appeared at the defendant’s junk yard where they recovered 299 pounds of railway brass. It bore the engine numbers 3643 and 1908, also a pateiyt number A-D 830 which number is used exclusively by the Chicago and Eastern Illinois Railway. These pieces of brass were introduced in evidence.

The two principal grounds urged for reversal of this judgment are first, the defendant contends that the property in question was not shown to be owned by Benjamin Wham, trustee of the railway, on account of there being an absence of evidence that he filed a fifty thousand dollar bond, and second, that the corpus delicti was not established beyond all reasonable doubt.

It appears from the record that a number of the Peoples’ witnesses including W. B. Sloan, chief of police of the Chicago and Eastern Illinois Railway Company ; C. Mortel, round house foreman; W. H. Grapethein, storekeeper at Chicago; William C. Sperry, conductor and Louis H. Davidson, checker at the storehouse, all testified that in October and November of 1940, they were working for Benjamin Wham, trustee of the Chicago and Eastern Illinois Railway Company.

From the documentary evidence it appears that Benjamin Wham was appointed trustee of all the property of the Chicago and Eastern Illinois Railway Company by the United States District Court under date of August 1, 1939. It further appears from an order entered on the 9th day of December, 1940, by Judge Barnes of the United States District Court that Benjamin Wham, trustee was in charge of said railway, and had possession and control of the same from the date of his appointment which was on August 1, 1939.

Special ownership or interest in or possession of property is sufficient to prove ownership as against a party charged with the larceny of such property. People v. Fitzgerald, 297 Ill. 264; People v. Picard, 284 Ill. 588; Flanagan v. People, 214 Ill. 170; Smith v. People, 115 Ill. 17.

In the ease of People v. Leggio, 329 Ill. 514 at page 518 the court said: “The exact state of the title of stolen property is of no particular concern of the thief, except that it must have been in someone else, hence evidence of possession is ordinarily sufficient proof of ownership. Possession, with general acts of ownership, is sufficient to warrant a verdict where there is no evidence presented questioning the right of property. . . . The mere taker of an estray animal is a sufficient owner from whom the animal could be stolen. ’ ’

In People v. McCabe, 306 Ill. 183, the defendant was charged with burglarizing a freight car, — the property of the Wabash Railway Company. The car in question was shown by the evidence to be marked ‘ Soo Line. ’ ’ The proofs further show that the car in question was in a long freight train on the Wabash Railway and in possession of the Wabash as well as the merchandise therein. The point was raised by defendant that there was a fatal variance between the allegations of the indictment and the proof. In passing on this question, the court said: “Special ownership or interest in property burglarized is sufficient to prove ownership as against the party charged with breaking and entering the building. People v. Fitzgerald, 279 Ill. 264. There is no merit in this contention.”

It appears from the record that there was ample proof to show that the trustee was in possession and control of the brass engine parts to warrant the jury in finding ownership as alleged in the indictment.

The defendant contends that the corpus delicti has not been established, and points out that the railway officials and agents of the trustee had not missed the parts until they found them in the junk yard, and that Brandon who had brought the parts to the junk yard was not called by the State, although he was present in court. It appears from the record that the prosecution asked the court to make Brandon a court witness which motion was denied and neither party then called Brandon, each being unwilling to vouch for his veracity. Corpus delicti can be proved by circumstantial evidence the same as any other material fact, and the record clearly established that the parts in question had been recently taken from two engines in the railway yards in Chicago, shipped to Danville, and within a short time thereafter were found in this junk yard, with numbers on them that clearly established their identity. These circumstances are similar to those in the case of the People v. Feeley, 374 Ill. 402, where police officers arrested the defendant for speeding in his automobile, and then discovered merchandise in the car, which had been stolen from a number of department stores, which included shirts, ties, socks and other wearing apparel. In that case the defendant, as in this case, contended that the corpus delicti was not properly established. The court in passing on this question stated: “Circumstantial evidence may be resorted to in order to prove the corpus delicti in the same manner and to the same extent that such evidence may be admitted to connect the accused with commission of the offense. . . . The finding of the shoplifter’s boxes, the large quantities of similar department store articles stuffed into cardboard boxes, the fact that none of the articles had been wrapped in packages by the stores allegedly making the sales, all satisfactorily proved the corpus delicti of the offense charged in the indictment without taking into consideration the admissions made by plaintiffs in error.”

There is no invariable rule as to the quantum of proof necessary to establish a corpus delicti. Each case must depend upon its own particular circumstances.

