text:
    Walter Burk and Paul Burk, Appellees, v. K. B. Weber et al., Appellants.
    Opinion filed May 8, 1936.
    Albert E. Islet, of Newton, for appellants.
    George W. McCollet, of Newton, for appellees.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellants’ brief states that “this is an action by the plaintiffs, Paul Burk and Walter Burk, to recover damages for an alleged or fake arrest, alleged to have been committed by the defendants.” There was a trial before the court, who awarded a judgment against appellants in favor of Paul Burk for $750, and to Walter Burk in the sum of $250.

Appellants state that among other reasons relied upon for reversal, there is no evidence “to identify the defendants, or either of the defendants, as having committed the alleged trespass, viz., assault and battery or false imprisonment”; and further that “the evidence offered in behalf of defendants was conclusive that none of the defendants were present at the time of the shooting except Elmer Fehrenbacher, deputy sheriff of Jasper County, and Harold Fehrenbacher, who was present when the plaintiff, Paul Burk, committed the act, viz., assault with a deadly weapon, for which the plaintiffs were being apprehended.”

Appellees reply thereto that the amended answer of appellants admits that all of them except Harold Fehrenbacher were present at the time and place of the trouble and took part therein, or at least a part of them did. It is thus seen that one of the principal questions for this court to consider is whether appellants made such admission by their pleadings.

The abstract of appellants sets forth the testimony, oral and documentary, in apt form, but it does not digest or epitomize the pleadings; neither does it state their substance or otherwise furnish any information as to the character of the suit or the nature of the defense.

Humber 8 of the Rules of Practice of this court requires that “in all cases the party prosecuting an appeal in the Appellate Court shall furnish a complete abstract of the record, referring to the pages of the record by numerals on the margin.” It further provides that the evidence, if there be such, shall be condensed in narrative form so as to present its substance tersely and with clarity.

Where the rule requires a complete abstract of the record, such must be complete in fact, and the reviewing court is under no obligation to search the record for errors. Village of Winnetka v. McMartin, 351 Ill. 134.

It has been held by both the Supreme and Appellate Courts that a rule requiring appellant to furnish a complete abstract is not complied with when the abstract does not set forth the substance of the pleadings. Christy v. Elliott, 216 Ill. 31; Fitzgerald v. Barker, 58 Ill. App. 604.

A failure of appellant to file a sufficient abstract warrants the reviewing court in affirming the judgment. Watson v. Sullivan, 260 Ill. App. 259; Bour v. Cook, 209 Ill. App. 315. In Fitzgerald v. Barker, supra, the court held that an abstract which fails to show the pleadings, and only sets out the oral evidence, is not sufficient and warrants an affirmance of the judgment.

In such situations the court is not bound to wait for appellees to raise the question, but may, of its own motion, affirm the judgment for want of a sufficient abstract. Mallers v. Crane Elevator Co., 57 Ill. App. 283; Florez v. Brown, 37 Ill. App. 270.

The abstract furnishes us with no information as to the contents of the pleadings, without which we cannot know whether the amended answer admitted the presence of certain appellants at the scene of the trouble and their participation therein, hence it is impossible to pass upon the two contentions of appellants, before mentioned, except by a search and examination of the record, which the Supreme Court, in Village of Winnetka v. McMartin, supra, has held to be no duty of the reviewing court.

For want of a sufficient abstract the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Edwards

license: Public Domain

text:
    G. F. Wettaw, Appellee, v. Retail Hardware Mutual Fire Insurance Company et al., Appellants.

      Opinion filed May 8, 1936.
    Silber, Clausen, Hirsh & Woley, of Chicago, for appellants.
    Harry J. Flanders and K. C. Ronald, both of Eldorado, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

This is a petition by defendants below for leave to appeal from an order of the circuit court of Saline county setting aside a verdict in favor of petitioners and granting a new trial therein. Petitioners assign three reasons therefor: first, that the evidence in the case was so preponderately in their favor that no other verdict could properly have been rendered; second, the fact that they compensated the witnesses in their behalf, for their time in attending court, at a figure somewhat in excess of the witness fee fixed by statute, was not a ground for awarding a new trial; and third, that such fact being known to respondent during the trial, and he not moving to withdraw a juror and continue the case, thereby became precluded from raising the question.

The petition is filed under section 77 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, H 205, and number 30 of the rules adopted by the Supreme Court in amplification of the statute.

Prior to such enactment the award of a new trial was not regarded as a final order, and no review of the same was possible. By said section 77, such is now made final, and an appeal may be taken therefrom when leave for that purpose shall be granted by a reviewing court, or by a judge thereof in vacation; hence, obviously, whether a review of such order may be had is a matter which necessarily rests very largely within the discretion of the Supreme or Appellate Court, or by a justice of such court if the application be presented in vacation.

That the act is designed to promote justice, and to prevent a verdict, warranted by the record and justified by the evidence, from being set aside and lost to the party who was fairly entitled thereto, and such litigant forced to undergo the hazards of another trial with its further incidents of delay and expense, does not admit of argument. We think it clear that where a party litigant feels aggrieved at the order of a trial court in setting aside a verdict in his favor, and presents to a reviewing court, upon a petition for leave to appeal from such order, grounds which are reasonably debatable and fairly challenge the propriety of the grant of the new trial, the reviewing court should permit the appeal to be taken. Such an interpretation of section 77 is in consonance with justice and in accord with the evident spirit of the act.

It remains to be seen whether such grounds arise upon this record. Respondent urges that whether the verdict was in accord with or contrary to the weig*ht of the evidence, upon the consideration of the motion for a new trial, was a matter addressed to the judicial discretion of the trial judge. This is true. However, it was held in Adamsen v. Magnelia, 280 Ill. App. 418, that the exercise by the trial court of its discretion in granting a new trial, even as to matters of fact, is a matter subject to review.

If the rule were otherwise, then when a new trial was awarded solely upon the ground that the verdict was contrary to the manifest weight of the evidence, section 77 would be meaningless and of no avail to the complaining party however much he might be injured by the ruling. We think the section contemplates that where such ground is presented, the reviewing court should ascertain whether the record raises a fair question as to the propriety of the court’s ruling, though it be on matters of fact, and if it does, then grant leave to appeal from the order awarding the new trial.

Of course where a question is reasonably presented as to whether the court erred as a matter of law in so ruling, the right to review cannot be denied. Adamsen v. Magnelia, supra; Randall v. Randall, 281 Ill. App. 169.

Petitioners admit that they paid the witnesses whom they called an amount in excess of the statutory witness fees; they, however, contend that respondent was, during the course of the trial, fully aware of such, and that they in fact stipulated it of record; moreover, that with knowledge of such matter, he took no steps to withdraw a juror and continue the cause, but proceeded to present his case, thereby speculating as to its outcome; furthermore, that having assumed such hazards he cannot thereafter urge same as a ground of relief from an adverse verdict. Such appears to be the law. Chicago & E. R. Co. v. Meech, 163 Ill. 305; Stampofski v. Steffens, 79 Ill. 303. Whether petitioners’ contentions in this behalf are wholly justified can only be determined by a consideration of the record, upon a review of the cause.

It is our conclusion that questions, both of law and fact,, are sufficiently presented by the petition to call upon this court to review the cause in the interest of justice, and that it is our duty to grant leave to appeal from the order awarding the new trial.

Leave to appeal granted.


author: Mr. Justice Murphy

text:
    Bethel Davis, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Opinion filed May 8, 1936.

      Kramer, Campbell, Costello & Wieohert and Johh C. Roberts, all of East St. Louis, for appellant.
    Dale Gf. Hyle, of Granite City, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Plaintiff brought this action to recover on an insurance policy issued by the defendant upon the life of her husband, Robert Carson Davis. The complaint alleges that- the insured disappeared from his home August 2,1927, and that he was presumed to have died on said date. The suit was not filed until after the expiration of seven years from the date of his disappearance. Defendant’s answer denied that the insured died on said date and as a further defense alleged default in the payment of the semiannual premiums due November 27, 1927. The case was tried with a jury resulting in a verdict and judgment for the plaintiff for $1,023.87, the full amount of the policy plus accumulated dividends.

As grounds for reversal, defendant urges that the court erred in overruling its motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial.

For a proper consideration of the questions raised by said assignments of error, it is necessary to first consider some of the provisions of the policy which were set up in the defendant’s answer.

The policy provided that if default occurred in any of the semiannual premiums after three full years of premiums had been paid, the owner had the option any time within 90 days after such default to elect to take, first, the cash surrender value; or, second, to have the insurance continued for a reduced amount of nonparticipating paid-up insurance payable upon the death of the insured; or, third, to have it continued for the original amount of $1,000 as term insurance. If no election was made within 90 days after due date of premium, the policy automatically became a paid-up nonparticipating policy under the second option. The evidence shows that under this option the policy would become a paid-up nonparticipating policy for $404, plus accumulated dividends of $23.87, while under the third option it would have been a paid-up term policy for $1,000 payable upon the death of the insured any time within 18 years and five months from the date the defaulted premium was due.

