author: Mr. Justice Davis

text:
    Eddie Jones, Appellee, v. William G. Traver, Appellant.
    Gen. No. 8,804.

      Opinion filed April 11, 1934.
    Rehearing denied June 7, 1934.
    Modified opinion upon petition for rehearing filed June 15, 1934.
    LeForgee, Samuels & Miller, for appellant.
    H. F. Simonson, Egbert P. Vail, Edgar H. Allen, Walker H. Mills and Thos. H. Armstrong, for ap- ' pellee.
   Mr. Justice Davis

delivered the opinion of the court.

This suit was instituted by appellee, Eddie Jones, in the circuit court of Macon county to recover damages caused by the negligence of the appellant, William Q-. Traver, as claimed by appellee, and was tried upon the amended declaration of the appellee, consisting of three counts, to which the plea of the general issue was interposed and resulted in a verdict and judgment in favor of appellee in the sum of $1,550, from which judgment appellant perfected this appeal.

In the first count of his declaration appellee alleges that on May 19, 1930, he was lawfully riding in a certain automobile driven and operated by one Albert Tille in and along East Cantrell street in the City of Decatur, at or near the intersection of said street with Seventeenth street, he being then and there at all times in the exercise of due care and caution for his own safety, and that the defendant was possessed of a certain large machine, to wit: a trench digger, and the defendant then and there so carelessly and improperly placed said large machine on the traveled portion of said street that by means and in consequence of said negligence and improper conduct of the defendant as aforesaid the automobile in which the plaintiff was then and there riding was caused to strike against and run into said machine with great force and violence, and the plaintiff then and there and by means of the several premises aforesaid sustained many severe hurts, wounds and bruises.

The second count alleges that on May 19, 1930, and prior thereto the defendant was constructing a sewer across East Cantrell street, at or near the intersection of Seventeenth street, two public and common streets in the City of Decatur, and that on said date the defendant had caused to be placed in East Cantrell street on the traveled portion thereof and at or near said intersection a certain large machine, to wit: a trench digger, and in placing said machine the defendant well knew that East Cantrell street was in constant use by the public as a place for public travel, and it thereupon became and was the duty of the defendant to exercise reasonable care in and about adopting means of warning the traveling public on said street of the presence of said machine. Yet the defendant, not regarding his duty in that behalf, caused said machine to be placed as aforesaid without fixing or placing, or causing to be fixed or placed, at or reasonably near the location of said machine any flag, signal light, or other audible or visible warning device, or without, giving due and timely notice or warning to persons using said East Cantrell street, to denote or show the presence of said machine. In consequence of the negligence and improper conduct of the defendant as aforesaid, and on, to wit: May 19, 1930, in the nighttime while the plaintiff with all due care and caution for his own safety was riding in a certain automobile driven and operated by Albert Tille, in a westerly direction, along and upon said East Cantrell street, and at or near the intersection of Seventeenth street the automobile in which the plaintiff was then and there riding was caused to strike against and run into said machine with great force and violence, and the plaintiff then and there, by means of the several premises aforesaid, sustained severe hurts, injuries, etc. The third count of the declaration is practically the same as the second.

The principal errors complained of by appellant for reversal of said judgment are as follows: The denying of the motion of the defendant, at the close of plaintiff’s case and again at the close of all of the evidence, to instruct the jury to find a verdict of not guilty in favor of the defendant, and in not so instructing' the jury as to each separate count of the declaration; that the court erred in admitting improper and incompetent evidence offered on behalf of the plaintiff; that the court erred in refusing to admit proper and competent evidence on behalf of the defendant; that the evidence failed to support the charges of negligence made against the defendant in the declaration; that plaintiff was guilty of contributory negligence; that the verdict is contrary to the law and the evidence; and that the court erred in the giving and refusing of instructions.

The City of Decatur was constructing a sewer, known as The Southeast Sewer, and it was stipulated by and between the parties that, prior to May 19, 1930, said city passed regular ordinances and resolutions authorizing and directing the construction of said sewer system, and had entered into a contract with File and Collins for the construction of said sewer system, and that the defendant, W. G-. Traver, was a subcontractor under said File and Collins for the construction of a portion of the said sewer system, and that at the time in question he was lawfully in pursuit of his duties under the contract with File and Collins. This sewer system was about six miles in length, and both small and large pipes were used, from six inches to 48 inches.

Cantrell street is a paved street, 40 feet in width, extending east and west, and intersects with Seventeenth street which runs north and south. Seventeenth street enters Cantrell street from the north, then jogs to the west about 80 feet, following Cantrell street, and then continues on south. This intersection is in a residential district, and there are homes on both sides of Cantrell and Seventeenth streets. This sewer was laid diagonally across Cantrell street at Seventeenth street, the place where the accident occurred. At this time there was a trench in Cantrell street, 15 or 16 feet in depth and from 12 to 15 feet wide, and the pipe had been laid about three-fourths of the way across Cantrell street.

The machines used by the defendant at this intersection consisted of a Marion clamshell, a Marion trencher and a Schram air compressor. The Marion clamshell weighed about 35 tons and was on a caterpillar truck. It had a cab on it about 10 x 12 feet that revolved on a table with a 40-foot boom extending out to one end, and attached to that is a clamshell bucket for removing dirt. The top of the cab was 14 feet from the ground. This machine, at the time in question, was located about 12 feet west of Seventeenth street and about 8 feet from the north curb, and was on the east side of the excavation, and to the west of the machine the dirt was piled 8 or 10 feet high and 10 feet wide, extending all of the way across Cantrell street. The air compressor was located on the south side of Cantrell street, and east of Seventeenth street, and was used in breaking up concrete pavement.

The plaintiff, Eddie Jones, was about 20 years of age at this time, and had got in the automobile being driven by Albert Tille, and with him was one George Etchison. Albert Tille was driving the car, and they all sat in the front seat. It was a Chevrolet, Model 1920, coach. After driving around a while they reached Twenty-second street, on Cantrell, and then drove straight west on Cantrell to Seventeenth.

The plaintiff testified that he was looking straight ahead and that he saw nothing, meaning that he did not see anything to direct his attention to anything that was important, that he did not notice' anything in going from Twenty-second street up to Seventeenth street; that he did not see anything and he was looking straight ahead; that the car had depressed lights,— that is, they were the bright lights turned to the ground; that we just had our lights on, driving along; I was looking straight ahead; there was nothing to see only the street; I don’t remember seeing any street light; as we approached Seventeenth street I would estimate the speed of the car to be between 25 and 30 miles an hour; I don’t remember of seeing any red light; I don’t remember of seeing any objects at all in Cantrell street as we approached Seventeenth street. We struck an object, I did not see the object before we struck it.

Albert Tille testified, on behalf of the plaintiff, that he was driving a Chevrolet coach and met Eddie Jones, the plaintiff, and George Etchison and they got into the car; that after driving around a while they entered Cantrell street from Lake Shore Drive, and thence proceeded west on Cantrell street; I had depressed lights and the two headlights were burning, and as we proceeded along Cantrell street about Eighteenth street, and approaching Seventeenth street, I was not exceeding 26 miles an hour, and looking straight ahead, that I did not see what Mr. Jones was doing at all, but as we approached Seventeenth street I did not see anything, and proceeded west on Cantrell street until we had the accident; immediately before the accident I did not see anything in the way of an object; I hit the ditching machine and that is all I remember until I woke up in the hospital.

George Etchison testified on behalf of the plaintiff that he got into the automobile driven by Albert Tille, and with me was Eddie Jones; we drove around a while and entered Cantrell street; the lights of our automobile were turned on but were depressed; on Cantrell street, from Twenty-second street west, we did not meet many cars. I was sitting in the front seat between Albert Tille and Eddie Jones, Tille was driving the car and Eddie Jones was on my right. We kept going straight west until we got to the ditching machine ; from the time we left Twenty-second street until the time of the accident our lights were depressed; we were facing straight ahead as we proceeded west; we were observing- right along, was not thinking about anything in particular and we were not talking; I was just looking ahead; I did not see anything, I saw no barricade or red light and saw no signs; it was dark; I did not know that the car was about to strike any object, and did not know it struck any object until after I was in the hospital.

In addition to the occupants of the car, all of whom have suits pending against appellant, several witnesses testified on behalf of appellee, most of whom lived in the vicinity of the place of the accident, and some of whom testified that they did not see any barricades east of Seventeenth street on Cantrell street, and some of whom testified that they saw lights on the east side of the machine which was in Cantrell street, near Seventeenth street.

Payton Halpenstein, a witness for appellant, testified that he was assistant superintendent of construction and that they reached Cantrell street from the south a week before the date of the accident and that, as the work neared and started into Cantrell street, he went personally to the fire chief of the city and notified him the street would be closed, and went to the police station and notified them, and then went to the office and telephoned all the funeral homes having ambulances, and also notified the Illinois Power & Light Co., which operated busses, about the street being closed. He testified that there was no driving east and west on Cantrell street except people who lived within the barricades; that on the night in question there was a barricade at Eighteenth street, which is about 300 feet east of the intersection of Seventeenth and Cantrell streets; it had two “A” forms, two horses made out of two-by-fours, and a two-by-four 18 feet long. It was placed north and south across Cantrell street at Eighteenth street. Upon this was a detour sign pointing south. There was also a sign at Nineteenth street, and at Sixteenth street west of Seventeenth street was a barricade and also one at the first street north of this intersection.