Complaint is made on the given instructions for the people and the refused instructions for the defendant. Nothing has been pointed out of such a serious nature as to cause a reversal. In taking the record as a whole we are not able to say, from a consideration of all the evidence, that there is clearly a reasonable and well-founded doubt of the guilt of the accused and so we are not warranted to interfere with the verdict of the jury on the ground that the evidence does not support it nor that there is a failure to establish the ownership as alleged in the indictment or a failure of proving the corpus delicti.

For the reasons herein stated, we find the judgment of the circuit court of Vermilion county should be affirmed.

Judgment affirmed.


author: Mr. Justice Riess Mr. Justice Hayes

text:
    Walter W. Williams, Appellant, v. Janet G. Williams, Appellee.
    Gen. No. 9,334.
    Hates, J., dissenting.

      Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.
    Be-hearing denied October 6, 1942.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellant; William Wilson and John C. Butler, both of Chicago, of counsel.
    Costigan, Wollrab & Yoder, of Bloomington, for appellee.
   Mr. Justice Riess

delivered the opinion of the court. Appellant petitioner, Walter W. Williams, has appealed from an order entered by the circuit court of McLean county, Illinois, on November 6, 1941, denying appellant’s petition for an itemized accounting by respondent appellee Janet G. Williams, of all funds which had been paid to her by him for the support of their two minor children under the terms of a prior decree of that court entered on July 26, 1940, in a suit wherein petitioner was granted a divorce by default on the grounds of wilful desertion, and wherein the custody of said minor children had been awarded to the mother, together with an order for a monthly allowance payable to her by the appellant for their support and education.

The abstract of record, petition and motion to strike the same disclose that the petitioner is a man of large property interests; that a suit for divorce and concerning the custody and support of the two minor children of the parties hereto was pending in' said court; that a jury had been called and impaneled to try the issues of fact; that a “Memorandum of Agreement” by the parties dated July 26, 1940, was thereupon entered into and signed by said parties, adjusting and settling their property interests, certain costs and financial obligations and providing that appellant herein pay to appellee the sum of “$450.00 per month for care, support and education of the children”; that thereupon said divorce suit was dismissed and plaintiff (petitioner herein) on the same day filed a new suit for divorce alleging wilful desertion; that defendant appellee entered her written appearance and consent to default and hearing of the cause, which was thereupon heard by the court on default and a decree of divorce and for custody and support of the two minor children was entered as hereinabove indicated.

The decree contained among other provisions the following findings and recitals:

‘ ‘ The Court further finds that there was born to the marriage of the plaintiff and defendant one child named Charles W. Williams, now of the approximate age of three years, and that at the time of the said marriage said defendant was the mother of one certain other child, now of the approximate age of six years, which, said latter named child was after the marriage between the plaintiff and the defendant, legally adopted by the plaintiff according to the statute in such case made and provided and the name of said child in said adoption proceedings was changed to Arthur Williams.
“It is therefore ordered, adjudged and decreed by the Court that the bonds of matrimony between the plaintiff, Walter W. Williams, and the defendant, Janet Gr. Williams, be dissolved and they are hereby dissolved accordingly; and the parties are, and each of them is, freed from the obligations thereof.
“It is further ordered, adjudged and decreed that all of the rights or claims of the defendant in and to any property of the plaintiff including any right of claims of support and the rights or claims of dower and homestead are absolutely and forever barred to the defendant.
“It is further ordered, adjudged and decreed until further order of this Court that the said defendant shall have the custody of the children, Charles W. Williams and Arthur Williams, subject to the right in the plaintiff of visitation of said children at reasonable times and places and that the said plaintiff shall pay to the defendant to maintain a suitable home for said children and for their care, support, maintenance and education the sum of $450.00 per month beginning August 5, 1940, and monthly thereafter during the minority of said children for said purpose. It appearing to the Court that suitable provisions have been made for the care and support of said children in lieu of .the provisions of this decree in the event of the death of the plaintiff during the minority of said children, it is therefore ordered that the above provisions respecting payments for the care, maintenance and support of said children shall not constitute a lien or charge against any of the property of the plaintiff.
“It is further ordered that unless otherwise ordered by the Court the said defendant shall keep and maintain said children within McLean County, Illinois. ’ ’

Subsequent to the entry of said decree on July 26, 1940, a supplemental order was entered on January 14, 3941, making more specific provisions concerning the custody and right of visitation to said children, wherein it is recited “That it would be for the best interests of the parties and of said minor children that said times of visitation be fixed and determined by order of the Court.” It is then provided that the petitioner shall have the custody and companionship of the two children upon certain Saturdays, Sundays, and a portion of the summer season therein specified, on terms and conditions recited.