Plaintiff contends that after the disappearance of the insured and within 90 days after the due date of the premium, she exercised the option, electing first, to take the cash surrender value and having failed in that on account of the refusal of the company to pay without the written election of the insured, she elected the third option — that is, to take term insurance. The answer to such contention is that the policy reserved the right. to the insured to change the beneficiary. Under such a policy her right as beneficiary was a mere expectancy subject to be revoked by the insured at will. Martin v. Stubbings, 126 Ill. 387; Equitable Life Ins. Co. v. Mitchell, 248 Ill. App. 401; Mayer v. Illinois Life Ins. Co., 211 Ill. App. 285. The option clause provides that the “owner” shall exercise the option. The word “owner” as used here was intended to mean the insured and cannot be construed to include the beneficiary who only had an expectancy. The fact that she had possession of the policy after his disappearance would not make her the owner with the right to exercise the options. The evidence shows that plaintiff had certain conversations with defendant’s local agent and certain letters were exchanged between the plaintiff and defendant. She contends that by these letters defendant waived the requirement of the policy that the election should be exercised by the insured but the pleadings did not raise such an issue and the evidence would not warrant such a finding.

In view of our holding on the matter of election of options, it would follow that if the insured died any time after the expiration of the 90-day period following the premium due date, November 27, 1927, the amount payable would be $404 plus the accumulated dividend of $23.87. The verdict being for the full amount of the policy, to sustain it, it would be necessary to find that the evidence warrants the presumption that the insured died at a time when the policy was not in default and before it automatically became a paid-up nonparticipating policy under the second option.

The evidence shows that plaintiff and Bobert Carson Davis were married August 18, 1916, that they had three children and except for the letter hereinafter referred to, the family relationship was pleasant and the insured was attached to his wife, children and their home. They lived in Granite City and owned their home and other property. For eight years prior to his disappearance, he had been employed by the St. Louis Gas and Coke Company but lost his employment a week before his disappearance by reason of some difficulty with his employer, the nature of which is not shown. He was-a member of the Odd Fellows, active in its work and until about a year prior to his disappearance had been a regular attendant at church and interested in church activities.

On the date of his disappearance, he conveyed the home in which they resided to his wife and transferred to her all his interest in his loan association stock. He told plaintiff he was going to Chicago to seek employment. He was 35 years of age and had for some time been nervous, restless and losing weight. He is described as looking haggard and tired. After leaving Ms home and on the same date, he wrote plaintiff a letter as follows:

“TJmon Station St. Loms, Mo.

Aug. 2, 1927.

“Mrs. Bethel Davis:

“I am not going to Chicago. I am going as far in the opposite direction as the trains run. I will never be back unless I am carried. This is no joke. You can make your plans accordingly. As I called to your attention today there is an equity'in property, B. & L. Stock, etc. of over $9,000. at fair valuations. With your selling and managing ability you should have no trouble getting along. You may use this letter to help you get things straightened out.

“Why am I leaving*?

“I have been thinking* it over for a couple of years and now seemed a good time to go. I was not happy, did not care for you or the kids or the home and the load was too heavy.

“I may end up where May is. I always did feel like I was half crazy.

“I wish you all good luck.

“Good bye,

“Carson.”

The evidence shows that the inference is that May referred to in his letter was Ms sister who was mentally unbalanced and bad been in an asylum for a number of years.

After the expiration of seven years from the time the insured was last heard of, the presumption that he was alive ceased and the presumption of his death took its place. Whiting v. Nicholl, 46 Ill. 230. The law of this State is that when the presumption of death arises at the expiration of the seven-year period, the time of his death is presumed to have been at the end of the seven-year period. Donovan v. Major, 253 Ill. 179. Facts and circumstances attending a person’s unexplained disappearance may be such that a presumption arises that the person died within the seven-year period. Veselsky v. Bankers Life Co., 248 Ill. App. 176. In Donovan v. Major, supra, in discussing the facts and circumstances necessary to be proven to create such presumption, the court said, “The presumption of fact which will justify the conclusion of death before the lapse of the time required for the legal presumption must arise from evidence of circumstances tending to show death. That the absentee was exposed to some specific peril; that he sailed in a vessel which had never been heard from, though many months overdue; that he was last seen as a passenger on an ocean steamer in midocean, at night, and was never seen or heard of afterward though diligent search was made the next morning; that he made threats to commit suicide prior to his disappearance; that the condition of his health was desperate; that he was afflicted with some disease likely to undermine his constitution— these are circumstances which may be considered as tending to raise a just inference of death.” The evidence in this case is not sufficient to raise the presumption that the insured died on the date of his disappearance or at any time between that date and the date that the second option in the policy became effective. The fact that he wrote that he thought he was half crazy or that he might become like his sister May, who was insane, creates no inference that he destroyed himself while laboring under such belief. There is no competent evidence of threats of self-destruction. There is no medical testimony as to the nature or extent of his ailments or the course and toll that such ailments might take. The sudden disappearance of one who is suffering from loss of weight, is nervous, worn and tired does not create a presumption that he died soon after his disappearance from such ailments. Campbell v. Northwestern Mut. Life Ins. Co., 281 Ill. App. 158.

The case has been presented in this court on the issue that the evidence does not warrant the finding that the insured died at the time of his disappearance as alleged in the complaint. The verdict and judgment cannot be sustained hut we express no opinion as to the sufficiency of the evidence to establish plaintiff’s right of recovery under option two of the policy aided by the presumption of death that arises from seven years of unexplained absence.

For the reasons assigned the judgment is reversed and the cause remanded.

Reversed'and remanded.


text:
    Illinois Office Supply Company, Appellant, v. County of Franklin, Appellee.
    Opinion filed May 8, 1936.
    Layman & Johnson, of Benton, for appellant.
    Marion M. Hart, of Benton, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Illinois Office Supply Company, plaintiff-appellant, sold the County of Franklin certain supplies for the use of the county officers of said county.

Plaintiff brought this suit to recover for said supplies. By stipulation and agreement all items have been eliminated from this suit except certain supplies furnished the county superintendent of schools.

The case was tried before the court without a jury. The facts have been stipulated and the only question presented on this appeal is whether the board of supervisors as the fiscal agent of the county has power either expressed or implied to make purchase of such items. It is stipulated that the board of supervisors audited the items purchased and have approved the same, that the various items mentioned were actually purchased and delivered. The items in controversy and for which the lower court refused judgment aggregate $3,349.84.

The evidence shows that certain pins, certificates, dots and stars were purchased and used in the schools of the county under the direction of the county superintendent, that they were given to the pupils as awards or prizes for regular and prompt attendance at school and for efficiency in spelling. When a pupil has 20 perfect spelling lessons, he is given a small certificate, and when he has 300 perfect lessons, larger certificates are given and 600 perfect lessons entitles the pupil to one of the pins.

The other items purchased consist of teacher’s schedules, blanks for statement of attendance, school registers, final examination reports, program charts, district records, anticipation- warrant blanks, plan books to be used by.the teachers in arranging their work, order or warrant books and election sets for use in the various school districts.

Section 1, Art. VIII of the constitution provides that the general assembly shall provide a thorough and efficient system of free schools, whereby all the children-of the State may receive a good common school education. By section 5 of the same article, it is provided that there may be a county superintendent of schools, whose qualifications, powers and duties shall be prescribed by law. In carrying out the constitutional mandate, the legislature has provided for a county superintendent of schools, fixed his qualifications and by sections 15,16, ch. 122, Ill. State Bar Stats. 1935, THf 15,16, prescribed his duties and powers. The eighth subdivision as set forth in paragraph 15 provides that he is “To labor in every practicable way to elevate the standard of teaching and improve the condition of the common schools of his county.” The sixth paragraph is that he shall act as the official adviser and constant assistant of the school officers and teachers of his county. In the performance of this duty he shall faithfully carry out the advice of the superintendent of public instruction.

An examination of the quoted provisions and other duties enjoined upon the county superintendent of schools by the legislature discloses that it was the intent of the legislature that the county superintendent should be vested with a broad discretion as to what was to make for a thorough and efficient common school system. It should also be noted that the. county superintendent is required to make reports of the conditions of the schools in his county to the State superintendent of public instruction; that these reports are to be based upon data furnished him by the teachers of the county.

By statute, he is made the assistant and official adviser of the school directors and other school officers, which would necessarily include advice as to how to keep their reports, issue warrants and make contracts for employment of teachers.

Section 207, ch. 122, Ill. State Bar Stats. 1935, H 331, prescribes the duties of the county acting through its board of supervisors and under the first subdivision, it is provided that it shall provide for the county superintendent of schools a suitable office with necessary furniture and office supplies as is done in the case of other county officers. In determining what the legislature intended should be furnished by the county to the superintendent of schools as necessary office supplies, it is necessary to consider it in connection with the duties imposed upon him by statute.

