text:
    W. J. Barth, Appellee, v. Leonard Keller and Blanche Tayne, Defendants. Leonard Keller, Appellant.
    Gen. No. 41,676.

      Heard in the second division of this court for the first district at the April term, 1941.
    Opinion filed June 19, 1942.
    Auw & Knittel and Max M. & Samuel Grossman, all of Chicago, for appellant; Louis N. Grossman, of Chicago, of counsel.
    Golan & Golan, of Chicago, for appellee; Samuel L. Golan, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

By this appeal defendant Leonard Keller seeks to reverse a judgment for $750 rendered against him upon the verdict of a jury in an action brought by plaintiff, W. J. Barth.

The complaint alleged substantially that plaintiff was a physician and defendant was a dentist; that they shared a suite of offices at 2753 North Western avenue, Chicago, consisting of a private office for each of them and a reception room which they used in common; that defendant employed one Blanche Tayne as a receptionist; that defendant and said Blanche Tayne conspired to injure plaintiff in his good name and credit, to bring him into public scandal and disgrace and to cause him to be imprisoned or fined or both by maliciously instituting a criminal prosecution charging him with indecent exposure of his person in violation of ‘ ‘ Section 4221 of the ordinances of the City of Chicago”; that on April 5, 1938 Blanche Tayne filed a complaint in the municipal court of Chicago charging plaintiff with indecent exposure of his person in violation of the aforesaid ordinance and procured a warrant for his arrest; that plaintiff was arrested April 13, 1938; that when the case against him in the municipal court was called for trial on April 15, 1938, it was dismissed for want of prosecution and he was discharged from custody; and that plaintiff sustained damages to the extent of $10,000 by reason of the alleged conspiracy and the action brought against him in the municipal court.

Both Keller and Blanche Tayne were made defendants in the instant action but the latter was never served with summons. Defendant Keller filed an answer denying all the material allegations of the complaint and particularly those allegations charging him with conspiracy.

Dr. Keller states his theory in his brief as follows: “Defendant denies that he entered into any conspiracy with Blanche Tayne or any other person to institute or have instituted any criminal proceeding or any proceedings of any kind against the plaintiff. He denies that he was in any way responsible for the proceedings instituted by Blanche Tayne; that he did not sign the complaint or have anything to do with the signing of the complaint which instituted the proceedings against plaintiff in this case. Defendant further contends that there was no proof of a malicious prosecution and further contends that there was no proof of a conspiracy between him and Blanche Tayne, and that the evidence does not support the allegations of the complaint; - that the termination of the case by agreement of the parties, whereby the suit was dismissed for want of prosecution and defendant discharged from custody is not such a determination of a criminal proceeding on which a suit for malicious prosecution may be predicated. That the evidence fails to show that the plaintiff suffered any actual damages.”

Plaintiff’s theory is that “the defendant, after quarreling with plaintiff, did, in every conceivable manner, harass plaintiff in an effort to inflict harm upon him. After feuding with plaintiff for a long period of time, he conceived the idea of hiring Mrs. Tayne as a receptionist and conspired with her to have plaintiff arrested, charging him with an offense involving moral turpitude, so that it would harm plaintiff in his professional capacity. ’ ’

Plaintiff is a physician and surgeon and defendant is a dentist. They became office associates in the summer of 1935 in a suite at 2753 North Western avenue, Chicago. Plaintiff maintained office hours during the entire day until 6 p.m. in his office at said address. Defendant also had an office in the Marshall Field Annex Building, where he practiced his profession during the morning. His office hours at the Western avenue address were from 1:30 or 2 p.m. until late in the evening. For the first two years or until the summer of 1937, the parties were on friendly terms. Each had a telephone in his private office and under an arrangement between them plaintiff answered defendant’s telephone calls when the latter was not present in his office in the morning and defendant took care of plaintiff’s telephone calls in the evening. In the summer of 1937 plaintiff learned that defendant had failed to answer some of the former’s telephone calls and a heated argument ensued, as a result of which the friendly relationship that had theretofore existed between the parties ceased. Thereafter there was almost constant bickering and dissension between them. It became necessary for defendant to engage somebody to take care of his office and telephone calls during the morning and until he arrived at his Western avenue office. For that purpose he employed a young married woman, who with her husband and infant child occupied a small apartment immediately across the hall, one room of which adjoined defendant’s private office. There was a connecting door between said apartment and his private office, which defendant made available to this woman so that she might answer his telephone calls. It is clear from the evidence that plaintiff’s conduct toward this woman was reprehensible and that he finally persuaded and influenced the landlord to bring about her removal from her apartment. Plaintiff then rented this apartment himself. Because of her removal from the building, this young woman was unable to continue in defendant’s employment. In February 1938 plaintiff engaged one Blanche Tayne as a receptionist and to answer his telephone calls, Mrs. Tayne and her husband having theretofore been patients of his. March 31, 1938 Mrs. Tayne called the police. Police officer William Bunge, who responded to the police call, testified: “When we arrived there We walked up the stairs. It was the second floor. And the woman was there . . . we asked her what the trouble was 1 . . And she said that Dr. Barth had annoyed her and exposed his person to her that morning, and I told her I would talk to Dr. Barth about it, and knocked at his office door. And I told him what she accused him of. And in the meantime, Dr. Keller came in. And Dr. Barth flew in a rage and wanted to fight with Dr. Keller and I stopped him there, and I said, ‘The only way for those to settle this is for this woman to go see the warrant clerk on the following day or on a Monday and to swear out a warrant, and to see whether they would give her a warrant or not. That was all up to the warrant clerk.’ And she said she would. And we left after that. Dr. Barth denied the charges that this woman put to him.” Officer Bunge also testified that Dr. Keller did not arrive on the scene until after the officer had talked to Mrs. Tayne and confronted Dr. Barth in his office with Mrs. Tayne’s charge against him.

Defendant testified that Mrs. Tayne telephoned him on the day in question and informed him as to plaintiff’s conduct and that he advised her to tell her husband, who worked in a nearby garage. Defendant was unable to leave his downtown office at once on account of patients who required his attention. When he did reach his office on the northwest side the police officers were already there. According to the defendant Dr. Barth was very belligerent and “Mrs. Tayne was tearful and did not have very much to say there at all and the police officer told her in my presence to take out a warrant against Dr. Barth. ’ ’

On the same day, March 31, 1938, Mrs. Tayne went to the police station with her husband to procure a warrant for Dr. Barth’s arrest but because of the absence of the warrant clerk she was unable to secure such warrant. April 5, 1938 defendant drove Mrs. Tayne to the police station in his car, where she signed the necessary complaint and the warrant was ordered to issue for plaintiff’s arrest.

There is considerable evidence in the record concerning extraneous matters, which we have not mentioned in the foregoing statement of the case because it was entirely irrelevant and should have been excluded. We think the facts as stated fairly present the evidence material to the only issue in this proceeding. The gist of the charge made by Dr. Barth in his complaint in the instant case is that Dr. Keller conspired with Mrs. Tayne to procure a warrant for plaintiff’s arrest on the charge" of indecent exposure of his person and to prosecute him on such charge. We have searched the record in vain for evidence, either direct or circumstantial, which supports the allegations of plaintiff’s complaint.

The only evidence in the record upon which plaintiff could possibly pla.ce any reliance to sustain his charge of conspiracy against defendant is that the latter drove Mrs. Tayne to.the police station upon the occasion of her second "visit there to procure the warrant for Dr. Barth’s arrest. It clearly appears that Dr. Keller drove her to the police station merely as a matter of accommodation. It has not been shown that Dr. Keller advised, persuaded or influenced Mrs. Tayne to procure the warrant for Dr. Barth’s arrest. Neither has it been shown that when Dr. Keller drove Mrs. Tayne to the police station he spoke to any police official, police officer, warrant clerk or city prosecutor concerning Mrs. Tayne’s complaint or the procurement and issuance of the warrant. In fact when they reached the police station he left her there and drove away. The evidence is conclusive that Mrs. Tayne was solely responsible for the issuance of the warrant for plaintiff’s arrest and that she and the defendant did not conspire in any manner to procure said warrant.

The case in the municipal court against Dr. Barth was not dismissed for want of prosecution because of the failure of Mrs. Tayne to appear and prosecute it. She was present in court with her witnesses and it clearly appears that when she advised Judge Weiss of the municipal court that she did not desire to proceed with the prosecution of Dr. Barth, she did so as the result of an agreement entered into between Dr. Barth’s attorney and herself before the opening of the court. The principle of law is well established that where a criminal or quasi criminal prosecution is terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor, there is no such termination as will support an action of malicious prosecution or an action charging a conspiracy to prosecute maliciously. (Emery v. Ginnan, 24 Ill. App. 65; Halberstadt v. New York Life Ins. Co., 194 N. Y. 1.)

Not only was the verdict returned by the jury against the manifest weight of the evidence as to the material issues of this case but there was absolutely no evidence submitted in support of the charge of conspiracy against defendant.

The testimony of Dr. Barth and his wife as to certain anonymous telephone calls received by them reflecting upon plaintiff’s morality were received in- evidence over the defendant’s objection. These calls were claimed to have been made by girls who used such names as “Mary, Joan or Rose.” No attempt was made to connect Dr. Keller with such telephone calls or the persons making them and this evidence was clearly inadmissible. It could only have been calculated to prejudice the jury against defendant, which it unquestionably did, since it is difficult to account for the verdict on any other theory than that the jury was prejudiced.