Several witnesses were examined on behalf of appellant and from their testimony it appears that at the time in question there was a red light on the east end of the machine that stood in Cantrell street; that barricades were erected east of this machine on which lights were displayed and that a night watchman was employed and stationed near this machine whose duty it was to keep the lights burning, and that these lights were visible for quite a distance east of Seventeenth street. Mrs. Lillian Watts and her then husband, Claire Sober, were seated in an automobile a block and a half east of the place of the accident, and testified that their car faced west; that the machine was visible and also several lanterns that were red; that as they sat there a car passed them, being driven west, and was traveling at the rate of 55 to 60 miles per hour; that her eyes followed the car until it smashed into the obstacles in the road. Claire Sober also testified and corroborated the witness, Lillian Watts, both of whom had from 7 to 10 years’ experience in driving cars and were able to judge the speed of the same.

In our opinion the manifest weight of the evidence is ' that a red lantern was attached to the east end of the machine, and there was also a red lantern hanging on the barricade which was from 12 to 15 feet east of the rear end of the trench machine and that these red lights were plainly visible to any one approaching the intersection from the east, and that plaintiff could have seen them by the exercise of ordinary care and should have warned Tille, the driver of the car, of the danger.

It is a well settled rule of law that it is the duty of a passenger in a vehicle, where he has an opportunity to learn of danger and to avoid it, to warn the driver of the vehicle of the approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger. Dee v. City of Peru, 343 Ill. 36; Pienta v. Chicago City Ry. Co., 284 Ill. 246; Flynn v. Chicago City Ry. Co., 250 Ill. 460; Grifenhan v. Chicago Rys. Co., 299 Ill. 590.

The first count of the declaration charges that the defendant was possessed of a large machine, to wit: a trench digger, and carelessly and improperly placed it on the traveled portion of said street and that by means and in consequence of such negligence and improper conduct of the defendant the automobile was caused to run into the same.

At the conclusion of the plaintiff’s case and again at the close of all the evidence the defendant presented a written motion asking the court to exclude the evidence and give to the jury an instruction in •writing, which was tendered with said motion, to find the defendant not guilty as to the first count of the declaration. The motion was denied by the court and the instruction marked refused. The proof failed to support the averments contained in that count of the declaration, and the court should have instructed the jury that the plaintiff could not recover under said count.

It was stipulated by the parties that the defendant at the time in question was lawfully engaged in the pursuit of his duties under the contract with File and Collins, and the evidence discloses that at this time said sewer was being constructed across Cantrell street.

The court not only submitted the issue presented by said count to the jury, but after having instructed the jury as to what was charged in each of the three counts of the declaration, also further instructed the jury as follows:

“The court instructs the jury that the defendant has entered a plea of not guilty to each of the several counts filed by the plaintiff.

“The court further instructs the jury that if the jury believe from the preponderance of the evidence in this case that the plaintiff has proven by a preponderance of the evidence the. allegations and charges made by the first, second or third counts of the said second amended declaration, or any one or more of said counts, it will be the sworn duty of the jury to find the defendant guilty.”

Under the admitted facts the submission by the court to the jury of the issue presented by said first count and the giving of this instruction was error.

In the case of Tolman & Co. v. City of Chicago, 240 Ill. 268, it was held that while the paramount right to the use of the streets is in the public, yet such right is not an absolute one, but is subject to such incidental and temporary or partial obstruction of the street by others as manifest necessity may require. If this were not so public improvements in streets could never be made.

The owner of a lot bordering upon a street has a right to make all proper and reasonable use of such part of the street as may be necessary for the erection and repair of buildings, not inconsistent with the rights of the public to the use of the street. McCormick v. South Park Com’rs, 150 Ill. 516. This question has been passed upon by this court in the cases of Gones v. Illinois Printing Co., 205 Ill. App. 5; and Orear v. Jacksonville Railway & Light Co., 217 Ill. App. 563.

It is insisted by appellee that the third count of the declaration alleges a good and sufficient cause of action and that it is amply supported by the proof, and therefore the verdict of the jury should be allowed to stand; that one good count in a declaration, which is supported by the evidence, will sustain a verdict and judgment, although other counts in the declaration may not be supported by the evidence.

Appellee, by stipulating that the defendant at the time in question was lawfully engaged in the pursuit of his duties as a subcontractor, conceded that no recovery could be had under the first count of the declaration because the defendant in the prosecution of his contract and the construction of the sewer had a right to place his trench digger on the traveled portion of said street and for that reason would not be guilty of careless or improper conduct by the mere placing of the same on said street as charged in said count, and the contention of appellee that a verdict will not be set aside if supported by one good count does not apply, the court having given said instruction for appellee based on the first count of the declaration directing a verdict and which, under the stipulated facts, would not support a verdict. Under this instruction the jury might believe that appellant was not guilty under the second and third counts of the declaration and yet could find him guilty under the first count. Hunt v. Illinois Southern Ry. Co., 196 Ill. App. 539.

The court committed .an error in giving this instruction and the defendant preserved an exception and assigned error in his motion for a new trial. If no recovery can be had under one of the counts of the declaration it is reversible error to submit that count and tell the jury that proof of it warrants recovery. Miller v. Chicago Rys. Co., 224 Ill. App. 468, 471.

It is urged by appellant that the court erred in refusing to admit the testimony of the witnesses, Cochinaner and Johnson, to the effect that they observed the speedometer on the car in which plaintiff was riding, after the accident, and that it registered a speed of 60 miles per hour and that this testimony corroborated the opinion of the witnesses, Watts and Sober. The only testimony in the record concerning the speedometer is the testimony of the driver of the car, Tille, in which he stated that while driving west on Cantrell street he observed the speedometer and that it was registering 25 or 26 miles per hour. There is no testimony in the record to show what happened to the speedometer when the car was wrecked or as to what kind of a speedometer it was or how it operated. We "are of opinion that the court committed no error in the exclusion of this offered testimony.

The evidence .shows that the car was considerably damaged, and the photographs of the car taken after the accident together with the oral testimony as to the condition of the car was some evidence that the car was being driven at a high rate of speed when it struck the trench digger. Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47; Johnson v. Gustafson, 233 Ill. App. 216.

For the errors indicated the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

Upon consideration of petition for rehearing opinion is modified and a rehearing denied.


source: Caselaw Access Project

author: Mr. Presiding Justice Edwards

license: Public Domain

text:
    Edith Browder, Appellant, v. Peter Beckman, Appellee.

      Opinion filed June 4, 1934.
    T. A. O’Connor, for appellant.
    Farmer, Klingel & Baltz, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Edith Browder, appellant, brought suit in the circuit court of St. Clair county against Peter Beckman, appellee, who is her son-in-law, to recover damages for injuries sustained by her, as she claimed, from the wanton and reckless use of his automobile.

The facts, which are not seriously disputed, are that on May 14, 1932, appellee, his wife and three small children, went to visit appellant at her home in Ava; that they stayed there that night, and the next morning, accompanied by appellant, drove out in the country to visit appellant’s sick son; that they then returned to her home, where she was to leave the party; that appellee and the children alighted, his wife saying she desired to drive down the road some two miles and get eggs and chickens for family use; whereupon appellee and his wife engaged in an angry argument about her doing so. While this talk was taking place, appellant, who was upwards of 70 years of age, was endeavoring to get out of the car, having hold of its side with one hand," and one foot off the running board, toward the ground, when appellee, who could see appellant, and who was aware of her situation, directed his wife to start up the car and get her errand done, as he desired to get home and get some sleep, he being a baker by trade, who worked nights; whereupon the wife started the car suddenly, thereby throwing appellant violently to the ground, in consequence of which she sustained a fractured wrist and other injuries which will be referred to later.

There was a trial before a jury, a verdict for appellant in the sum of $322.75, upon which the court rendered judgment, after first overruling motions for a new trial and in arrest of judgment, to reverse which judgment in her favor, appellant has prosecuted this appeal. Appellee, by assignment of cross error, contends that the evidence does not justify a finding for appellant, and asks that the judgment be reversed with a finding of fact.

Appellant contends that the judgment should be reversed and the cause remanded for a new trial, and in support urges three grounds: — that the court improperly refused to permit the wife of appellee to testify when called by appellant; that certain errors were committed in the giving of instructions at the instance of appellee, and that the verdict is grossly inadequate.

We will consider the assignments of error in the order above enumerated. Upon a careful consideration of the evidence, we are constrained to hold that whether appellee, knowing of the position of danger in which appellant was, in trying to alight from the car, considering her age and the fact that appellee at the time was angry, was guilty of wilful and wanton conduct which showed a reckless indifference to consequences in directing his wife to start the car, in view of all the circumstances, was a question of fact, and the jury’s finding thereon should not be disturbed, unless some error of law intervened, or there was that appearing from which it might be inferred that the verdict was the result of passion or prejudice, which we do not find in the record. Hence we are of opinion that a reversal, with finding of fact as to the question of liability, would not be warranted.