No complaint is made by appellant of any violation of the terms of said decree; no prayer for any reduction in payments or other modification of its terms as above modified, is contained in the appellant’s petition; no complaint is made as to the care, custody, treatment or education of the children by the defendant appellee nor of any misuse or waste of moneys or funds paid for their support thereunder.

The petition requesting the order for an accounting filed by plaintiff appellant on September 25, 1941, recites in substance the entry of the original decree of divorce on July 26, 1940, the order of court awarding custody of the children to the defendant subject to the right of visitation by the plaintiff; the provision in said decree that the plaintiff pay to the defendant to maintain a suitable home for the children and for their care, support, maintenance and education the sum of $450 per month beginning on August 5, 1940, and monthly thereafter during the minority of said children for said purposes; that the plaintiff agreed to advance and did advance to the defendant the sum of $1,500 for furnishing a home for said children and that all rights or claims of the defendant in property of or support by the plaintiff were barred to the defendant ; that the petitioning plaintiff thereafter made payment of said sum of $1,500 and 13 monthly payments of $450 to the defendant pursuant to the terms of the decree, and further recites that1‘ More than one year has elapsed since the entry of said decree and the initial payment made thereunder by the plaintiff to the defendant for the purpose of furnishing a suitable home for said children and for their care, support, maintenance and education, and yet no accounting has been made by the defendant to this Court of her disposition of said sum of Seven Thousand Three Hundred Fifty Dollars ($7,350.00).” The petition then prayed for an order of court requiring defendant “to file within a short day to be fixed by this Court, a detailed account of the disposition of said sum of Seven Thousand Three Hundred Fifty Dollars ($7,350.00) made by her, together with vouchers in support thereof.”

Defendant appellee, Janet Gr. Williams filed her motion to strike the petition on the following grounds: That the same was filed in the cause of the first suit numbered 18750 wherein all files had been withdrawn on July 26, 1940, whereas petition seeks an accounting in connection with a decree in cause No. 19086 entered on July 26, 1940, concerning which above recitals are made; that it was not contemplated nor provided in said decree that defendant mother should keep a specific record of the funds so received by her and no requirement to account for the expenditures of said moneys were imposed by any provision of said decree; that the sum of $450 per month was agreed upon after selection of a jury to try the issues in the first case, which suit was withdrawn and the subsequent suit filed, followed by the later decree hereinabove referred to, which embodied the terms of said agreement; that there was no showing or allegation contained in said petition that said Janet Gf. Williams has not provided for the proper care, support and maintenance of said children and furnished them a suitable home, and that there is no justification under the provisions of said decree for a petition requiring defendant to make an accounting in these proceedings. Further recitals are made as to ample financial means, income and property holdings of the plaintiff and the entry of said consent decree as to the allowance to be made as therein provided for and that in consideration thereof, defendant waived valuable property rights in connection therewith; that said monthly payments and moneys provided for was to be paid to her and expended according to her discretion for the best interests of said children while remaining in her control and custody and was not to be disbursed by use of vouchers or other fixed method of expenditure and that “ Consequently said Janet Gf. Williams is under no obligation to and not in position to submit vouchers covering her expenditures in that regard.”

In support of appellant’s contention that an order should be entered requiring the filing of such itemized account and statement with vouchers in the court, it is insisted that a trust relation existed between the mother and her two small children requiring the expenditure of said funds under the decree for their benefit, and while conceding that no court of review of this State has ever held that such itemized accounting is required in a similar case, contends strenuously that a general rule of law requiring a trustee to keep an account of and file reports showing receipts and expenditures of trust funds is applicable to the facts herein; that such children are wards of the court and it is therefore incumbent upon the court to require such accounting.

It is the defendant’s contention, in substance, that no provision therefor is contained in the decree; that no charge of waste, misapplication of the funds or failure to comply in all respects with the express terms of the decree is contained in the petition; that said general rule has no application to the facts or proceedings herein unless a failure to comply with the terms of the decree is charged; that the matter of requiring a report in proceedings of this nature is purely within the sound discretion of the court, which cannot be questioned unless facts are alleged and proven that show an abuse of such .discretion; that upon appeal, nothing can be presumed against the proper exercise of such judgment and discretion by the court; that all presumptions are in favor of and not against the proper exercise of such discretion unless and until the contrary is shown to appear.

