author: Mr. Justice Holdom

text:
    The People of the State of Illinois ex rel. Marie Calnan, for and on behalf of Kathleen Calnan, Petitioner and Plaintiff in error, v. Charles H. Weightman et al., Respondents and Defendants in Error.
    Gen. No. 31,137.
    1. Habeas corpus — baptism of child as not affecting determination of custody. Whether or not a child’s baptism into a certain religious faith was contrary to the court’s order pending a habeas corpus proceeding for custody of the child was no factor in determining who should have the. custody.
    2. Appeal and error — considering matters outside the record. The court may advert to and quote from the trial judge’s opinion delivered in deciding the case, as set forth in the respondent’s brief, no issue being joined thereon nor the respondent questioning its accuracy, although it. is no part of the- record nor made so by the bill of exceptions.

      3. Parent and child — what showing negatives child abandonment. On habeas corpus for the custody of a child, a mother was held to have shown that she did not abandon her child by evidence that she sent small sums of money almost weekly for the child’s support, sent necessary articles for the child, wrote cards to her, and visited her when in the State, and had refused to grant the child’s custody to anyone.
    4. Habeas corpus — motive imputable to mother marrying father of child during the proceeding. The fact that the mother of an illegitimate child marries the father during habeas corpus proceedings by her to recover the child from those who are earing for it, held only to be attributed to her desire to remove the stigma of illegitimacy from the child.
    5. Parent and child — limits to parent’s right of custody. A parent has a right to his child as against the world unless he has forfeited his right, or the welfare of the child demands that ho be deprived of it.
    6. Parent and child — how child’s welfare determined. In deciding who shall have the custody of a child, the happiness of the child is always the first consideration, but it must be determined within reason as appears from the facts in evidence.
    7. Parent and child — choosing child’s custodian between persons equally competent. In ease the parents of a child and those who had it in charge for over ten years are equally proper persons to have the custody and supervise the rearing of the child, the parents should have the preference.
    8. Appeal and error — review of habeas corpus order as confined to record. The review of a final order in habeas corpus is confined to matters disclosed in the record although the order awarded a child’s custody more than three years prior to the review.
    9. Appeal and error — ivhat showing justifies change in child’s custody. A remanding order should be changed to direct that a child, originally remanded to her parents’ custody, be remanded to the charge of those given her custody by the -trial court under habeas corpus, on affidavits showing that the parents of the child have not communicated with her for three and a half years nor lived with each other since their marriage during the trial and have removed to different States.
    10. Appeal and error — directions to court on remanding habeas corpus order. On remanding a child to the custody of those with whom the court originally placed her, on affidavits showing her parents had moved to other states and did not write to her, the court was directed to determine the matter of final custody at once, considering the fitness of her then custodians and the wishes of the child so far as not contrary to her parents’ legal rights, but not making any order to have her sent out of the state.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the third division of this court for the first district at the May term, 1927.
    Reversed and remanded with directions.
    Opinion filed October 26, 1927.
    Rehearing denied and opinion modified November, 12, 1927.
    Ryan, Condon & Livingston, for plaintiff in error; David J. Greenberg and John M. Tuohy, of counsel.
    Dimmitt C. Hutchins, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This is a writ of habeas corpus which Marie Calnan (now Malloy) brought to get possession of her child, Kathleen Calnan from the respondents, Charles H. Weightman and Gertrude A. Weightman, with whom she had been living for several years.

It appears that Kathleen was born on or about February 28, 1912; that at the time of the birth of Kathleen her putative father was one Patrick H. Malloy; that Malloy subsequently joined petitioner in the writ and prayer for the custody of Kathleen; that he represented in his petition that he and Mary Calnan contracted a common-law marriage on or about May 20th, 1911, at Lemon, in the State of South Dakota, but that common-law marriages were not legal in that State. During the' hearing of the case in the trial court, he and petitioner were married by a priest of the Roman Catholic Church and became husband and wife.

It is uncontradicted that the petitioner appealed to one of the respondents, The Illinois Children’s Home and Aid Society, for assistance in securing a place in which to board Kathleen, and that subsequently the child was placed with the respondents, Charles Weight-man and Gertrude A. Weightman, who have had charge of her since June, 1912, except for short periods of time when she was in the custody of petitioner and her husband, Patrick H. Malloy, and one Mrs. Hurd and one Mrs. McGrath.

While the record is voluminous, in the view we take of the probative force of the evidence, there is but little dispute in the' relevant testimony regarding the crucial and controlling facts in the case.

We find from the evidence that there never was a voluntary surrender of the custody of Kathleen to the Weightmans, or an abandonment of her by her mother, but that during all of the time she was in their custody and lived with them board was paid for her by petitioner, ranging from $1.50 to $3 a week; that whenever the question presented itself as to the surrender of Kathleen to the Weightmans, or her adoption, petitioner consistently and persistently refused to consent to part permanently with Kathleen, or consent to her adoption; that while Kathleen’s board money was at times paid irregularly, still there was always a subsisting verbal contract for the payment of board by petitioner for her maintenance to the Weightmans.

It appears from the testimony that the Weightmans are by religious profession Presbyterians, and that the Malloys are adherents of the Roman Catholic faith. It likewise appears that Kathleen has been sent to the Presbyterian Church and Sunday school and instructed in the tenets and belief of that denomination, and that during the pendency of this suit and before the final order in the trial court Kathleen was baptized, and respondents argue that such baptism was in deliberate defiance of the orders of the court. With the latter statements we are unable to concur. The court had no jurisdiction to interfere with the religious training of Kathleen, and whether she was baptized or not was no concern of the trial judge or a factor in dispute in the case before him, calling for any solution or direction on the court’s part.

At the time of the birth of Kathleen petitioner was about thirty-three years of age and dependent for her support and that of Kathleen upon her earnings ,• that she was a teacher in the public schools at Lemon, South Dakota, and later she secured employment in the Treasury Department of the Federal Government at Washington; that during these times she was necessarily absent from Chicago; her absence accounts for the fact that she seldom visited Kathleen, but it is a fact that while her payments for Kathleen’s support were irregular, still the major portion due to the Weightmans was paid. It is in evidence that petitioner did not write often to Kathleen, but did send her some postal cards, and when she came to Chicago visited Kathleen. Contrary to petitioner’s express desire that Kathleen should be brought-up in the Catholic faith (the faith of her parents), and in violation of such request, the Weightmans procured her to be instructed in the religion of the Presbyterian Church, and it is not disputed but that the officers of the Children’s Home and Aid Society reported to petitioner that Kathleen was being brought up in the, Catholic faith. The fact that she' was being reared a Presbyterian was concealed from Kathleen’s mother.

Respondents in their brief set forth the opinion delivered by the trial judge in his decision of the case. While this is not a part of the record or made so by the bill of exceptions, yet as no issue has been joined upon it and respondents do not challenge its accuracy, we will advert thereto and quote upon the court’s observation as thus reported.

The hearing of the case was commenced October 25, 1923, and from that time on until March 15,1924, testimony was taken, and on April 5, 1924, the final order was entered and appears in the abstract in the following words: “An order that the decision of the court be confirmed and the petitions of the relatrix and the relator are dismissed and the child, Kathleen Calnan Malloy, be remanded to the custody of the respondents, Charles P. Weightman and Gertrude A. Weight-man. Further ordered that the cost of this proceeding be taxed against the relatrix and the relator, and that respondents have judgment therefor as in abstract, and that any of the parties to this cause have six months in which to present a bill of exceptions.”

The trial judge found that for a period of nine years “Miss Calnan paid from $1.50 to $3.00 a week — a majority of the time, however, $3.00 a week — for the support of the child; also provided clothing and other necessities. The child continued all this time with Mr. and Mrs. Weightman. The testimony shows that at times the payments for board were slow, but the payments, however, were made up.”

And the trial judge comments in his opinion that “in all this period Miss Calnan visited the child three or four times, but, of course, she lived at all times a considerable distance from Chicago, at least one thousand miles away.” We think this fully explains the reasons why the mother did not visit Kathleen more often.

The trial judge continued further in his opinion, supra: “About 1919 to 1921 Miss Calnan, in her letters to the Society, inquired about Kathleen being brought up in the Catholic faith, and the Society communicated that request to the Weightmans. The Weightmans, however, did not observe her request and the little girl was brought up in the Presbyterian faith. She went regularly to Sunday school and received the religious instructions of the Presbyterian Church. The Society, however, reported to Miss Calnan that the little girl was being brought up in the Catholic faith. There is no question but that somewhere there was an intention to conceal from Miss Calnan the fact that her wish, that Kathleen be brought up in the Catholic faith, was not being followed. It serves no purpose here to endeavor to place the responsibility for this situation, the essential fact being that the little girl was not being brought up in the faith of her mother. ”

It further appears in the aforesaid opinion that papers were drawn for the adoption of Kathleen, but that her mother refused to sign such papers. Whatever her reason was for such refusal is immaterial. The fact remains that she did not sign and did not consent to the desires of the Weightmans to adopt Kathleen.