Appellant called the wife of appellee as a witness, offering to prove by her that she was, at the time of the accident, the agent of her husband, and acting under his direction and command; that she started the car while appellant was in the act of alighting; that because of the sudden start, the latter was thrown to the ground and injured; that appellant was a hale woman before the accident, and ever since has been ailing as a consequence. Objection to the offer was sustained, and appellant assigns two reasons why the proffered evidence was admissible: — first, under the so-called necessity rule, upon the theory that no one could testify to just what took place between appellee and the driver of the car except the driver who is the wife of appellee. The answer to this is that both appellant and appellee were present, were cognizant of all that was taking place, and both could, and did, testify fully to all that occurred; hence, there being other witnesses to the accident, it cannot be said the testimony of the wife was indispensable, under the necessity rule. Bolkhardt v. Edwards, 230 Ill. App. 640.

The other contention is that she was competent under section 5 of the Evidence Act, Cahill’s St. ch. 51, If 5, which provides that an exception to the rule excluding the testimony of a wife for or against her husband exists “in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband.”

In Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, it is stated to be the law that in order for the wife to become a competent witness, it must appear that she was authorized to transact some business for her husband, and that she did so. To the same effect is Kirman v. Hutchinson, 254 Ill. App. 469.

In our opinion, appellee’s wife was not transacting any business for her husband, by his authorization, which would render her competent as a witness within the statutory exception. However, in any event, the offer to prove was properly rejected. It embraced, among other things, the physical condition of appellant, both before and after the accident, — matters which manifestly did not relate to any business transaction of or in behalf of appellee. The rule is that where an offer of proof embraces evidence which is in part inadmissible, the whole offer .may be rejected. Donnan v. Donnan, 256 Ill. 244; Harman v. Indian Grave Drain. Dist., 217 Ill. App. 502. The ruling of the trial judge in rejecting the offer was right.

It is next urged that the court erred in instructing the jury, at the instance of appellee, that the burden of proof was upon the appellant to make out her case by a preponderance of the evidence, inasmuch as the only testimony was that produced by appellant, none being offered by appellee, and that where such is the case, the instructions could but serve to confuse and mislead the jury, citing in support Cohen v. City of Chicago, 197 Ill. App. 377.

The jury found a general verdict for appellant, hence it is apparent that the instructions did her no harm, and she has no ground for complaint.

Lastly, the contention is made that the verdict is grossly inadequate. The undisputed proof shows that appellant suffered a comminuted compound fracture of the left forearm, an inch above the wrist, which was infected, and followed by lockjaw, the ulna or small bone protruding through the flesh; that as a consequence, there is a deformity of the arm, and a limitation of its motion of about 50 per cent, which condition is permanent. She was also internally injured, and still suffers pain in the abdomen; has difficulty in walking; that she is a widow, who made her living, prior to the accident, by working out, but is as yet unable to work; that she is 73 years of age, and before the injury was in ordinary good health.

The obligations actually incurred were the bills of Dr. McKelvey, $100; Dr. Shumaker, $142.25; St. Elizabeth’s Hospital, $70.50; Burke Funeral Home, $10; or a total of $322.75, the amount of the verdict. It is thus obvious that the jury deliberately allowed appellant for the actual incurred expense attendant upon the injury, and nothing for pain or suffering or for the deformity of the arm, for its permanent partial loss of use, or for her inability to work since the accident. The jury were instructed that these were proper elements of damage, and to be considered by them as such, yet manifestly they ignored the instruction and refused to be bound by it.

Under the evidence appellant was either entitled to recover, or she was not. If there was a liability in her favor, she merited an award based upon the elements of damage which the undisputed testimony showed she had sustained, and which it is demonstrated with mathematical certainty she was, in part, denied.

What moved the jury to render the verdict which it returned, is of course, not known, but it is certain they did not follow the court’s instruction as to the amount of damages which the uncontradicted proof showed she had a right to recover, if the appellee was, in fact, liable to her, as the jury found. Having decided that she was entitled to an award, the jury were bound, in making same, to take into consideration all of the elements of damage which were proven. This they did not do, for which reason the amount of the verdict, upon the record, was inadequate. Where such is true, and it is obvious that a jury have failed to take into consideration proper elements of damage which have been clearly proven, a new trial should be awarded. Paul v. Leyenberger, 17 Ill. App. 167; Kilmer v. Parish, 144 Ill. App. 270. The court should have sus-' tained the motion for a new trial.

The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Joe Smith and Maggie Smith, Plaintiffs in Error.

      Opinion filed June 4, 1934.
    B. E. Smith, for plaintiffs in error.

      Marion M. Hart, State’s Attorney, and Egbert E. Hickman, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

The State’s attorney of Franklin county filed an information in the county court, charging Joe Smith and Maggie Smith, husband and wife, with the crime of keeping a common disorderly house.

The information consisted of three counts, in the first of which it is alleged that such house was kept “to the encouragement of drinking”; in the second, it was averred to be “to the encouragement of idleness ’ ’; and in the third, it was charged that such keeping was “to the encouragement of fornication.”

There was a trial before a jury, who returned general verdicts finding both Smiths guilty as alleged in the information. After motions for a new trial and in arrest of judgment had been overruled, the court committed Joe Smith to the Illinois State Farm at Vandalia for one year, and to pay a fine of $100, while Maggie Smith was sentenced to the Illinois State Eeformatory for Women at Dwight, for a term of one year, and fined $100.

Following the imposition of sentence, the Smiths prayed for and were allowed, by the trial court, an appeal; also a release on bail pending same. This was error. There is no law in Illinois permitting appeals from judgments in criminal cases, the only method of review being by writ of error; also, no authority exists in a trial court to suspend a judgment of conviction, in a criminal prosecution, by admitting the persons so convicted, to bail pending review of the cause. This can only be done by an Appellate Court when a writ of error has been sued out, and same has been made a supersedeas. Had the People moved to dismiss the appeal because of its wrongful allowance, the motion would have been sustained, and the parties relegated to the right of review by writ of error. No such motion was made, but the People entered their appearance, and, by filing brief and argument, created a joinder in error. The cause was submitted for review of the errors assigned upon the record, and all that is essential to a hearing upon a writ of error, being before the court, it may be treated as having been so brought, and considered as such. Graff v. People, 208 Ill. 312; French v. People, 77 Ill. 531.

The trial occurred on October 11, 1933. It appears from the testimony that for some time prior thereto the Smiths had been living in the City of Zeigler, operating a business in a large 14-room house, the front room of which was fitted up as a barroom, immediately in the rear of which was á large living room, furnished with a piano and victrola, which other rooms were used as sleeping apartments.

A young woman, called Billy McCann, testified that she was 20 years of age, a native of St. Louis, Mo., where she had lived the life of a prostitute; that Maggie Smith came to St. Louis and persuaded her to become an inmate of her house, for illicit associations with men, for which she was to be paid $2 for each association, one-half of which she was to retain, and the balance turn over to Mrs. Smith; that pursuant to such arrangement, she came to Zeigler, in November, 1932, entered the house, engaged in her vocation, remained two or three days and then left, shortly afterwards returning and staying in the Smith establishment until in December; that she cohabited with men each day for hire, pursuant to her arrangement with Maggie Smith; that, among others, was Joe Herwood, who called upon her numerous times; and that Joe Smith was fully aware of her presence and conduct, as was also Mrs. Smith.

Herwood testified that during such month of December, he stayed at the Smith house several nights with the young woman, and sustained sextial relations with her on such occasions, and that Mrs. Smith knew that he was so present.

The Smiths both testified that the girl was employed as a domestic, and that so far as they knew, no fornication was practiced in their place. Joe Smith stated that he, at the time of the trial, was and had been, since the preceding April, operating a saloon under a license; that prior thereto, he had conducted a lunch room, and to use his words, “I will be perfectly frank with you; I was bootlegging.” He further said that he had, at one time, run a rooming house, but that neither he nor his wife had done so within 18 months preceding the trial. His wife, Maggie Smith, however, disputed him in material respects, she testifying that at the time of trial, she was conducting a rooming house; also, she denied that either she or her husband had run a place where intoxicating liquor was unlawfully sold, although he had just previously stated that was his vocation before April, 1933.

Eight assignments of error are laid; however, but three are argued; hence, under the settled rule, the remaining five will be considered as waived. International Harvester Co. v. Industrial Board, 282 Ill. 489. The points relied upon are, first, that the verdicts are contrary to the evidence ; second, that the sentence of the court is excessive; third, that the verdicts are not responsive to the issues proposed by the information.

There is sufficient proof to justify the jury in finding that Joe Smith and Maggie Smith were dwelling together in the building in question; that she was therein conducting a house of prostitution, and doing so with the knowledge and approval of her husband. Where such is the situation, both are criminally liable as the keepers of a disorderly house; she, because of being its mistress, and he, because, under the circumstances, is presumed to be the head of the family, and regardless of ownership is presumed to be, and held, liable for the unlawful use of the house, where same is with his knowledge and consent; that too, even though all the profits of the illicit traffic were received by the wife, as held in Commonwealth v. Wood, 97 Mass. 225.