Certain cases involving trusteeships and reports and accounts by trustees, or of officers or persons standing in the relation of trustees under certain statutes, are cited. We need not analyze the facts and the rulings of the court in these cases for the reason that they have no application to the facts and proceedings arising under the petition herein. Plaintiff has particularly cited and quoted from the case of Stonehill v. Stone- hill, 146 Ind. 445, 45 N. E. 600, to the effect that “The person to whom money for support of a child is ordered paid by the Court receives it as a trustee, and can only expend the same for the benefit of the child.” That may well be conceded to be true when any diversion or misuse of such funds are charged, but has no application to the facts herein. In that case, a divorce was granted to the appellee, who was given custody of a child and the appellant was ordered to pay $2.50 per week towards its support. It was there held that on failure of the defendant to obey such order as to payments, the plaintiff in the decree was entitled to a rule to show cause why he should not be adjudged guilty of contempt. It was further held that the court, under the statute, • necessarily has the right to commit the custody of the children to either party to the exclusion of the other, or to commit them to the custody of others and to modify the decree in regard to the custody of the child and give the same to the appellee or to a stranger or to modify the order in regard to payment for support not only as to amount but to the person to whom it should be paid. Nothing whatever was said there concerning an itemized accounting of funds expended, and the case has no application to the facts or issues herein.

The case of Hutchinson v. Wood, 59 Ind. App. 537, 109 N. E. 794, also cited by appellant, was a suit to quiet title to real estate. One of the defendants, a divorcee, had been awarded the sum. of $400 payable by the husband to be used toward the support of minor children. The question arose as to whether or not the nonpayment thereof constituted a cloud on the title to his real estate and an accounting became necessary in order to ascertain what balance, if any, remained unpaid under the decree. It was there held that the person to whom money for the support of a child is ordered to be paid by the court receives it as trustee and can only expend it for the benefit of the child. We have no quarrel with the application of that rnle to the facts of that case, which has no bearing upon the contention that it is the general duty of all persons to whom funds are made payable in a divorce decree for the support of a child or children, to make a regular verified accounting and report to the court in relation thereto when no provision therefor is made in the decree.

It is provided in par. 19, ch. 40, of the Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.186], that “When a divorce shall be decreed, the Court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. . . . And the Court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.”

No requirement to make verified itemized reports of payments received and to produce receipts for the expenditure thereof is provided for in either the Illinois statute, supra, or in the decree of the court herein, and no different facts are set forth or alleged in the petition as a ground or reason why the same should be required in the instant case than in any other divorce proceeding where money is ordered to be paid by one parent to the other for support of minor children. Counsel has cited no case nor do we know of any precedent for the filing of itemized verified reports accompanied by vouchers in divorce proceedings wherein alimony or support money was provided for in the decree, except in cases wherein it is duly charged or shown that a failure so to do has moved the court, either as a matter of sound discretion or upon proper allegations supported by proof upon a hearing thereof, that the custodian who received, or the parent who is ordered to pay such alimony or support money, has failed to comply with the terms of the decree. Provision for the nurture and proper training of children of divorced parents by the court, and the exercise of full and continued jurisdiction thereof, is recognized as a matter of sound public policy in this State. Kelley v. Kelley, 317 Ill. 104, 110, 147 N. E. 659; Stafford v. Stafford, 299 Ill. 438,132 N. E. 452.

Petitioner’s counsel have referred to specific statutory provisions requiring bond with approved securities and verified reports and accounting by executors, administrators, conservators, guardians and certain other persons acting as trustees. These statutory provisions and requirements are not therein nor elsewhere made applicable to the terms and provisions of a divorce proceeding involving parental custody of minor children. Courts of equity, in determining the duties of parents in cases wherein the welfare of children who are wards of the court are concerned, must take into consideration not only the expenditures of money ordered to be paid, but also the enjoyment of parental care, control, education and the moral well-being and happiness of the child, which render its interests and welfare at all times paramount. With this end in view, courts of equity have recognized that the expenditure of such funds entails the exercise of considerable discretion by the parent, and unless it is charged or shown that the parent custodian of the child has failed to comply with the letter or spirit of the decree in relation thereto, the court will not ordinarily interfere.