In view of these constitutional provisions and the various duties imposed upon the county superintendent, we cannot say that he is not acting within his prescribed powers and performing the duty placed upon him to labor in every possible way to elevate the standard of teaching and improve the condition of the schools when he furnishes the teachers with stars, dots, pins and certificates to be given as a reward for efficiency in spelling and regular attendance. It is contended that the statute provides a means for compelling a child to attend school. That is true but we are inclined to the opinion that the county superintendent of schools in carrying out the mandate to labor for the betterment of the schools had the right to select the reward system as a better means of stimulating the pupils’ interest in attendance than to rely solely upon the services of a truant officer or a prosecution of the parents to compel their attendance.

In view of the duties imposed upon the county superintendent of schools relative to advising and assisting the various school officers and teachers, we are of the opinion that he has the right to furnish blank forms of records, warrants, election supplies and other supplies such as are the subject of controversy in this case. Lack of uniformity in these records, and blanks would tend to lead to chaos and confusion in the school system of the county.

The court erred in refusing allowance of said claims. The cause is remanded with directions to enter a judgment for the allowance of said items.

Judgment remanded with directions.


text:
    Vivian Roberts, a Minor, by Grace Roberts, Her Mother and Next Friend, Appellee, v. Central Mutual Insurance Company, Appellant.

      Opinion filed May 8, 1936.
    Kramer, Campbell, Costello & Wiechert and Nor-mar" J. Gtuhdlach, all of East St. Louis, for appellant.
    Philip Gr. Listemah, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Plaintiff, Vivian Roberts, a minor, who sues by her mother as next friend, recovered a judgment for $2,500 in the city court of East St. Louis against Hilda Schmeling and the Economy Cabs, Inc. for personal injuries she sustained while riding in an automobile used by the defendants in carrying passengers for hire. The defendant in the instant case furnished Schmeling and the Economy Cabs, Inc., the bond required of taxi operators by section 42a, chapter 95a, Ill. State Bar Stats. 1935, H 44. Plaintiff brings this action on the bond to recover the amount of the judgment she had obtained against the taxicab operators. All pleadings were verified. Defendant answered the complaint and on motion of plaintiff the court struck paragraphs 3, 4 and 7. Plaintiff then moved for judgment, on the ground that the parts of the answer then remaining did not allege a defense. This motion was allowed and judgment was entered against the defendant for the amount of the judgment entered in plaintiff’s favor in the former suit. ■ The court’s rulings on striking paragraphs 3, 4 and 7 and in entering judgment is urged as grounds for reversal.

Paragraph 3 of the answer alleged that plaintiff was not a passenger for hire but a guest; that her injuries were not caused by the negligence of the taxicab operators; that immediately after the accident it made an investigation relative to the liability of the taxicab operators and that in an interview with Boscoe C. Herrin, the driver of the taxi in which plaintiff was riding when she was injured, he stated that plaintiff was a passenger for hire at the time of the injury and that she was not intoxicated; that since said trial Herrin had signed an affidavit, a copy of which is attached to the answer and made a part thereof; that plaintiff was at the time ".of the injury riding as a guest and not as a passenger; that she was intoxicated and by reason of such condition fell from the cab; that he connived with the plaintiff’s mother and gave false testimony in the suit against the taxi operators and that he was to be paid for the same. Defendant alleges that at the time of the former suit it did not know the true facts and relied upon what Herrin had first told them-.

The bond which defendant gave in this case was furnished-pursuant to the provisions of a mandatory statute. The statute makes it unlawful for any person to operate any motor vehicle for hire upon the streets in any city or village having a population of five thousand or more without first filing a bond with the secretary of state. The conditions of the bond as prescribed by statute are that each of said bonds shall be conditioned, that the owner of said motor vehicle will pay all final judgments recovered against such owner for any injury to or death of any person resulting from the negligence of such owner or his agent in the operation of such motor vehicle not to exceed $2,500. The bond so furnished shall by its terms inure to the benefits of the person recovering the judgment and shall provide that suit may be brought upon such bond by the owner of the judgment. The bond furnished by the defendant was conditioned in accordance with the requirement of the statute.

In cases where a contract had been entered into to insure the payment of a claim and which was made for the benefits of one holding the claim against the insured, the courts of this State have recognized the right of the person having such claim or .judgment against the insured to file a creditor’s bill against the insurer and in those cases, it is held that the judgment is conclusive against the insurer.

In Poorman v. Ft. Armstrong Automobile Underwriters, 269 Ill. App. 466, plaintiff: had recovered a judgment against the insured and later filed a creditor’s bill against the insurance company. The company sought to introduce evidence to the effect that the automobile was being operated in violation of law. The court said, “We do not see upon what theory this evidence was pertinent to the issues. A trial had been had in a forum provided by law for that pitrpose and a judgment rendered according to law. The appellant could have introduced all such testimony in that case had it desired. Even after this judgment, had appellant desired, an appeal could have been had and the évidence reviewed. Appellant having had every opportunity to present the evidence in an appropriate proceeding and having failed to do so, cannot now be heard to complain of its own conduct. Appellant is bound by the judgment of the law court and courts of equity will not permit litigants to go back of the judgments entered in the law courts in such cases. (Kinnan v. Hurst Co., 317 Ill. 251.)”

Defendant contends that the affidavit of Herrin shows fraud and that fraud vitiates the judgment and that therefore it should be permitted to make the defense that plaintiff was not a passenger but a guest. In Beck v. Lash, 303 Ill. 549, the court said, “There are two kinds of fraud as applied to judicial proceedings : fraud in obtaining an order or decree by false testimony, and fraud which gives the court only color-able jurisdiction. It is only the latter that renders collateral attack effective or renders a decree, void, as to all parties affected.” The court did not err in striking the third paragraph.

The seventh paragraph alleged that Herrin was the agent of the taxi operators and that by reason of his fraud in making false representations as to plaintiff being a passenger when, in fact, she was a guest, the taxi operators should be charged with failure to cooperate with it in the defense of the personal injury suit, and that, therefore, it would be relieved from liability in this action.

There is no provision in the bond that required the insured to co-operate with the defendant. In Maryland Casualty Co. v. Lamarre, 83 N. H. 206, 140 Atl. 174, it was held that in the absence of such a provision in the policy, the failure to co-operate did not bar liability. Defendant contends that there is an implied undertaking by the insured that it will act in good faith in disclosing the truth of the cause of the accident. Aside from the effect of the absence of such a provision in the bond or the implied undertaking, it is clear that the legislature in prescribing the conditions of the bond to be furnished by taxi drivers, the place the bond was to be filed for public inspection and the right of action upon the bond to the one recovering ' a judgment, the bond was intended to be one of indemnity for the benefit of the traveling public. Under such conditions and statutory requirements, the legal rights and equities that may exist as between the insured and the insurer cannot be permitted as a defense in a suit brought upon the bond by one of the traveling public. Kruger v. California Highway Indemnity Exchange, 201 Cal. 672, 258 Pac. 602; Boyle v. Manufacturers’ Liability Ins. Co., 96 N. J. L. 380, 115 Atl. 383. The seventh paragraph of the answer was properly stricken.

The fourth paragraph of the answer alleged that the judgment in the former case was rendered August 22, 1935, and that the defendants in that case appealed from that judgment to this court; that notice of appeal was filed and served September 6. The other steps necessary to perfect an appeal to this court are alleged, the case being docketed in this court October 10. The instant suit was filed October 18. Defendant contends that this action was premature.

The condition required by the statute and the bond is that the defendant shall pay all final judgments. Was the judgment for which recovery is sought in this case final when this suit was instituted? If it was not final, then defendant had not defaulted on its bond. Its obligation was to pay final judgments. As noted, the notice of appeal was filed before the starting of this suit and by section 74, ch. 110, Ill. State Bar Stats. 1935, 202, it is provided that all orders, judgments

or decrees which are reviewable in the Supreme or Appellate Courts shall be reviewed by notice of appeal “and such review shall be designated an appeal and shall constitute a continuation of the proceeding in the court below.” Paragraph 2 of section 75 of the same act provides an appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court.

Plaintiff contends that the legislature used the words “final judgment” in the sense that it was a judgment from which an appeal would lie. We cannot agree with that contention. To give it such a construction would make it possible for plaintiff to maintain an action for the recovery of the amount of a judgment which might later be set aside on appeal. The absurdity of such a construction is apparent. If the court of review should reverse the judgment on the grounds no liability was shown, then the action on the bond would likewise fail and yet as in this case, the defendant would be put to the necessity of preventing the judgment on the bond becoming final during the pendency of the appeal in the other case.