In State v. Jones, 53 W. Va. 613, 45 S. E. 916, it was stated that in the eyes of the law, the husband and wife are equally criminal in keeping or permitting a house of ill fame in property resided in and mutually controlled by them.

Hunter v. State, 14 Ind. App. 683, 43 N. E. 452, declared the rule to be: “Although she may own the property in which they live, it is incumbent upon him to exercise his marital powers to prevent her defiling the home by keeping a brothel. If, as here, he fails to do so, but permits the business to be there carried on, and enjoys the fruits of the illegal traffic, he must share with her the responsibility therefor. 1 Bishop New Ill. Law, sec. 1084. Commonwealth v. Wood, 97 Mass. 225; Commonwealth v. Certain Intoxicating Liquors, 115 Mass. 145. Some of the authorities hold him guilty, under such circumstances, even though he do not share in or receive any part of the profits.”

In State v. Gill, 150 Iowa 210, 129 N. W. 821, where a husband and wife were jointly indicted for keeping a house of ill fame, it was announced as law that the defendants, living together, and the husband permitting his wife to turn the house into a place of prostitution, became equally guilty with her. The rule is similarly stated in 18 Corpus Juris, 1252, sec. 54; in McClain on Crim. Law, sec. 148, and in Wharton’s Crim. Law, sec. 1726, 11th Ed.

The contention is further made that the verdict is not responsive to the issues as proposed by the charge in the information. Whether the verdict was, or was not, so responsive, is a question not properly before this court. Motions for a new trial and in arrest of judgment were made in writing, particularly setting forth the specific grounds relied upon in each motion. In neither was the sufficiency of the verdict, as to form, attacked or questioned.

Where certain points in writing, particularly specifying the grounds of a motion for a new trial, or a motion in arrest of judgment, have been filed, the party filing same will be deemed to have waived all causes therefor not set forth in the written motion, and in a court of review will be confined to the reasons thus specified. People v. Cohen, 352 Ill. 380.

Where objection to a form of verdict is not urged on motion for a new trial or in arrest of judgment, it cannot, for the first time, be raised in a reviewing court. People v. Tananevicz, 285 Ill. 376. The question, not having been urged to the trial court, by either the motion for a new trial, or that in arrest of judgment, is not presented by the record, for the consideration of this court.

Lastly, it is argued that the sentence of the court is excessive. The fine and imprisonment imposed were within the provisions of the statute creating the offense. The matter of the penalty to be inflicted is committed to the judgment and discretion of the trial court, and only in case of its abuse will its actions be interferéd with. People v. Elliott, 272 Ill. 592, 600; People v. Paule, 223 Ill. App. 613.

It is apparent from the evidence that the establishment of the Smiths, prior to April, 1933, was being used by them, both as a house of assignation to which women were imported, from afar, to ply their illicit vocation, as well as a place where intoxicating liquor was sold in violation of law; that for both of these reasons, it was a common nuisance, and that it was the obligation of the court to impose an adequate penalty. Under the circumstances, we cannot say that the court transcended its discretion.

The judgments are affirmed.

Affirmed.


text:
    Annie Chamness, Guardian of Ludine Lacy, a Minor, Appellee, v. O. A. James, Receiver of the Marion Trust and Savings Bank, Appellant.
    Opinion filed June 4, 1934.
    William H. Warder, for appellant.
    John M. Reid, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

By stipulation, it appears that the Marion Trust and Savings Bank was closed as insolvent, by the auditor of public accounts, on April 12, 1930, and that O. A- James, appellant herein, was appointed receiver, and continued in such capacity during this litigation.

That at the time such bank was so closed, among its other items of deposit, was one in the sum of $460.20 in favor of appellee, Annie Ohamness, as guardian of Ludine Lacy, a minor, the said Ludine Lacy being the daughter of John Lacy, deceased, a Civil War soldier. That the sum, so on deposit, was pension money, coming to the said minor from the United States government in the form of checks, which were mailed by the government agencies to appellee, in her capacity as such guardian, and by her deposited in said bank, and that such funds were kept in the bank, and never turned over to or expended for the benefit of said minor, Ludine Lacy.

That following the bank’s closing, appellee procured the allowance of the amount on deposit as a common claim, and thereafter three dividends, aggregating $151.07, were paid to the guardian on such claim. That subsequently, appellee filed her petition in the circuit court of Williamson county, in which she set forth that the claim, under the laws of the United States, should have been allowed as a preference; that at the time it was allowed as a common claim, she was not aware of her rights, or the legal status of such claim, and prayed that the claim be allowed as a priority in the sum of $309.13, the difference between the amount of the deposit and the dividends paid on the demand.

Upon hearing, the court adjudged that the title to such moneys never passed to Ludine Lacy, but remained in the United States government for her use; that the government at all times had control and direction of the moneys by and through said guardian; that, as a consequence, a priority existed in favor of the minor as respects said balance of $309.13, and ordered that same be allowed as a preference and paid in full by the receiver. From this order, the receiver has appealed.

The sole question, at issue, is whether the moneys so deposited in the Marion Trust and Savings Bank remained the money of the United States, and was held by appellee as agent of and for the government. If it continued so to be, the claim was properly allowed as a priority; if not, it was but a common claim, and the order of allowance, as a preference, was erroneous.

The proposition appears to have been definitely and finally settled by the Supreme Court of the United States, in the case of Spicer v. Smith, 288 U. S. 430, 53 Sup. Ct. 415, on a state of facts in all essentials the same as in the instant case. The court therein, after a review of the statutes of the United States bearing upon the question, determined that the guardian was not an agent or instrumentality of the United States government in her custody and holding of such funds, and that she, in her capacity as such guardian, was not entitled to have such claim allowed as a preference.

In Commissioner of Banks v. Buckley, 282 Mass. 512, 185 N. E. 27, in a situation strikingly similar, both to the facts in Spicer v. Smith, supra, and the present case, it was held that the decision in the Spicer case was the controlling authority upon the question, and following the rule therein declared, held that no priority existed in favor of the guardian, whose demand should be allowed as an ordinary claim.

From the authorities, it is clear that the guardian, after receiving the money in question, did not hold it as an agent of the United States government, and that it, in her hands, was not the money of the United States, but the money of the ward, held in trust for her, by the guardian, and that the court could not properly allow it as a preferred claim.

The order is reversed, and the cause is remanded to the trial court with directions to set aside the order allowing the claim as a priority, and to allow it as a common claim.

Reversed and remanded with directions.


text:
    Mrs. Don Mahoney, Appellee, v. Alton Light and Power Company, Appellant.

      Opinion filed June 4, 1934.
    Williamson, Burroughs & Simpson and James L. Reed, for appellant.
    Y. M. Jacoby, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee brought suit against appellant, a public utilities corporation, to recover damages, as she claims, for an unwarranted discontinuance of electric service, at her residence, averring that on February 5, 1930, she applied to appellant for service, and made the required deposit of $3 therefor; that the service was installed, and continued until August 1, 1932, when, although she had paid all proper charges, the service was arbitrarily discontinued without cause or reason.

Appellant filed the general issue, and a number of special pleas, justifying its action, the one principally relied upon being that appellee, by means of a device, called “a jumper,” wrongfully diverted the electric current, so that same did not pass through the meter, and wrongfully used and consumed such electricity, without knowledge of appellant, by reason whereof, appellant was not legally bound to furnish other or further electric service, to which special pleas, appellee filed replications severally, denying the allegations of such pleas.

It is thus patent that it is conceded by the pleadings, in the cause, that if appellee did, without knowledge or acquiescence of appellant, deflect the electric current, so that it was consumed by her, without passing through the meter for the purpose of measurement, that appellant was justified in discontinuing the service. If it were not so, appellee should have demurred to the pleas, thus raising the question as to whether the matters, so pleaded, constituted a defense to the action.

There was a trial before the court and a jury, a verdict in appellee’s favor for $999', upon which judgment was entered, after a motion for a new trial had been overruled, and from which judgment this appeal has been taken.

It appears from the testimony that on February 5, 1930, appellee applied to appellant for electric service, at her residence, deposited $3 as required by its rules, same to be returned with interest, and less any unpaid service charges upon termination of the relation. All necessary equipment was installed by appellant, service began with promptness, and appellee, on her part, paid monthly charges, as rendered by appellant.

Henry Gavin, a meter reader for the company, testified that on January 20, 1932, while in the kitchen of the appellee, for the purpose of reading the meter, he saw an insulated, horseshoe shaped, short piece of wire, commonly called a jumper, the purpose of which, when inserted, would divert electric current from being registered through the meter; that this wire was hanging on a nail close to the meter. The matter being reported to the officials of the company, it resulted in the installation, on February 4, 1932, on a pole, about 50 feet from the house, of a check meter, through which the current must pass before going through the house meter, and on both of which the readings should be identical.

The meters were read monthly from February to July, 1932, with the result that a marked discrepancy was disclosed in the registration of the consumption of the two meters, the showing being that during such period of time, the check meter registered 890 kilowatt hours, while the house meter indicated 45 kilowatt hours, an excess of 845 kilowatt hours, registered by the check meter, and not shown on the house meter.

When this condition became apparent, appellant decided to install in the residence of appellee, a replacement meter, equipped with an “anti jumper device,” for the purpose of preventing the diversion of electric current.