Other points are urged which also would require the reversal of the judgment entered herein but in view of what has already been shown we deem further discussion unnecessary.

For the reasons stated herein the judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

S candan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Justice Hebel.

license: Public Domain

text:
    Midland Steel and Equipment Company, Appellee, v. Douglas Auto Parts Company, Inc., Appellant.
    Gen. No. 41,715.
    Heard in third division, first district, this court at June term, 1941;
    opinion filed May 27, 1942;
    rehearing denied June 24, 1942.
    Wilhartz & Hirseh, for appellant; Samuel E. Hirseh, Julian H. Levi and William Huger, of counsel; Wilfred M. Doherty and Defrees, Buckingham, Fiske & O’Brien, for appellee; John Merrill Baker, of counsel.
   Opinion by

Justice Hebel.

“Not to be published, in full.”


author: Presiding Justice Scanlan.

text:
    Mary Jankowski, Administratrix of Estate of Frank Jankowski, Deceased, for use of Clyde Hollaris, Minor, by Albert Hollaris, Guardian, Appellant, v. General Accident Fire and Life Assurance Corporation, Ltd., Appellee.
    Gen. No. 41,504.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed June 19, 1942.
    William A. Shapiro and Krohn & MacDonald, for appellant; Stuart B. Krohn and Ian P. MacDonald, of counsel; John A. Bloomingston and Arthur J. Donovan, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Irving Bielfeldt et al., Appellees, v. Joseph Gannon et al., Appellants.
    Gen. No. 41,702.

      Heard in second division, first district, this court at February term, 1941;
    opinion filed June 19, 1942.
    Chris D. Gregory and Silvio E. Piaeenti, for appellants; Lee W. Carrier, of counsel; McCarthy & Toomey, for appellees; Frank A. McCarthy and John E. Toomey, of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Trust Company of Chicago, Administrator of Estates of Steven M. Cermak, Deceased, and Richard S. Cermak, Deceased, Appellee, v. Baltimore and Ohio Railroad Company and Alton Railroad Company, Defendants. Alton Railroad Company, Appellant.
    Gen. No. 41,806.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed June 19, 1942;
    rehearing denied July 1, 1942.
    Winston, Strawn & Shaw, for appellant; Silas H. Strawn and Harold A. Smith, of counsel; Finn & Miller, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    John Jeffers Shaw, Appellee, v. National Life Company, Appellant.
    Gen. No. 41,817.
    opinion filed June 19, 1942.
    E. C. Corry and Fulton, Fulton & Sheen, for appellant; E. C. Corry, J. F. Sheen and James W. Cotter, of counsel; Arthur J. J. Welsh, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Edward Zator, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,865.

      Heard in second division, first district, this court at October term, 1941;
    opinion filed June 19, 1942;
    rehearing denied July 1, 1942.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants; John B. Guilliams and William J. Flaherty, of counsel; Wachowski & Tyrakowski, for appellee; Casimir B. Waehowski, of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full."’ ’


text:
    William H. McCausland and Antoinette McCausland, Appellees, v. City of Chicago, Appellant.
    Gen. No. 41,903.
    Heard in second division, first district, tMs court at October term, 1941;
    opinion filed June 19, 1942;
    rehearing denied July 1, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, John J. Mortimer and Barney Fagen, Assistant Corporation Counsel, of counsel; Beckman, Healy, Beid & Hough, for appellees; Daniel M. Healy, of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Joseph Lumber Company, Appellant, v. Ronald Lambert Tree et al., Appellees.
    Gen. No. 41,954.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed June 19, 1942;
    rehearing denied July 1, 1942.
    Hyman Soboroff, for appellant; Good-speed, Bates & Amundson, for certain appellees; Hermann P. Haase, for certain other appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published, in fuU.’’


author: Justice Friend.

text:
    National Builders Bank of Chicago, Administrator of Estate of Gustav Gabrielson, Deceased, Appellant, v. Walter J. Cummings et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 42,013.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed June 19, 1942.
    Harry George, for appellant; Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Louise Schulenburg, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,053.
    Heard in second division, first district, this court at December term, 1941;
    opinion filed June 19, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Alphonse Cerza and Barney Fagen, Assistant Corporation Counsel, of counsel; Lloyd T. Bailey and J. T. Higgins, for appellee; Joseph W. Bailey and Thomas C. Hollywood, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Mary Soic, Appellant, v. Guy A. Richardson et al., Trading as Chicago Surface Lines and Paul A. Gade, Also Known as P. Goffe, Appellees.
    Gen. No. 42,066.

      Heard in second division, first district, this court at December term, 1941;
    opinion filed June 19, 1942.
    V. Russell Donaghy and Matkovie & Nfelson, for appellant; David A. Sehallman, of counsel; Frank L. Kriete, Charles C. Cunningham and Arthur J. Donovan, for appellees; William J. Flaherty, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Gertrude C. Hart, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,076.
    Heard in second division, first district, this court at February term, 1942;
    opinion filed June 19, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Louis H. German, John F. O’Malley and Paul A. H. Shults, Assistant Corporation Counsel, of counsel; Lloyd T. Bailey, for appellee; Joseph W. Bailey and Thomas C. Hollywood, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Sullivan.

text:
    Nicholas Nudelman, Appellant, v. Harry Stern, Ap-pellee. National Bank of Hyde Park, Appellee.
    Gen. No. 41,640.
    Heard in second division, first district, this court at February term, 1941;
    opinion filed June 19, 1942.
    Urion, Bishop & Sladkey and James H. Nudelman, for appellant; Jerome J. Sladkey and James H. Nudelman, of counsel; Petit. Clin & Overmyer, for appellee National Bank of Hyde Park; Adelor J. Petit and Conrad D. Philos, of counsel.
   Opinion by

Justice Sullivan.

“Not to be published in full.”


text:
    Metropolitan Life Insurance Company, Plaintiff, v. Jane M. Bell et al., Defendants. Margaret J. Bell, Appellant, v. Jane M. Bell et al., Appellees.
    Gen. No. 41,703.
    Heard in second division, first district, this court at April term, 1941;
    opinion filed June 19, 1942.
    Harold C. Osborn and Bernard W. Vinissky, for appellant; Estelle M. Wells, for appellee Jane M. Bell; Hoyne, O’Connor & Rubinkam, for Metropolitan Life Insurance Company; Nathaniel Rubinkam and Leonard S. Schmitz, of counsel.
   Opinion by

Justice Sullivan.

“Not to be published in full.”


author: Mr. Presiding Justice Matchett

text:
    City of Chicago, Appellant, v. Frank Pizel, Appellee.
    Gen. No. 42,049.
    Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed July 1, 1942.
    Barnet Hodes, Corporation Counsel, for appellant ; James A. Velde, Michael W. Kaveney, Adam E. Patterson and Louis H. Geiman, Assistant Corporation Counsel, of counsel.
    Eleanor Waters Walsh, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff filed suit based on section 29 of the Workmen’s Compensation Act. (Smith-Hurd’s Ann. Stats., ch. 48, par. 166, p. 643 [Jones Ill. Stats. Ann. 143.44].) Defendant made a motion to strike, supported by affidavit. The motion was sustained, and the suit dismissed with judgment, and plaintiff appeals.

The material facts in brief are that the City and its employees are under the Act; that on February 6, 1939, Hynan, an electrician employed by the City, was injured through the negligence of Pizel in driving an automobile; that Hynan promptly gave notice to the City and claimed compensation, which was in due course awarded to him and up to September 6, 1940, the City had paid such compensation to the amount of $1,260; that on September 7, 1940, Hynan died but not because of his injuries; that his widow, Emma, petitioned and secured an order from the Industrial Commission directing the payment of the remainder of the compensation to her and their child, Mary; that Emma Hynan, the wife, and Mary, the daughter, were Hynan’s only heirs-at-law and next of kin, and that by his death they were damaged in their means of support to the amount of $5,000; that plaintiff has paid compensation and medical expenses to Hynan and his widow in the.total amount of $2,880.85, and that appropriations have been duly made to that end; • that defendant Pizel was never under the Workmen’s Compensation Act; that he is neither an employer nor employee; that he never ‘ ‘ elected not to be bound by the Act” in any method prescribed by the statute; that he was without the Act by reason of actual circumstances ; that plaintiff has been damaged in the sum of $2,880.85, and filed this suit on February 4, 1941, to recover that amount.

Section 29 of the Workmen’s Compensation Act is in five paragraphs. It states the law applicable when an employee is injured by a third party. The first paragraph in substance says that where a workman under the Act is injured by the negligence or fault of a third party who is also under the Act, and neither the employer (also under the Act) nor his workmen under him are negligent with respect thereto, the employer may recover from the third party the compensation paid. The amount of recovery is strictly limited to the amount paid as compensation. The second paragraph states the law applicable where an employee under the Act is injured by the negligent act of a third party “having elected not to be bound by the Act,” and neither employer (under the Act) nor his workmen are negligent. In such case, the statute in subsequent paragraphs provides in substance that the third party may be sued as at common law either by the employee or by the employer who has paid compensation, in case the employee fails to bring such action for the damages sustained.