While the trial court commented upon the fact that •Kathleen had been abandoned by her mother, such statement is neither supported by any evidence of probative force, nor by any recital of evidence by the judge in his opinion; and the judge in his opinion states that while financial circumstances prevented Kathleen’s mother from at times sending to the Weightmans the support money agreed upon, still that the mother insisted that she had never abandoned Kathleen and that she was entitled to her custody.

The trial court comments upon the fact that petitioner for eleven years persistently refused to marry Malloy, and that she placed her refusal upon the fact that his financial condition was not prosperous, but that subsequently it did improve, and that Malloy and petitioner were married as cited above. However, the judge rather ascribed that action of petitioner to an ulterior motive, but whatever the opinion of the judge may be upon that subject, the fact remains under the law that by marrying the putative father of her child she by that act removed the stigma of illegitimacy from Kathleen, and we know no reason why Mrs. Malloy, as she now is, is not entitled to be credited with being moved legally to marry the putative father of Kathleen in the interest of Kathleen’s legitimacy, for if she was loath to marry Malloy, the fact that she did finally marry him can only be attributed to the desire on her part to remove the stigma of illegitimacy from Kathleen. Whatever in fact may have ultimately moved Kathleen’s mother to marry Malloy, the legal effect of that marriage was to legitimatize Kathleen, and it was the most natural thing for her mother to do in Kathleen’s interest.

The Weightmans and the Malloys are all good people, of excellent character and reputation, and are each competent to have the custody and nurture of Kathleen. In a financial way the Malloys per capita of their family are better off financially; and while the two daughters of the Weightmans were contributing their earnings to the family exchequer, there is no certainty that such contributions would continue, because they might marry or cease to work.

By agreement of counsel, the trial judge states in his opinion, Kathleen was questioned by the judge, and the judge said in the foregoing opinion, “The child answered that she did not care to express a preference as to with whom she would like to go; that she would be happy to be with the Weightmans; that she would be happy to be with her father and mother; indeed, that she left it entirely to the court to say with whom she should go,- and she would accommodate herself to the decision of the court; that she would pray to God that the court might be guided by Him to make a proper decision.”

Following this the trial judge said that “about ten days ago the court was informed by Mrs. Hurd that the child wanted to see him. The child had been informed that the court was nearly ready to give a decision. Accordingly, the child came down to the court and stated to the court that for the last few days she was low spirited and depressed; that when she thought at night as to where she would go, she realized she wanted only one place and that was the Weightmans.”

This latter statement seems to have influenced the judge in the final determination to which he came. The statement quoted is cogent evidence that some one had worried Kathleen a good deal, and from her own statement she was not then in a mental condition to pass upon the question of her preference. The earlier statement quoted by the judge seems to us to be a more exact statement of the normal condition of Kathleen’s mind on the subject. It is, of course, and it could hardly be otherwise among nice people, that Kathleen formed an affectionate attachment for the Weightmans, and that they were devoted to Kathleen and her best interests. Kathleen stated that she loved her father, and while she is not so affectionate towards her mother, there is no good reason shown in this record why Kathleen should not return to her mother.

The trial court further said, in which statement we concur, “Under the authorities, there is no question that the natural father and mother ordinarily have the right to their child; however, in every case cited, wherein this principle is set forth, there is the reservation that the best interests of the child must always be considered.” And the judge quotes from Hohenadel v. Steele, 237 Ill. 229, that “A parent has a right to the custody of his child as against the world unless he has forfeited his right or the welfare of the child demands that he be deprived of it,” citing Wohlford v. Burckhardt, 141 Ill. App. 321, which was a writ of habeas corpus by the father, whose claim to the custody of the child was sustained.

It is quite true that the happiness of the child is the first consideration, but that happiness must be considered within reason, as appears from the facts in evidence. There is no doubt but that Kathleen would be happy with the Weightmans or with her parents, and that she would be properly cared for by either one to whom her custody might be given; but, as in this case, where both contestants are equally proper persons to have the custody and supervise the bringing up of the child, the parents should be awarded the preference.

It is apparent from the trial judge’s own statement that Kathleen’s parents will give her all the attention and the love and affection that she could possibly expect, for the trial judge said “I have no question but that both Mr. and Mrs. Malloy would like to, and would endeavor to create a real home for Kathleen, characterized by love and devotion for her welfare, but there is in the mind of the court a great uncertainty whether Kathleen can or will find there that happiness and contentment necessary and essential for her future well-being.”

In view of the language of the trial judge in the fore part of the last quotation, we do not think there is any foundation for his “great uncertainty.”

While it is more than three years since the entry of the final order in the trial court, our review is confined to the record as thus disclosed, and we can take no judicial cognizance of anything that happened during those past three years, except as we may find them in the record, and we find nothing in the record in relation thereto. However, we have diligently examined all that counsel have to say, and therefrom we do not find anything to justify depriving the Malloys of their legal right, or to destroy the right of Kathleen to reside with and be brought up by her parents.

We find naught in this record which would justify this court’s conclusion that in any way the parents of Kathleen either at any time abandoned her or did any act, which under the law would render them incompetent or undesirable to have the custody of their daughter Kathleen.

It is therefore ordered that the judgment of the superior court be reversed with directions to that court to enter an order giving the custody of Kathleen to her parents, Patrick E. and Marie Calnan Malloy.

Reversed and remanded with directions.

Taylor, P. J., and Wilson, J., concur.

Since handing down the foregoing opinion' the respondents have filed a petition for rehearing.

What respondents really expect is not a rehearing but a modification of the remanding part of the order.

With the petition has been filed affidavits that there has been a change in the situation of the parties, which makes it impracticable, and not in the interest of ,the minor Kathleen, to be given into the custody of her parents. Among the changed conditions is the alleged fact that the father and mother of Kathleen have not resided in the marital relation since the decision of the case in the trial court; that the father, Patrick E. Malloy, lives on a farm in Miles City, Montana, and that the mother resides on a farm in Wisconsin, and keeps house for her brothers; that Kathleen has not heard from her parents during the last three and one-half years;.that to send her to her parents would remove her from the State of Illinois and out of the jurisdiction of its courts.

The remanding order is therefore changed and the said Kathleen Malloy is remanded.to the custody of the respondents until the final order in the trial court, after the determination by the court of these questions, also, that whether under the changed conditions of the Malloys, the parents of Kathleen, the proper persons to have the custody of Kathleen are the respondents, having in mind the proper conservation of the right of Kathleen to reside in the state of Illinois, of which she is a native, and within the jurisdiction of the court of which she is at the present time a ward; that on the hearing to be had effect shall be given to the wishes and- desires of Kathleen where they do not conflict with any principle of law or with the rights of her parents to her custody, but that no order shall be made by which Kathleen shall be sent out of the state of Illinois; and the inquiry is likewise extended to the present condition and environment of the respondents to determine whether they are still proper persons to have the custody of Kathleen; that the trial court proceed with all due dispatch in determining the questions aforesaid, and to arrive at its decision promptly and without delay.

This is an addenda to the foregoing decision and shall be construed and read as a part of it.

The petition for rehearing is denied.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    City of Chicago, Appellant, v. Board of Education of the City of Chicago, Appellee.
    Gen. No. 31,573.
    1. School's and education — hoards as State agency. Although a city is compelled to collect the funds and holds the legal title to the lands of a board of education, the latter has absolute control of the lands and disposal of the funds and must be regarded, not as a municipal, but as a State agency.
    2. Municipal corporations — function of city m acting for hoards. A city in holding title to school lands and collecting school funds acts mainly in a ministerial capacity on request or action of the board of education.
    3. Municipal corporations — city control over hoard’s personalty. A city has no interest in or control over personal property of a board of education, such as weights and scales purchased by the board in the exercise of its functions and subject to its sole disposition.
    4. Pleading — hoard of education’s demurrer as admission of ownership of property. A board of education’s demurrer to assumpsit by a city to collect fees on scales alleged to be owned by the board, is an admission by the board of its ownership of the scales.
    5. Municipal corporations — power to collect fees on hoard of education’s scales. Weights and scales of which the board of education has sole control, are subject to the city’s police regulations including collection of fees for inspection thereof, in view of there being no statute vesting title in the city and of the city’s lack of interest in and control over the property, especially considering the public’s payment for use to the board.
    6. Parties — city’s suit against hoard of education as not against itself. A city’s action to collect fees for the inspection of weights and scales which belong to and are under the sole control of the board of education, is not precluded by the city’s collecting by tax the funds with which such scales are bought in view of the fact that the city has no interest in or control over the property.
    7. Schools and education — relation of hoard to city. A city and its board of education are connected in the sense that duties are imposed upon the former in connection with the organization of the latter and raising and custody of its funds and holding title to its realty, but the board functions as an independent body.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed November 15, 1927.
    Francis X. Busch, Corporation Counsel, and James J. Coughlin, Assistant Corporation Counsel, for appellant; James J. Coughlin and Charles R. Larrabee, Assistant Corporation Counsel, of counsel.
    Frank S. Righeimer, for appellee; Ralph W. Condee, Leo V. Roeder and John A. Cooke, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an action in assumpsit brought by the city of Chicago against the board of education of the city of Chicago to recover fees aggregating $14,607.55 for inspection of weights and scales under the control and management and in the possession of the board of education and located on school property in said city.