On August 1, 1932, Albert Waters, an employee of appellant, repaired to the Mahoney house, to install such replacement meter. According to his testimony, when he approached the kitchen door, the husband of appellee, recognizing him as such employee, noticing the meter and kit of tools, entered the kitchen followed by Waters; that in the view of the latter, the husband walked directly to the meter and removed from it a jumper wire, which was at the time in actual use; without comment took the wire and went into Another room, from which he did not return. Waters installed the replacement meter, then reported the matter of the jumper wire to the company’s officers, and as a consequence, on August 3, 1932, appellant caused its service to appellee to be discontinued.

A few days later, the husband of appellee, acting, as the proof shows, as the agent of his wife, interviewed the local manager, as to why the service was suspended. He was told the reason, whereupon he stated he desired the electric service to be re-established. He was informed that same could be done upon payment of $29.11, the amount due for the current consumed, and not paid for, and upon further condition that the house meter should be installed in a metal box, and service wire inside the house be concealed in a conduit, so that the current could not be further diverted, for which a deposit of $30 was to be made to cover cost of material and labor, any surplus to be refunded to Mr. Mahoney, or excess absorbed by the company. The husband acceded to these terms, but returned in a few days, and stated he would not make the deposit of $30, as he did not own the dwelling and did not wish to make improvements on the property of another.

On February 25, 1933, appellant mailed to appellee a check for $3.45, being the $3 deposit, plus interest thereon. It appears that this check was presented for signature to the proper officer by a clerk, who had prepared a number of checks; that the manager signed same, without knowing its contents, and relying upon the accuracy of the clerk; that when it was discovered to have been inadvertently issued, payment thereon was stopped.

The proof for appellee consisted mainly of her denial that there had ever been any diversion of the current, or tampering with the meter, or that there had at any time been any ‘ ‘ jumper wire” in the kitchen. She further testified that the meter was a foot or more above the kitchen door, and that her husband, whom the proof shows to be about five feet tall, could not have reached it, while standing on the floor, and that Waters, while installing the replacement meter, was obliged to stand upon a chair. In the matter of the altitude of the meter and her husband’s inability to reach same, while standing on the floor, she is corroborated by the testimony of a neighbor, John Monahan.

Appellant’s chief contention is that the verdict is against the manifest weight of the evidence, and that the court erred in not setting it aside.

The undisputed testimony that there was a difference in the readings of the check meter and the house meter of a total of 845 kilowatt hours, when the registration should have been the same in each, and both of which were in good repair and working order, conduces to the belief that there was a deflection or diversion of the current, and strongly tends to corroborate the testimony of Gavin that he saw a jumper wire hanging on the wall, in close proximity to the meter, as well as to substantiate the evidence of Waters that he saw such wire in use and operation, as against which is only the testimony of appellee and that of John Monahan, who only corroborates her upon some lesser matters, and not upon the main question, whether there was or was not a jumper wire attached to the meter in the kitchen.

We think the finding of the jury is contrary to the manifest weight of the evidence, and where such is true, the trial court should not hesitate to take the responsibility of setting aside the verdict. (Belden v. Innis, 84 Ill. 78.)

It was error to overrule the motion for a new trial, in consequence of which the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Carl Ring, Plaintiff in Error.
    Opinion filed June 4, 1934.
    R. E. Boley and George G. Rinier, for plaintiff in error.
    Omer E. Lewis, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Edwards

delivered the. opinion of the court.

An information, consisting of four counts, was filed in the county court of Richland county, charging plaintiff in error with violating sections 2 and 24 of chapter 91, Cahill’s Revised Statutes, fft 2 and 25, being the Medical Practice Act.

Count No. 1 charges that plaintiff in error, not having a license so to do, did unlawfully hold himself out to the public as being engaged in the diagnosis and treatment of ailments of human beings, to wit: ‘ ‘by the chiropractic method or system of adjusting the vertebrae.” The second count alleged that he “did then and there maintain an office for the examination and treatment of persons afflicted by ailments, to wit: for the examination and treatment of such persons by the chiropractic system or method.” The third count sets forth that he “did then and there unlawfully practice a method of treating human ailments without the use of drugs or medicine and without operative surgery to wit: by then and there administering chiropractic treatment of vertebrae adjustment to one Alice Whitaker.” The fourth count is identical with the third, except the name of the patient treated was that of Peggy Jane Lawless.

The court overruled a motion to quash the information and each count thereof, and after the presentation of the evidence, for the reasons to be hereafter referred to and discussed, instructed the jury to find the plaintiff in error guilty on each count, which being done, the court imposed a fine of $200 on each of the four counts, and to review which judgment, this writ of error has been sued out.

Counts Nos. 1 and 2 are based upon section 24 of chapter 91 of Cahill’s Revised Statutes, If 25, which penalizes any person, who, not having a license so to do “shall hold himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings”; or “shall maintain an office for the examination or treatment of persons afflicted, or supposed to be afflicted, by any ailment”; while the third 'and fourth counts rest upon section 2 of said chapter 91, providing for the punishment of anyone who, not being licensed for the purpose “shall practice medicine or any of its branches, ... or any system or method of treating human ailments, without the use of drugs or medicines and without operative surgery.”

Plaintiff in error contends that each count is insufficient, because of uncertainty, and failure to charge specific acts and circumstances as to just what was done in the way of having and maintaining an office> and holding himself out as treating human ailments; also, it should have been charged that he did treat certain persons, naming them, and for certain ailments, naming them.

Three decisions are relied upon to support the contention — the cases of People v. Brown, 336 Ill. 257; People v. Jiras, 260 Ill. App. 142; People v. Wirth, 266 Ill. App. 231. A careful reading of each will reveal that the accusations in those cases, but charged the offense in general terms, did not specify wherein or in what manner the accused was holding himself out as a medical practitioner, or maintaining an office for such purpose, or the character of the treatment which was being employed, or held out to be administered.

It seems there is a clear distinction in the information of the instant case from those in the decisions cited; — here in the first two counts, the charge was that the office was maintained, and the holding out was for the treatment, by the chiropractic method or system, in the first of which, it was specifically averred to be for the adjustment of the vertebrae, while in the third and fourth counts, the treatments actually given, were stated to be by “administering chiropractic treatment of vertebrae adjustment” to named persons.

It appears that the State’s attorney, in drafting this information, had before him the three cited decisions, and was endeavoring to overcome the uncertainties which ¡the court had held against the informations in such cases.

Section 6 of Division XI of the Criminal Code, Cahill’s St. ch. 38, K740, provides that “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” In Parris v. People, 76 Ill. 274, it was declared to be the rule that the sufficiency of informations is to be determined by the same tests as are applicable to indictments.

The word “chiropractic” is defined in Webster’s New International Dictionary, Edition of 1927, as “a system, or the practice, of adjusting the joints, especially of the spine, by hand, for the curing of disease.”

It is a term in common and general use, whose meaning is well understood by the general public as being just what it is stated by Webster’s definition to be, the practice of adjusting, by hand, of the vertebrae of the spine. This is the system and method described in the counts of the information, and would be easily understood by the jury. It adequately apprised the plaintiff in error of the charge which he was called upon to meet, and made a sufficiently definite record, that a conviction thereunder could be pleaded in bar of a subsequent prosecution, based upon the same charge, hence, within the rules of criminal pleading, was a sufficient statement of the offense. People v. Krause, 291 Ill. 64. The motion to quash was properly overruled.

It is further objected that there is no proof of the venue. The only evidence bearing upon the proposition is that the office maintained by plaintiff in error, and where he administered the treatments was in the “Martin Building.” There is, however, no testimony that such building was in the county of Richland. For aught that appears from the evidence, it might have been in some other county. The State was required to prove that the acts complained of occurred in Richland county, it being one of the material averments of the information. Moore v. People, 150 Ill. 405. This the proof wholly fails to do.

As before stated, the court gave to the jury the following instruction:

“The Court instructs the jury that in this case the defendant has made no defense to the facts proven by the People and the uncontradicted evidence on the part of the People shows that the defendant is guilty as charged in the four counts of the information. You are therefore instructed to find the defendant guilty as charged in each and every count of the information.” This is assigned as error. In Bishop’s Criminal Procedure, 2nd Edition, Volume 2, page 813, the rule is stated to be, “The judge is incompetent to convict one of crime, even though he acknowledges it, except on a plea of guilty. The evidence is exclusively for the jury. However conclusive of guilt it may be, he can only tell them, that if they believe such and such to be the facts, the law demands a verdict of guilty; he cannot otherwise direct such verdict.”

“In a criminal case a verdict of conviction may never be directed. It is for the jury, in all such, to pass upon the credibility of the witnesses, even though the evidence be clear and convincing.” 6 Ency. Pl. and Pr. 689.

The Supreme Court of the United States, in Sparf v. United States, 156 U. S. 51, at page 105, declared the rule to be: “We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried, are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offense charged or of any criminal offense less than that charged.”

The Court of Appeals of New York, in People v. Walker, 198 N. Y. 329, 91 N. E. 806, held that “While in a civil action, where there is no conflict in the evidence, and no diverse inferences therefrom are possible, within reason, the court may direct a verdict, even in a case of the utmost importance, still in a criminal action this is not permitted by the law even in a case of the most trifling importance.”