In Dean v. Marshall, 35 N. Y. S. 724, 90 Hun, 335, the court in considering1 the meaning of the words “final judgment” as used in a stipulation, said, “The term ‘final judgment’ is susceptible of two significations, one of which, in a strict legal sense, is its true meaning. It is a determination of the right of the parties after the trial whether such is the subject of review or not, and the other is its colloquial use or significance, which makes it synonymous with ‘decisive, ’ or a judgment that cannot be appealed from and which is perfectly conclusive upon the matter adjudicated.” Final judgment as used in the statute and bond meant a judgment in which the parties no longer had a right to have it changed by the court that entered it or to have it reviewed by appeal'to a court of review.

The fact that this court has at this term filed an opinion affirming the judgment in the personal injury suit does not aid plaintiff in this case for the reason that plaintiff could not maintain her action until there was default upon the bond and under the views expressed there could not be a default until the judgment became final on appeal. The suit was premature and the court erred in striking the fourth paragraph.

The judgment of the lower court is reversed and the cause is remanded to the lower court with directions to set aside the judgment and to enter an order overruling plaintiff’s motion as to paragraph four.

Judgment reversed and remanded with directions.


author: Mr. Justice Stohe

text:
    Franklin County Building Association, Appellant, v. John Cravens and Ida Cravens, Appellees.

      Opinion filed May 8, 1936.
    Moses Pulverman, of Benton, for appellant.
    D. F. Moore, of Benton, for appellees.
   Mr. Justice Stohe

delivered the opinion of the court.

The appellant, Franklin County Building Association, was complainant in a bill to foreclose a mortgage executed by the appellees, John Cravens and Ida Cravens. The court below entered a decree declaring the sum of $300.70 due the association and granting the foreclosure of the mortgage. The appellant contends that a decree in the sum of $4,246.42 should have been entered in its favor.

Subsequent to the entry of the decree by the trial court, the legislature passed a curative act relating to loans by such associations as appellant, and subsequent to the decree, this court decided the case of Stricklin v. Eldorado Bldg. & Loan Ass’n, 280 Ill. App. 580. Both, we think, have application to this case.

Appellees became members of the association on September 26, 1921, at which time they agreed to purchase 30 shares of stock of a par value of $100 each, and at which time they borrowed the sum of $3,000 from the association, giving a mortgage on their home to secure the loan, and giving their note by which they agreed to pay the association as follows: “Ten and 50/100 Dollars, monthly dues, upon said shares of stock aforesaid, and also the sum of fifteen dollars, interest monthly, together with fifteen dollars, premium, monthly, upon said loan, all to be paid on Monday, preceding the first Tuesday of each and every month hereafter until said loan, with interest and premium thereon, shall have been liquidated under the Charter and By-laws of said association, by the said shares of capital stock aforementioned having reached their par value.”

The association had had a by-law which provided for the same interest, but a smaller premium than that called for by the note. At an adjourned meeting held on July 21, 1921, the shareholders adopted a by-law, the material part of which follows: 1 ‘ The money in the treasury shall be loaned at a premium of six per cent, which premium shall be paid in equal instalments, and in addition to the premium such loan shall bear interest at the rate of six per cent per annum, which premium and interest shall be due and payable in advance on the tenth day of each month at the same time the dues on such stock are due and payable, and which payment of premiums and interest shall be made during the existence of the shares of stock borrowed upon or until such loan is repaid.” This by-law was not submitted for approval until 1927. It was approved by the Attorney General on November 28,1927, certified by the auditor of public accounts on the same day, and recorded in Franklin county on November 30, 1927.

The trial court held that this amendment was not effective at the time the loan here involved was made, and that the Validating Act of 1927 (Illinois State Bar Stats. 1935, ch. 32, ff 420, subsec. 7), did not affect such loan. That section cured the failure to record those amendments which had received the approval of the Attorney General and which had been certified by the auditor. It did not purport to excuse the failure to secure the approval of the Attorney General or the certificate of the auditor. We think the trial court was right in this holding at the time the decree was entered.

Appellant contended that this matter was passed upon by this court in the case of Franklin County Bldg. & Loan Ass’n v. Blood, 255 Ill. App. 175, on p. 185. The chief matter there before the court with respect to the Validating Acts (of 1925 and 1927) was their application to matters of organization of the association. The matter of usury was completely disposed of by the holding that a purchaser taking subject to the incumbrance could not be concerned with the matter of usury in the contract between the original parties thereto. The court there said that the evidence showed that the by-law involved was adopted before the loan was made.

This brings us to the contention that the Validating Act of 1935 (Illinois State Bar Stats. 1935, ch. 32, ff 420, subsec. 14) is controlling. Such curative acts are controlling even, though passed after judgment in the trial court if the matter is on appeal, or for other reason has not been finally disposed of. People v. Madison, 280 Ill. 96, on p. 102. The court there said:

“We must dispose of the case under the law in force at this time, and not as it was when the judgment was rendered in the circuit court. (Vance v. Rankin, 194 Ill. 625.)”

That acts curing defects in corporate activities, by excusing informalities in the conduct of business, in cases where the legislature could originally have authorized the doing of business in the manner in which it was actually done, do not deprive the original parties concerned of any vested rights, is the holding in Steger v. Traveling Men’s Bldg. & Loan Ass’n, 208 Ill. 236. That case distinguishes between original parties to the contract and subsequent bona fide lien-holders.

However, we think the holding of the trial court concerning the usurious nature of the premium on the loan must be affirmed upon another ground, the reasons for which are fully set forth in Stricklin v. Eldorado Bldg. & Loan Ass’n, hereinbefore referred to.

The answer asserts that the note given by appellees was not in conformity with the by-law or any by-law. Under the holding of the trial court it was not necessary to consider whether the note conformed to the amended by-law referred to. It now becomes necessary to consider that. The by-law is practically identical with that considered by us in the case of Stricklin v. Eldorado Bldg. & Loan Ass’n, supra. We there held that the premium of “six per cent to be paid in equal installments” as described in that by-law, did not mean a premium of six per cent per annum, especially since it was followed, in the same by-law, by a provision for interest at “the rate of six per cent per annum.” We there held that a premium like the one in this note did not conform to the by-law, and consequently did not meet the requirements of the statute. We do not here repeat the considerations which moved us to so construe this language in the Stricklin case. They are fully set out there, and are equally applicable to this case.

After holding that the loan was not in conformity with the original by-laws or statute, the trial court ordered the application of all payments made by appellees to principal. In the similar situation presented by the Stricklin case we held that the interest, being separately provided for, might be allowed. We so held because we thought that holding represented the better equitable principle and we thought we were sustained therein by the authority of Lurton v. Jacksonville Loan & Bldg. Ass’n, 187 Ill. 141. That suit being a bill by the borrower to redeem the mortgage, it also came within the principle that he who seeks equity must do equity. Garlick v. Mutual Loan & Bldg. Ass’n, 129 Ill. App. 402.

Here the borrower being 'simply a defendant in a bill to foreclose the mortgage, it is contended that we have no choice in this matter but to order the application of all payments to principal of the loan. Section 6 of the law in relation to the rate of interest (Illinois State Bar Stats. 1935, ch. 74, If 6), Anna Loan & Improvement, Co. v. Dorris, 342 Ill. 567; Cobe v. Guyer, 237 Ill. 568; Free Home Bldg., Loan & Homestead Ass’n v. Edwards, 223 Ill. 126; Jamieson v. Jurgens, 195 Ill. 86; and Borrowers’ & Investors’ Bldg. Ass’n v. Eklund, 190 Ill. 257, are cited by appellant.

The question is an important one. We are cognizant of the statutory provision requiring application of payments to principal in the case of usurious contracts generally. We recognize the fact that in the cases cited, all payments were applied to principal. We are of the opinion that the result reached in the Stricklin case, supra, is the result which must be reached here upon the general principles of equity, and unless, having regard for the special statutory provisions with respect to usury in the Building and Loan Act, the decided cases prevent, that result must follow here.

We think the decided cases do not interfere with that result. In the case of Anna Loan & Improvement Ass’n v. Dorris, supra, it appears that the premium and interest were not separately provided for. The whole charge for the money in that case was one per cent a month, which was designated premium. In Borrowers’ & Investors’ Bldg. Ass’n v. Eklund, supra, the note was for $1,400, and the proceeds received by the borrower amounted to $850. The borrower agreed to pay interest at six per cent per annum on the note. The premium discount having been illegally fixed, it is clear that the interest was also illegal, for the agreement was to pay six per cent per annum on $1,400 when the principal debt was only $850. It should also be noted that neither the premium nor the interest were fixed in the manner provided by statute or by such of the by-laws as were valid. In Free Home Bldg., Loan & Homestead Ass’n v. Edwards, supra, there was a separate provision for the payment of premiums and interest. There, as in the ETdund case, supra, neither the premiums nor the interest were fixed in the manner provided by any valid by-law. In Cobe v. Guyer, supra, neither the premiums nor the interest were fixed in the manner provided by any valid by-law. In each of the last three above cited, the by-laws sought to be upheld having been held invalid, the only proper method of making a loan was to put the money up for competitive bidding.