The difficulty of construing the paragraph is found in the phrase “having elected not to be bound by the Act.” If we have regard to the literal words of this clause, defendant Pizel would not be in the class of persons against whom this suit might be brought by the employer. He has never elected not to be bound by the Act. He is not engaged in any business which would subject him to its provisions. It would have been absurd for him to elect “not to be bound by the Act” because he has never been under it nor engaged in any business on account of which he might either voluntarily or involuntarily come under it. He is without the Act without any election on his part. He has not carried on any business by which he might be brought within its provisions. The question for determination is whether it was the intention of the legislature that such a person should be subject to suit by the employer who has paid compensation, etc. The trial court • construed the clause technically and very literally. It held defendant never elected not to be bound by the Workmen’s Compensation Act, therefore he was not subject to suit by the employer who had paid or become liable to pay compensation. If he had been under the Act and by some one of the methods provided in the Act had elected no longer to be bound by it, then he would on defendant’s theory be liable to such suit; but not having ever been engaged in a business which made it necessary for him to elect at all, he is not liable. This construction of this clause seems to be based on the letter rather than the spirit of the law — to regard the form and disregard the substance. If a defendant who is without the Act by his negligence injures one under it, he is liable for all damages to the persons injured by his negligence irrespective of whether he is without the provisions of the Act, by affirmative election or for any other reason. The essential and determinative thing is his status with reference to the Act. That status is precisely the same whether he is without the statute for the one reason or the other. Whether because of “election” or because he is not engaged in any business which would bring him under it. In other words, it is the actual status rather than the formality of an “election” by the third party that creates the substantive rights of the respective parties.

The Supreme Court has never passed on this precise question, although its construction of the different paragraphs of section 29 is in harmony with plaintiff’s theory and indicates its opinion that an employer who has paid compensation for an injury to an employee has a right of action against any third person who negligently caused the injury, irrespective of whether the third person is within or without the Act by affirmative election or otherwise. We note statements in opinions.

Goldsmith v. Payne, 300 Ill. 119: “ . . . But if the person, other than the employer, so liable for damages is not bound by the provisions of the act, then legal proceedings may be brought against such other person by either the employer or the injured employee.”

O’Brien v. Chicago City Ry. Co., 305 Ill. 244: “ . . . Where the person causing the injury was not subject to the provisions of the act his liability as it existed before the act was not affected, but the injured employee’s employer should 'be subrogated to his employee’s right to the extent of the compensation paid or to be paid under the act.

“While the right of action against the person negligently causing an injury who is not bound by the provisions of the act is unaffected by it, the employer who is free from negligence is entitled to indemnification from the proceeds of such cause of action for the compensation he is bound to pay, and the cause of action may be prosecuted in the name of either the employer or the employee, but in either case is for the benefit of both, in accordance with their respective rights.” i

Baker & Conrad, Inc. v. Chicago Heights Const. Co., 364 Ill. 386: “Passing to section. 29, it was obviously the intention of this section that in those cases where the compensation for injuries had been paid by some employer, . . . and the injury or death was caused by the negligence of some third person either within or without the act and not by the negligence of such employer, such employer shall be subrogated to the rights of the employee or his legal représentative.”

Huntoon v. Pritchard, 371 Ill. 36, “The purpose of section 29, supra, is to require the indemnification' of the employer who is without fault out of the money recovered from a negligent third person. Where such third person is under the act his liability is limited to the amount of compensation paid, but where, as here, he is not under the act, the common law liability still exists and is unrestricted in amount . . . Section 29 has as its object the reimbursement of the employer where he is compelled to pay compensation as a direct result of the negligence of another. In this case the employer had to pay, in addition to compensation for the original injury, an additional amount to cover the aggravation caused by the appellee’s malpractice. To adopt appellee’s construction would deprive the employer of his right of subrogation and confer upon appellee a benefit to which he is in no way entitled.”

It seems, upon the whole, quite clear the intention, of the legislature was to leave third parties, who by their negligence brought about an injury, responsible to the person injured and to the employer who without fault of himself or employees, was required to pay out money by reason of such negligence. A liberal construction should prevail to that end, and courts are not confined to the literal meaning of words used. In Uphoff v. Industrial Board, 271 Ill. 312, the Supreme Court said: “A thing within the intention is regarded within the statute though not within the letter. A thing within the letter is not within the statute if not also within the intention. When the intention can be collected from the statute, words may be modified or altered so as to obviate all inconsistency with such intention. Hoyne v. Danisch, 264 Ill. 467. Whqn great inconvenience or absurd consequences will result from a particular construction that construction should be avoided, unless the meaning of the legislature be so plain and manifest that avoidance is impossible.”

In Faber v. Industrial Commission, 352 Ill. 115, following this rule, the Supreme Court held that a person standing in loco parentis to an employee was “parent” within section 7 of the Workmen’s Compensation Act. (See also Ketcham v. Board of Education Community Consol. School Dist. No. 201, 324 Ill. 314, and Harding v. Albert, 373 Ill. 94.)

Defendant relies on Agar Packing & Provision Co. v. Becker, 301 Ill. App. 237. The opinion indicates the views of the Supreme Court (as above stated) were not called to the attention of the court in that case, while the later case of People ex rel. Barrett v. Tull, 311 Ill. App. 636, is in harmony with the construction we adopt. The judgment will therefore be reversed and the cause remanded with directions to enter a rule on defendant to answer the complaint.

Reversed and remanded with directions.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice Matchett

text:
    Florence Clerken, Appellant, v. Hyman Cohen, Appellee.
    Gen. No. 42,065.
    Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed July 1, 1942.

      Francis E. Cash, of Chicago, for appellant.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellee; Edward R. Adams and Herbert C. De Young, both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Defendant Cohen is the owner of premises improved with an eight-room cottage which he leased to William Folan. He was sued by plaintiff, a visitor by invitation to the Folan home, for damages said to have been sustained by her when, leaving from the home, she slipped and fell on steps used for ingress and egress. The cause was tried by jury, and at the conclusion of plaintiff’s evidence the court directed a verdict for defendant. Judgment was entered, and plaintiff appeals.

The evidence shows without contradiction defendant Cohen was the owner of the premises known as 4107 Van Burén street in Chicago; that a cottage thereon was leased to William Folan, who was in possession when plaintiff, on January 31, 1940, fell on the steps and was injured.

Plaintiff’s complaint is in six counts. Numbers 1 and 2 charge that defendant retained and exercised control over the steps leading into the home and under the roof of the porch. She avers that it was the duty of defendant to keep the same in a reasonably safe condition “for ingress and egress by all persons lawfully on the premises.”

It was charged defendant neglected to equip and maintain gutters, troughs or similar devices upon the roof over the steps and permitted water and melted snow to fall, drip," drain and discharge upon the steps of the stairway, collect thereon and freeze, becoming dangerous, by reason whereof, while on the premises as a guest of Folan, she slipped and fell.

It is conceded to be the general rule of law (citation of authorities unnecessary) that an owner is not liable to the guest of a tenant for injuries received on account of defects in the premises or failure to keep the same in repair. Woods v. Lawndale Theater Corp., Inc., 302 Ill. App. 570; Prosser on Torts, p. 648, § 81. There are a number of exceptions to the general rule. One is that where the lessor retains control of a part of the premises which the tenant is permitted to use, he may be liable for failure to exercise reasonable care as to that part. Plaintiff’s theory as to the two counts is that defendant actually retained control of these steps, the porch and the roof over it. If he did retain such control he would be liable -for failure to exercise reasonable care. Murphy v. Illinois State Trust Co., 375 Ill. 310. There is no evidence in the record showing any such control was retained hy defendant or exercised by him. Plaintiff argues such control from the language of the lease. As a matter of fact, on the trial she first offered the lease in evidence, and after-wards (ascertaining the views of the trial judge) voluntarily withdrew it. Now, in this court, she undertakes to argue from it. This cannot be permitted. She cannot try her case on one theory in the trial court and another theory here.

Folan testified for plaintiff. His evidence showed that he and his family were in possession of the entire premises. The house contained eight rooms. There are several pictures of it in the record. On the first story was a living room, dining room, kitchen, pantry, bathroom and two bedrooms. The upper story consisted of a large sleeping room and an unfinished garret. The stairway from the sleeping room to the lower floor ran in between the kitchen and bathroom. In order to reach the stairway from the back door it was necessary to go through the kitchen. From the front door it was necessary to go through the living-room. There was no outside stairway to the sleeping room or the attic. Folan and his wife lived together in this house. They had ten children who lived with them. His mother-in-law, his brother-in-law and a girl named Mary Hamill, also lived in the house, a total of fifteen occupants. The trial judge was justified in concluding that the Folan family occupied the entire house. There was a garage in the rear of the premises. There is no proof whether it was rented or who occupied it. It was not an integral part of the house. Nor is there any. proof that, as a matter of fact, it was used at all. On the uncontradicted evidence the court rightly held, as a matter of law, that Folan, not defendant, was in control of the front porch, the front steps and the roof over the porch. It was by way of these steps only that Folan and his family could get into and out of the house. As a matter of law, plaintiff could not recover on these two counts.

Plaintiff complains evidence was excluded tending to show that defendant lived next door; that he had at different times carried garbage away from the premises, and that he had replaced screen doors which needed to be replaced, etc. Questions were asked as to these matters and excluded. In the absence of further proof tending to show that defendant had retained control over some part of the leased premises this evidence was wholly immaterial. Sunasack v. Morey, 196 Ill. 569, 571; Long v. Joseph Schlitz Brewing Co., 214 Ill. App. 517, 520; Farmer v. Alton Building & Loan Ass’n, 294 Ill. App. 206, 212.