The declaration consisted of two special counts and the common counts. After a demurrer was sustained to the former and overruled as to the latter, plaintiff withdrew the common counts and elected to stand by the special counts.

Each count alleged that said board was, during the period of inspection, the owner of a number of scales and weighing platforms in the city used by it for the purpose of weighing supplies purchased by it, and for weighing for the public, for which service to the public a fee of ten cents was and is charged, and that during that period certain ordinances of the city then in force required that every person using weights, measures, scales, etc., for weighing or measuring any article intended to be purchased or sold, or any article weighed or measured for shipping or receiving purposes, or for hire or reward, shall cause such scales to be inspected and sealed by the inspector of weights and measures in accordance with the ordinance provisions. These provisions are set out in haec verba in the declaration but as their validity or application, except to said board, are not brought in question they need not be repeated here.

The only difference between the counts is that the first alleges that the inspections were had at the special instance and request of defendant, and the second count that they were made pursuant to the ordinances. Both allege that payment of the fees was demanded and refused.

The sufficiency of the declaration is.questioned solely on the theory that the relationship between the city and said board is such that the former is legally interested in each side of the action and, therefore, cannot maintain it, citing the rule stated in Vol. 1, Chitty on Pleadings, p. 40, that “it is an answer to an action that' a party is legally interested in each side" of the question. A party cannot be both plaintiff and defendant in an action.” Under that contention the primary question is whether the city has such a substantial interest in the defense as precludes its prosecution of the action. It rests mainly upon the claim that the board is a part of the municipal government of the city of Chicago, which raises the taxes for the schools with which all school property is purchased, and that the board owns no property whatever.

While the legal title to real estate purchased for school purposes is vested in the city (Cahill’s St. ch. 122, ¶ 156), and the money for such purposes is raised by taxes levied by the city council and held by the city treasurer subject to warrants of the board that are formally required to be countersigned by the mayor and city comptroller, nevertheless the taxes so levied are exclusively for school purposes and required to be held in a separate fund by the city treasurer, ex-officio, as school treasurer, who keeps such moneys subject to the absolute control and direction of the board of education. (Cahill’s St. ch. 122, ¶ 159.) By section 136 of said act (¶ 160), and section 139 (¶ 163) the board of education is given general supervision and management of the public education and the public school system of the city and granted “all the powers that may be requisite or proper for the maintenance and the fullest development of an efficient public school system,” not inconsistent with the general provisions of the school laws of the State which apply to all school districts. In the exercise of such powers granted by the legislature the board of education is declared in Kinnare v. City of Chicago, 171 Ill. 332, to be a State agency rather than a municipal agency. While the legal title to the school lands is placed by statute in the city, and the custody of school funds in its treasurer, both are held in trust solely for school purposes under the independent control and authority of the school board. Whatever the city has to do with either, as the law now stands, since the amendments of 1917 to the School Act, by which the board is made a corporate entity and the city council is no longer required to concur in the exercise of any of its functions, is mainly ministerial and mandatory on request or action of said board. No independent control or authority is exercised by the city over either the school lands or the school funds, nor is its concurrence or that of its officers required in direction of the use of the former or of the expenditure of the latter, and therefore as such it has no substantial interest therein.

Discussing the provisions of the statute which at that time required the concurrence of the city council in the exercise of the power of the school board to erect school buildings, the court in the Kinnare case said that the erection of a school building was “of no benefit to the city,” and that whatever connection the city had with the board of education in the matter of constructing the building was simply for the purpose of discharging a public duty cast upon it by the lawmaking power of the state “because it was deemed expedient by the legislature, in the distribution of the powers of the government, to require the city, nolens volens, to perform a public service in which the city, as a corporation, had no interest.” (p. 336) If this may be said when the law required such concurrence how much more is it true when, since the amendments of 1917, concurrence of the city council is no longer required in any of the administrative acts of the board; and if true as to a school building it certainly must be as to personal property like weights and scales purchased by the board in the exercise of its functions and subject to its sole use and disposition without any intervention of the city authorities.

While upon this view of relationship between the parties it is unnecessary to discuss where the naked title to such property is, yet it may be said that the allegation in the declaration of the board’s ownership of the weights and scales stands admitted by the demurrer. However, the school funds are for the exclusive use of the schools and appropriated solely by the school board, and when drawn upon for the purchase of personal property to be devoted to that use, we apprehend that in the absence of any provision of the statute vesting the title thereto in the city, and in view of the city’s lack of interest in or control over such property, it may be deemed the property of the board of education, and as such subject, as is like property, to the city’s police regulations. Whatever is done by the city, whether by raising the school funds by taxation or by holding custody of them as aforesaid, are all duties cast upon it, as said in the Kinnare case, nolens volens, to aid in the administration of the state government and confer upon it no special control or interest in property purchased with school funds. We do not think, therefore, that the city can be said to have such an interest in the defense as precludes its maintenance of this action, or, in other words, that it is thereby, in legal contemplation, suing itself.

Some stress is laid by appellee on what was said with respect to the relationship between the city and the board of education in Brenan v. People, 176 Ill. 620; People v. Flynn, 265 Ill. 414, and People v. Bither, 231 Ill. App. 301, and appellant regards the expressions used therein as no longer applicable since the amendments of 1917. But we deem it unnecessary to discuss the expressions referred to. They must be considered solely with reference to the questions before the court for decision in those cases. It may be still said, however, that the city and said board are connected in the sense that duties are imposed upon the former in connection with the organization of the latter and the raising and custody of its funds and holding the title to its real estate, but the board nevertheless functions as an independent body.

If, therefore, the status of the relationship of the parties is no bar to the suit, and the ordinances are valid, it would appear that the board is as much subject to their provisions as any other person or corporation using weights and scales, especially when used by the public for reward to the board, as stated in the declaration.

In County of Cook v. City of Chicago, 311 Ill. 234, it was held that in constructing a public building within the limits of the city the county was subject to enforcement of the latter’s building and fire ordinances. The court there defined the status of the county as it did that of the board of education in the Kinnare case, as an “involuntary quasi-corporation,” and held that the county was required to observe the police power delegated to the city to cause buildings to be put in a safe condition. There is no valid ground for distinction between enforcement of that power and the delegated power of inspection of weights and measures.

In Pasadena School District v. City of Pasadena, 166 Cal. 7, where the question arose whether that school district was subject to the fire and building ordinances of that city, and to pay fees for inspection, therein provided for, which ordinances were passed pursuant to conferred power to enforce police regulations, it was held that whether a school district embraces territory included in a densely populated city, or its territory is exclusively within the city, it is subject to reasonable regulations for the benefit of the entire city concerning fire protection. This decision was referred to at length and recognized as authority in the case of County of Cook v. City of Chicago, supra. In Bowers v. Wright, 4 W. N. C. (Pa.) 460, also cited in. the County of Cook case, the same principle was recognized in holding that the board of education of the city of Philadelphia was subject to the police power of the city and could not build a schoolhouse erected pursuant to powers expressly conferred upon the board by statute, without obtaining a 'permit from the board of building inspectors of the city upon whom the power of granting building permits was conferred by another statute.

We reach the conclusion, therefore, that the court erred in sustaining the demurrer to the special counts, and hence reverse the judgment of nil capiat, with directions to overrule the demurrer.

Reversed and remanded with directions.