Here, prior to the adoption of the by-law which appellant sought to have sustained (and which we think the Yalidating Act of 1935 does sustain) there was a valid by-law which provided that interest upon loans should be at the rate of six per cent per annum. The validity of that by-law providing for a premium of four per cent and for interest at the rate of-six per cent per annum is not in dispute.

We think also that the finality of the authority cited would be questionable where the question presented in the form in which it is presented here does not appear from those opinions, to have been raised. We do not wish to be understood to question the correctness of those decisions, or to give the impression that those cases make the distinction we made in the Stricklin case, and make here. We are of the opinion that those decisions do not interfere with the result which ought to be reached here.

We come now to a consideration of the principles which sustain our conclusion. It has always been the rule that, where there were no statutory provisions which interfered, and in some jurisdictions where the statutory provisions did interfere, that one who sought relief from a court of equity from a usurious contract, was compelled to do equity, — to pay the legal rate of interest. See 27 Ruling Case Law, p. 264, “Usury,” section 67, and authorities there cited. Even though the borrowers here do not, technically speaking, seek equity, by filing a bill seeking affirmative relief, we are entitled to consider that principle as equity, and if the law does not forbid, to arrive at a result in harmony therewith.

Section 23 of the Building and Loan Act (Illinois State Bar Stats. 1935, ch. 32, ft 397) exempts from the operation of usury laws interest, fines, premiums, and interest on premiums, accruing according to the provisions of the act. We think the interest which is here separately provided for, and which is provided for in accordance with an admittedly valid by-law, does accrue in accordance with the provisions of this act.

In Lurton v. Jacksonville Loan & Bldg. Ass’n, 187 Ill. 141, the same instrument which provided for legal interest on the principal of the loan provided for illegal interest on other advances made by the association. The court held that the provisions were sever-able, and that the interest could be allowed on the principal, and denied on the advances. There is no rule which requires a court to hold all provisions of a contract invalid where distinct parts of the contract, standing by themselves, would be valid, simply because legal and illegal provisions are made in the same instrument. The same considerations controlled the decision in Ammondson v. Ryan, 111 Ill. 506, and in the cases cited in 66 Corpus Juris, p. 241.

We think that justice requires that we follow the rule we announced in the Stricklin case, and make it applicable to this case even though the borrowers here are simply defendants.

Appellant has contended that the payment of dues, premium and interest for a period of 69 months should estop the appellees from asserting the defense of usury. We think that proposition is settled contrary to appellant by a long line of decisions including, especially, Free Home Bldg., Loan & Homestead Ass’n v. Edwards, 223 Ill. 126, and Anna Loan & Improvement Co. v. Dorris, 342 Ill. 567. We are further of the opinion that the assertion of appellant that the interest and premium were fixed by the directors in accordance with the statute, is without merit, because no by-law gave the directors that authority, all existing by-laws impliedly denied such authority, and there is no resolution or other action of the directors showing an attempt by the directors to control this matter.

Appellant makes certain contentions with respect to the refusal to admit in evidence, as an exhibit, the amended by-law here discussed, and with respect to the refusal to permit amendment of the pleadings to set up the estoppel asserted. Appelleó contends that the exhibit should have been denied admission for reasons additional to those passed upon. We think the decision could not be different whether those rulings were or were not proper.

The decree of the circuit court of Franklin county will be reversed and remanded. The trial court is directed to allow simple interest on the loan at the rate provided in the note and to credit all. payments on the account so computed.

Reversed and remanded.


author: Mr. Justice Stone

text:
    Vivian Roberts, a Minor, by Grace Roberts, her Mother and Next Friend, Appellee, v. Economy Cabs, Inc., and Hilda Schmeling, Appellants.

      Opinion filed May 8, 1936.
    Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis, for appellants.
    Philip G. Listeman and Michael J. Sullivan, both of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This cause grows out of injuries received by appellee on February 3, 1935, while a passenger in appellants’ taxicab, in service on the streets of East St. Louis.

On the above date at about one o’clock in the morning appellee was picked up by appellants’ driver, Roscoe Herrin. He says she was the usual passenger for hire, and that he started with her to her home. There is dispute in the evidence as to whether the driver took appellee from the business district at the corner of St. Louis and Collinsville avenues, or whether he received her as a passenger at a tavern located at 1300 North 52nd street. There is nothing following in the record which appears to us to make it material where he received his passenger. At any rate he started home with her, the home being apparently some distance from where he received her. As the driver turned from Casey avenue to the left on Fortieth avenue, the car door came open and appellee fell out on the street and received severe injuries.

Suit was afterwards brought against appellants for damages because of the injuries received by appellee, on the theory of the negligence of appellants or their servants.

The original complaint was filed April 23, 1935, and contains a general charge of negligence and a specific charge that the defendants negligently and improperly equipped the cab in question with unsafe and insecure door latches, or permitted said door latches to become defective, broken and unsafe.

The appellants answered denying these charges, and further setting forth that appellee’s fall from the cab was due to her own negligence.

The cause was tried in the city court on June 4,1935. At the close of plaintiff’s evidence defendants presented the usual motion for directed verdict accompanied by written instruction. A similar motion was filed at the close of all the evidence, and ruling was reserved thereon. The case was submitted to the jury on the original complaint. Afterwards, and before judgment, on August 22, 1935, appellee, having obtained leave of court, filed three additional counts. In the first of these she charged that defendants carelessly, negligently and improperly maintained and equipped the taxicab in which she was riding; that by reason thereof plaintiff was caused to be thrown out of said taxicab to the street. In the second of the additional counts she charged that defendants negligently and improperly caused the taxicab to be equipped with unsafe and insecure door latches, or permitted the same to become defective, broken and unsafe, and that by reason thereof the door next to where plaintiff was seated became unlatched and unsafe, flew open and plaintiff was caused to be thrown upon the street. The third additional count charged a contract on part of defendants safely to carry appellee, and a breach of said contract.

As to the first of these additional counts defendants denied the allegations and pleaded that there was no duty owed by the defendants to exercise the highest degree of care in the repair of the taxicab. Defendants denied each and every allegation of the second additional count. As to the third additional count they denied the allegations and further answered that the only duty or liability assumed by the defendants as a result of plaintiff becoming a passenger in the taxicab was the usual and ordinary liability and duty imposed by law not wilfully or negligently to injure the plaintiff.

Upon the trial of the cause the jury found the defendants guilty and assessed plaintiff’s damages at $2,500. The court after consideration denied the motions for peremptory instruction, the motion for judgment notwithstanding verdict, the motion for a new trial and entered judgment on the verdict. It is to reverse this judgment that this appeal is prosecuted.

This record discloses that there was nothing in any way unusual about the working, the handling or the driving of this taxicab. It further discloses that appellee was doing what an ordinarily prudent person would have done under the same or similar circumstances. There is no proof of negligence on the part of appellants; there is no proof of contributory negligence on the part of appellee. This judgment must-stand or fall on the theory of res ipsa loquitur.

When a thing which caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from want of proper care. (Feldman v. Chicago Rys. Co., 289 Ill. 25, at p. 34; Chicago Union Traction Co. v. Giese, 229 Ill. 260, at p. 264; Chicago City Ry. Co. v. Barker, 209 Ill. 321, at p. 326; North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486, at p. 495; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, at p. 386; Kiewert v. Balaban & Katz Corp., 251 Ill. App. 342, at p. 349; Drake Standard Machine Works v. Brossman, 135 Ill. App. 209.)

The doctrine of res ipsa loquitur is a doctrine creating a presumption of negligence, but such presumption is not of itself evidence and yields to contrary proof, and if proof is produced rebutting the presumption, or when surrounding circumstances leave room for a different presumption, the reason for the rule fails and the presumption vanishes entirely. (Bollenbach v. Bloomenthal, 341 Ill. 539; Herbst v. Levy, 279 Ill. App. 353, 361; Letush v. New York Cent. R. Co., 267 Ill. App. 526; Kraus v. Becker, Ryan & Co., 265 Ill. App. 525.)