Plaintiff’s other counts are based on the theory that the house, when leased by defendant, was in a dangerous and defective condition, and that the owner was liable for that reason. The evidence also shows there was no spout on the roof of the porch when the premises were leased. There is, however, no proof that there was any ice on the steps at that time. Plaintiff cites City of Chicago v. Atwood, 269 Ill. 624, where the opinion quotes Miller v. Fisher, Ill. Md, 91, to the effect that “where the owner leases premises which are a nuisance, or must in the nature of things become so in their use, and receives rent, then, whether in or out of possession, he is liable.” In the Atwood case the owner was held liable on suit by the City for permitting a nuisance upon his premises contrary to the provisions of a city ordinance. In the Miller case the suit was by one owner against an adjoining owner for failing to maintain pipes to carry off polluted water which was discharged upon the plaintiff’s premises. The facts of neither case are in any way analogous to those which exist here. Other Illinois cases cited are Stephani v. Brown, 40 Ill. 428, 433; Gridley v. City of Bloomington, 68 Ill. 47; City of Peoria v. Simpson, 110 Ill. 294; City of Canton v. Torrance, 151 Ill. App. 129, and Tomle v. Hampton, 129 Ill. 379. The eases all consider a situation where an adjoining owner by negligent construction made dangerous the public streets or sidewalk.

Reichenbacher v. Pahmeyer, 8 Ill. App. 217, is another case relied on. This case is interesting in that the defendant owner of a building erected and used for a hotel, in which was a public bar room, was held liable to the plaintiff (a third party), who was injured by a chandelier suspended from the ceiling of the bar room in such a way as to be dangerous and unsafe, and the defendant, knowing this, made the lease of the house to be used for these purposes. The opinion considers at length and is largely based on the case of Swords v. Edgar, 59 N. Y. 28, where the owner of a pier leased it while it was in a dangerous condition. The owner lessor was held liable to plaintiff’s intestate, a longshoreman, not a party to the lease, who was fatally injured while using the pier on account of its defective construction. That case reviews the authorities from Roswell v. Prior, 2 Salk. 459,12 Mod. 635. The decision is based on the ground that the pier, at the time of its leasing, was defective and dangerous as the owner knew, when considered for the purpose for which it was to be used. The decision was that an owner could not relieve himself of liability in such a case by transferring his duty to another. Three judges dissented. The Prior case was one where an owner of premises was held liable for failing to maintain pipes sufficient to carry polluted waters from his own premises away from instead of upon the premises of his neighbor.

There is much said in all these opinions about nuisances, and it would be an interesting study to consider the development of English law on this subject. (See Holdsworth’s History of the English Law, vol. 8, pp. 424, 425.) We note that in the Restatement of the Law of Torts, ch. 40, p. 215, the authors say that while stating the rules of liability in an action for damages for private nuisances, it is desirable to avoid the use of the term because it is attended with so much confusion and uncertainty of meaning. In the recent work of Prosser on Torts, ch. 13, p. 549, the author’s views are stated as follows: “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of a problem; the defendant’s interference with the plaintiff’s interests is characterized as a ‘nuisance,’ and there is nothing more to be said. With this reluctance of the opinions to assign any particular meaning to the word, or to get to the bottom of it, there has been a rather astonishing lack of any consideration of ‘nuisance’ on the part of legal writers. It is not until a very recent date that anything significant has been done to determine some definite limits to the types of tort liability which are associated with the name.”

Whatever the definition of “nuisance,” either public or private, may be, we hold the term is not applicable to the facts of the instant case. No ordinance or statute made it the duty of defendant to put gutters on the roof of the porch, or to put a roof over it at all. The lack of gutters could not reasonably be expected to cause damage beyond the limits of the premises. In no sense of the word could this defect amount to what is ordinarily spoken of as a “ common nuisance.” Unless enclosed, any part of this house, or any other, would in cold weather be subject to accumulations of snow and rain and ice. There was nothing hidden or latent about this supposed defect in the premises. The lessee or a third party coming upon the premises could see the situation just as well as the owner. There was a simple way to have avoided all danger. This was for the party in possession, whose duty it was to remove the snow from the steps before the water froze into ice, to remove it or to remove the ice after it was formed. Careful occupiers of premises with open porches do this. No case is cited in the briefs, and it is believed none can be found where any owner has ever been held liable on plaintiff’s theory and upon facts analogous. We hold, as a matter of law, plaintiff could not recover. Soibel v. Oconto Co., 299 Ill. App. 518, 521; Fraser v. Kruger, 298 Fed. 693, 696.

The court properly instructed the jury to return a verdict in defendant’s favor and properly entered judgment on it, which will be affirmed.

Affirmed.

McSurely, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Thomas Horvat, Appellee, v. Marion Opas, Also Known as Maryan Opas, Appellant.
    Gen. No. 42,061.
    Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed July 1, 1942.
    William V. Brooks, of Chicago, for appellant.
    Epstein & Steinberg, of Chicago, for appellee ; Abraham Miller and Matthew Steinberg, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the

court.

Plaintiff brought an action against defendant to recover damages for malicious prosecution and false arrest in that defendant filed an information in the Municipal court of Chicago charging plaintiff with embezzling $15 of defendant’s money and that upon trial of the case in the Municipal court defendant was found not guilty and discharged. There was a jury trial and a verdict in plaintiff’s favor for $5,000. Afterward the court required a remittitur of $3,000, judgment was entered on the verdict for $2,000 and defendant appeals.

The record discloses that defendant was in the business of selling used cars and about April 1, 1938, employed plaintiff to work for him on the lot where the automobiles were located, for which plaintiff was to be paid $15 a week and a commission of 2 per cent on the sales of the automobiles which he made. Plaintiff began to work at that time and continued until July 3, when he was discharged, as he contends. Some time prior to plaintiff’s employment Edward Schumpp bought a second-hand truck from defendant and after he had used the truck for some time, and having changed his business, he brought the truck back to defendant and requested that defendant sell it for him. The truck was placed on the lot and June 20, 1938, plaintiff in the course of his work sold it to Ernest Kuklovsky for $70 receiving a $5 deposit, and June 27, the purchaser paid $25 more to plaintiff but the money was not turned in to defendant’s office nor was the sale of the truck reported. At the time the payments were made to plaintiff he gave the purchaser, Kuklovsky, a receipt on one of defendant’s printed forms showing the two payments. There was a balance of $40 due on the purchase price, and July 3, the purchaser Kuklovsky called to make the final payment and get the truck and at that time, defendant says, he first learned that a sale had been made and that money had been paid on account to plaintiff.

Plaintiff gave testimony to the effect that when defendant told him to sell the truck he instructed him not to put the deal through the office so it would not appear on the books and that in case plaintiff sold the truck, plaintiff and defendant would divide the profits equally. He further testified that June 28 he gave defendant $10 of the $30. Plaintiff offered no evidence as to what Schumpp was to receive for the truck so that what profit was realized from the sale does not appear. On the other side, defendant testified that when Kuklovsky called for the truck July 3, he advised defendant he had paid $30 on account of the purchase price to plaintiff. That a few days prior to that time defendant had transferred plaintiff to one of defendant’s other places of business at 17th & Ash-land and when defendant was told of the sale he called plaintiff on the telephone and asked him what he had done with the $30 and that plaintiff replied he had spent it. Defendant further testified that plaintiff had not given him the $10 and it is at this time plaintiff says he was discharged, although defendant testified he quit of his own accord. Defendant further testified when Schumpp left the truck for sale he told his manager, Jezewski, to place the truck on the lot for sale and that defendant would receive 5 per cent of the amount of the sale. That when the truck was left by Schumpp he wanted $100 but finally agreed to sell it for $70 or $80; that defendant afterward paid Schumpp $66.50, deducting his 5 per cent, $3.50 and that he never gave plaintiff any authority to keep any of the money he collected.

Plaintiff testified that about May 9, 1938, while he was working for defendant, he injured his arm cranking an automobile and that he made a number of demands on defendant to pay the doctor’s bill for the treatment he received, apparently on the ground that he was entitled to have this done under the Workmen’s Compensation Act, but this appears only by inference. The evidence further shows that about the middle of July plaintiff filed a claim with the Industrial Commission for the injury to his arm and about a month thereafter, August 17, 1938, defendant filed the information against plaintiff in the Municipal court.

v Plaintiff contends that defendant instituted the criminal proceeding against him in the Municipal court maliciously and without probable cause; that the information was filed by defendant because plaintiff was insisting that defendant pay the doctor’s bill and compensation for the injury which plaintiff had sustained to his arm and a further reason was that defendant was endeavoring to force plaintiff to pay the $30. We think the latter contention is without merit because a consideration of the evidence discloses plaintiff was unable to pay any sum because he had no money.

On the other side, defendant’s position is that the criminal proceeding was brought in good faith; that before filing the information he consulted his lawyer and an assistant State’s attorney, Mr. Weldon, and explained the facts in the case to each of them. . And further, that he explained the facts to the Judge at the time the information upon which the warrant for plaintiff’s arrest was issued, the judge of the Municipal court states: “I have examined the above information and the person presenting the same and have heard evidence thereon, and am satisfied that there is probable cause for filing same.”

In Smith v. Hall, 37 Ill. App. 28, which was an action for malicious prosecution, Judge Moran in delivering the opinion of the court said: “To sustain an action for malicious prosecution, want of probable cause and malice must both be shown. If there was probable cause, then there is a defense to the action, no matter how much malice or ill-will animated the prosecution.