Gridley and Scanlan, JJ., concur.


text:
    Annie Zickgraff and Francis A. Zickgraff, by Annie Zickgraff, Appellees, v. Chicago Fraternal Life Association, formerly known as Columbian Circle, Appellant.
    Gen. No. 31,714.
    1. Fraternal beneficiary associations — right to forfeit certificate for noncompliance with by-laws. In an action by the beneficiaries to collect death benefits on a certificate of a fraternal association, on the ground of the member’s seven years’ absence without being heard from, the association is not precluded from defending on the ground that the certificate was forfeited before said seven years by the member’s failing to comply with its by-laws forfeiting a certificate for a year’s failure to report a change of address, merely because it accepted monthly dues from the beneficiaries after the year.
    2. Fraternal beneficiary associations — rights of beneficiary after forfeiture of certificate. Beneficiaries have no vested rights in the contract of a member with his fraternal association and can claim none after the member’s rights have been forfeited for his failure during a year to report a change of address as required in association by-laws even though their action for death benefits is not begun until seven years after his disappearance during- which he has not been heard of.
    3. Fraternal beneficiary associations — effect of paying dues on forfeited certificate. The payment of dues by beneficiaries on a certificate which had been forfeited because of the member’s failing to report a change of address for a year, as required by the by-laws, gives the beneficiaries no right to claim death benefits thereafter on the ground that the member had been absent seven years without being heard from.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927.
    Reversed.
    Opinion filed November 15, 1927.
    Rehearing denied November 28, 1927.
    George C. Geier, for appellant.
    Good, Childs, Bobb & Wescott, for appellees; Walter E. Beebe and F. M. Hartman, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an action to recover on a benefit certificate issued by the Supreme Council, Catholic Knights & Ladies of America, a fraternal order, on the life of one Frank M. Zickgraff, for $2,000, which was issued July 5, 1917, in lieu of another certificate previously issued by said order and then in force. The liability of defendant is predicated on the presumption of the death of said Frank Zickgraff, he having disappeared and not having been heard from for seven years prior to the commencement of the suit on March 5,1925.

The case was tried before the court without a jury, which made a finding and rendered a judgment against defendant for the amount of the certificate.

The controlling facts are uncontroverted. Frank M. Zickgraff left Chicago about September 15, 1916. The last heard or known of him was about Christmas, 1917. In the meantime and up to the merger of the Catholic Knights & Ladies into the Columbian Circle, June 19, 1919 (now existing and known under the name of Chicago Fraternal Life Association), his assessments were paid by his mother, Mrs. Annie Zickgraff, one of the beneficiaries, as was permitted under the rules and by-laws of the Catholic Knights & Ladies order aforesaid. Under the terms of the merger the Columbian Circle assumed the contracts of the Catholic Knights & Ladies order, subject, however, as stated in the merger or consolidation agreement, “to the laws, rules and usages of the Columbian Circle, as now in force, or as they may hereafter be amended. ’ ’

At the time of the merger the following by-law of the Columbian Circle, known as section 378, was in existence and in force:

“ ‘Disappearance.’ Any member of the society who shall remove or disappear from his home or last known place of residence and remain away for a period of one year and who shall not report to the collector of' his branch his location or place of residence with full post office address shall thereby forfeit his membership in the society, and his benefit certificate shall ipso facto become null and void.
“Section 379. When member absent one year. No Beneficiary or other person shall have the right to pay the assessments or dues or any other indebtedness of a member who has been absent from his last known place of residence for one year and whose location or place of residence is unknown to the collector of his branch, and the collector shall refuse to receive such member’s assessments or dues or any other indebtedness and shall report such member to the Supreme Secretary as suspended from the society, together with the last known place of residence.”

No question arises as to the regular standing of the assured in the Catholic Knights and Ladies order at the time of the merger. As before stated the rules of that order permitted another to pay the assessments of one who had disappeared, and without regard to the rules of the Columbian Circle his mother continued after the merger to make regular monthly payments to one Hayes, the same person who had collected and received them before the merger, who knew of Zickgraff’s disappearance and who as associate supreme secretary of the Columbian Circle, was authorized to and did receive such payments for the Columbian Circle, including $4.47 paid for the month of May, 1920, but without the personal knowledge of Hein, the supreme secretary, that Zickgraff had disappeared. ■When knowledge of that fact was brought to the latter’s attention he directed the return of the May payment and Hayes sent a check of “Hayes & Co.” for that amount to Mrs. Zickgraff who still holds and has never cashed the same. She tendered the assessment for June, 1920, to Hein, the supreme secretary, but he refused to receive it on the ground that it was in violation of said by-law of the Columbian Circle, and by its terms said certificate was ipso facto forfeited.

While he suggested to Mrs. Zickgraff that the matter of a return of her payments or a portion thereof could be taken up with the supreme body of the order and he would assist her to that end, no formal tender has been made to Mrs. Zickgraff of the payments so made by her, and she has made no further tender of payments on the certificate claiming it was unnecessary after defendant refused to accept the June payment. In her statement of claim she alleges that she was ready, able and willing to continue making such payments'but no proof was made of her ability so to do.

Plaintiffs’ theory of liability is that defendant by receiving such payments after the merger through an agent authorized to collect the same who had knowledge of Zickgraff’s disappearance, waived the by-law in question. In our view of the case we need not discuss the contention, for assuming there was such a waiver we are of the opinion that it would have operated as an estoppel only in case of the death of the assured before defendant attempted to enforce its bylaw. At that time the assured was presumptively alive and therefore no right of action on the certificate had accrued. No right of action could accrue under plaintiffs’ theory of the case until over four years thereafter when presumption of the assured’s death would arise. Before that time his contract was subject to a change of by-laws or their enforcement, even though they had been temporarily suspended or disregarded. Defendant was not thereby precluded or estopped from a future enforcement of them: Such a right was contemplated by the contract with the fraternal order that issued the benefit certificate, and defendant’s assumption of that contract was expressly made subject to its own by-laws, not only as they, then existed but as they might thereafter be changed or amended. Suppose there had been no such by-law of the Columbian Circle when it received said payments, could it not under the terms of the contract have made such a by-law at the time it saw fit to enforce it, and would not the rights of the assured have been subject thereto ? And if so, could it not enforce the by-law already in existence, as it undertook to do, against the member with whom the contract was made and who was then presumptively alive?

In this view of the case authorities cited in the briefs have no application. The beneficaries having no vested rights in the contract can claim none under the certificate other than what belonged to the assured at the time defendant enforced the by-law to which his contract was subject, and his were forfeited. Whatever their rights may be to the money or a portion thereof paid to defendant is aside from the question at issue in this case. The real and decisive question is whether or not defendant was precluded by an alleged temporary waiver of said by-law from subsequently enforcing it against a presumptively living member whose contract contemplated the right to enforce it. We do not think there was any such estoppel and therefore the judgment will be reversed.

Reversed.

Gridley and Scanlan, JJ., concur.


author: Mr. Justice Gridley

text:
    Benjamin E. Bayer and Barbara Bayer, Appellees, v. Bloch Real Estate Improvement Company, Appellant.
    Gen. No. 31,905.
    1. Former adjudication — what is estoppel by verdict. If a question has been determined in a former suit and is again put in issue in a subsequent suit between the same parties, such former determination, if properly presented, is an estoppel by verdict which is conclusive upon the parties to the latter suit though the cause of action may be different.

      2. Former adjudication — estoppel by verdict as available to both parties. Estoppel by verdict may be availed of as conclusive upon the parties in a later suit even with a different cause of action, as well by the plaintiff as by the defendant.
    3. Former adjudication — necessity of identical parties. A former judgment or decree when relied on as res adjudicate need only have substantially the same parties as the case in which it is pleaded to create an estoppel.
    4. Former adjudication — questions which might have been, raised. Res adjudicata extends not only to the questions actually decided in the former case but to all matters which the parties might properly have - raised and had determined whether they did so or not.
    5. Injunctions — incidental power to award damages. After equity has obtained jurisdiction to enjoin, the repetition of trespasses, it may determine damages for past wrongs and decree their payment.
    6. Former adjudication — as applied to consent decree. The doctrine of res adjudicate applies to a decree entered by consent as well as to one in invitum.

    7. Former adjudication — injunction decree as bar to later action for damages involved therein. In a suit to restrain interference with peaceful enjoyment of premises, a consent decree entered on motion of complainant’s solicitor and upon stipulation is res adjudicate on the question of damages for prior interference with enjoyment and a bar to a later action between substantially the same parties for such damages.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927.
    Reversed.
    Opinion filed November 15, 1927.
    Jesse Marcus, for appellants.
    Guerine & Brust, for appellees; Guy C. Guerine, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court. .

An action in case was commenced against the defendant corporation and Sol N. Bloch on July 16, 1925, which during a jury trial was dismissed as to Bloch and a verdict returned finding the defendant corporation guilty and assessing plaintiffs ’ damages at $250. On October 9, 1926, judgment was entered upon the verdict and this appeal followed.

Plaintiffs’ declaration consisted of two counts. In the first it is alleged that on December 23, 1923, while plaintiffs owned lots 3 and 4 in block 37 in the village of Maywood, Illinois, and the same were improved with a dwelling house used as their home, defendant wrongfully and negligently erected, maintained and operated a lumber yard and warehouse on its lots (1 and 2) immediately adjoining, and caused many workmen to be there, who made loud noises and used vile language, and caused large motor trucks and vehicles, emitting vile odors, to be operated there, all of which prevented plaintiffs from enjoying the peaceful possession of their premises, etc. In the second count it is alleged that the district is classified under an ordinance (in part set forth) of said village, and is to be used exclusively for residential purposes; that defendant wrongfully and unlawfully erected, maintained and operated upon its lots a lumber yard and warehouse, and caused acts to be done as mentioned in the first count, whereby plaintiffs were damaged, etc.