It is contended by defendant’s counsel that the purpose of this proceeding by the appellant, since remarried, is to harass the defendant after she had surrendered valuable personal claims to property or support, under the terms of their agreement and the subsequent decree. With the differences between the parents, the court is not concerned at this time, except as the same may affect the welfare of the children. As is aptly said in Kelley v. Kelley, supra, “Since the children of divorced parents are often exposed to the mutual animosities and jealousies of their parents and the happiness of the children and their usefulness as citizens are thereby endangered, it is the established policy of the law of this State to regard such children as wards of the Court. The nurture and proper training of the children of divorced parents being matters of vital interest to the State as well as to the children themselves, the legislature has provided that the Court granting a divorce shall have full and continuing'jurisdiction, during the minority of such children, to make from time to time such orders with respect to their care, custody and support as reason and justice shall require.” It is not the intention of this court to criticise or question the motives or good faith of either parent herein. No modification of the decree nor alleged failure to comply with its terms is set forth or prayed in the petition and it is the opinion of this court that the action of the trial court in denying and dismissing the same was proper and that the court committed no error therein.

The decretal orders of the circuit court of McLean county will, therefore, be affirmed.

Affirmed.

Mr. Justice Hayes

dissenting: I dissent from the decision of the court in this case. The opinion filed, in my judgment, overlooks the broad powers granted equity courts in divorce cases, especially where minor children are involved. The legislature of this State has vested continuing jurisdiction in trial courts over the care, custody and maintenance of minor children of divorced parents, Ill. Rev. Stat. 1941, ch. 40, par. 19 [Jones Ill. Stats. Ann. 109, 186], and it seems clear to me that this jurisdiction, to be complete, must in-elude the power to oversee the application of support money for the benefit of such children.

T am not impressed with the argument that the petition here should be denied because the Divorce Act makes no express provision for an accounting and because the decree of divorce is also silent in this respect. The language of the Divorce Act is broad and much detail is left to the courts for adjudication. For example: while the statute permits, it does not compel an award of support money to minor children, yet the courts of this State have wisely held that even after a decree of divorce making no award of maintenance, the father is liable for the support of his minor children, Panther Creek Mines v. Industrial Commission, 296 Ill. 565, and that sums spent on behalf of such children by their custodian may be recovered on a subsequent petition in the original divorce proceeding. Plaster v. Plaster, 47 Ill. 290. Moreover, although the language of the statute is general, it is the established law of this State that the powerful weapon of contempt proceedings is available for use against any father who wilfully refuses to meet obligations imposed upon him in a decree.

These remedies have been established to insure the care, and nurture of minor children. Similarly, justice would seem to require that such children be protected from the extravagance or dishonesty of their custodian. I do not believe that the majority of this court would deny relief in a case where there was proof that support money paid was being misapplied; but how can such proof be established unless an accounting is made.

These are not contempt proceedings where it is sought to punish respondent for misapplication of funds. In such case, it may well be that charges of dishonesty should be required in the petition and the burden of proof in support thereof placed upon petitioner. Here we are concerned only with the preliminary issue of whether, in fact, the payments of support money are being used for the benefit of petitioner’s children. Because it would be difficult or tedious to keep accounts and render a report should be no defense to this petition; guardians and conservators have been similarly burdened by express statutory provisions. If the power exists to compel an accounting, and I believe it does, the difficulties involved are unimportant. Furthermore, the threat or harassment that might exist if the right to this type of relief is granted is no greater than exists because of the power of courts to enforce payment of support money by contempt proceedings.

While it is true that no decision has been found allowing a relief of this type, it is important to note also that no authority denying it has been cited. Moreover petitioner has cited cases from another jurisdiction where the fiduciary relationship between custodians and minor children under their control has been recognized. Stonehill v. Stonehill, 146 Ind. 445, 45 N.E. 600; Hutchison v. Wood, 59 Ind. App. 537, 109 N.E. 794. I concur with the statements made in these cases and believe further that once it is held that a custodian receives payments of support money as trustee for his wards, the duty to account for it follows as a matter of course.

I therefore believe that the judgment of the circuit court of McLean county should have been reversed and the cause remanded to that court for further proceedings.


author: Mr. Justice Ribss

text:
    James Lester, Minor, by Troy Lester, His Father and Next Friend, Appellee, v. Peter Bugni et al., Appellants.
    Gen. No. 9,338.

      Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.
    Rehearing -denied October 6, 1942.
    Snell & Seyerit, of Carlinville, and Robert W. Johnson and Earl S. Hodges, both of Springfield, for appellants.
    Jesse Peebles and E. R. Phelps, both of Carlinville, and Mark O. Roberts, of Springfield, for appellee.
   Mr. Justice Ribss

delivered the opinion of the court.