“A prosecution may be in fact malicious, and may be for the purpose of injuring the person against whom it is brought, and gratifying the hatred or revenge of the prosecutor, and yet, if probable cause existed, there can be no recovery in the action of malicious prosecution. Israel v. Brooks, 23 Ill. 575.”

Plaintiff contends the evidence shows the facts were not fairly explained to the attorneys nor to the judge; that whether such explanation was made by defendant and whether the prosecution was malicious and without probable cause were questions for the jury and the jury having found in plaintiff’s favor, this court is not warranted in disturbing the verdict unless it is against the manifest weight of the evidence. We think this contention must be sustained. Under the law we are not warranted in disturbing the verdict of the jury, approved as it was by the trial judge, unless it is against the manifest weight of the evidence. This we are unable to do, and the verdict and judgment cannot be disturbed on that ground. A consideration of plaintiff’s testimony, taken in connection with the several occupations followed by him, as to what the facts were in the instant case is far from satisfactory and we are also of opinion that defendant’s testimony is far from satisfactory. Counsel for both parties testified, plaintiff’s as to the reasonable value of the services he rendered in the defense of the case in the Municipal court. He then called counsel for defendant who took the stand and gave testimony on the same subject. It seems obvious, under the facts disclosed by the record, that this should not have been done. Since we have reached the conclusion that the verdict is excessive, we do not discuss the evidence further.

From a consideration of plaintiff’s testimony as to the several occupations he followed over a period of years, we think the fact that he was placed under arrest and confined in jail for one night and then let go on his own bond shows that the verdict of $5,000 was wholly unwarranted and that the judgment of $2,000 is also greatly excessive. Burch v. Lockwood, 247 Ill. App. 66.

Counsel for plaintiff contends that the propriety of certain instructions given and the motion for a new trial made by defendant cannot be considered because they are not in the report of the proceedings of the trial. There is no merit in this contention. This was the law before the Civil Practice Act went into effect January 1, 1934, but by that act the law was changed, Kelly v. Powers, 303 Ill. App. 198, where the law on this subject is stated. We there pointed out that § 74 of the Civil Practice Act, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.074], provides: “All distinctions between the common law record, the bill of exceptions and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are hereby abolished. The trial court record shall include every writ, pleading, motion, order, affidavit and other document filed or entered in the canse and all matters before the trial court which shall be certified as a part of such record by the judge thereof. All matters in the trial court record actually before the court on appeal may be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable.” In that case we also refer to Rule 36 of the Supreme Court, which is the same as Rule 1, of this court.

It is obvious that the contention of counsel for plaintiff, that the record should show at whose request the instructions were given and that those were all the instructions given or requested, should appear, is sound but since there must be a retrial, this can be obviated.

For the reasons stated, the judgment of the Circuit court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and McSurely, J., concur.


author: Justice O’Connor.

text:
    Chicago Title and Trust Company, Trustee, v. Dollie F. Leitch et al. James J. Barbour, Appellant. Frank A. Sloan, Receiver, Appellee.
    Gen. No. 42,319.
    Heard in first division, first district, this court at June term, 1942;
    opinion filed June 23, 1942.
    Edward H. S. Martin, for appellant; George A. Curran, for appellee.
   Opinion by

Justice O’Connor.

“Hot to be published in fuU.’’


author: Justice McSurely.

text:
    Brookson Distillers, Inc., Appellee, v. United States Casualty Company, Appellant.
    Gen. No. 42,043.

      Heard in first division, first district, this court at December term, 1941;
    opinion filed July 1, 1942.
    Burt A. Crowe, for appellant; Carl E. Abrahamson, of counsel; Samuel Wexler and Cohon & Goldstein, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Aubrey G. O’Kelley, Appellee, v. James P. Allman et al., Appellants.
    Gen. No. 42,068.
    Heard in first division, first district, this court at December term, 1941;
    opinion filed July 1, 1942.
    Barnet Hodes, Corporation Counsel, for appellants; James A. Velde, Carl H. Lund-quist, L. Louis Karton and -Louis H. Geiman, Assistant Corporation Counsel, of counsel; Michael P. Ryan, for appellee; Richard P. Mc-Phrtlin, Jr., of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Colonial Village Restaurants, Inc. (Howard M. Fox Substituted as Plaintiff), Appellee, v. Colonial Village, Inc. (Joseph H. Beuttas Substituted as Defendants), Appellant.
    Gen. No. 42,039.
    Heard in firsf division, first district, this court at October term, 1941;
    opinion filed July 1, 1942.
    Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellant; Isaac E. Ferguson and Jesse H. Brown, of counsel; Taylor, Miller, Busch & Boyden, for appellee; Morris I. Leibman, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    R. E. Snoberger, Appellant, v. Binkley Coal Company et al., Appellees.
    Gen. No. 42,072.
    Heard in first division, first district, this court at December term, 1941;
    opinion filed July 1, 1942.
    Floyd Lanham, for appellant; Chapman & Cutler, for appellee Helen C. Hanson; Dayton Ogden, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


author: Mr. Presiding Justice Stone

text:
    Silas Durbin, Appellant, v. Eliza Durbin and Eliza Durbin, Executrix of Last Will and Testament of George H. Durbin, Deceased, Appellees.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Robert G. Burnside and J. Richard Royal, both of Vandalia, for appellant.
    Will P. Welker, of Vandalia, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is a suit to set aside the last will and testament of George H. Durbin, deceased, which suit was filed in the circuit court of Fayette county, by Silas Durbin, plaintiff appellant, son of George H. Durbin, and against Eliza Durbin, and Eliza Durbin, executrix of the last will and testament of George H. Durbin, deceased. Plaintiff appellant will hereinafter be referred to as plaintiff and defendants appellees will hereinafter be referred to as defendants.

The evidence discloses that George H. Durbin and Eliza Durbin, his wife, were, on the 2nd day of September, 1908, each the owner of certain lands in Fayette county, Illinois. -On that date they executed separate wills that were identical in words and form, except for the name of the devisee, and were attested by the same persons as subscribing witnesses, both of whom were dead at the time of the trial. By the terms of said wills, each devised all the real and personal property of which each might die possessed, to the other party.

George H. Durbin died on the 27th day of April, 1940, and left surviving him as his only heirs-at-law, Eliza Durbin, his wife, and Silas Durbin, his son. Letters testamentary were issued to Eliza Durbin as executrix of the last will and testament of George H. Dur-bin, on the 9th day of July, 1940.

Harry Zetsche testified on behalf of plaintiff, in substance that he was present when Eliza Durbin told his wife that she and her husband had agreed to make a will and that she had made á will leaving everything that she had to him and he everything that he had to her. Mrs. Zetsche testified that Mrs. Durbin had said that she and her husband agreed to make each other a will, ‘ ‘ and he made me a will and I made him a will, willing our property to each other.” Mila Baldwin, a trained nurse who worked in the house of George Durbin in his last illness, testified that Mrs. Durbin told her that she and her husband had an agreement and a will between them, that she was to give her property to him and he was to give his to her. Testifying in her own behalf Mrs. Durbin admitted talking to these witnesses about the wills, but denied that she admitted that there was any agreement with reference thereto, which part of her testimony was competent.

It is the theory of plaintiff that these wills were executed pursuant to an oral agreement made between . husband and wife, and as such constituted mutual wills; that thereafter on the 7th day of April, 1940, at a time when the condition of George H. Durbin, was such that he could not make another valid will, Eliza Durbin, executed a second and further will by the terms of which she disposed of all of her property to persons other than her husband and without his knowledge and consent; that said second will so executed by her was a violation of her alleged contract with George II. Durbin for the execution of mutual wills and therefore the will of George H. Durbin was thereby revoked. The execution of the second will by Eliza Durbin is not denied by defendants.

Upon trial by the court without a jury the decree found that the will of George H. Durbin date of September 2,1908 was his lawful will, and that the other instrument dated September 2,1908 purporting to be the will of Eliza Durbin and the said will of George H. Durbin were not mutual wills, and the complaint was dismissed for want of equity, from which judgment this appeal is prosecuted.

The rules of this court require that the concluding subdivision of the statement of the case shall be a brief statement of the errors relied upon for reversal. We find no such assignment of errors. Opposing counsel, however, do not raise the question as to the want of this, and we will consider the questions argued generally by plaintiff in his brief as ground for reversal of this judgment.

It is contended that the two wills executed by George H. Durbin and Eliza Durbin on the 2nd day of September, 1908, were mutual wills, and that the competent evidence in the record points to the fact that the two wills were executed pursuant to an agreement between the husband and wife. It is argued that because the instruments were identical in language and form, were drawn by the same scrivener and subscribed by the same attesting witnesses, and that there was an adequate consideration for the alleged agreement, inasmuch as both were owners of separate, individual properties, that this establishes a mutual will, and that the contract upon which that alleged mutual will was based could not be revoked. Such agreements must be established by the clearest and most convincing evidence and such contracts are sustained only when .established by the clearest and strongest evidence. Rice v. Winchell, 285 Ill. 36-39; Klussman v. Wessling, 238 Ill. 568-572; Frazier v. Patterson, 243 Ill. 80-84. We are not inclined to hold that the decree in the lower court was against the manifest weight of the evidence. There is nothing on the face of the wills, proving or tending to prove any contract or agreement to make the wills mutually disposing of their property, each for and in consideration of the will of the other.