In addition to a plea of the general issue, defendant filed an amended special plea, alleging that, before the commencement of the suit, on February 26, 1924, plaintiffs and eleven other persons filed their amended bill in the superior court of Cook county, case No. 397,647, against the present defendant, “wherein they charged such rights, interests and damages therein as plaintiffs now claim in the present suit, ’ ’ etc.; and that in said chancery cause a final decree was entered on November 6, 1924, which is res ad judicata as to all matters alleged in plaintiffs’ declaration, etc.

On the trial plaintiffs severally testified, and they called, five witnesses. Sol N. Bloch, president of defendant, testified for it, as did six other witnesses. To prove the allegations of its said special plea, defendant introduced in evidence certified copies of the amended bill, answer, stipulation and decree filed in said chancery cause.

According to the allegations of said bill the Bayers, the present plaintiffs, Were then the owners of said lots 3 and 4, improved with their dwelling house and home; that the other eleven complainants were owners of other lots and dwellings thereon in the immediate vicinity; that defendant was the owner of said lots 1 and 2 which it was using in connection with its business; that all of complainants’ lots, as well as defendant’s, were located in a residential district of the village, and had for many years been used exclusively for residence purposes; that blocks 36 and 37, in which all of the lots of the parties were, had been conveyed in June, 1909, to one Downing by deed, containing covenants and restrictions as to the character and location of the dwellings to be erected on the lots in said blocks; that all complainants, as well as defendant, claimed ownership of their respective lots by mesne conveyances under said deed; that in April, 1922, the village passed a zoning ordinance, in which said blocks and the lots of complainants and defendant were classified as being in the “B” residential district; that subsequently, by fraud, defendant obtained from the village a permit to erect a building upon its lot representing that the same ivas to be used as a four-car garage, but which in fact since its erection has been used by it as a warehouse and salesroom, where lumber and building materials have been stored and sold; that the building was erected in violation of said ordinance and of said covenants and restrictions; that defendant has been and is now maintaining and operating a lumber yard on its lots, to which lumber is brought and piled in high stacks, immediately adjoining the Bayers ’ home, and has been and is now maintaining many men to do the work of loading and unloading trucks and wagons and piling the lumber, to the great annoyance and damage of the Bayers; that complainants have requested defendant to desist from these acts, but it has refused so to do; that they have also appealed to the officers of the village, who have refused to take any steps to prevent a continuance of said acts; and that, as they have no adequate remedy at law, defendant should be prevented by injunction from the further continuance of said acts.

The prayer of the bill was that defendant’s use of said lots “may be declared to be unlawful and in violation of the restrictions and covenants governing the property, and in violation of said ordinance of the Village of Maywood, and that defendant and all persons claiming under it, * * * and all persons using the premises, may be perpetually enjoined from using or occupying the same as a lumber yard, or as a warehouse, or in any manner or mode except for residential purposes only”; that the occupation of defendant’s property, so long as it shall be used for the purposes as above set forth “may be declared to be a nuisance”; and that the court order the removal of the building and also the removal of the lumber, materials, etc. A preliminary injunction also is prayed for. Although in the prayer for permanent relief there is no specific request that complainants be awarded damages for defendant’s alleged past acts, the prayer concludes with the • usual clause that complainants ‘ ‘ have such other relief in the premises as the nature of the case shall require,” etc.

In defendant’s answer to the bill, while admitting some of its allegations, it denied the material ones, and averred that it had erected said garage on the rear of its lots under a permit first secured from the village (copy of permit set forth) and that it had used the same for the housing of motor vehicles used in its business, and that it had the legal right so to do; further averred that it is engaged in erecting and selling residences, which business requires the use of much lumber and the maintenance by it of lumber yards near where its building operations are being carried on; that it has used its lots, located within 300 feet of a railroad station, as a lumber yard only temporarily; that other lumber yards, coal yards and steel mills are maintained and operated by other persons in the immediate vicinity, and said lots are not adapted for residential purposes; that the placing of lumber temporarily upon them has not tended to decrease the values of complainants’ lots and residences; and that complainants have not been injured or damaged as alleged.

In the stipulation, filed in said chancery cause, it was agreed between all the parties that they “hereby waive further proceedings;” that defendant “has agreed to abandon the use of its premises for the purpose of storing lumber thereon and not to further place any finishing or other lumber in said garage, but that the lumber now present therein may remain there until removed by it in the course of its business;” and that an order of court may be entered, reciting the facts and the making of this agreement, etc.

In the decree, entered in said chancery cause on November 6, 1924, it is recited in substance that, on motion of complainants’ solicitor, it is made to appear to the court that all the parties “have stipulated to waive and do waive further proceedings therein,” and have stipulated and agreed to certain facts as contained in the stipulation. It is then decreed in substance that defendant, its officers and agents, in pursuance of the stipulation, are hereby restrained from using its said lots (1 and 2) for the purpose of storing lumber or building material thereon, or doing acts contrary to the restrictions governing the use of the land, and from the further storing of any lumber in the building or garage now erected on the land, “and that the lumber now in said garage shall remain until it is used up by said defendant in its course of business;” and that “no costs shall be assessed against either party, all costs in the matter having been paid.”

The main ground urged and argued in the brief of defendant’s counsel for the reversal of the present judgment is, that the decree, entered in the chancery suit, is res adjudicata as to the present controversy, and a bar to any recovery by plaintiffs in the present action.

In the case of Hanna v. Read, 102 Ill. 596, 602, it is said that it is “not universally true” that, before an adjudication in a former suit can be made available as an estoppel, it must appear that the thing sought to be recovered and the cause of action in both suits be the same; that, “where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not;” that this species of estoppel is known to the law as an “estoppel by verdict,” and is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as matter of defense; and that, “whether the adjudication relied on as an estoppel goes to a single question, or all the questions involved in a cause, the fundamental principle upon which it is allowed in either case is, that justice and public policy alike demand that a matter, whether consisting of.one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication.” And in said Hanna case it is also said (p. 605) that “it is sufficient for the purposes of the rule relating to a former adjudication, when relied on as an estoppel, that the parties be substantially the same.” (See 34 C. J. p. 757, ¶ 1166; Wright v. Griffey, 147 Ill. 496, 499; Gounaris v. Pavlakos, 202 Ill. App. 268, 270.) In Godschalck v. Weber, 247 Ill. 269, 274, it is said: “The doctrine of res ad judicata extends not only to the questions which were actually decided in the former case, but to the whole controversy, — to all matters properly involved which might have been raised and determined, and to all grounds of recovery or defense which the parties might have presented, whether they did so or not.” (See, also, Stickney v. Goudy, 132 Ill. 213, 231; South Park Com’rs v. Ward & Co., 248 Ill. 299, 312.) In 14 R. C. L. p. 322, par. 21, the author says: “It is a well settled and a familiar rule, applicable in proceedings to obtain an injunction, that when a court of equity acquires jurisdiction of a cause for one purpose, it may retain it generally. * * * The purpose of such retention is to enable the court to do complete justice between the parties. It may, therefore, retain the cause for the purpose of ascertaining and awarding the apparent damages, as something which is incidental to the main relief sought.” And again the author says (p. 457, par. 157): “Therefore, as incident to the relief by injunction against a continuing trespass, the court may, in a proper case, consider and settle the question of damages. * * * The party entitled to damages may waive them, if he chooses, by not furnishing evidence to enable the court to measure them in money, which is an advantage to the defendant, but does not defeat the action.” (Citing Garvey v. Long Island R. Co., 159 N. Y. 323, 332.) In American Hide & Leather Co. v. Anderson, 153 Ill. App. 79, 81, it is said: “Though a court of equity would have no jurisdiction to decree only payment of damages for past trespasses, yet if it obtain jurisdiction in order to enjoin the repetition of the trespasses, it may determine the damages for past wrongs and decree their payment instead of relegating the parties to a court of law for this relief.” (Citing Keith v. Henkleman, 173 Ill. 137.) In Merriam v. Merriam, 207 Ill. App. 474, 478, it is decided that the doctrine of res adjudicata applies to a decree entered by consent as well as to one rendered in invitum, citing Harding v. Harding, 198 U. S. 317, 335, where it is said: “The general rule in Illinois undoubtedly is that a consent' decree has the same force and effect as a decree in invitum .” In the case of Stickney v. Goudy, supra, an action in assumpsit was brought to recover damages for an alleged breach of contract and certain pleas of the defendant presented the question whether the matters were adjudicated by a decree entered in a prior suit in equity, and it was held that such decree was a bar to the action. It was contended, conceding that it was within the jurisdiction of the equity court to adjudicate upon Goudy is liability for damages, that the pleas did not show that such question was in fact litigated and determined, but our Supreme Court held in substance that this did not make any difference, saying (132 Ill. 231): “Whether, as a matter of fact, in deciding the suit in equity, the court passed upon the question of damages, does not appear from the decree. * * * As the question of damages was involved and was in controversy, the fair inference from the language of the decree is that it was decided. But, however, that may be, the decree is res adjudicata whether the court passed on the question of damages or not.”