We do not regard these authorities as in anywise inconsistent. Whether you call it evidence, or the creation of a presumption, is of little importance. We think that when the maxim applies at all it creates a presumption which the defendant must .explain or overcome, not by proof of the weight required to establish a fact in the first instance, but by proof which shows that the surrounding circumstances leave room for a different presumption. Herbst v. Levy, 279 Ill. App. 353. This state of the law applied to a given case at once raises the question of weight of the evidence. Whether the presumption arising from the maxim has been overcome, or successfully rebutted is a question of fact. Chicago City Ry. Co. v. Barker, 209 Ill. 321. We see no difference arising from a case made by the application of the maxim and a prima facie case made by any other kind of evidence. Either must be met by evidence or the plaintiff prevails. Whether the maxim of res ipsa loquitur applies in a given case is a question of law, but whether the presumption arising when the maxim has been applied has been overcome by proof is a question of fact. The finding of that fact is for the jury. Chicago Union Traction Co. v. Newmiller, 215 Ill. 383; New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40. In this case the appellants owed to the appellee the highest degree of care. This is conceded by appellants but they claim that that rule does not go to the maintenance of the equipment. We cannot agree with that contention. It would be a strange doctrine that would require a party placed as appellants were to use the highest degree of care in the handling of its equipment, but would say to them, “You may use any kind of equipment, regardless of its condition as to safety.” We think that the duty which devolved upon appellants to exercise the highest degree of care for the safety of their passenger extended to the equipment wherewith they were to transport her. Chicago & Alton R. Co. v. Dumser, 161 Ill. 190; New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40.

Applying the definition above given by our courts to the maxim of res ipsa loquitur we find that appellants were in sole charge of the instrumentality which caused the injury. We find a thing happening which will not happen if those who have the management of the equipment use proper care, particularly the highest degree of care. This state of facts, together with the circumstances of the injury seem to us to. justify the application of the maxim. This is not because an injury occurred but because it occurred under the circumstances under which it did occur. It is urged that to say what caused the injury in this case is speculative. In a sense all causes of injuries to which the maxim is applied are speculative. It is never known just what causes the injury. If it could be ascertained by investigation, there would be no need of the maxim. The courts have established the above rule and have applied it to carriers of passengers. We are unable to say that it does not apply in this case. The first count in the declaration herein is a count of general negligence. To such counts the maxim may be applied. It follows that in our judgment the trial court properly submitted this cause to the jury to determine whether the presumption had been overcome by appellants. It was not error to deny the motions for directed verdict and for judgment non obstante veredicto.

Complaint is made of the following given instruction:

‘ ‘ The Court instructs you that it was the duty of the defendants in the operation and maintenance of the taxi-cab mentioned in this case to use the highest degree of care and caution in the maintenance, operation and control of said taxi-cab, consistent with the practical operation thereof and so as to provide for the safety of passengers while being transported in said taxi-cab,'' and if you believe from a preponderance of all the evidence in this case that on the date in question plaintiff became a passenger in the taxi-cab of the defendants and that she was in the exercise of ordinary care and caution for her own safety and that while riding in said taxi-cab as aforesaid she was thrown out thereof and onto the hard surface of Fortieth Street and was thereby injured and that the defendants could have avoided such injury to the plaintiff by the exercise of the highest degree of care consistent with the practical maintenance and operation of said taxi-cab, then you should find the defendants guilty.”

This instruction with the exception of the reference to the maintenance of the equipment was approved in Hatcher v. Quincy Horse Ry. & Carrying Co., 272 Ill. 347, and in other cases by our Supreme and Appellate Courts and inasmuch as we have held that the “highest degree of care” extends to .the maintenance■ of equipment used, we do not regard this instruction as subject to the criticism made of it.

The suggestions of appellants, the refusal of which appellants complain, were substantially covered in the charge and error was not, therefore, committed by their refusal. Gamble v. Hayes Transfer & Storage Co., 278 Ill. App. 365. We find no error which warrants a reversal of this case. The judgment is affirmed.

Judgment affirmed.


text:
    Nick Acquaviva, Appellee, v. Madison County Mutual Automobile Insurance Company, Appellant.

      Opinion filed May 8, 1936.
    Warnock, Williamson & Burroughs, of Edwards-ville, for appellant.
    John B. Harris, of Granite City, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On the 20th day of August, 1929, Bernard Acquaviva, son of appellee, made arrangements for a party consisting of five girls, himself and two other boys to take a trip that evening from Granite City to a dance at Alton. Young Bernard took his father’s car, which was a new Ford, for the purpose of conveying the party to Alton and back. Bernard drove the car. The party went to the dance and started home. On the way home, somewhere near the City of Wood River, the car ran off of the road and struck a tree, injuring most of the passengers and- killing Wilma Mae Hutchings. The car immediately caught fire and was totally destroyed. The evidence tended to show that some few miles distance before the destruction of the car, young Bernard had turned the wheel over to Robert Braden, another of the passengers, and had taken a seat in the tonneau of the car.

The next day appellee informed appellant of the destruction of his car and said that his son, Bernard, was driving it, and that he was 16 years of age. Appellant sent its investigator to Granite City within two days thereafter and learned to its own satisfaction that Bernard Acquaviva was a person under the age of 16 years. Different stories were related having to do with the age of Bernard before the matter got into court, bufi during the trial it was settled to the satisfaction of everybody that Bernard had not yet reached his sixteenth birthday.

Appellee carried an insurance policy with appellant covering his car. The policy was one of complete coverage of such damage as accrued to the car and injuries to other persons for which appellee might be liable. Said policy contained, among other things, clause E, which provided that the contract did not cover loss caused by or occurring while the automobile was “operated by, or while in charge of any person under the age of sixteen years.” When appellant learned that Bernard was under the age of 16 years it denied liability and refused to pay for the destruction of the car, or to defend appellee against any suits brought for damages to the other persons or to pay any expenses of appellee incurred by him in and about defending suits brought against him on account of injuries .to the other persons riding in the car that night.

The evidence shows that the value of the car destroyed was $583.68 and that appellee had been to the expense of $67.95 by way of expenses and $300 attorneys’ fees in and about defending himself against the suits above referred to. Two suits were brought for these respective items and were consolidated by the court and tried as one case. Numerous pleas were filed to the declaration. The declaration set up in substance the facts as above related and alleged liability of appellant for said amounts on its insurance policy. One trial was had which resulted in a verdict for appellee, which verdict was set aside by the trial court. Another trial, the case at bar, was had resulting in a verdict for appellee for $941. Before entering judgment, the court took into consideration interest at five per cent on the $573 valuation of the car, which the jury had neglected to include, thereby raising said verdict to the sum of $1,078.70, upon which judgment was rendered after overruling motions for judgment non obstante veredicto and for a new trial.

The case fairly involves two major questions: (1) Was Bernard Aequaviva driving* the car or in charge thereof at the time of the destruction. (2) Was Braden, who appellee claims was driving the car at the time of the destruction, in charge thereof within the meaning of paragraph E of the contract as above stated?

It is claimed by appellant that even conceding that Braden was driving the car at the time of the destruction, though it does not concede it, still he was not in charge of the car, but that Bernard Aequaviva was the person who was in charge of the car. We are asked to hold as a matter of law that even though Braden may have been driving the car yet under the circumstances, Aequaviva was in charge thereof, and that, therefore, appellant is not responsible under its contract. This involves the question of what it means to be “in charge” of an automobile.

In a larger sense it might be said that Bernard was in charge of the car; he had taken his father’s car, organized the party, driven the car to Alton and most of the way home, and had turned it over to Braden 'at Braden’s request, and still controlled and might have bossed the handling thereof.

In a restricted sense Braden was the one who controlled the starting and stopping, the driving, the speed of the car, the manner of handling it and the care of the car, in traveling; he was in a position where he himself might have been sued for the injuries accruing to the passengers for wilful and wanton misconduct in so driving. In that sense Braden was in charge of the car, and we are of the opinion that the trial court rightly submitted to the jury the question of fact as to whether or not young Aequaviva was in charge of the car, or whether Braden was in charge thereof.

There is a dearth of authority bearing upon this question. In Houston Oil & Transport Co. v. Aetna Ins. Co., 36 F. (2d) 69, it was said that the dictionary meaning of the words “in charge thereof” is “in the care or custody of, intrusted with the management or direction thereof.” This case also says that that is the common sense definition of the term. This does not throw great light on the subject. The authority more nearly in point it seems to us is the case of Steffe v. Old Colony R. Co., 156 Miss. 262, where the court held that the brakeman who had the responsibility of giving a signal for the purpose of preventing collision was in charge of the train in the sense that the responsibility was his.