“In a criminal case, the court cannot direct a verdict of guilty, even where the facts are admitted beyond dispute, and the question of guilt or innocence depends wholly upon a question of law, which the court must determine.” United States v. Taylor, 11 Fed. 470.

It appears to be held with great unanimity by courts of the highest respectability that where the defendant pleads not guilty, the trial court is without authority to direct a verdict of guilty. Lucas v. Commonwealth, 118 Ky. 818, 82 S. W. 440; Davis v. State, 66 Tex. Crim. 179, 145 S. W. 939; State v. Godwin, 145 N. C. 461, 59 S. E. 132; State v. Wilson, 62 Kan. 621, 64 Pac. 23; State v. McNamara, 212 Mo. 150, 110 S. W. 1067; State v. Reed, 52 Ore. 377, 97 Pac. 627; People v. Heikkala, 226 Mich. 332, 197 N. W. 366.

There does not appear to be any decision in this State which passes directly upon the point. We do, however, find that in Roach v. People, 77 Ill. 25, 29, the rule was stated: “The direction of the court to convict, at the end of the, instruction, should be made expressly dependent upon their finding such and such facts established, beyond reasonable doubt, by the evidence.”

It appears to be manifest, from the overwhelming weight of authority, that the court had no authority to direct a verdict of guilty against plaintiff in error, and that its action in so doing was error.

For the reasons indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Murphy

text:
    County of Richland, Appellee, v. Township of Decker, Appellant.

      Opinion filed June 4, 1934.
    John Lynch, for appellant.
    Omer E. Lewis, State’s Attorney, for appellee; S. C. Lewis, of counsel.
   Mr. Justice Murphy

delivered the opinion of the court.

The county of Richland, appellee herein, recovered a judgment of $280 in the circuit court of said county against appellant, a township in said county, for the board, care and maintenance of Gfus Hickle, a pauper. The claim covered a period of 80 weeks, beginning September 8, 1931.

Appellant contends that Hickle was a nonresident of the township and that under the provision of section 24, chapter 107, Cahill’s Revised Statutes, li 25, he is a county charge. Appellee brings its suit under section 16 of said act and contends that the evidence warrants the finding that Hickle was a resident of appellant township as the word resident is defined in section 17 of said act.

By section 15 of the Pauper Act as amended and in force July 1, 1931, in counties with a population of less than 500,000 and under township organization, the township is required to support all poor and indigent persons lawfully resident within such township.

Section 16 provides that if any person shall become chargeable as a pauper in any county or township who did not reside therein at the commencement of 12 months preceding his becoming so chargeable, but did, at that time, reside in some other county or town in this State, notice may be given to the county clerk of the county where he resided or if he resided in a town supporting its own poor, notice to the town clerk, to remove the pauper and pay the expenses accrued and to accrue in the care of such person and if not paid to be followed by suit.

The word “residence” as used in the various sections of the act is defined in section 17. Section 17 in the present act is the same as section 15 of the act of 1845 and was construed by the Supreme Court in Town of Dorr v. Town of Seneca, 74 Ill. 101, where the court said: “The fifteenth section seems to have provided for three different conditions of residence. The first is where the pauper has a fixed, well-known, permanent place of abode. The second is where such person has no such abode, but has been employed by some one else; and the third is where the person has no fixed permanent place of abode nor has had any employment as specified, when the place the party made his or her home is regarded the place of residence, and the place where chargeable.”

Section 24 provides that “When any non-resident or any person not coming within the definition of a pauper, of any county or town” shall become such, he shall be cared for by the town and the county shall reimburse the town for such expense. By these various statutory provisions, it is evident that the legislature intended that each township should provide and care for the pauper who had his residence in that township and that if a pauper who was a resident of a township should become a public charge while in another township, the township furnishing the aid would have the right of recovery against the township which was the residence of the pauper. Section 16 limits the right of action to expenses incurred in care of paupers who are residents of the State. By section 24, the word non-resident was evidently intended to be nonresident of the State.

The only evidence offered by appellee on the question of the residence of Hickle was Hickle’s own testimony. He testified that he was 65 years of age, born in West Virginia and came to Decker township when he was four or five years old; that he had not voted for 25 years, that about 1906 he went to Canada and from there to Florida; that when in Florida he separated from his wife and children and after that he was in various places; that about 1925 he came to the home of Herman Shands, a distant relative, who lived in Decker township; that in 1926 he was at Shands’ six months and then went to Champaign county in this State to work, later returning to Shands’ in said township. He testifies that in the years following 1926, he went away to work returning each time to Shands’ home; that the only property he has is some clothes at Shands’ and that Decker township had always been his home.

The only evidence offered by appellant as to the residence of Hickle was the testimony of W. D. Rule, the supervisor, and Thomas J. Brown, the town clerk. Their evidence was to the effect that Cus Hickle’s name did not appear in the registration book of the township after 1900 and that the witnesses did not know of his being in the township at any time in the last four or five years and that he was not there in the winter of 1930.

It offered evidence tending to prove that Hickle became a naturalized citizen of the Dominion of Canada in 1906. The right of recovery in this case is not determined by the citizenship of the pauper but rather the question of his residence as defined by the Pauper Act. In Payne v. Town of Dunham, 29 Ill. 125, the court said: “There is one principle which seems to be universal in the construction and application of poor laws, both in this country and England, and that is, that a person having a legal settlement in one place, that settlement continues until he acquires a legal settlement in another place in the State. Even if he acquires a legal settlement in another place or country, that does not change his legal settlement here, so that if he returns to this State, and becomes a pauper before he has acquired a legal settlement elsewhere in this State, he is remitted to his first legal settlement. ’ ’

The supervisor of appellant township took Hickle to the county jail and from there he was taken to the county farm. Appellant could not shift the responsibility of caring for Hickle by unloading him at the county jail. Town of Sublette v. Town of Reynolds, 273 Ill. App. 260.

The judgment of the lower court is sustained by the evidence and the authorities and finding no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.


text:
    M. S. Carter and C. C. Carter, Trading as Vehicle Supply Company, Defendants in Error, v. Homer L. Wright, Plaintiff in Error.

      Opinion filed June 4, 1934.
    M. J. O’Shea and C. S. Miller, for plaintiff in error.
    Reed Greek, for defendants in error.
   Mr. Justice Murphy

delivered the opinion of the court.

M. S. Carter and C. C. Carter, copartners, doing business under the name of Vehicle Supply Company, hereinafter referred to as plaintiffs, instituted an action of replevin in the circuit court of Alexander county against Homer L. Wright, plaintiff in error, hereinafter referred to as defendant.

The affidavit filed by plaintiffs in said suit averred that they were entitled to the possession of certain automobiles, which were specifically described, automobile parts, shop equipment, air compressors, drills, miscellaneous equipment, stock of automobile tires and tubes, desks, typewriters, filing cases, office furniture, supplies and equipment, garage equipment and tools, radios and tubes, radio accessories, books of account, safes and contents, sales tickets, office records, all in a certain building located in Cairo, Illinois, and that defendant wrongfully detains them. A writ was issued containing the same description of property as set forth in the affidavit. The sheriff’s .return itemizes the articles taken under the writ, there being over 4,000 different items, in which there is included a cash item of $970.71.

The declaration contained three counts in the usual fo.rm of replevin counts. Defendant filed three pleas, non cepit, non detinet, and property in the defendant.

The trial with a jury resulted in a verdict finding the defendant was not a partner of plaintiffs “and is not entitled to possession of the property described in the writ of replevin except personal property as listed by defendant on witness stand, if such personal property was taken in writ of replevin.”

At the close of the evidence, the defendant made various motions for a directed verdict, first as to the issues generally, then as to all property not specifically described in the affidavit, writ and declaration and as to all property shown by the sheriff’s return to have been taken by him and to which there was no evidence as to ownership or value and as to all property which was the private property of the defendant. All motions were overruled and the judgment entered on the verdict ordered that plaintiffs “do have and retain the property replevied herein by virtue of the writ of replevin issued in this cause except certain property and documents listed in paragraph six of defendant’s motion filed herein for additional bond and claimed by defendant to be his private papers which documents and personal property were testified to by defendant and listed by him on the witness stand and that plaintiffs have and recover their costs and have execution thereof.”

Defendant’s chief ground for reversal is that the evidence shows he owned a partnership interest in the property taken, that he was lawfully in possession of the property as a partner and that by reason thereof, the plaintiffs are barred from maintaining their action of replevin against him. Plaintiffs’ answer is that the defendant had no interest in the property as a partner, that he was their employee, receiving for his services one-half the profits.

The evidence shows that for several years prior to 1920, plaintiffs as copartners doing business under the firm name of Vehicle Supply Company were engaged in the lumber business at Cairo. During the latter part of that period, the defendant was in their employ as a bookkeeper, quitting in January, 1920, and going into the real estate business. September following, after some negotiating, plaintiffs and defendant established a business for the sale at retail of automobiles, trucks, and accessories. There was no written contract evidencing their agreement. It does not appear from the evidence that they agreed as to the length of time the business relatidn was to continue. In 1925, they added to the business the retail sale of radios and radio parts. They continued until May 12, 1930, when plaintiffs by virtue of the replevin writ issued in the case seized all the stock in trade, equipment, cash on hand and office furniture.