In view of these authorities, and applying them to the facts as disclosed in the present transcript and as above outlined, we are of the opinion that the contentions of defendant’s counsel are well founded; that the consent decree, entered in said equity suit upon motion of complainants’ solicitor and upon stipulation, is res adjudicata of the controversy in the present suit at law, and is, under the doctrine of estoppel by verdict, a bar to any recovery by plaintiffs herein, it appearing that the parties to the two suits are substantially the same; and that the trial court erred, as a matter of law, in entering- the judgment appealed from, and that it should be reversed without remanding the cause. Furthermore, we think it sufficiently appears, from the language of the stipulation and of the decree, and from the fact of the entry of such a decree, that it was then the intention of the Bayers (the then complainants and the present plaintiffs) and the defendant (Bloch Real Estate Improvement Co.), that such decree should settle all then existing controversies between them, including any then existing claims of the Bayers for damages, which form the basis for the present suit at law.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

Barnes, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Taylor

text:
    Joseph Lotesto, Defendant in Error, v. William A. Baker and Leo Merrill Henikoff, Defendants. Leo Merrill Henikoff, Plaintiff in Error.
    Gen. No. 31,602.
    1. Negligence — proximate cause as question of fact and of law. If there is evidence tending to show that the negligence alleged was the proximate cause of the injury, then the matter is one of fact to be submitted to the jury, but the question whether there is such evidence is one for the trial judge to decide.
    2. Highways and streets — proximate cause as question for jury where course of two automobiles resulted in one striking a pedestrian. Evidence that an automobile passenger car in cutting diagonally across a street to get on the proper traffic side passed in front of a motor truck proceeding on the street in the same general direction, and which truck swerved out of its normal course to avoid the passenger car and thereby struck a pedestrian whom the truck driver had only just seen standing on the crosswalk, presents a question for the jury whether the conduct of the driver of the passenger car was the proximate cause of the injury.
    3. Highways and streets — negligence of driver of automobile striking pedestrian as not intervening event breaking oonneotions between wrongful operation of ■ another car and the injury. Where an automobile passenger ear in cutting diagonally across a street to get on the proper traffic side passed in front of a motor truck proceeding on the street in the same general direction, and which truck swerved out of its normal course to avoid the passenger car and thereby struck a pedestrian whom the ' truck driver had only just seen standing on the crosswalk, the negligence of the truck driver held not such an intervening event as would break the connection between the wrong of the driver of the passenger ear and the injury.
    4. Negligence — Viability for combined negligence. One injured by the combined negligence of two persons has a cause of action against either or both.
    Error by defendant to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed November 23, 1927.
    Follansbee, Shorey & Schupp, for plaintiff in error; Clyde E. Shorey and Louis W. Becker, Jr., of counsel.
    Finn & Miller, for defendant in error.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an action on the case brought by the plaintiff, Joseph Lotesto, against the defendants, William A. Baker and Leo Merrill Henikoff, defendants, in the superior court for damages on account of personal injuries which the plaintiff sustained on May 29, 1922. The claim of the plaintiff is that he was struck by a motor truck operated by an agent of Baker, one of the defendants, and that the striking was the result of negligence on the part of each of the defendants, Baker and Henikoff. There was a trial, with a jury, and a verdict and judgment for $9,000 against both defendants. The matter is here for review upon a writ of error presecuted by the defendant Henikoff alone.

The accident occurred about 5 P. M. on May 29, 1922, at the intersection of Wabash avenue and 14th Street, Chicago. Wabash avenue is a north and south street, and 14th street an east and west street. Both are built-up business streets. Wabash avenue from curb to curb is sixty feet wide. On that street are two street car tracks. From the east curb line of Wabash avenue to the nearest rail on the east side of the street, it is 22 feet. The street car tracks, with the space between them, occupy 16 feet, east and west, in the center of the street.

At the time in question, the plaintiff was undertaking to cross Wabash avenue, from east to west, on the north crosswalk of 14th street. He started from the curb on the east side of Wabash avenue at the northeast corner of the intersection, where he had waited for about five minutes for traffic to pass. He walked west, from the sidewalk, into the street, and walked, on the north crosswalk, about as far as the east rail of the first street car track, that is, the northbound track. At that time, when he saw the truck (which belonged to the defendant Baker) about 100 to 150 feet north of him, he stood still in order to let it pass. It was coming from the north and on a line west of the center of Wabash avenue. While thus standing on the crosswalk, at about the east rail of the first street car track, he was struck by the truck and seriously injured. When he was called at the trial and testified in his own behalf, he stated that he knew nothing of what transpired after he was struck until quite sometime thereafter, when he awoke in a hospital.

It is the theory of the plaintiff, in support of the judgment, that while the plaintiff was standing on the north crosswalk of 14th street, near the east rail of the northbound street car tracks in Wabash avenue, the defendant Henikoff drove his automobile from a point on the east side of Wabash avenue, fifty or sixty feet north of the northeast corner of the two streets, in a southwesterly, or westerly direction across Wabash avenue beyond the center of that street, negligently cutting in front of the on-coming truck of the defendant Baker, which truck was proceeding south in the southbound car tracks, and that as a natural consequence the driver of the truck swerved his machine to the left and going on, ran practically immediately into the plaintiff; that there was evidence tending to show negligence on the part of both Henikoff and the driver of the truck; that it was properly submitted to the jury, and that the verdict of the jury was not against the manifest weight of the evidence.

On the other hand, it is the theory of the- defendant Henikoff that there was no evidence fairly tending to show that his acts were the proximate cause of the accident, and that the trial judge erred in overruling the defendant’s motion for a directed verdict (Jenkins v. La Salle County Coal Co., 264 Ill. 238); and, further, that the evidence showed it was solely the excessive rate of speed at which the truck of the defendant Baker was being driven, the failure of the driver of the truck to observe pedestrians, and his failure to check the speed of the truck that caused the accident.

The testimony of the plaintiff and the four witnesses called by him tends to prove the following: that the defendant Henikoff drove his automobile, a five-passenger four-cylinder touring car, south on Wabash avenue, and, for the purpose of taking his sister as a passenger, stopped at the east curb at a point about 60 feet north of the north side of 14th street, with the automobile facing south; that, at about the time in question, the truck, belonging to the defendant Baker, and driven by one Bosnyak, was approaching from the north, going at the rate of somewhere between 15 and 22 miles an hour; that, after his sister got into the automobile, he, the defendant, Henikoff, drove in a southwesterly direction somewhat diagonally across both street car tracks, cutting directly in front of the on-coming truck; that the point at which he intercepted the path of the truck was somewhere between a line drawn between the north curb of 14th street, and 35 feet north of where the plaintiff was on the crosswalk (one witness puts it at 25 to 30 feet north, one at 25 feet, one at 20 feet, one at 5 feet, and one at the crossing) ; that when the automobile got into the path of the truck, the latter being then in the southbound tracks, the driver of the truck swerved his machine over to the east in order to pass behind the automobile; that then the truck still going south was straddling the east rail of the northbound track and almost immediately struck the plaintiff, as he was standing on the crosswalk, and knocked him a distance of about fifteen feet; that the truck stopped about five feet north of where plaintiff was thrown. It is the evidence of the driver of the truck that the automobile came suddenly in front of him; that it was facing west with its rear end right in front of the truck, six or seven feet away; that seeing the automobile in that position, he turned the wheels of the truck to the east in order to avoid hitting the automobile; that at that time the truck was near or at the crossing, and he did not see the plaintiff before on account of the position of the automobile; that when he saw the plaintiff he was only four or five feet away; that that was after the automobile had gone by; that he immediately applied his foot-brakes and put on the emergency; that the plaintiff had his side towards the truck, threw out his hands and was then struck by the truck; that the truck stopped within four or five feet.

It is urged for the defendant that whether his conduct was the proximate cause of the collision was a matter of law for the court; and that his motion for a directed verdict should have been allowed. It is the rule that if there is evidence tending to show that the negligence alleged was the proximate cause of the injury, then the matter is one of fact to be submitted to the jury; but the question whether there is such evidence is one of law for the trial judge to decide. Jenkins v. La Salle County Coal Co., 264 Ill. 238; Curran v. Chicago & W. I. R. Co., 289 Ill. 111; Seymour v. Union Stock Yards Co., 224 Ill. 579. In our judgment there was ample evidence tending to show that the negligent conduct of the defendant Henikoif was the proximate cause of the accident and that consequently, there was no error in submitting the evidence to the jury.