If two persons make wills, each devising his property to the other, there is no necessary inference that the wills were the result of any mutual or reciprocal agreement or understanding. Frazier v. Patterson, supra. In the above case, the court say, “To deprive either party of the right to revoke such mutual wills it is necessary to prove by clear and satisfactory evidence' that such wills were executed in pursuance of a contract or compact between the parties, and that each is the consideration for the other.”

Eliza Durbin, in addition to testifying to conversations previously testified to by witnesses for plaintiff, was permitted to testify in some detail as to the circumstances attendant upon the execution of the wills by herself and husband, over the rather general objection of counsel, the court permitting her to testify, subject to the objection to her competency. Objection is here made that she was incompetent, under the statute to testify, as to any conversation or transactions between herself and her husband, prior to the time of his death. It is however, immaterial in this case, whether this testimony on behalf of defendants was or was not competent. It was incumbent upon plaintiff to establish the allegations of his complaint by a preponderance of the evidence. By its decree, by implication, the lower court held that this had not been done. Even if it be conceded that this part of her testimony objected to, was incompetent, upon which question we do not deem it necessary to express an opinion, we still do not believe that the decree entered by the trial court was contrary to the manifest weight of the evidence. "Where the testimony on behalf of the, plaintiff is not sufficient to sustain the allegations of his complaint, the Appellate Court will presume that the chancellor disregarded any incompetent evidence and based his findings and the decree upon the failure of plaintiff to sustain his case. Benton v. Kaneville Community High School Dist. No. 147, 250 Ill. App. 6.

The evidence produced by plaintiff, tending to establish a contract to make a mutual will, was not of such satisfactory character, as to justify this court in setting aside the findings of the court below, who saw and heard the witnesses and is in a better position than this court to appraise their credibility, on conflicting testimony. The chancellor’s finding on the facts from conflicting oral testimony will not be set aside unless it is against the manifest weight of the evidence. Krabbenhoft v. Gossau, 337 Ill. 396-404; Arliskas v. Arliskas, 343 Ill. 112-115; Parker v. Ruley, 317 Ill. 441-450; Page v. Keeves, 362 Ill. 64-72.

We think the case was properly disposed of by the trial court and its decree is accordingly affirmed.

Decree affirmed.


text:
    Bituminous Casualty Corporation, Appellant, v. City of Harrisburg, Appellee.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.

      A. E. Somers, of Harrisburg, and W. C. Bopiequet, of East St. Louis, for appellant.
    Lynndon M. Hancock, of Harrisburg, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion

of the court.

This suit was filed in the circuit court of Saline county, by the Bituminous Casualty Corporation, appellant, who will be referred to hereinafter, as plaintiff, against the City of Harrisburg, a municipal corporation, operating under the commission form of government, appellee, who will be referred to hereinafter as defendant. Plaintiff was a corporation engaged in the liability insurance business and the action was to recover the sum of $5,089.81, for insurance premiums alleged to be due on a policy issued to cover the liability of said city to its employees under the Workmen’s Compensation Act of Illinois. The premiums claimed were based upon the wages paid certain workmen by the Illinois Emergency Belief Commission, who will be referred to frequently in this opinion, and for convenience will be designated as IEBC. These workmen were employed in and about the City of Harrisburg, on certain relief projects.

Defendant denied that the workmen on said relief projects were employees of the city and filed a counterclaim to recover the sum of $54.88 alleged to be due as the unearned portion of advance deposit premiums paid on said policy.

Trial was had before a jury who returned a verdict in favor of defendant and against plaintiff in the sum of $45 and costs, upon which judgment was entered and from which judgment this appeal is taken. At a former trial the lower court had directed a verdict against plaintiff and in favor of defendant, and judgment entered on that verdict was, on appeal to this court, reversed and remanded, on the theory that sufficient facts had been introduced in evidence to justify the submission of the issues to the jury. Bituminous Casualty Corp. v. City of Harrisburg, 303 Ill. App. 75.

The complaint filed by plaintiff alleged that the insurer entered into a contract with the city, insuring it against loss on account of any injury or death of its employees while so engaged and issued and delivered to said city, its contract or policy of insurance which was accepted and agreed to by the city, which policy was set out in haec verba in said complaint. Attached to said policy, as set forth in the complaint and forming a part thereof, was a rider designated and entitled “unemployment or Emergency Belief Employees’ Endorsement.” A stipulation was entered into between the parties, with respect to the amount due the city in the event the city did not owe for the premiums on relief employees, which amount was $45, which grew out of the account, on the policy insuring the regular city employees, so that the appeal is confined to the premium on IEBC workers engaged on work projects in and allegedly for the city. The complaint further alleged that divers employees were working for the city and being paid for such work by what is known as the Illinois Emergency Belief Commission, in certain forms of relief work, sponsored and contracted for by the city for its use and benefit. That in its agreement with the said IEBC the city voluntarily became sponsor for said work and employment and accepted the benefits thereof, and agreed with the said relief commission to purchase and carry liability insurance to fully comply with the Illinois Workmen’s Compensation laws, and that in compliance with this agreement with the said relief commission the insurance policy hereinbefore described was secured by the city from the insurer. This policy was alleged to he in force between June 20, 1935 to March 28,1936.

Defendant filed a motion for a bill of particulars, asking that plaintiff he required to attach to complaint all exhibits it might rely on, the classes of employees, the number, wages paid, premiums claimed, the different groups of employees, the kind of work performed, and the date and place where same was performed. This motion was granted, and bill of particulars was filed setting forth two relief projects, which were project 282-B-2-104, for repairing sidewalks and pavements in the City of Harrisburg, and project 282-B-15-12, for construction of an airport at Harrisburg.

The city filed an answer admitting that it employed divers persons in divers classes of work, all of whom were on the regular payrolls of the city, but denied that it had any employees engaged in constructing, repairing and improving an airport or engaged in any of the work mentioned in the complaint and bill of particulars, other than employees for whom premiums had been paid; denied making.any agreement with IERC by which defendant became sponsor for any kind of work or employment, and denied that it took out the insurance policy sued on in order to comply with any contract with IERC. It also set up in its answer that it was a municipal corporation operating under the commission form of government, that its mayor and four commissioners constituted the city council; that by the statutes of Illinois a majority “aye” and “nay” vote is required to be taken on all propositions to create any liability against the city or for the expenditure or appropriation of its money, and that no such action had been taken by the city council to obligate defendant to the expenditure of any funds as sponsor for alleged work by contract with IERC. Plaintiff in its reply denied this.

Many technical objections are made in the pleadings, but taken as a whole they resolve themselves into the one question — Were the men who came to work at defendant city during the period in which it is claimed they worked for said city, in the employ of defendant city? Was there a hiring by which the city became responsible to pay premiums to plaintiff on the coverage of these men by virtue of its policy with plaintiff ?

On a previous hearing of this case in this court, Bituminous Casualty Corp. v. City of Harrisburg, 303 Ill. App. 75, it was held that the fact and circumstances there presented together with their reasonable intendments and proper conclusions to be drawn from them raised questions of fact as to whether or not there was a hiring on the part of defendant city, and that those facts were sufficient to warrant the trial court in submitting that question to the jury. That was done in the instant case, and it is not necessary to discuss at any length, the evidence introduced upon the trial of the case in the lower court, for the reason that it is not assigned as error, that the verdict of the jury was against the manifest weight of the evidence.

It is assigned as error that the trial court erred in refusing to give to the jury certain instructions' offered by plaintiff, particularly instructions (a), (b), (c), (d) and (e). Counsel for plaintiff in their argument contend that the legal principles underlying these instructions form the principal contention in this case, and that the court should have permitted the jury under proper instructions as to the law, to pass upon the only question left in the case, when the contracts were excluded, namely, whether the city, by its actions had not entered into an implied contract of hire with the IERC workers. Nowhere is it specifically pointed out wherein these specific instructions are proper statements of the law, or wherein the court erred in refusing to give them. Mere general statements that a ruling is wrong, without any attempt to point out wherein the error consists or to advance any argument in support of the simple assertion that there has been error, discloses nothing to adverse counsel and does not inform the court of review as to the particular error claimed. The presumption obtains that the trial court ruled correctly in giving instructions and in order to overturn that presumption a party litigant complaining of error must affirmatively disclose that specific error. Chicago & A. R. Co. v. American Strawboard Co., 190 Ill. 268; Haiek v. American Car & Foundry Co., 155 Ill. App. 261; Colp v. Hanford, 147 Ill. App. 174.

Toward the beginning of the trial, plaintiff placed on the stand Bay Durham, who had been mayor of defendant city from May 1,1935 to May 1,1939, which was during all of the policy period here in controversy. Plaintiff asked leave under section 60 of the Civil Practice Act to examine him as an adverse witness. The court refused to permit this on the ground that the witness was no longer an official of defendant city, and this is assigned as error by plaintiff. This section provides, “Upon the trial of any case, any party thereto for whose immediate benefit such action is prosecuted or defended, or by the officers, directors, or managing agents of any corporation which is a party to the action, may he examined as if under cross-examination at the instance of the adverse party or parties or any of them, and for that purpose may he compelled, in same manner and subject to the same rules for examination as any other witness ■ to testify. . . .” Ill. Rev. Stat. 1939, ch. 110, sec. 60 [Jones Ill. Stats. Ann. 104.060]. The statute provides in effect that one who is an officer of any corporation which is a party to the action, may be examined. The language of the statute contemplates the status of the witness, as of the time of the litigation apparently and not as of the time of the accrual of the cause of action. Counsel cites the case of Combs v. Younge, 281 Ill. App. 339, which does not pass on this particular question. Counsel also cites the case of Shapleigh Hardware Co. v. Enterprise Foundry Co., 305. Ill. App. 180 in support of their contention. In that case the witness was, at the time of the trial, secretary of defendant company, and the court permitted him to be examined under this section, even as to the previous history of the Belleville Stove and Range Company, under the theory of plaintiff that defendant was the undisclosed principal of the Belleville Stove and Range Company. This was held not to be error. This held in effect that when an officer of a corporation is called as a witness he may be examined under said section as to all matters material to the case. But his being subject to cross-examination in the first place depends upon his status, as an officer of the corporation, at the time that he is called as a witness. Complaint is also made that the witness Durham was adverse and cross-examination should have been permitted. This was a matter in the sound discretion of the court. People v. Gallery, 336 Ill. 580; Demereski v. Citizens’ Coal Mining Co., 149 Ill. App. 513. We are not prepared to say that the court abused this discretion.