The business was conducted under the name of Vehicle Supply Company. The location was separate and apart from the location of the plaintiffs’ lumber business. Leases, contracts and advertising were carried in the name of the Supply Company, oftentimes designating the defendant as manager. When bills were paid by check, it was in the name of the Supply Company issued by the plaintiffs or someone in their office and charged against the automobile account.

Defendant was in general charge of the business. He had sole supervision of the employees, made contracts for sale of automobiles, trucks and radios without receiving directions from plaintiffs or conferring with them in regard to it. Defendant devoted practically all his time to the business while the plaintiffs acted only in an advisory capacity. It was agreed that plaintiffs were to act as treasurer and keep a book record of the accounts. Defendant made reports of articles sold, items collected and money paid out and from these reports, the accounts of the business were kept. Defendant paid minor items of current expenses from the funds collected and if he paid anything from his personal funds, he was reimbursed from the firm account.

The amount of capital put in the business is not shown but plaintiffs furnished whatever was necessary to start the business. February, 1922, plaintiffs advanced defendant $2,475 and took a note secured by real estate mortgage on Ms individual property. It does not appear whether this money went into the business or was used by the defendant personally. At the time of the execution of the note and mortgage, plaintiffs executed an instrument, acknowledging receipt of the note and mortgage. This receipt contained a clause to the effect that the defendant as additional security to the note had pledged his interest in the profits of the Vehicle Supply Company.

In 1924, the books as kept by plaintiffs were balanced and showed a profit of $8,200, one-half of which was credited on the books to defendant, none of it was paid at that time. Defendant testified that he drew money from the account from time to time but plaintiffs contend any money so drawn was a loan to him and was so charged on the books.

The evidence does not show that the parties ever agreed or discussed as to how the losses were to be shared. It is conceded by all that defendant was to have one-half of the profits but it does not appear that they ever agreed as to whether it should be one-half the profits on each individual sale in which there was a profit or one-half the profits after the losses on all sales had been deducted.

It is the law that one partner in a business cannot maintain an action at law against the other upon a demand growing out of the partnership transaction until the accounts are settled and a balance struck. Milligan v. Mackinlay, 209 Ill. 358; II art sell v. Murray, 224 Ill. 377; Commons v. Snow, 194 Ill. App. 569.

It has also been held that a part owner of personal property cannot maintain replevin ag'ainst his co-owner who is in possession of such property. Kelly v. Hakes, 190 Ill. App. 210; Harris v. LeMasters, 215 Ill. App. 282; Stanley v. Robinson, 14 Ill. App. 480.

In determining whether a partnership exists, if the agreement is not in writing, the intention of the parties must be ascertained from their language and conduct. Leeds v. Townsend, 228 Ill. 451; State Nat. Bank of Springfield v. Butler, 149 Ill. 575.

In 1917, the legislature passed an act relating to partnership which as far as the question now under consideration is concerned substantially embodied the law as the courts had theretofore determined.

Section 6, chapter 106a of Cahill’s Statutes, 1Í 6, provides, “A partnership is an association of two or more persons to carry on as co-owners a business for profit.” Section 7 of said chapter 106a, paragraphs 3 and 4, provides, “In determining whether a partnership exists, these rules shall apply: (3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.” (4) “The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business but no such inference shall be drawn if such profits were received in payment” as wages of an employee.

Plaintiffs’ acts in dealing with the property corroborates defendant’s position that it was a partnership. During the continuation of the business, plaintiffs from time to time sought to trade their used automobiles for a new car. Each time they negotiated with the defendant relative to the price for which the old car was to be taken by the company in exchange and the sale price of the new car. On one occasion, O. O. Carter could not agree with the defendant as to the exchange value of his old car and after negotiating for several days, he traded his old car to another firm for a different make of car. The evidence shows that on the day prior to the filing of the suit, the defendant and C. C. Carter had a conversation in reference to auditing the books and defendant testifies that he told Carter that he, defendant, owned half of the stock of goods, to which Carter replied, “I suppose you do.” This conversation was not denied.

It is impossible to reconcile the conduct of the plaintiffs in their dealings with the defendant and with the property on any basis other than that they considered the defendant had a proprietary interest in the business.

In Fougner v. First Nat. Bank of Chicago, 141 Ill. 124, the court quoted with approval from Shaw v. Galt, I. R. 16 C. L. 375, thus: “The principle to be collected from them appears to be that a partnership, even as to third parties, is not constituted by the mere fact of two or more persons participating in or being' interested in the net profits of a business, but that the existence of such partnership implies also the existence of such a relation between such persons as that each of them is a principal and each an agent for the other. ’ ’

In order to constitute the transaction a partnership, it was not necessary that the parties should agree upon a sharing of losses.

In Fougner v. First Nat. Bank, supra, the court said, “It is generally said that to constitute persons partners they must share in the profits and losses. It is, however, well settled that it is not now necessary to show that there is an agreement to bear losses in order to malee one liable as a partner. Sharing in the profits is the test.”

Likewise, in Robbins v. Laswell, 27 Ill. 365, the court said, “It seems to be well settled, that when, by agreement, persons have a joint interest of the same nature in a particular adventure, they are partners inter se, although some may contribute money, and others labor. ... If then, parties agree to share the profit, they are partners in the profits, although one contributes capital or goods and the ether only trouble. Such is the case made by this record. The plaintiff in error furnished the stock by his capital employed in its purchase, and the defendant his time and trouble in preparing it for market, and making sales. It is not necessary that the parties should agree to share in the losses.”

To the same effect, Leeds v. Townsend, 228 Ill. 451 ; Phillips v. Reynolds, 236 Ill. 119; Ackerman v. Bickley, 248 Ill. App. 1.

From a consideration of all the evidence, we find that the plaintiffs and defendant were partners to share in the profits derived from the business and that defendant had such an interest and right of possession in the property that it could not be taken by a replevin writ.

Other errors have been assigned as to rulings on evidence, giving of instructions, form of verdict and judgment but the view we take of the case makes it unnecessary to give them consideration.

For the reasons assigned the judgment of the lower court is reversed.

Judgment reversed.


text:
    John Cripe, Appellee, v. Pevely Dairy Company, Appellant.

      Opinion filed June 4, 1934.
    Hensley & Hensley, June C. Smith and Hugh V. Murray, Jr., for appellant.
    J. G-. Burnside, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

October 1, 1931, appellant, Pevely Dairy Company, hereinafter referred to as defendant, filed a complaint in the District Court of the United States for the Southern District of Illinois against John B. Pearce and a large number of other persons, including appellee herein, who is hereinafter referred to as plaintiff. By said bill, defendant sought an injunction to restrain the defendants therein named from committing certain acts of violence growing out of a controversy between the plaintiff as a milk distributor in St. Louis and who purchased milk from producers in this State and the defendants who were milk producers residing in this State, plaintiff herein residing near Mulberry Grove in Fayette county.

October 10, 1931, a preliminary injunction was ordered restraining and enjoining the plaintiff herein and other parties named as defendants in said bill from

“1. Assaulting or threatening bodily injury to plaintiff’s employees, or any of them, while engaged in transporting milk or cream to plaintiff’s place of business in the City of St. Louis, Missouri.

“2. Assaulting or threatening bodily injury to any other person engaged in transporting milk or cream to plaintiff’s place of business in St. Louis, Missouri.

“3. Destroying, injuring or taking possession of any milk or cream being transported to plaintiff’s place of business at St. Louis, Missouri.

“4. Injuring or molesting any truck or milk containers being used in the transportation of milk or cream to plaintiff’s, place of■ business, at St. Louis, Missouri.

“5. Assaulting or threatening bodily injury to any producer under contract to supply milk or cream to plaintiff until the further order of this court.

“It is further ordered that this preliminary injunction shall be binding upon persons who have knowledge of the contents and purport thereof.”

Said injunction writ was served on plaintiff the same date of its issuance.

On the evening of October 13, following the issuance of said temporary writ a number of persons interested, on one side or the other of said milk controversy, gathered in Mulberry Grove. There was to be a meeting for those farmers who were then selling milk to the defendant. Prior to the meeting, an altercation arose among some of the persons who had gathered in front of the building, where the meeting was to be held, and Melvin Stokes, a resident of that vicinity and who was present to attend the meeting, was struck a blow on the head.

The later part of October, the federal court, on a hearing relative to making said temporary injunction permanent, heard evidence.of various acts of violence on the part of the several defendants in said injunction suit, including the assault on Stokes at Mulberry Grove. Witness Benefield testified that he saw the plaintiff strike Stokes and three other witnesses, all residents of Mulberry Grove, testified to a state of facts which if true would prove conclusively that the plaintiff was not the person that struck Stokes. No other evidence was heard in reference to said incident. Upon a consideration of all the evidence taken at said hearing, the court made the injunction permanent.