In support of the defendant’s position, it is contended that the negligent conduct of the driver of the truck was such an intervening event as would break the connection between the wrong of defendant, Henikoff, and the injury. The language of the Supreme Court in Illinois Cent. R. Co. v. Siler, 229 Ill. 390, is as follows:

“Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every intermediate result, is to be considered, in law, as the proximate result of the first wrong cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer and except for which the final injurious consequence could not have happened, then, such injurious consequences must be deemed too remote to constitute the basis of the cause of action.” Sullivan v. Ohlhaver Co., 291 Ill. 359; Housley v. Noblett, 234 Ill. App. 59; Jackson v. Burns, 203 Ill. App. 196.

In Pullman Palace Car Co. v. Laack, 143 Ill. 242, 260, the court used the following language: “This is not to be understood as requiring that the particular result might have been foreseen, for if the consequences follow in unbroken sequence from the wrong to the injury, without an intervening efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence. ’ ’

In considering the conduct of the defendant, Henikoff, it will be seen that that conduct was in and of itself, according to the evidence for the plaintiff, the direct source of the swerving of the truck, to the left, out of its normal course and of the consequent collision with the plaintiff. When the automobile intercepted the truck it precipitated, almost immediately, the new motions of the truck, which resulted in the collision. The act of the driver of the truck, considering the situation, was entirely dependent upon the action of the defendant Henikoff. It may be true that both the driver of the truck and the defendant, Henikoff, were guilty of negligence, but it does not follow that the negligence of the driver of the truck exonerated the defendant Henikoff, for if the plaintiff was injured by the combined negligence of both parties he would have a cause of action against either or both. St. Louis Bridge Co. v. Miller, 138 Ill. 465; American Exp. Co. v. Risley, 179 Ill. 295; Village of Carterville v. Cook, 129 Ill. 153; Elgin, A. & S. Tr. Co. v. Wilson, 217 Ill. 47; Siegel Cooper Co. v. Trcka, 218 Ill. 559; Walsh v. Chicago Rys. Co., 294 Ill. 586; Hancock v. Steber, 204 N. Y. Supp. 358; Boggs v. Jewell Tea Co., 266 Pa. 428; King v. San Diego Electric Ry. Co., 176 Cal. 266; Hellan v. Supply Laundry Co., 94 Wash. 683; Schilling v. Hayes, 55 Cal. App. 1.

In the Boggs case, supra, the court said, page 433:

“Defendant’s negligence must be a proximate cause, but not necessarily the sole cause, of the accident. Even conceding that the negligence of the chauffeur of the ambulance concurred with that of defendant’s driver, of which there is slight if any evidence, it would not be a defense here. An action lies against either of joint or concurring wrong-doers. Faust v. P. & R. Ry. Co., 191 Pa. 430; Comey v. Phila Traction Co., 175 Pa. 133; Mann v. Weiand, 81 Pa. 244. So, if true, it is no defense here that the chauffeur, by the exercise of skill and judgment, might have averted the accident in spite of defendant’s negligence. True, if the chauffeur as a subsequent independent act struck the deceased, the defendant would not be liable, but of that there was no sufficient evidence.”

In the instant case the driver of the truck, instinctively, that is without conscious selection or without conscious aim, as a matter of expediency, and, so, doing the best he could under the circumstances, swerved to the left and almost at once collided with the plaintiff whom he had only just seen, and such being the case, it is only reasonable to conclude that there was no such interim between the conduct of the defendant driving the automobile in front of the truck and the conduct of the driver of the truck thereafter as to put the blame alone on the driver of the truck. Although the cutting in of the automobile preceded the collision of the truck -with the plaintiff by some seconds, yet the motions of the automobile were so intimately related to those of the truck and the actual collision that as a practical matter the motions of both vehicles may well be considered contemporaneous, and, not only that, but as to the actual collision, as constituting the whole proximate cause.

It is further contended for the defendant that the trial judge erred in giving Instruction Number 3, which recited a portion of the Motor and Vehicle Statute of the state. In. our judgment, that objection is untenable. In Deming v. City of Chicago, 321 Ill. 341, the court, considering an instruction, said,

“Laying down the law in the words of the law itself ought not to be pronounced error. (Greene v. Fish Furniture Co., 272 Ill. 148; Mertens v. Southern Coal Co., 235 Ill. 540; Mt. Olive Coal Co. v. Rademacher, 190 Ill. 538.) ” Fannon v. Morton, 228 Ill. App. 415; Fisher v. Johnson, 238 Ill. App. 25; Ehrenheim v. Yellow Cab Co., 239 Ill. App. 403; Van Meter v. Gurney, 240 Ill. App. 165.

For the foregoing reasons, the judgment will be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.


text:
    Campbell Investment Company, Appellant, v. George H. Taylor, Appellee.
    Gen. No. 31,643.
    1. Contracts — performance of condition precedent as necessary to offer being binding. Where one represents that he owns a lease that he can assign to an intending purchaser and that subletting by the purchaser will be profitable if he will expend a sum for remodeling the building, and a letter from the alleged owner of the lease states that he will assign the lease in the event the purchaser and his associate underwrite the amount required for remodeling, consummation of the underwriting is a condition precedent to the making of a binding contract and there is no' unilateral or bilateral contract even by acceptance of the alleged offer, there being no underwriting.
    2. Contracts — performance of promise as essential to making of contract. If one offers to be bound if another will do something, a contract may arise when the thing is done, but will not arise upon a mere promise to do it.
    3. Frauds, statute of — substance of contract to be stated in memorandum. In order to take a contract out of the statute of frauds, the memorandum must express with reasonable certainty, either by its own terms or by reference to some other writing, the substance of the contract.

      4. Frauds, statute of — substance of contract insufficiently stated in memorandum. Where one orally represents that he owns a lease on a named building that he can assign to an intending purchaser and that subletting by the purchaser will be profitable if he will expend a sum for remodeling the building, a letter from the alleged owner of the lease that he will assign the lease in the event the purchaser underwrite the amount required for remodeling the building held not a sufficient memorandum of the substance of the contract required by the statute of frauds, in not sufficiently stating what property is involved nor the substance of the undertaking.

      \J>. Contracts — right to withdraw offer. An offer of a unilateral contract may be withdrawn by the offerer at any time prior to completion of performance by the offeree.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed November 23, 1927.
    A. W. Martin and Edward H. S. Martin, for appellant.
    Taylor, Miller, Busch & Boyden, for appellee; Orville J. Taylor, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the plaintiff, Campbell Investment Company, a corporation, from a judgment in the superior court in favor of the defendant, George H. Taylor in an action of trespass on the case on promises.

The issue in the trial court was precipitated by a declaration and demurrers thereto, and the demurrers being sustained, the question arises here, upon review, whether the declaration states a good cause of action.

The declaration contains eight counts. In the view we take of the case, however, it is necessary to consider only the first. It is therein alleged that defendant, on November 19, 1919, at Chicago, represented to the plaintiff that he, the defendant, had a certain lease whereby the Chicago, Burlington and Quincy Railroad Company, leased to the defendant for the term of five years, beginning May 1, 1930, with the privilege to make alterations at any time before the beginning of the term, certain premises, in Cook County known as the Burlington building, at the northeast corner of West Adams and South Franklin streets, Chicago, at an annual rental of $35,000, and that the lease could be by the defendant assigned to the plaintiff or to whomsoever the ‘ plaintiff might designate, and that by the expenditure of the sum of $150,000 for alterations, remodeling and repairing, the premises could be sublet for the term by the plaintiff, or by whomsoever the plaintiff might designate, to good and responsible tenants, for large sums of money as rent, amounting to at least $150,000 per year, and that said rentals so to be paid by the subtenants would be sufficient to pay the rent of $35,000 per year, to the Chicago Burlington & Quincy Railroad Company, the expense of managing and operating the premises, the expense of keeping the building in good order and repair, to repay the $150,000 to be spent for alterations, remodeling and repairing, and, also, to pay a net profit during the term of at least $35,000 per year, or a net profit for five years of $175,000.

It is further alleged that afterwards, on, to-wit, the 1st day of December, A. D. 1919, the defendant made to the plaintiff an offer in writing concerning the assignment of said lease, which offer was and is in words and figures, as follows:

“Chicago, Dec. 1, 1919.
“Campbell Investment Company,
“230 South LaSalle Street,
“Chicago, Illinois.
“Dear Sirs: In the event you and your associates underwrite the amount required to remodel the Burlington building, we will in addition to assigning the leases to be entered into with the various tenants, also assign the lease between the Chicago, Burlington and Quincy Railroad Company and ourselves, the purpose being to enable the underwriters to take immediate possession of the property in case of default in payment of the notes as they become due.
“Very truly yours,
“George H. Taylor.”