The court instructed the jury that it was admitted that Bernard Aequaviva was under the age of 16 years at the time of the accident, and that if the jury believed from the evidence that at the time of the accident the said Bernard Aequaviva was driving the automobile or that he was in charge of said automobile, then under the terms of the policy the plaintiff was not entitled to recover, and that they should find the issues in favor of the defendant. We think this instruction fairly presented to the jury a proper issue of fact. It is next contended that the verdict is against the manifest weight of the evidence; that it fails to show by the requisite weight of the evidence that Braden was driving the car at the time of the injuries in question. Five of the witnesses who were present on the occasion testified that Braden was driving; one testified that young Aequaviva was driving. These five witnesses who testified for appellee- were impeached, some to a more decided degree than others, by statements which they had made out of court, both under oath and not under oath, contrary to what they had testified to on the trial. One of the parties testified that Aequaviva was driving the car. Appellant bases its contention that appellee did not meet the burden of proof upon the fact that all of his witnesses were so impeached. The court gave to the jury the following instruction: “If you believe from the evidence that any witness or witnesses in the case have knowingly and wilfully sworn falsely to any material fact in issue, then you have the right to disregard the entire testimony of such witness except in so far as it may be corroborated by other credible evidence or by facts and circumstances proved on the trial.” This was a proper instruction. The court could go no farther; the court could not tell the jury that they must not regard the evidence of such witnesses as have been impeached, for the rule is that even though a witness may have been successfully impeached, yet if the jury notwithstanding such impeachment still believe the witness is testifying truthfully, it may act upon the evidence of such witness. “Former inconsistent statements effect credibility and not competency of witnesses.” Fuhry v. Chicago City Ry. Co., 239 Ill. 548. If, notwithstanding impeaching evidence, the jury still believes the testimony of a witness to be true, they cannot disregard it. Matthews v. Granger, 196 Ill. 164; Roy v. Goings, 112 Ill. 656. Impeachment does not render the testimony of a witness nugatory; the credibility and weight, if any, to be given such witness still rests within the province of the jury. Obviously in this case the jury did believe the testimony of these witnesses notwithstanding their impeachment.

Complaint is made by appellant that the court disregarded another part of the contract which provided that if any attempt, after loss is made by the insured to deceive the insurer it will void the contract. The court took the position that if young Acquaviva were in charge of the car there could be no liability against appellant, and if Braden were in charge of the car appellant was liable in any event; so that it was immaterial whether appellee attempted to deceive appellant as to the age of his son, Bernard. We think that position was properly taken by the court; if there was deception, and it was such, as it turned out to be, as to deceive on a matter that was wholly immaterial, it could not vitiate the policy.

It is claimed that the trial court made a prejudicial statement with reference to impeaching testimony of one of the witnesses to the effect that the witness was not bound by her statement. Without deciding the effect of this in a close case we are inclined to hold that it was not such as would warrant disturbing the verdict of the jury in this case.

We find no reversible error in this record and the judgment of the trial court is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Huffman

text:
    Mrs. Doris Mater, as Administratrix of the Estate of Howard Duane Mater, Deceased, et al., Appellants, v. Silver Cross Hospital, Appellee.
    Gen. No. 9,032.

      Opinion filed May 15, 1936.
    Higgins & Walter, of Joliet, and Krohn & MacDonald, of Chicago, for appellants; Stuart B. Krohn, of counsel.
    Robertson, Crowe & Spence,, of Chicago, for appellee ; Burt A. Crowe and John H. Savage, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee is a non-profit, charitable corporation, located in the city of Joliet. The administratrix was about to be delivered of a child. Her husband, Joseph Mater, a short time prior to May 12, 1933, called upon Mr. Hueston, manager of appellee institution and made arrangements for Mrs. Mater to be received at the hospital for the birth of the .child. It is claimed by Mr. Mater that Mr. Hueston agreed that Mrs. Mater would receive the best of care, and that the entire services and facilities of the hospital, together with all of its attendants, would be at her disposal. It appears by appellants’ evidence that Dr. Welch had been attending Mrs. Mater during the whole course of her pregnancy; that the birth of the baby was attended by him at the hospital on May 12; that the case did not require the services of an interne or of any other doctor; that there were nurses present who assisted Dr. Welch in whatever way he requested; that it was a normal birth and without any complications. Mr. Mater selected the room at the hospital and advised Mr. Hueston, the manager, that Dr. Welch would take care of the case; that he had hired Dr. Welch for that purpose. After the birth of the child, Mrs. Mater was removed to her room and the baby placed in the nursery. Dr. Welch continued to attend the mother and baby during their entire stay at the hospital, which was for 10 days. During the time the mother and child were at the hospital, Dr. Welch performed a circumcision upon the child. After the mother and child returned home from the hospital the child developed erysipelas, from which it died. This suit resulted. At the close of all of the evidence in the case, the court instructed the jury for the defendant. The appellants have prosecuted this appeal from the judgment of the court upon the verdict returned.

The complaint consists of two counts, the first of which sought recovery of $10,000 damages for and on behalf of the mother, the father, and a brother of plaintiff’s intestate, as the heirs at law and next of kin of said deceased. The 9th and 10th paragraphs of this count are as follows:

“9. That the plaintiffs’ deceased, Howard Duane Mater, died on to wit, the 7th day of June, A. D. 1933, and suit was instituted herein within one (1) year from the day and date of death, in compliance with the provision of the statute in such case made and provided.

‘ ‘ 10. That by reason of the said death of plaintiffs ’ deceased, Howard Duane Mater, his aforementioned heirs at law and next of kin, and each of them, have suffered pecuniary loss and damages in the amount of Ten Thousand Dollars ($10,000), wherefore, plaintiffs demand judgment against the defendant in the sum of Ten Thousand Dollars ($10,000).”

The trial court dismissed this count of the complaint. Appellants excepted thereto, urging that the count was good, and further that it had been so held by another judge at a prior term of court. They now urge such action of the trial court as grounds for reversal herein. We are of the opinion that it is the duty of a trial court, when it becomes satisfied that an erroneous ruling has been made concerning a pleading, to set aside such ruling. Shaw v. Dorris, 290 Ill. 196, 204. This count was manifestly for injuries based upon the tort or negligence of the hospital. It is admitted that appellee institution is a non-profit, charitable corporation, and not operated for private gain. The court did not err in striking this count of the complaint. Hogan v. Chicago Lying-In Hospital, 335 Ill. 42.

The second count was based on assumpsit and not in tort. Armstrong v. Wesley Hospital, 170 Ill. App. 81. It set up an alleged contract between the parties whereby the defendant for a consideration, undertook and agreed to do certain things, which plaintiff claims defendant failed.to perform, to plaintiff’s damag'e of $5,000, consisting of expenses for medical and hospital services, funeral bills, and otherwise. The case was heard upon the second count, and at the close of all the evidence, the court instructed the jury for the defendant as aforesaid.

It is claimed by the administratrix and her husband that the deceased child contracted erysipelas at appellee institution because of appellee’s failure to carry out its undertaking and promise to furnish skilful and competent medical and surgical services. Appellants called Dr. Welch as one of their witnesses. His testimony supported that of Mr. and Mrs. Mater in that he was their regular family physician and that he had attended Mrs. Mater during the entire period of her pregnancy; that he attended her at the birth of the baby and during their entire stay at the hospital. The testimony of Dr. Welch further shows that he did the circumcision at the instance of the parents; that there was nothing about the birth of the child to require the services of any other doctor; that he had used this hospital for about 28 years; that some nurses assisted him at the time of birth but he did not remember how many; that there was no rash on the child at the time it left the hospital and that it did not run any fever. The doctor states he saw the baby every day while it was at the hospital; that he saw the mother and child at the hospital the day they left; that the child at that time was perfectly well and normal and that it did not then have erysipelas. The next time Dr. Welch saw the baby was about five or six days after the mother and child had returned home. At this time he found a swelling at the site of the operation, but states that it was not red, was not indurated, and was not at that time what he would call erysipelas. On May 31, Dr. Wilhelmi examined the child and upon examination found a red induration involving the skin of the pubic region including the site of the operation, which he pronounced as erysipelas. The child died from this disease on June 7th.

The mother insisted that a rash appeared upon the baby’s forehead about two days after the circumcision, and that this spot remained there until its death. She further claimed that at the time of leaving the hospital, when the nurse was showing her how to bathe the baby, there was a rash about the pubic region. It is claimed by the mother that this rash continued and was the same as was later pronounced erysipelas. The nurse to whom the administratrix refers, testified on behalf of appellants, and she states that she does not recall the baby having any rash while in the hospital. Appellants called another nurse who worked in the hospital at the time the administratrix was there, for the purpose of showing that a case of erysipelas was in the hospital at that time. This nurse states there were no cases of erysipelas in the hospital during the time Mrs. Mater and the child were there.

The evidence set out in this opinion is such as was presented by appellants/ It establishes that they employed Dr. Welch to care for administratrix and the child; that he did so; that no need arose at any time for the services of any other doctor; that the administratrix and the child were under the care and charge of Dr. Welch while in the hospital; and that he performed the operation. Appellants made their own arrangements with him and the hospital had nothing to do with the furnishing* of his services. His testimony discloses that, “the baby was perfectly well and normal” when it left the hospital and did not then have erysipelas. The nurse who instructed the administratrix how to bathe the baby denied any knowledge of a rash on the child, as claimed. These were appellants ’ witnesses. There is nothing in the record to indicate how long a time it takes for erysipelas to develop after the germ enters the body. It does not appear from the evidence how or when the child became infected with this disease. It would be mere conjecture for the court to attempt to say. We are in accord with the statement of the trial court that there is no evidence in the record going to show the child contracted the disease from which it died, while in the hospital. We do not consider there is sufficient evidence appearing in the record to sustain a verdict for plaintiffs below, and the trial court did not err in directing* a verdict for appellee.