The defendant appellants Peter Bugni and Roy Donelson each operated a tavern in or near Carlin-ville, Illinois, wherein intoxicating liquors were sold. The defendant appellant Eugene Bates was the owner of the tavern operated by Donelson. Suit had been filed in the circuit court of Macoupin county by James Lester, a minor, aged seventeen years, by Troy Lester, his father and next friend, seeking recovery of damages for personal injuries alleged to have been sustained by said minor plaintiff on September 28, 1940. Plaintiff’s injuries resulted from the overturning of an automobile owned and operated by one Russell Durham, by whom plaintiff Lester was employed as a farm hand. Durham was alleged to have been intoxicated with liquor sold to him by defendants Bugni and Donelson in their respective taverns on that day which proximately caused such injuries and damage to the plaintiff.

The case was tried by a jury and a verdict was rendered in favor of plaintiff in the sum of $4,250. The court denied defendants’ motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial, and judgment was entered on the verdict, from which judgment all of said defendants have perfected their appeal to this court.

From the abstract and record it appears that the facts in the case were substantially as follows: James Lester’s home was in Girard, Illinois. On September 26, 1940, he was employed by Russell Durham as a farm hand and was taken to the latter’s farm located about fifteen miles northwest of Carlinville and about three miles north of Palmyra, Illinois. On the evening of September 27, Durham’s Ford automobile had run out of gasoline about a mile and a half from his home and was left standing on the side of the highway overnight. During the next morning, Durham and Lester shocked beans on the farm and in the afternoon Durham caused Lester to fill a ten gallon can with gasoline and take it to the car. Durham, accompanied by Lester, then drove to Carlinville where Durham first obtained an eight dollar parity check from the farm office and then went to defendant Peter Bugni’s tavern in Carlinville, where he cashed the check.

Lester fixed the time at three o’clock and Durham at four or five o’clock of the afternoon. Durham bought two bottles of beer for himself and Lester which they drank. Lester testified that subsequently Durham played cards with some man who was a stranger to Lester; that this man suggested that the three chip in and buy a quart of wine, which was done. Lester did not drink the wine as he did not like it, and it was consumed by Durham and the third man; that Durham drank more beer and whiskey with other persons but that Lester drank no more intoxicants. Durham and defendant Bugni denied that Durham drank more liquor or that he was intoxicated.

Lester testified that he had asked Durham to take him home, but that Durham refused and pushed him aside; that at about eight o’clock they left Bugni’s tavern, and Lester again requested that if Durham would not go home, he take Lester to his home at Girrard, but was told that he would do so on the following afternoon. Lester stated that he could not take the Interurban to Girard because he had no money; that Durham drove out of Carlinville to the Silver Moon tavern which was owned and operated by defendant Donelson under a lease from defendant Bates who owned the property, which ownership, leasing and operation is admitted by said defendant. Lester testified that he again asked Durham not to stop at the Silver Moon, but was told that Durham would stop and have another drink; that they arrived there about 8:30 p.m. where Lester said that Durham drank more bottled beer and some whiskey. Others testified to the drinking and to the intoxicated condition of Durham, which was denied by the defendants and certain of their witnesses.

At about 10:30 p.m. Lester again asked Durham about going home which the latter refused to do, whereupon Lester went out to the Durham car and got into the back seat and went to sleep. At midnight, Durham left the tavern, but did not awaken Lester, who testified that he only awakened sufficiently to know that the car was moving and remembered nothing more until after he was in the hospital on the following day. It appears that he slept in the car until the time of the injury.

Durham drove to Palmyra and then over a level black-top State-Aid road known as Emmerson Road running east from Palmyra. At a point a quarter of a mile east, there were railroad tracks running in a northerly and southerly direction across the road. When Durham had reached a point about one block east of the tracks, he turned his car over on the north edge of the highway, so that afterwards the front wheels were facing back in a southerly direction on the north edge of the road. Durham testified that when he crossed the tracks, his front wheels 6 6 shimmied ’ ’ and continued to do so until he turned over when going at a speed of 20 or 25 miles an hour. No brakes were applied by Durham. He was familiar with the road between Palmyra and his home. Before the car turned over, there had been no conversation between Durham and Lester, who had been sleeping.