Complaint is made, that the court erred in refusing to admit certain documentary evidence offered on behalf of plaintiff. It is assigned as error that the court erred in refusing to admit plaintiff’s exhibits 14, 15 and 16, which purported to be payroll audits made by Charles H. Backhus, a payroll auditor. He had made an audit of the city payroll, which had been signed and certified to by the city clerk, and later the witness without the knowledge or consent of said city clerk added certain information he had received, above her signature. Such fact being admitted it would have been improper for such audit to have been admitted in evidence. In any event no prejudice could have resulted to the cause of plaintiff, for all of the material facts were set forth in the stipulation between the parties, much of which was testified to by the witness. Counsel for plaintiff in their brief say, “They (exhibits 14, 15 and 16) correspond generally to the conclusions given by the witness, so need not be given in further detail here.” We cannot see how plaintiff was prejudiced by the failure to admit these audits in evidence.

It is assigned as error by plaintiff that the court erred in refusing to admit in evidence plaintiff’s exhibits 2 to 12 inclusive. These were IEBC forms for application for work relief project, which were signed by some IEBC employee and some officer or officer-elect of defendant city. All of said exhibits except 3, 6, and 9 contained a printed paragraph to the effect that the applicant agreed to accept as its legal employees the workmen assigned by IEBC and to supplement the medical care and other relief given to the workmen and their dependents by the IEBC as may be necessary to meet the requirements of the Workmen’s Compensation Act of Illinois. Exhibit 2 was signed by Bay Durham before he became Mayor of Harrisburg; exhibits 3 and 4 were signed by Bay Durham after he became mayor; exhibit 5 was signed by N. A. Hermann, before he became city commissioner and 6 after he became commissioner; exhibits 7, 8 and 9 were signed by Gr. B. Hart, during his term as mayor, while 10,11 and 12 were signed by C. A. Sloan, during his term as finance commissioner.

Counsel for plaintiff argue that they contended in the lower court that these exhibits, although invalid as executory contracts, had in effect been ratified by the actions of the city in putting the contracts into effect and accepting the benefits and for these reasons the city was estopped from asserting the invalidity of the contracts. It is not contended in this court by plaintiff, that any of these contracts, which were not between the parties litigant, but one of the parties and a stranger to the record, were entered into and executed in the manner prescribed by law. If there is a statute prescribing the method by which an officer or agent can bind a municipal corporation by contract, such method must be followed, since there can be no implied contract or liability on the part of such municipal corporation. Selby v. Village of Winfield, 255 Ill. App. 67; Roemheld v. City of Chicago, 231 Ill. 467; Arnold v. Village of Ina, 244 Ill. App. 239. It is not claimed that any of these contracts were approved by the city council in the manner prescribed by the statute. We are therefore constrained to hold that the court did not err in refusing to admit such contracts between the city and IEEC in evidence.

This suit is predicated upon an express contract, that is the insurance policy, particularly the rider to said policy, with reference to IEEC employees. The suit is not based upon the contracts between the city and IEEC. While it is true that an executed contract within the general powers of a municipality, where the power has been entered into irregularly or by one not authorized, obligates the municipality upon the same principle and to the same extent as though it were a private corporation or an individual, and that such contract may be ratified, it should not be lost sight of, that such contract to be ratified, was the insurance policy upon which suit was brought.

Evidence was introduced by plaintiff upon the theory of ratification and acceptance of benefits by the city, and the issue of whether there was a hiring on the part of the City of the IEEC employees, or ratification by the city, and the verdict of the jury was adverse to the plaintiff on these propositions.

With reference to the proposition that the city was estopped by its conduct from asserting the invalidity of these contracts as a defense, where there is no dispute about the facts and only one inference can be drawn therefrom, it is a question of law whether or not the facts proved constitute an estoppel. But under all other circumstances the question whether an estop-pel existed is to be determined by the jury. 21 C. J. 1253.

We find no prejudicial error in the action of the court in the rejection or admission of other evidence.

There being no reversible error in this record, the judgment of the trial court will be affirmed.

Affirmed.


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    Roy E. Frazier, Sr., and C. S. Wooters, Appellees, v. George Allison, Appellant.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Johnson & Johnson, of Belleville, for appellant.
    Hall & Frazier, of Centralia, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an action in replevin, brought by Frazier and Wooters, appellees (hereinafter designated as plaintiffs), against George Allison, appellant (hereinafter designated, as defendant) to recover possession of a McCormick-Deering tractor. The plaintiffs are retail farm implement dealers in Centralia, and defendant is a farmer, living near Centralia.

The case was tried in the circuit court of Clinton county without a jury and resulted in a finding that plaintiffs were entitled to possession of the property sued for, with judgment accordingly for plaintiffs and against defendant for costs.

The pleadings consisted of complaint, answer and reply. The complaint charged that plaintiffs were dealers for the International Harvester Company; that said company was the owner of International tractor model W-40, serial number WKC6728, that as dealers and agents of the company plaintiffs were entitled to immediate possession of the tractor, which was of the value of $1,475. That defendant was in possession of said tractor and had wrongfully detained same from plaintiff since May 20, 1940 to the damage of plaintiff of $400. That on November 18, 1940 plaintiffs demanded of defendant that he deliver said property to plaintiff, but that he refused to do so.

The answer denied the averments of the complaint and in addition stated in substance as follows: that on May 15, 1940 defendant ordered in writing a new International tractor model W-40 for the net price of $1,000 plus the trade-in of a used tractor of defendant, which tractor was taken, and was still retained by plaintiffs. That plaintiffs failed to furnish defendant with a new tractor, but on the contrary, furnished a used and remodeled one, which was of much lesser value than a new tractor and was of the value of $400. That plaintiffs were notified by defendant that he elected to retain said used tractor and that he would pay for the same as a used tractor and not on the basis of the order for a new tractor. It was further alleged that plaintiffs had no right to maintain their suit in replevin, but could only claim from defendant the amount of the actual cash value of said tractor. The reply of plaintiffs denied the averments of the additional answer.

The written order, which was admitted in evidence as plaintiff’s exhibit 1, bore the date of May 15, 1940. The tractor called for by the order was, “1 W-40 Tractor 6 cylinder vertical with 7.50x28 6 ply rubber rear, belt pulley and tax, high speed gears, Firestone tires preferred.” The price was stated to be $1,100 cash on delivery, with trade-in of a 15-30 McCormick-Deering tractor, and no amount of value of the used tractor was noted in the order. By the provisions of the agreement and warranty appearing upon the back of the order, retention of possession or continued use constituted an acceptance and satisfaction of warranty, and title, with the right of repossession for default, was reserved to the seller until the full purchase price had been paid in cash.

Plaintiffs’ exhibit 2, date of November 18, 1940, was a demand on the part of plaintiffs, that in accordance with the agreement of May 15, 1940 defendant deliver to plaintiffs, the tractor involved. The used tractor, which was the trade-in, was received by plaintiffs, from defendant about a week after the tractor in controversy was delivered to defendant.

Immediately upon receipt of the tractor sold him, defendant called plaintiffs and LeRoy Kniseley, salesman for plaintiffs went out to the premises of defendant, at which time defendant asked him if this was a new tractor, and the salesman replied that it could not be anything else, that they did not sell anything else. After that there were different complaints made by defendant about the defects of the tractor, which he considered as indicating that he had received a used machine, and adjustments were made on the machine from time to time by service men employed by plaintiffs.

After several verbal demands for payment had been made by the agent for plaintiffs, which were not complied with, and after defendant had possession of the tractor for nearly six months, written demand for possession was made, and the replevin suit followed. •On behalf of plaintiffs, LeRoy Kniseley, salesman testified that the first time he went out to defendant’s farm and saw the tractor, he would say that it was a new tractor. Roy E. Frazier, Sr., for the plaintiff testified that he had ordered the tractor over the telephone through the International Harvester Company at Terre Haute, Indiana, that he expected to get him a new tractor and that was what he got.

In his own behalf defendant Allison testified in substance that the hole for the drawbar attachment, or coupling, in the machine was egg-shaped, where new tractors have an absolutely round hole; that the oil filter showed that the tractor had been used considerably and about a tablespoonful of fine grindings were found in the filter; that the paint showed two different colors with restenciling at places; that there was a tapping noise in the transmission and when the engine got hot, it developed a knocking, all of which he testified in his opinion indicated that it was a used tractor. As to some of this he was corroborated by Ernest Stonecipher, agent (for the Standard Oil Company in that vicinity; W. H. Craft a farmer living nearby, Samuel Dunbar a railroad man, who had worked on defendant’s farm and by Edgar Allison, son of defendant. John 0. Richardson, service manager with the Terre Haute branch of the International Harvester Company, testified in rebuttal for plaintiffs that it was possible for a new tractor to have all of the defects testified to.