January 11, 1932, the defendant herein filed its petition or information in said federal court, alleging the facts averred in the original petition, the granting of temporary injunction on October- 10, service of copy of said injunction and that one of the company’s drivers, Melvin Stokes, who collects the milk from producers and delivers said milk to the dairy company at its place of business in Hagerstown in Fayette county, was on October 13 “lawfully standing in the street of the town of Mulberry Grove, Illinois, waiting to attend a meeting of Pevely Dairy Company in said town, he was stopped and upbraided and abused by various people congregated in said street and warned to cease delivering milk to your informant’s place as aforesaid that in the course of the argument, John Gripe, a defendant herein, stepped up beside said driver, Melvin Stokes, and hit him a vicious blow with his fist on the side of the head.” The petition was sworn to by said attorney, Robert T. Hensley. Accompanying said petition were three affidavits. The affidavit of Melvin Stokes was that he had been struck on the head and that someone told him that it was John Cripe. Herbert Wright and Henry Roe stated by their respective affidavits that they saw John Cripe strike Melvin Stokes on the right temple. On the filing of said petition and affidavits, the federal court entered the following order:

“This cause coming on to be heard upon the petition heretofore filed in said cause and upon affidavits attached thereto, charging that John Cripe is in contempt of the restraining order and preliminary injunction heretofore issued by this Court, in the case of Pevely Dairy Company, a Corporation, Plaintiff v. J. R. Pearce, et al., Defendants, the particulars of which said contempt are fully set forth in said petition and in the affidavits attached thereto:

“It Is Therefore Now Ordered That the Marshal of the United States for the Southern District of Illinois Southern Division, do forthwith apprehend the said John Cripe if he be found in his bailiwick and bring him before this Court, at Springfield, Illinois, in said Division, and District, there to be dealt with as the law may direct.

“On motion of the plaintiff in the above entitled cause, it is ordered by the Court that leave be and is hereby granted the said plaintiff to file a petition for contempt of Court against said John Cripe.”

Pursuant to this order, plaintiff was arrested on the following day by the United States marshal, taken to Springfield and lodged in jail. Plaintiff filed his answer to said petition and upon hearing on said petition and answer, defendant was discharged.

Plaintiff filed this suit in the circuit court of Fayette county to recover damages alleged to have grown out of malicious prosecution in the contempt case.

The declaration consisted of one count to which defendant filed a plea of general issue. Defendant filed three special pleas to which demurrer was sustained and defendant elected to stand on said pleas.

Two special interrogatories were submitted to the jury to which they answered that the defendant did not act upon the advice given to it by its attorney and file the complaint in good faith believing that the facts stated in said affidavits constituted probable cause and that the defendant did not at the time of filing the complaint and before the issuance of the warrant have probable cause to believe that plaintiff was guilty of violation of the injunction.

The grounds relied upon for reversal are, first, that appellee presented the facts to a reputable attorney and acted upon his advice, second, that the order entered by the federal court to show cause was an adjudication that there was probable cause for the issuance for the attachment and therefore binding upon the parties in this proceeding, third, that there is no evidence in the record to support the verdict by the jury that the defendant acted with malice and without probable cause.

Following the granting of the permanent injunction in the latter part of October, Mr. Graham’s connection with the case was terminated for a time. Mr. Hensley testifies that he presented the affidavit of Stokes, Wright and Roe to Mr. Graham and that they were considered in connection with the evidence.

Robert T. Hensley of the law firm of Hensley & Hensley of St. Louis is the general attorney for the defendant and appeared on behalf of defendant in all steps of the injunction proceeding. Hon. James M. Graham of Springfield was the local attorney in the injunction matter. His services were terminated after the injunction had been made permanent and he was not re-employed until Mr. Hensley consulted with him relative to the contempt charges at which time there was a discussion of the evidence on the Stokes incident, which had been introduced at the hearing in the federal court the latter part of October and the Stokes, Wright and Roe affidavits, above referred to, were considered. Mr. Hensley testified that Mr. Graham advised that on the facts and affidavits submitted there was probable cause for the filing of a petition charging plaintiff with contempt. Graham and Hensley then prepared and filed the petition. It is conceded in the record that Mr. Graham was a reputable lawyer and in good standing.

Defendant contends that since the facts upon which the warrant was issued were submitted to a reputable attorney and such attorney advised prosecution, this constituted probable cause and is an absolute defense to this suit.

The question in this case is not whether the plaintiff was actually guilty of the contempt charge, but whether the defendant acted in good faith in presenting the matter to its attorney. Under the facts of this case good faith on the part of the defendant raises the question of fact as to the diligence it exercised in ascertaining all the facts surrounding this incident. Did it before interviewing its attorney make such an investigation to determine the facts as an ordinarily prudent person would have made under the same circumstances? In Anderson v. Friend, 71 Ill. 475, the court said, “It is, of course, a question of fact, in such cases, whether the party has fairly communicated to his counsel the facts within his knowledge, and used reasonable diligence to ascertain, the truth, as also whether he acted in good faith upon the advice received from counsel to be determined by the jury, from the evidence. Ross v. Innis, 26 Ill. 260, 277; Ross v. Innis, 35 Ill. 487, 505; Wicker v. Hotchkiss, 62 Ill. 107; Collins v. Hayte, 50 Ill. 337; Ames v. Snider, 69 Ill. 376.”

There was a sharp conflict in the evidence introduced at the hearing on the permanent injunction and the affidavits submitted relative to the identity of the one who struck Stokes. Stokes was struck in the dark while in the midst of a crowd and under circumstances where it would be difficult to identify his assailant. There were a number of persons present but it does not appear that defendant interviewed any of them, other than Stokes, Wright and Roe and it does not appear that any investigation was made as to the character or standing of the witnesses who had testified in behalf of plaintiff. Whether the exercise of proper diligence on the part of the defendant required such investigation was a question for the jury. It could only become a question for the court when the evidence as to the good faith of the defendant in submitting the facts to its attorney should be so clear and undisputed that all reasonable minds must reach the same conclusion therefrom. There is evidence in this case from which the jury might rightfully have concluded that the defendant did not submit to its attorney all the facts that it knew, or such facts as it might have acquired had it exercised that degree of care and diligence required by law.

Defendant further contends that the federal statute provides that before an attachment for contempt can issue there must be a finding of the court that there is good cause shown for the issuance of the attachment and that it constitutes probable cause and is an absolute bar to the suit.

That part of the federal statute which is material here and under which the contempt proceeding was instituted is as follows, “In any case the court or a judge thereof may, For Good Cause Shown, by affidavit or proof taken in open court or before such judge and filed with the papers in the case, dispense with the rule to show cause, and may issue an ’attachment for the arrest of the person charged with contempt.”

There is nothing in the wording of this order entered by the federal court that indicates that there was any finding that good cause was shown.

Plaintiff relies upon Glenn v. Lawrence, 280 Ill. 581, which was an action to recover damages for malicious prosecution instituted by John M. Glenn, editor of The Manufacturers’ News against Andrew M. Lawrence, who was president and general manager of the Chicago Examiner. Lawrence had gone before a judge of the municipal court of Chicago and also before the criminal court of Cook county and swore to a complaint charging Glenn with criminal libel. The alleged libelous articles which had been published by Glenn in the News were set forth in the complaint. The trial court directed a verdict in favor of Lawrence on the grounds that the complaint with the libelous articles set forth having been submitted to a judge of a court of record constituted a showing of probable cause.

The Supreme Court distinguished between a complaint containing libelous articles and those cases where a complaint is filed charging a crime in the terms of the statute and where there would be facts in the knowledge of the prosecuting witness which would have to be proven. The court held that since the complaint contained all the facts, namely, the libelous articles, the issuance of the warrant by the court constituted probable cause. Recognizing the distinction between the two classes of complaints, the court said, “The ordinary complaint that a criminal offense has been committed merely charges its commission substantially in the language of the statute creating the offense, and whether facts known to the defendant constitute probable cause is a subject of proof in a suit for malicious prosecution. ’ ’

Plaintiff cites in support of his contention Lyons v. Kanter, 285 Ill. 336, which was a suit to recover damages out of a malicious prosecution arising out of an embezzlement charge. The court said, “The question of probable cause is one of fact, to be determined from the evidence without regard to the folding of the examining magistrate. Even if his finding were regarded as prima facie evidence, there was other evidence on both sides of the question and the judgment of the Appellate Court affirming that of the municipal court is final on the question.”

It is our conclusion that under the authorities cited the order entered by the federal court ordering the attachment is not a bar to this suit.

Defendant’s third contention is that there was probable cause for instituting the contempt charges and therefore no malice. It is the law that if there was probable cause, there could be no malice but it is also well settled that where it has been found that the prosecution was without cause, the jury may infer malice. Krug v. Ward, 77 Ill. 603; Thompson v. Force, 65 Ill. 370; Chapman v. Canorey, 50 Ill. 512. Since it being our view that the jury was under the evidence warranted in finding that there was no probable cause, then it follows that the jury had the right to infer malice.

The defendant requested the court to submit to the jury seven special interrogatories. The court submitted two which substantially covered the same question as presented in the other interrogatories. The matter of giving special interrogatories is discretionary with the trial court and the refusal of the interrogatories submitted did not constitute an abuse of discretion.

Finding no reversible error, the judgment is affirmed.

Judgment affirmed.