Durham testified that on the way into Carlinville that afternoon, he had car trouble due to a short in wires, which he overcame by “jiggling” the wires and again near the Silver Moon tavern, he stopped for 20 or 30 minutes on account of a short circuit in the ignition switch, which he again overcame by “jiggling” the wires; that otherwise the car was in good mechanical order except that the front wheels were loose on that afternoon. He had no other trouble until the time when the car “shimmied” and turned over. He did not remember whether he had a speedometer on the car.

After the car was turned over, Durham went to the home of a Mr. Nevins nearby for help and to assist in moving the injured plaintiff from the car. Marvin Thurston and Duane Mitchell, witnesses, also came by in a car, and the four turned Durham’s car back onto its wheels. They then placed Lester in the back seat of Mitchell’s car and took him to the Stults Funeral Home, from whence he was taken in an ambulance to the hospital at Carlinville. The witnesses who assisted Durham testified that in their opinion he was intoxicated, basing the same principally on the strong-odor of liquor upon his breath and their statements that he staggered. One of the witnesses operated a grocery store' near-by and the other was a student who attended Carbondale Normal School. When Durham called at Nevins’ home for help, it was about one or one thirty o’clock in the morning.

While it may be conceded that the question of Durham’s purchase of liquor and subsequent intoxication was controverted by witnesses for the respective parties, the greater weight of the testimony seems to be that he had drank liquor freely at both taverns and was intoxicated prior to and at the time of plaintiff’s injuries.

Plaintiff sustained a fracture of his fifth and sixth cervical vertabrae which caused a paralysis to his right, leg and foot, to his right arm and some paralysis in his left leg; a laceration of his ear and some subsequent deformity to the right hand. He remained in the hospital for seven weeks, during which time his lower extremities were paralyzed. He was moved to his home with his neck placed in a cast, and remained in bed for six months. Thereafter, he was able to move about the house by pushing a chair. At the time of the trial, one year after the injury, his right limb and foot, hand and forearm were paralyzed, which condition the treating physician, Dr. Phinney, gave his opinion as being permanent and as resulting from the fractured fifth and sixth cervical vertabrae which caused the paralysis. There is no dispute as to the nature and extent of the injuries or any claim that the amount of the verdict was excessive.'

The appellants have assigned five alleged errors on the part of the trial court, vis: that the verdict is contrary to law; that the verdict is contrary to the evidence; that the court erred in refusing to grant defendants’ motions for a directed verdict of not guilty interposed at the close of the plaintiff’s testimony, and of all the testimony, and erred in refusing defendants’ instructions numbered 1 and 3.

Concerning the alleged error in refusing instructions 1 and 3 it may be said that the courts of review of this State have uniformly held that a failure to set forth in the abstract all of the instructions precludes the appellant from predicating error upon the giving, refusal or modification of particular instructions. People v. Heywood, 321 Ill. 380, 384,152 N. E. 215; People v. Goodman, 283 Ill. 414, 119 N. E. 429; Reavely v. Harris, 239 Ill. 526, 88 N. E. 238; City of Roodhouse v. Christian, 158 Ill. 137, 41 N. E. 748; People v. Vickers, 326 Ill. 290, 292, 157 N. E. 205; Fugett v. Murray, 311 Ill. App. 323, 332, 35 N. E. (2d) 946.

In the instant case none of the instructions were set forth in the appellants’ abstract. The question of whether a particular instruction is erroneous must be considered in - connection with all the other instructions given by the court, as the instructions on a given subject are to be taken and considered as a series. Any alleged errors in the record relied upon for reversal must clearly appear on the face of the abstract, as it is not the province of the court to search the record for the purpose of discovering errors on which to predicate a reversal. People v. Heywood, supra. Appellants’ motion in the lower court to set aside the judgment and grant a new trial is referred to but not set forth either verbatim or in substance in the abstract. The motion for a new trial, together with ruling of the court thereon not having been preserved in the abstract nor assigned as error herein, the question of whether or not the verdict is against the manifest weight of the evidence and any alleged errors in the giving or refusal of instructions, is deemed by this court to have been waived. An assignment of error simply setting forth that the verdict is contrary to law and that the verdict is contrary to the evidence, without further pointing out specifically such alleged errors is insufficient in the absence of such motion for a new trial setting forth specifically any such alleged errors, the ruling of the court thereon and the assignment of errors in the abstract, to preserve the same for review by this court.