That, being desirous of procuring a lease of premises of which it could use a portion for its own offices in which to conduct and carry on its business and affairs, and a portion of which it could sub-let at a profit, the plaintiff went to great trouble and expense, to-wit: expense of Twenty-five Hundred Dollars in arranging for the underwriting of said amount required to remodel said Burlington Building, and arranged for the said underwriting by the plaintiff and its associates, and afterwards, on, to-wit: the 2nd day of January, A. D. 1920, and before the defendant ever withdrew or rescinded the offer last aforesaid, orally accepted the said offer and orally gave notice of such acceptance to the defendant, whereupon' the defendant requested the plaintiff to allow the matter to rest for a few days until arrangements could be made, and, afterwards, on, to-wit: the 22nd day of .January, A. D. 1920, the defendant notified the plaintiff that the defendant had no lease of said premises and that the Chicago, Burlington & Quincy Railroad Company would not execute any lease thereof to the defendant, and that it would be impossible for the defendant to procure any such lease; and the plaintiff avers that during all the period of time from the time of the aforesaid acceptance of said offer until the time of such notification last aforesaid by the defendant, the plaintiff and its associates stood ready and willing to carry out and perform the said contract so created by such acceptance of the defendant’s said written offer and to underwrite and pay the money so required to remodel said Burlington building; but, nevertheless, the defendant, though often requested, has hitherto wholly failed and refused and still does fail and refuse to assign any such lease as he so agreed and promised to do; that as a result, the defendant became liable to pay to the plaintiff the difference between the value of the five-year leasehold interest and the total of the alleged rent under the lease between the Chicago, Burlington & Quincy Railroad Company and the defendant, and the expense of altering and managing the premises, that is, $200,000; that although the defendant undertook and promised to pay, and the plaintiff has often requested, it still refuses to pay.

It may well be, at first blush, considering the so-called representations of November, 1919, the writing by the defendant of December 1, the statement that the plaintiff spent $2,500 in arranging for the underwriting, and the alleged orally accepted offer, that one would be inclined to conclude that a binding contract of some kind had been made. But upon analysis, considering the necessary elements, which the law prescribes as essential to the making of a contract, it seems impossible to find in all the allegations of the declaration sufficient to make out a binding contract.

For the plaintiff, it is claimed that the alleged written offer of December 1, together .with the statement that it orally accepted said offer and gave notice of such acceptance to the defendant, brought into being an implied and enforceable contract, for the breach of which it is entitled to damages.

It cannot be claimed, reasonably, that the representations by the defendant, alleged to have been made on November 19, to the effect that the defendant had a five-year lease at an annual rental of $35,000 from the railroad company, which could be assigned to the plaintiff, or whomsoever the plaintiff might designate, and that by the expenditure of $150,000 for alterations, the property would be sublet for the term, either by the plaintiff or anyone it designated, for at least $150,000 a year, which would result in a net profit, under the five-year term of the lease, of $35,000 a year, constituted anything more than information given by the defendant to the plaintiff as to the status of the defendant in connection with a piece of real estate and its opinion as to what might be done with it under a certain lease; in other words, those representations did not become in any way, or constitute part of any contractual relations between the defendant and the plaintiff, that is, they bear no legal relationship to the writing of December 1. It is not alleged in the declaration that the plaintiff was influenced by them or acted by reason of them, or in any way relied upon them. It follows, therefore, that the sole cause of action that the plaintiff undertakes to state in its declaration is made up of (1) the document of December 1; (2) the statement that it “went to great trouble and expense, to-wit, the expense of $2,500.00 arranging for the underwriting of said amount required to remodel said Burlington building, and arranged for the said underwriting;” (3)' that the plaintiff before the defendant withdrew the offer last aforesaid, orally accepted the said offer and orally gave notice of such acceptance to the defendant, whereupon the defendant requested the plaintiff to allow the matter to rest for a few days until arrangements could be made; and (4) that the defendant on January 22, notified the plaintiff that he had no lease to the property, and the railroad company would not execute one to him, and that it would be impossible for him to procure any such lease.

The document of December 1, provides that the defendant should assign the lease between the railroad company and the defendant in addition to assigning the leases to be entered into with the various tenants, “in the event you and your associates underwrite the amount required to remodel the Burlington Building. ’ ’ The,ideas expressed in the document are not, sufficient, in and of themselves, to constitute a fully intelligible and complete offer of any kind. Quite obviously, the document was written with a view to considering matters that had transpired between the parties prior thereto. But even if offer of something, it expressly provided that it could be accepted only by the plaintiff and its associates actually underwriting the amount required to remodel the Burlington building. Until the plaintiff had consummated the underwriting, the offer, whatever it was, remained unaccepted. (Nor could the offer be transmuted into part of a binding contract by any act on the part of the plaintiff in the nature of an oral acceptance. The statement by the plaintiff that he would accept the offer was of no legal effect. The plaintiff could not change the terms of the offer. Herd the defendant, by the express terms of the document itself, provided that a binding contract could come into being only when the plaintiff and his associates had accomplished the underwriting) in other words, the underwriting was a condition precedent, sine qua non. The offer could not be transmuted into a binding obligation until the amount specified had been underwritten. The allegation, therefore, of oral acceptance was of no avail. If one offers to be bound if another will do something, a contract may arise when the thing is done, but will not upon a mere promise to do it) The allegations of the declaration do not go far enough, in our judgment, to make out a contract, either unilateral or bilateral. It is argued for the plaintiff that the defendant’s offer was unilateral up to the time of its oral acceptance, but after the oral acceptance it became a bilateral contract. In the view we take of it, however, there could be no oral acceptance, inasmuch as the offer was capable of being accepted only by doing something, that is, consummating the underwriting.

Further, even if we assume that the allegations of the declaration make out a contract, in our judgment, the contract would not comply with the requirements of the statute of frauds. The writing itself, that is, the letter of December 1, does not sufficiently state what property is involved; nor what is the substance of the understanding of the. alleged agreement. In fact, it is dubious, as to the parties, the property, the price, and the substance, that is, as to what may be considered as the intended function of the agreement, and what it is to accomplish. In order to take a contract out of the statute of frauds, the memorandum must express with reasonable certainty, either by its own terms or by reference to some other writing, the substance of the contract. The most that can be made of the memorandum is that it was merely what might be called an intermediate statement of facts, constituting part of negotiations presumably anticipatory to the making of a prospective agreement; it was all in fieri. Scott v. Fowler, 227 Ill. 104.

In Dreiske v. Eisendrath Co., 314 Ill. 199, the court said:

“Not only are the terms of the offer and acceptance indefinite, but there are also wanting from them many of the details which would necessarily be involved in the conveyance of the property, and from the absence of such terms we must conclude that it was not the intention of the parties that the letters, alone, should constitute the entire contract, but that they did intend to have a subsequent meeting and negotiations, at which all the details should be settled and a definite contract drawn and properly executed by all parties.”

In Frazer v. Howe, 106 Ill. 563, 574, the court said:

“The writing, to meet the requirement of the statute, need not give all the details, but it must express the substance of the contract with reasonable certainty, either by its own terms or by reference to some other agreement or matter from which it can be ascertained with like reasonable certainty. (Atwood v. Cobb, 16 Pick. 227; Ives v. Hazard, 4 R. I. 29; Meadows v. Meadows, 3 McCord, 458.) The contract cannot rest partly in writing and partly in parol. (Seymour v. Belding, 83 Ill. 222; Weaver v. Fries, 85 id. 356.)”

Also, if the memorandum be considered as containing an offer of a unilateral contract — and we have already stated above that the allegations do not set up a bilateral contract — then, as such (an offer may be withdrawn by the offerer at any time prior to completion of performance by the offeree,) and as here it is alleged it was withdrawn, the declaration is insufficient. Williston on Contracts, Vol. 1, sec. 60, page 100; Plumb v. Campbell, 129 Ill. 101. In the Plumb case the court approved the following language from Parsons on Contracts.

“The party mailing the promise is bound to nothing until the promisee, within a reasonable time, engages to do or else does or begins to do, the thing which is the condition of the first promise. Until such engagement or such doing, the promisor may withdraw his promise, because there is no mutuality and therefore no consideration for it.” Although it is the law that a contract should be construed and interpreted so as, if reasonably possible, to make it valid and enforceable, and that its language should be construed and interpreted most strongly against the party signing the instrument (Field v. Leiter, 118 Ill. 17), we are of the opinion, for the reasons stated above, that the allegations in the declaration fail to make out a cause of action.

The judgment, therefore, will be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.