Judgment affirmed.


text:
    Erma M. Phillips, Appellee, v. James S. Brown, Appellant.
    Gen. No. 9,037.
    Opinion filed May 15, 1936.
    Eckert & Eckert, of Freeport, for appellant; Richard E. Keogh, of counsel.
    Green & Wheat, of Freeport, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action of malpractice brought by appellee against appellant. The appellant is a practicing dentist in the city of Freeport. He graduated in his profession from Northwestern University and was licensed to practice dentistry in the State of Illinois, in 1902. He has been engaged in that profession since said date. In the early part of the evening of August 7,1932, which was on Sunday, appellant received a telephone call from appellee stating that she was suffering from a toothache and was in great pain, and requesting him to go to his office where she might come for treatment. Appellant did so, and met the appellee at his office that evening sometime between the hours of eight and nine o ’clock. Appellant says the tooth had an abscess on it and was so sore that he could not treat it without first anesthetising it. This was done hypodermatically by injecting an anesthetic at the gum line with a hypodermic needle. When the tooth was anesthetized, appellant removed the enamel from the top of the tooth. He claims the tooth was decayed to the center and that he then used an excavator, which is a spoon-like instrument, and with this instrument dug out and removed the decayed pulp from the tooth; that when he began to remove the decayed pulp he discovered pus coming from this area. Appellant claims that he cleaned out the tooth, treated it, gave appellee anti-pain capsules, directed her to return home and keep cold packs applied to the face and neck, and to come to his office the following day. She did not come to his office, but telephoned him and he went to her residence. He states that her jaw was swollen and an examination of the left side of her mouth disclosed it to be full of pus. He directed her to keep it washed out and clean and to keep the cold packs applied. Appellant states that he made no effort to remove the root of the tooth at the time of his treatment, and that his object was to open the tooth, remove the decayed pulp, and establish drainage to relieve the infected condition. Appellee had a most unfortunate experience in connection with the tooth and the same was later removed surgically by incision from the outside. Appellee brought this suit against appellant urging that because of appellant’s negligence in the exercise of due care and skill, his insanitary and unclean dental instruments, and his failure to remove the root of the tooth, that she was thereby infected and suffered the injuries complained of. The jury returned a verdict in favor of appellee in the sum of $2,800. Judgment was entered on the verdict, and appellant prosecutes this appeal therefrom.

Appellant assigns hut one error for reversal, namely, that the trial court erred in permitting a dentist who was called as a witness for the plaintiff, to answer a hypothetical question propounded by counsel for appellee, over the objection of appellant. The question propounded was as follows:

“Q. Now, Doctor, assume that a dentist in attempting to extract a molar tooth from the left side of the lower jaw of a person broke off and removed the top or exposed part of such tooth and failed to remove and permitted to remain in the gum the root of such tooth; and further assume that in doing such act such dentist inserted his fingers into the mouth of such person without having immediately prior thereto washed or cleansed such fingers, and at such time inserted into the mouth of such person, syringe, forceps and other dental instruments which had not been sterilized immediately prior to such using; and further assume that at the time of and prior to such attempted extraction no inflammation or swelling of the cheeks, jaws, gums or neck of such person was present, and further assume that by the third day after such attempted extraction the left cheek and the gum on the left side of the lower jaw of such person became locked together and so continued to be locked together for at least six weeks thereafter; and further assume that by the fourteenth day after such attempted extraction of such tooth a hard lump about one and one-half inches in diameter appeared on the outside of such person’s neck on the left side thereof beneath the lower jaw, which lump remained for two months thereafter and then broke, discharging a pus-like substance and thereafter drained for six more weeks; upon such assumption do you have an opinion as to whether or not the assumed condition of such person’s gums, cheeks, jaws and neck after the attempted extraction were the direct and natural re-suit, either of the assumed breaking of such tooth and failure to remove such root or the assumed insertion of the fingers into the mouth as aforesaid and the assumed use of such unsterilized instruments or a combination of all or any of such assumed acts ? ’ ’

To this question the attorney for appellant made the following objection: “I desire to make only one objection to that question, and that is that it is improper, invading the province of the jury and calling for an opinion of an ultimate fact which the jury is to determine.” To this objection, the court responded: “That objection is overruled, he may answer.” The witness had apparently become somewhat confused with the objections following the reading of the question which was propounded to him. He did, however, answer “Yes,” but made request that the question be restated. The question was again read to the witness. The same objection was interposed thereto. The objection was overruled, and the witness again answered “Yes.”

Appellee insists that the question asked was intended to call for an opinion of the witness as to whether or not the combined acts set out, or any of them, could have caused the infection. However, appellee did not pursue the examination further in this respect and permitted the answer “Yes” of the witness as made to the question, to stand. If the appellee had intended to further interrogate the witness in order to obviate this error, she failed to do so. Juries are not skilled or versed in fine legal distinctions and legal phraseology. We are of the opinion that the only reasonable construction the jury could have put upon the question was, did the witness believe from the facts set out in the question, that the injuries complained of by the plaintiff, were the “direct and natural result” of the acts of appellant; and that the only reasonable interpretation the jury could place upon the witness’ answer “Yes” was that in his opinion the injuries complained of by appellee were the ‘ ‘ direct and natural result” of the acts of appellant as set out in said question. This is the only such question asked, and it was asked at no other time.

The witness was testifying on behalf of appellee who was plaintiff below. The jury could understand but one purpose in the calling of this witness by the plaintiff, and that was in order that his testimony might contribute to establishing plaintiff’s case against the defendant. The various facts going to establish the manner and method of treatment employed by appellant were incorporated in the hypothetical question, together with the affliction from which appellee later suffered, and the witness was asked as a part of the question, whether or not in his opinion appellee’s condition was “the direct and natural result” of the acts of appellant as therein set out. To this, he answered “Yes.” The evidence in this case was highly conflicting. Under such circumstances ah expert witness cannot take the place of the jury and declare his belief as to an ultimate fact. Keefe v. Armour & Co., 258 Ill. 28; People v. Schulte, 260 Ill. 35; Kimbrough v. Chicago City Ry. Co., 272 Ill. 71. We cannot conclude otherwise than that the jury understood by the question propounded, that the witness was asked as an expert in dentistry, if in his opinion, the injuries complained of by appellee “were the direct and natural result” of the acts of appellant in treating her tooth.

Since this case is to be reversed and remanded for the reasons above assigned, we have undertaken no discussion of the facts, and have endeavored to limit our reference to such facts as we considered necessary to disclose the nature of this case.

The judgment herein is reversed and the cause remanded.

Reversed and remanded.


text:
    Lamoyne W. Steele, Appellee, v. Board of Education of Haw Creek Township High School District No. 178 et al., Appellants.
    Gen. No. 9,049.
    Opinion filed May 15, 1936.
    Hardy, Hardy, Hardy & Withebell, of Galesburg, for appellants.
    John H. Lewis, Jr., and Wallace Thompson, both of Galesburg, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee instituted this suit as a taxpayer and resident of appellant school district, seeking to enjoin said district from providing free transportation for pupils residing without the territorial limits of the district. Upon a hearing of the cause, the court found for appellee and ordered injunction writ to issue as prayed. Appellants prosecute this appeal from said decree.

The substance of the complaint was that the defendant district was operating its busses in territory outside the limits of the district and furnishing free transportation to pupils who resided in such territory, to and from their homes. It is charged that the expense of providing such free transportation was paid for by appellants out of public funds in their hands for school purposes, and that such expenditures were wrongful and without authority of law.

The board of education of a nonhigh school district has the power to furnish free transportation to pupils residing in such district. [Ill. State Bar Stats. 1935, ch. 122, U 102 (par. Fifth thereof) (Smith-Hurd 1935).] The board of education of a high school district by virtue of the 18th clause of sec. 115, ch. 122, p. 819, Laws of 1927, of the School Act, may provide free transportation for pupils residing within such high school district.

The statute upon which appellants rest the right to furnish free transportation to and from its school to pupils residing in territory outside the boundaries of appellant district is the said 18th clause of sec. 115, ch. 122, of the laws of 1927, p. 819, appearing on p. 2858, Ill. State Bar Stats. 1935; p. 2931 Smith-Hurd 1935. We are of the opinion that high school districts are authorized to provide free transportation only to those pupils residing within the district.

The same question presented herein, and the same section of statute, were before the Appellate Court of the Third District in the case of People ex rel. Dilks v. Board of Education, 283 Ill. App. 378, wherein the statute construed and the question presented were decided adversely to the contention of appellants herein. Leave to appeal in the above case was denied by the Supreme Court at its April term, 1936.

We do not deem any further discussion of the matters involved in this case necessary. The decree of the trial court is affirmed.

Decree affirmed.