It, therefore, only remains for this court to pass upon the alleged errors in denying motion for a directed verdict of not guilty at the close of the plaintiff’s evidence and of all the evidence. In passing upon this motion, and the denial of the defendants’ motion for judgment notwithstanding the verdict, this court can only determine whether or not there is any evidence in the record, which, with legitimate inferences therefrom viewed in the light most favorable to the plaintiff, tends to sustain the allegations of the complaint or some count thereof.

It is insisted that the plaintiff, in order to establish his cause of action, must show that he was in the exercise of ordinary care and caution to avoid the injury complained of and that no proof of such care appears in the record.

It appears from the evidence as abstracted that the plaintiff, a boy of the age oF 17 years, had repeatedly importuned his employer Durham, to leave defendant Bugni’s tavern and drive the plaintiff to his home; that plaintiff had no money remaining with which to buy an interurban ticket to his home; that he was told by his employer Durham that the latter would take him to his home on the day following; that the plaintiff repeatedly sought to have Durham continue to his home or leave defendant Donelson’s tavern and drive home; that he finally left the tavern and went into Durham’s automobile, and slept in the back seat of the automobile and that he awakened sufficiently to know that Durham was starting the car; that he, the plaintiff, slept until the time that the automobile was overturned after midnight and the plaintiff was injured; that his employer’s automobile was not in all respects in good repair but was being operated and in use at and prior to the time of the plaintiff’s injuries. We have purposely given the substance of the testimony somewhat at length and we are unable to say therefrom, as a matter of law, that the plaintiff was not in the exercise of ordinary care for his own safety, in view of his age, the relationship that existed between him and Durham, a man of mature age, and of all the surrounding facts and circumstances as shown by the evidence. We hold that the same became a question of fact for the jury to determine from such evidence and legitimate inferences therefrom, viewed in the light most favorable to the plaintiff, and that the jury was justified in its finding therefrom that the plaintiff was in the exercise of due and ordinary care for his own safety. Fugett v. Murray, supra; Blumb v. Getz, 366 Ill. 273, 8 N. E. (2d) 620; Streeter v. Humrichouse, 357 Ill. 234, 238; Rembke v. Bieser, 289 Ill. App. 136, 6 N. E. (2d) 900. There is an abundance of evidence in the record which would justify the jury in finding that the driver of the car, Durham, was intoxicated from liquor sold to him in the taverns operated by Bugni and Donelson, which latter tavern was admittedly owned by defendant Bates, and to justify as a reasonable inference therefrom that the intoxicated condition of Durham proximately resulted in the overturning of his car on the public highway with which he was shown to be familiar, resulting in serious and permanent injuries to and damages sustained by the plaintiff and assessed by the verdict of the jury. The question of proximate cause of said injuries became under the evidence herein a question of fact for the jury. Schulte v. Schleeper, 210 Ill. 357, 71 N. E. 325; Haw v. 1933 Grill, 297 Ill. App. 37, 17 N. E. (2d) 70; Klopp v. Benevolent Protective Order of Elks, 309 Ill. App. 145, 33 N. E. (2d) 161; Triggs v. McIntyre, 215 Ill. 369, 372, 74 N. E. 400.

It may be conceded also that when the employer’s check was cashed at Bugni’s tavern, the plaintiff paid part of the cost of wine consumed by his employer, and his attitude in relation thereto and his subsequent actions were such as to leave the question of contributory negligence or provocative conduct as a question of fact to be determined by the jury. Ordinarily, the doctrine of contributory negligence is not applicable to a Dram Shop case. Hyba v. C. A. Horneman, Inc., 302 Ill. App. 143, 23 N. E. (2d) 564; Spousta v. Berger, 231 Ill. App. 454; Thompson v. Wogan, 309 Ill. App. 413, 33 N. E. (2d) 151. While statutes, penal in character, are ordinarily to be strictly construed, it has been frequently held that the Dram Shop Act under provisions of which plaintiff’s right of action was prosecuted, is remedial in character and should be so construed as to suppress the mischief involved and advance the remedy therein provided. Hyba v. C. A. Horneman, Inc., supra; Klopp v. Benevolent Protective Order of Elks, supra.

The jury, whose province it was to determine the foregoing issues and questions of fact determined the same in favor of the plaintiff and against the defendant and we hold that the evidence in the record tended to prove the material elements of plaintiff’s cause of action as alleged in the complaint, and amply justified the verdict of the jury herein.

From a consideration of all errors assigned by the defendants we find that substantial justice was done between the parties and that no reversible error appears in the record. The judgment of the circuit court of Macoupin county is therefore affirmed.

Judgment affirmed.