Both plaintiff and defendant seem to be in accord on the proposition that the one issue involved in this case, is whether this tractor was a new or a used machine. This issue is raised by the interposition of the additional answer of defendant, averring that he was not sold a new tractor, but a used one. In his argument counsel for defendant designate this as defense of breach of warranty. Where a breach of warranty of the quality of an article sold is relied on as a defense, the burden of proof is on him to establish the warranty and the breach of it. Noble v. Fagnant, 162 Mass. 275, 38 N. E. 507. Where a defendant pleads an affirmative defense, he has the burden of maintaining such defense by a preponderance of the evidence. Weber v. American Posting Service, 197 Ill. App. 500; Vail v. North American Union, 191 Ill. App. 297; Northwestern Fuel Co. v. Western Fuel Co., 144 Ill. App. 92; Howard v. Bennett, 72 Ill. 297; Bonnell v. Wilder, 67 Ill. 327. This is particularly so, where the reply consists merely of a denial of the allegations of the answer. Matthews v. Granger, 196 Ill. 164. The finding of a trial court is entitled, on review, to the same weight as the verdict of a jury, and, if the evidence is conflicting, such finding will not be reversed on appeal unless it is contrary to the manifest weight of the evidence. Keefer Coal Co. v. United Electric Coal Companies, 291 Ill. App. 477, 10 N. E. (2d) 210; People v. Chicago, & E. I. Ry. Co., 258 Ill. App. 535. The only question in such case is whether the findings of fact made by the court below are clearly and palpably against the weight of the evidence. Van Amburg v. Reynolds, 372 Ill. 317, 23 N. E. (2d) 694. The burden of proof being upon defendant to prove his additional answer by a preponderance of the evidence, we are not inclined to hold in this case that the judgment of the lower court was against the manifest weight of the evidence.

As a more or less collateral proposition, it is argued by defendant that plaintiffs kept the trade-in tractor received from defendant, and therefore could not bring replevin until they had returned same. There was no provision in the contract with reference to any disposition to be made of any payments made by defendant, in the event of default. Defendant, according to the testimony, had the possession and the use of the tractor sold to him, for nearly six months, which months were the productive ones on the farm. When demand was made by plaintiffs upon defendant, for the return of the machine, such demand was made “in accordance with the agreement made by you,” as shown by plaintiffs’ exhibit 2. In matters of conditional sale the law seems to be that if the condition of payment is not fully complied with or waived, the original vendor’s rights become perfect and absolute and he may follow the property or recover its full value and without any deductions for any partial payments made by the vendee, they are all forfeited, 55 C. J. 1279. Herbert v. Rhodes-Burford Furniture Co., 106 Ill. App. 583. There is no recission of the contract, requiring the vendor to place the vendee in status quo, but the taking is but in accordance with the contract and the vendor is not liable to refund payments made to him. Latham v. Sumner, 89 Ill. 233. Upon this record, the return of defendant’s used tractor, was not a condition precedent, to the maintaining of replevin, for the tractor sold him by plaintiffs.

Finding no reversible error in this record, the judgment of the trial court is affirmed.

Affirmed.


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    People of the State of Illinois, Defendant in Error, v. Neal Cohoon, Plaintiff in Error.
    Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.

      Will P. Welker, of Vandalia, for plaintiff in error.
    Robert G. Burnside, State’s Attorney, and J. Richard Royal, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Neal Cohoon, plaintiff in error, who will hereinafter be referred to as defendant was arrested on an information verified by the sheriff of Fayette county, charging him with -false imprisonment, to which information he ■ pleaded not guilty. Thereafter an amended information was filed again verified by the sheriff upon which there was no arraignment and no plea interposed. Upon trial by a jury, defendant was found guilty, and sentenced to a term of one year at the Vandalia State Farm.

The record discloses that the defendant was a river bottom farmer, aged 62 years, who lived a few miles from Vandalia, Illinois, in a shack or cabin, with his 21 year old wife, Rosa and their baby, who was a few months old. Prior to October 18, 1941, the wife had told defendant of her indiscretions with other men, and that one of these men has asked her to go east some place, where she would be maintained. On October 18, 1941, the wife suggested that defendant go to Vandalia and get some provisions. Defendant replied that if he went, she would run off while he was gone and go with this man, who had suggested that she leave. The wife protested that she would not and proposed that if her husband did not believe her statement, that he tie her up until his return. He said that he had nothing to tie her up with except chains, and she said that would be all right. He placed a chain about her neck and fastened it to the bed. She then said that if defendant thought that would not hold her to put a chain around her leg, and when he said he would not do that, she took the chain and put it around her leg. According to the undisputed testimony, they both laughed about the situation, he kissed her and the baby, placed some water near her, locked the door and started to Vandalia.

While transacting some business in Vandalia, he was arrested by the sheriff on another charge. The wife, Rosa, was released, after about four hours, by the sheriff. She refused to complain against her husband, but the State’s Attorney filed a complaint, verified by the sheriff, and the arrest and prosecution of defendant followed.

Counsel for defendant contend that the verdict in this case is not sustained by the evidence, and that the charges in the information have not been proved. The statute defines the offense charged as follows. “False imprisonment is an unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority.” Ill. Rev. Stat. 1941, ch. 38, sec. 252 [Jones Ill. Stats. Ann. 37.201]. The amended information upon which defendant was tried, charged that he “did unlawfully and forcibly malee an assault upon one Rosa Cohoon, and did then and there unlawfully, against the will, and without any warrant or sufficient legal authority, or any reasonable justifiable cause whatsoever, imprison, confine and detain said Rosa Cohoon for a space of four hours.” The foundation of-the false imprisonment is the assault charged. To the charge of assault, as a general rule if the prosecutor intelligently assented, this is a good defense. Wharton’s Criminal Law, 11th ed., sec. 883. False imprisonment in its legal meaning is an aggravated assault. Bishop on Criminal Law, 9th ed., sec. 747. The gist of the offense of false imprisonment is the actual and unlawful restraint or detention of one person against his will by another, by actual force or reasonably apprehended force, though actual force is not necessary. 25 C. J. 571.

There is no evidence in this record of any force, restraint, confinement or detention, against the will of Rosa Cohoon, on the part of defendant. Defendant testified, “I said, ‘If I go you’ll run off.’ She said, ‘No, I won’t. If you think I will, you can tie me up.’ I said, ‘I haven’t got anything to tie you up with, but chains,’ and she said, ‘Well, you can put them on me.’ I said, ‘I don’t see much need of doing that. You could stay without that,’ and she said, ‘No,’ that she wouldn’t want to stay unless I put the chains on her, and I said, ‘I’ll put one on your neck,’ and she said, ‘All right, ’ and I did, and she put the one on her ankle.” Rosa Cohoon testified, “He says, ‘While I’m gone you’ll run off.’ I said, ‘No, I won’t and if you’re afraid I will, you can tie me up. ’ And he said he didn’t have anything except chains, and I said he could chain me up, and I told'him if he didn’t think he could put a chain around my neck and I told him if he didn’t think that would hold me he could put one around my leg, and he said, ‘No,’ he wouldn’t do that. So I took it and put it around my leg myself.” No one contradicts this testimony. Sheriff Cheshier testified on behalf of the People that he went to the Cohoon house at about 12 o ’clock October 18th, and rattled the chain that came through the door. He does not testify to any outcry or call for help from Rosa Cohoon. Deputy Whitten,. testified, also on behalf of the People that he accompanied the sheriff to the Cohoon home and heard a voice that he believed to be that of Rosa Cohoon, but he does not testify to any outcry on her part.

It is apparent from this undisputed testimony, that she just did not alone passively submit to this restraint of her liberty; nor just consented, but that it was her suggestion in the first place that she be tied up and assisted him in doing so. If defendant had locked her in the house, without her consent, technically, he would have been guilty of false imprisonment. The bizarre, mediaeval gesture of confining her with chains, is important only in determining the amount of punishment to be meted out to him, in the event the imprisonment was without her consent. It is a difference of degree and not of kind.

Counsel for the People contend that the testimony of the wife of defendant was so far fetched, as to make the element of her consent improbable, and that witnesses for the People testified to contradictory admissions which she made shortly after the alleged offense and before the trial. These admissions seem to be to the effect that she had intended to run away on October 18. If so, there is no evidence that she communicated that intention to her husband, the defendant. We do not, nor does any one apparently, know what her subtle, feminine mental reservations might have been at this time. In the light of her confessed indiscretions with other men, she may have been motivated by some queer obsession of self-martyrdom, in requesting that she be tied up. This court does not know as to that. But we do know that the record shows that she asked her husband to tie her up and that she actively assisted him in doing so. There is no evidence that he knew anything about any mental reservations that she might have had about running away. There is no evidence of any intimidation upon the part of defendant.

We are of the opinion that the evidence wholly fails to show that a crime was committed, and that the sentence of the lower court is void.

It is urged as error, that the court should have sustained a motion in arrest of judgment, for the reason that the trial proceeded upon an amended information, without arraignment and without a plea or a request for one. In view of our holding as above, it is unnecessary for us to consider this contention.

The judgment of the county court is reversed.

Reversed.